text:
    A97A0286.
    DRUITT v. THE STATE.
    (483 SE2d 117)
   Eldridge, Judge.

A Cobb County jury found appellant William Druitt guilty of the offenses of DUI — less safe driver, driving without a license, and failure to maintain a lane. The trial court denied appellant’s motion for new trial thereon, and he appeals. We affirm.

At 2:30 a.m., a Cobb County police officer, who was routinely “running radar” northbound from a position on Interstate 75 south of Chastain Road in Cobb County, received a CB radio transmission which stated, “Any smoky bear, any smoky bear in the area, there’s a Jeep Cherokee weaving in and out . . . weaving on the roadway.” Within two minutes, the police officer spotted a Jeep Cherokee traveling in the center lane of the three northbound lanes. The officer fell in behind the Jeep and followed it; the vehicle twice drifted over into the lane right of center and then corrected itself. The police officer activated his blue light, and pulled the Jeep over.

Immediately upon approaching appellant, the officer noticed the “strong, strong odor of alcohol coming from the vehicle” and that appellant’s speech was “very slurred.” Appellant, who was still behind the wheel, did not have a driver’s license. The officer asked appellant to take several field sobriety tests, and he agreed to do so. In addition, the officer conducted an alco-sensor test. Based upon the totality of the circumstances, which included appellant’s unsatisfactory performance on the majority of the administered field sobriety tests and a positive result on the alco-sensor test, appellant was placed under arrest.

At trial, in addition to the police officer’s testimony, the state introduced against appellant two similar transactions: an April 14, 1990 Gwinnett County arrest for DUI, wherein appellant was initially stopped for weaving between lanes, to which DUI offense appellant entered a nolo plea; and a January 22, 1991 DeKalb County arrest for DUI, wherein appellant was initially questioned for running his car over the top of a retaining wall, to which DUI offense appellant entered a guilty plea. Held:

1. Appellant first challenges the admission of the similar transaction evidence by alleging a veritable smorgasbord of error: (1) the state failed to properly identify the purpose for the admission of the similar transaction evidence; (2) the Gwinnett County similar transaction witness failed to properly identify appellant as the perpetrator of the independent offense; (3) the state failed to prove sufficient similarity between the independent offenses and the offense charged; (4) the trial court erred in permitting the state to introduce certified copies of the prior Uniform Traffic Citations (UTCs); and (5) the trial court erred by permitting the state to redact the prior UTCs to remove references to blood alcohol levels and sentences. In turn, we address each allegation as follows:

(1) In the case sub judice, the state offered the similar transaction evidence for a proper purpose, i.e., course of conduct and bent of mind, pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), and properly articulated that purpose at the Rule 31.3 hearing. Kirkland v. State, 206 Ga. App. 27, 28 (424 SE2d 638) (1992). Further, the trial court correctly determined that the state’s purpose for the introduction of the similar transaction evidence was appropriate, and properly instructed the jury thereon in the final charge. There was no error.

(2) While the Gwinnett County similar transaction witness was not able to identify appellant in the courtroom during trial, the state offered sufficient evidence that appellant was the perpetrator of that independent offense. “Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it.” (Citation and punctuation omitted.) Gunter v. State, 215 Ga. App. 517, 518 (451 SE2d 108) (1994). The state offered evidence that appellant’s driver’s license number and date of birth were the same in both the Gwinnett County case and the case-in-chief. In addition, during the Williams hearing, appellant did not dispute that he was the perpetrator of the Gwinnett County offense to which he pled nolo. This evidence was sufficient to demonstrate that appellant was the perpetrator of the independent offense. There was no error.

(3) The state showed sufficient similarity between the independent offenses and the offense charged. “[D]riving under the influence [is] essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving . . . while under the influence that establishes the commission of [that] crime. A prior act of driving . . . while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct.” Kirkland, supra at 28; Casoria v. State, 210 Ga. App. 269 (435 SE2d 678) (1993). There was no error.

(4) The introduction of certified copies of the prior UTCs was proper. UTCs, such as those introduced in the case sub judice, serve as formal indictments or accusations in the prosecution of the crimes alleged therein. Weaver v. State, 179 Ga. App. 641 (347 SE2d 295) (1986); see also State v. Gerbert, 219 Ga. App. 720, 726 (467 SE2d 177) (1995) (Beasley, C. J., concurring in part and dissenting in part). Such instruments of prosecution are admissible as evidence of similar transactions, along with additional evidence of similarity. Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). There was no error.

(5) The trial court properly redacted the UTCs in order to remove references to the prior sentences. “[T]he better method would be not to admit the sentence in a prior offense where a similar transaction is involved[.]” Weaver v. State, 206 Ga. App. 560, 561 (426 SE2d 41) (1992). Appellant is incorrect in his contention that “[t]he argument would be Appellant’s to make if he did not want certain information concerning prior similar transactions to go to the jury.” The information which appellant contends should have gone to the jury was irrelevant and thus, was properly redacted by the trial court in order to prevent the jury’s consideration thereof, despite appellant’s argument to the contrary. OCGA § 24-2-1; Hunt v. State, 204 Ga. App. 799, 800 (420 SE2d 656) (1992).

Further, the trial court properly redacted the UTCs to remove information concerning appellant’s prior blood alcohol levels in the similar transaction cases. This specific, numerical information regarding blood alcohol content was irrelevant to demonstrate any similarity or lack thereof with regard to the present offense for which appellant was prosecuted, DUI — less safe driver, wherein a specific blood alcohol content is unnecessary to prove the offense. Both error and harm must be shown affirmatively to warrant reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994). As appellant has shown neither, there was no error.

In short, appellant’s allegations concerning the admission of the similar transaction evidence are without merit.

2. In his next enumeration of error, appellant challenges the

admissibility of the field sobriety tests; appellant contends that in order for field sobriety tests to be admissible, there must be foundational testimony regarding the acceptance of field sobriety tests in the scientific community and testimony from the police officer regarding the officer’s medical training “which would enable him to interpret the field sobriety tests.” These issues have been decided adversely to appellant. Hawkins v. State, 223 Ga. App. 34 (476 SE2d 803) (1996); see also State v. Pastorini, 222 Ga. App. 316 (474 SE2d 122) (1996). Moreover, field sobriety tests, like any other form of testing, “may be subject to human error in its administration or interpretation; however, such potential for error does not impact on the validity ... such evidence would relate to weight rather than admissibility.” Hawkins, supra at 38; see also Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991). The burden would be on the party raising objection to show error in the administration or interpretation of the tests. Hawkins, supra at 38. In the case sub judice, there was no error.

3. In his next enumeration of error, appellant contends that he was denied a thorough and sifting cross-examination of the arresting officer; appellant contends that this occurred when the trial court did not permit appellant to ask the officer to perform the one-leg stand field sobriety test a second time. However, we find that the trial court correctly determined that appellant’s request for a repeat performance of the one-leg stand, this time using the other leg, exceeded appellant’s initial rationale for the officer’s exhibition: a “demonstration” of the test. Instead, appellant was attempting to prove that the officer could not do the test. Whether the officer could perform the test was irrelevant, and such evidence was properly omitted, OCGA § 24-2-1. There was no error.

4. Next, appellant contends that the trial court erred in its charge to the jury on circumstantial evidence. We disagree. The trial court thoroughly charged the jury on the statutory provisions concerning direct and circumstantial evidence, including the principles contained in OCGA § 24-4-6. Moreover, we find that the trial court’s attempt to explain the difference between direct and circumstantial evidence in layman’s terms, using “snow” as an illustration, was proper, correctly illustrated these evidentiary concepts, neither confused nor misled the jury, and in no manner resulted in an unfair statement of the law. There was no error.

Decided February 11,1997

Reconsideration denied March 5,1997

Wallace C. Clayton, Amelia G. Pray, for appellant.

Benjamin F. Smith, Jr., Solicitor, John S. Morgan, Barry E. Morgan, Assistant Solicitors, for appellee.

5. Finally, appellant challenges the sufficiency of the evidence supporting his conviction. “On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Ogletree v. State, 211 Ga. App. 845, 847 (440 SE2d 732) (1994). In the case sub judice, the evidence introduced at trial was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses of DUI — less safe driver, driving without a license, and failure to maintain a lane. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was no error.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       At oral árgument, appellant argued that the officer’s reference to field sobriety tests as “divided attention” tests, in itself, demonstrated an expertise for which no foundation was laid as to where the officer learned the term or obtained such knowledge; that the officer’s, testimony as to the fact that field sobriety tests divide a subject’s attention between two tasks is beyond mere personal observation. We disagree. Appellant has failed to demonstrate to this Court that it is beyond “common sense” and “common experience” to be aware that saying the “ABCs” while standing on one leg requires a person to do two things at one time. Hawkins, supra at 36. Appellant has the burden, on cross-examination, to cast doubt upon the notion that such a division of attention is an effective tool for the detection of alcohol or drug impairment.


source: Caselaw Access Project

author: ELDRIDGE, Judge.

license: Public Domain

text:
    A97A0378.
    HUBBARD v. THE STATE.
    (483 SE2d 115)
   ELDRIDGE, Judge.

On January 14, 1991, the appellant was indicted under indictment number 91-6268 on three charges: burglary, theft by taking, and a recidivist count. Appellant pled not guilty to indictment number 91-6268 on February 13, 1991. On March 11, 1991, the appellant was re-indicted under indictment number 91-6335. The second indictment consisted of the original charges plus two additional charges of driving with a revoked license and driving under the influence (“DUI”). On March 13, 1991, the appellant pled not guilty to the second indictment, but later on the same day, withdrew his not guilty plea and entered a guilty plea to Count 1, burglary; Count 3, revoked license; and Count 4, DUI. The court entered a nolle prosequi on Count 2, theft by taking, and Count 5, the recidivist count. Subsequent to the entry of the guilty plea on the second indictment, indictment number 91-6335, the court on March 13, 1991, also entered a nolle prosequi on the first indictment, indictment number 91-6268, and within such order stated that appellant had pled guilty and been sentenced to the same events in indictment number 91-6335.

On May 23, 1996, the appellant filed a petition to correct void sentence under indictment number 91-6335. This petition was denied by the trial court on July 25, 1996, and this appeal follows.

Appellant’s sole enumeration of error is that the trial court erred in denying his petition to correct void sentence. Appellant contends that the nolle prosequi which was entered on indictment number 91-6268 was improperly entered because it was not entered in open court, in his presence, and with his consent. Appellant further contends that the entry of the nolle prosequi on indictment number 91-6268, after his plea of guilty in indictment number 91-6335, violated his protection against procedural double jeopardy, thereby making his sentence under indictment number 91-6335 void.

“A void judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights[,] [b]ut whenever it is brought up the party may assail its pretentions [sic] and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral. By statute, in Georgia, the judgment of a court having no jurisdiction of the person or subject matter, or void for any cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it. OCGA § 17-9-4. If the judgment is a nullity and void, the right to attack it is not lost by laches[,] nor is it waived by the failure to attack it before, since it is void, and not voidable, in that the abatement absolutely extinguishes the prosecution, and by definition amounts to the entire overthrow or destruction of the actions.” (Citations and punctuation omitted.) Barrett v. State, 183 Ga. App. 729, 730 (360 SE2d 400) (1987), overruled on other grounds, Gonzalez v. Abbott, 262 Ga. 671 (425 SE2d 272) (1993). Therefore, appellant’s attack of his conviction under indictment number 91-6335 is properly before this Court.

“The United States and Georgia Constitutions proscribe a defendant’s being twice placed in jeopardy for the same offense. United States Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1-8 extend the proscription of double jeopardy beyond those constitutional limits by placing limitations upon multiple prosecutions, convictions and punishments for the same criminal conduct. [Cit.]” State v. Martin, 173 Ga. App. 370, 371 (326 SE2d 558) (1985). “ A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn. Jones v. State, 232 Ga. 324 (206 SE2d 481) [(1974)].’ Shaw v. State, 239 Ga. 690, 692 (1) (238 SE2d 434) [(1977)].” Turner v. State, 152 Ga. App. 354, 355 (262 SE2d 618) (1979). The pendency of a prior indictment for the same offense based on the same facts for which the defendant may have been arraigned on and entered a plea of not guilty does not place a defendant in jeopardy, and he does not face a repeated prosecution simply because he is tried on a subsequent indictment. “ “Where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried. Whenever he has been acquitted or convicted upon any one of them, [only then] he can plead such acquittal or conviction in bar of a prosecution of any of the others.’ Irwin v. State, 117 Ga. 706 (45 SE 48) [(1903)].” Gray v. State, 6 Ga. App. 428 (1) (65 SE 191) (1909); see also Shaw v. State, 239 Ga. 690 (238 SE2d 434) (1977); Cochran v. State, 176 Ga. App. 58 (335 SE2d 165) (1985).

Therefore, when appellant entered his plea of guilty and was sentenced in indictment number 91-6335, jeopardy had not previously attached to the appellant on these offenses. Jeopardy had not attached to the appellant under indictment number 91-6268 since the appellant had only been arraigned and pled not guilty, and a jury was not impaneled and sworn to serve on the trial of such indictment. It is the nature and sequence of critical events that controls when jeopardy attaches, not the dates of the indictments.

“After an examination of the case in open court and before it has been submitted to a jury, the prosecuting attorney may enter a nolle prosequi with the consent of the court. After the case has been submitted to a jury, a nolle prosequi shall not be entered except by the consent of the defendant. . . .” OCGA § 17-8-3; see McIntyre v. State, 189 Ga. App. 764 (377 SE2d 532) (1989); Newman v. State, 166 Ga. App. 609 (305 SE2d 123) (1983); Fortson v. State, 13 Ga. App. 681 (79 SE 746) (1913).

It cannot be determined from the record before this Court what occurred at the time the nolle prosequi was entered on indictment number 91-6268; the appellant has only provided this Court with a record and transcript of the proceedings in indictment number 91-6335 which does not contain any reference to the entry of the nolle prosequi in indictment number 91-6268. A copy of indictment number 91-6268, which appellant had attached as an exhibit to his petition to correct void sentence, shows the entry of the nolle prosequi on its face. In the absence of a transcript it is assumed that the proper procedure was followed. Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984). Appellant has failed to preserve such issue on appeal; therefore, the trial court must be affirmed.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided February 10,1997

Reconsideration denied March 5,1997.

Harold J. Hubbard, pro se.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A97A0474.
    MARTIN v. PATTON.
    (483 SE2d 614)
   Eldridge, Judge.

This is an appeal from a jury verdict to quiet title involving coterminous landowners; the titles to the two parcels of land came from common grantors, the Lloyd Cleveland Estate and Byrd Patton. The land at issue lies in Land Lots 76 and 77 of the Fourth Land District, originally Henry County, now Spalding County, Georgia, and was surveyed in June 1931 by N. S. Westbrook, Civil Engineer. The survey plat was recorded in Plat Book 2, page 217, of the Spalding Superior Court records. The original 1931 survey of the tract of land by Westbrook gave courses and distances for the perimeter but did not survey the land lot line between Land Lots 76 and 77. On the 1931 survey, the land lot line is shown as a broken line which divided the larger parcel from the smaller parcel as a matter of convenience for the original grantor; the larger parcel (Lot 76) showed on the plat as having “83 25/100 +” acres, and the smaller parcel (Lot 77) showed on the plat as having “59 85/100 ±” acres.

On April 6, 1951, Byrd Patton conveyed to Ralph E. Patton, appellee’s husband, for love and affection, the smaller tract lying in Land Lot 77, which purported to contain 55.85 acres “more or less” and which was the rest and remainder of the parcel of land in Land Lot 77; the legal description stated the acreage in specific terms as containing 59.85 acres, less four acres previously conveyed. Appellee, Velma Louise Helms Patton, acquired the land by virtue of a deed of assent, dated September 2,1982, and which was essentially the same as the legal description contained in the deed to her husband. The legal description read 55.85 acres of land “more or less” and “all that tract or parcel of land lying and being in Land Lot 77.” The deed of her deceased husband had a slightly different description as being in the southwest corner of Land Lot 77, in the Fourth District of originally Henry County, now Spalding County, Georgia, as shown on plat of survey of the Lloyd Cleveland Estate, recorded in Plat Book No. Two, page 217, in the Clerk of Spalding County Superior Court; less four acres in the southeast corner, heretofore sold to R. C. Rogers; “said property is bounded to the North by Tom Moore Estate, East by Public Road and land of R. C. Rogers; South by Public, Road, and land of H. H. Thompson; and west by land lot number Seventy-Six (76).”

In January 1942, L. P. Goodrich, Administrator of the Estate of Alan M. Cleveland, sold at public sale to Byrd Patton the land described in the deed as “Eighty three and twenty-five hundredths (83.25) acres in Lot Seventy-six (76), and fifty nine and eighty-five (59.85) acres in lot seventy seven (77), in the Fourth District of original Henry now Union District of Spalding County, Georgia, bounded on the East by public road and the lands of Grady Parker and G. G. Aiken; on the South by public road and the lands of John Calhoun and Wesley; on the West by a creek and the lands of Tom Moore; and on the North by the lands of Tom Moore, as shown by plat and survey recorded in the Clerk’s office of said County in Plat Book No. 2, page 217.” This legal description contained no metes and bounds. This deed begins with specific acreage instead of the usual language “all that tract and parcel of land lying and being” which indicates that the intent of the grantor was to convey the land by acreage instead of tract. See Roberts v. Groover, 156 Ga. 386, 387 (2) (119 SE 696) (1923). The deed to Velma Louise Helms Patton, however, was not a specific acreage deed but a deed for a tract, because it used both the language “more or less” after the acreage and the language “all that tract or parcel of land lying in Land Lot 77.”

Appellant, Ruth G. Martin, acquired title to the larger parcel of land in Land Lot 76 by warranty deed from Josiah Arnold Patton, dated December 26, 1952, which conveyed the larger parcel that purportedly contained 83.25 acres. The legal description gave no metes and bounds; it described the parcel specifically as 83.25 acres of land in the Southeast corner of Land Lot 76 in the Fourth Land District of originally Henry County, now Spalding County, Georgia, as shown on Plat of Survey of the Lloyd Cleveland Estate and recorded in Plat Book No. Two, page 217 in the office of the Clerk of the Superior Court of Spalding County, Georgia, and bounded on the north by Tom Moore Estate; east by Land Lot 77; south by Land Lot 53; and west by lands of the Tom Moore Estate and John Calhoun; “[t]his deed conveys the same real property as that which was conveyed by Mrs. Johnnie Lee (Mrs. Byrd) Patton to Josiah Arnold Patton by warranty deed dated April 6, 1951.”

All of appellant’s land lies exclusively in Land Lot 76, and all of appellee’s land lies exclusively in Land Lot 77. Appellant’s eastern boundary line is appellee’s western boundary line; such boundary line is the land lot line between Land Lots 76 and 77.

In 1955, appellant hired the original surveyor, N. S. Westbrook, to survey the land lot line between Land Lots 76 and 77 which formed the common property line between the two tracts of land. Westbrook completed the survey on March 10, 1955. The bill for the survey stated that Westbrook had established “lines and corners to property purchased from Mr. and Mrs. Byrd Patton, being 10 acres of Old Goodin homeplace and all of Old Cleveland Place located in Land Lot 76 — marking lines with iron stakes and corners with cone, monuments — computing acreages and making plat and prints of entire property owned by Mrs. Martin.”

After the boundary line had been marked by iron stakes by Westbrook, appellee’s husband erected a fence on the line. The fence remained in good repair on the date of the survey by Robert S. Mitchell in 1994.

After appellee’s husband died in 1982, Warren L. Storey, Jr. surveyed appellee’s land, which survey was dated August 20, 1982. The Storey survey showed appellee’s west line and appellant’s east line and the land lot line between Land Lots 76 and 77 as being 129 feet west of the line established by the 1955 Westbrook survey.

Appellant had a survey done of the location of the land lot line between Land Lots 76 and 77, which was completed on July 19, 1994. Such plat showed what, in Mitchell’s opinion, were three lines: the location of the land lot line between Land Lots 76 and 77 based upon land lots north and south and which was the easternmost line; the 1955 Westbrook line along which the fence ran and which lay in the middle line; and the 1982 Storey line, which was the westernmost line on the 1994 Mitchell plat.

Appellant brought suit to quiet title to the area in dispute. The jury had all three lines from which to decide, and they chose the 1982 Storey line which was the westernmost line on the 1994 Mitchell plat.

Storey at trial testified without objection that, in his opinion, since the deeds contained no metes and bounds, although they had physical boundaries, either natural, man-made, or other ownership, the method to determine the location of the dividing line between the two parcels was to calculate the exact acreage conveyed which would establish such dividing line, notwithstanding that such dividing line was described as the land lot line between Land Lots 76 and 77. Although the 1931 survey by Westbrook shows the acreage as more or less the stated figures by use of the symbols “+” over a Storey testified, without objection, that the acreage in each land lot was exactly 59.85 and 83.25 acres, which was the amount shown in the deeds. Storey admitted on cross-examination that Westbrook’s survey in 1955 was an actual survey to determine the location of the land lot line between Land Lots 76 and 77. Storey also admitted on cross-examination that the dividing line established by him was not the land lot line and that the 1955 survey by Westbrook and the 1994 survey by Mitchell established the land lot line.

Appellant did not move for a directed verdict, object to Storey’s testimony, or object to the charge of the court. The form verdict was drawn up by counsel without any objection, and the jury had all three lines from which to choose; they chose the 1982 Storey line. On March 1, 1996, the trial court entered a decree based upon the jury verdict pursuant to OCGA § 23-3-67. The motion for new trial was a general form motion. The motion for new trial was denied. The notice of appeal was filed on September 23, 1996, and was from the judgment entered on March 1, 1996; the motion for new trial was denied on August 30, 1996.

Appellant brought a petition to quiet title. Appellee answered and counterclaimed for trespass. By pre-trial the parties agreed to submit the issue to a jury. Counsel also agreed to the form of the verdict. On March 1, 1996, the trial court entered a decree based upon the jury verdict pursuant to OCGA § 23-3-67.

1. Appellant’s first enumeration of error is that the jury erred in failing to establish the dividing line between the parties as the land lot line and, thus, the boundary line surveyed in 1955 by appellant, acquiesced in by appellee by erecting a fence on said line in 1956 and which line was undisputed until 1982 or later.

While appellee’s husband may have erected a fence along the survey line established by the 1955 Westbrook survey, there is a conflict in the evidence as to why this was done and what, if anything, such fence signifies. A fence placed upon a person’s own land, although near the boundary line, does not establish an agreement to a boundary line. Carter v. Becton, 250 Ga. 617 (300 SE2d 152) (1983); David v. Crane, 240 Ga. 671 (242 SE2d 131) (1978); Bennett v. Perry, 207 Ga. 331 (61 SE2d 501) (1950); Dixon v. Dixon, 97 Ga. App. 54 (102 SE2d 74) (1958). The question of intention in erecting and maintaining a fence is a question for the jury. Frost v. Williamson, 239 Ga. 266 (236 SE2d 615) (1977); Cothran v. Burk, 234 Ga. 460 (216 SE2d 319) (1975); Dixon v. Dixon, supra. While the jury could find from the existence of a fence at the location that this was an agreed-upon boundary, such factual determination was for the jury. Meeks v. Futch, 251 Ga. 82 (303 SE2d 277) (1983); Lyons v. Bassford, 242 Ga. 466 (249 SE2d 255) (1978); Shipp v. Rakestraw, 241 Ga. 8 (243 SE2d 52) (1978); Campbell v. Savage, 237 Ga. 578 (229 SE2d 474) (1976).

Upon disputed evidence, the jury found for appellee on this issue. Under the “any evidence” standard of review, it cannot be said that there was insufficient evidence to support the jury’s decision regarding the fence line. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992); Re/Max of Ga. v. Real Estate Group &c., 201 Ga. App. 787, 788 (412 SE2d 543) (1991). We find no error on this enumeration of error.

2. Appellant’s second enumeration of error is that the trial court erred, as a matter of law, in not finding that the location of a land lot line takes precedence over acreage cited in deeds of coterminous landowners when both deeds cite the land lot line as the common boundary of the properties. We agree.

An action to quiet title is an equitable action under OCGA § 23-3-60 et seq.; however, either party may demand a trial by jury under OCGA § 23-3-66. A decree was entered by the trial court pursuant to OCGA § 23-3-67, and appellant appealed from such judgment. While the jury returns an advisory verdict as to disputed issues of fact, the trial court in equity must enter a proper decree based upon the law and facts, just as must be done when a special master hears the issues of law and fact. See Capers v. Camp, 244 Ga. 7, 12 (4) (257 SE2d 517) (1979); Brown v. Wilson, 240 Ga. 856, 857 (1) (242 SE2d 603) (1978); Higdon v. Gates, 238 Ga. 105, 106 (231 SE2d 345) (1976); Thornton v. Reb Properties, 237 Ga. 59 (226 SE2d 741) (1976). If the verdict is in error, like a special master’s award, then the trial court should set it aside. See Capers v. Camp, supra at 12; see also Addison v. Reece, 263 Ga. 631, 632 (1) (436 SE2d 663) (1993).

The case sub judice is a boundary line dispute between two coterminous grantees from a common grantor, and each deed used the land lot line of Land Lots 76 and 77 as the east/west boundary of each tract of land; further, neither deed purported to convey land that lay outside the specific land lot in which the conveyed tract lay. Thus, to cross the land lot line separating the two tracts would convey nothing and be contrary to the specific legal descriptions. While each deed did not convey by metes and bounds, each deed made reference to physical boundaries (either man-made or natural), the 1931 recorded plat, and the land lot line. While Storey gave his opinion that the westernmost line was the dividing line between the two tracts of land because the deeds conveyed specific quantities of acreage and the 1931 Westbrook survey plat was accurate in showing such acreage, Storey erroneously ignored the 1931 plat which gave the “+” and symbols for more or less acreage. In doing so, Storey invaded the province of the trial court in stating the legal conclusion that the dividing line could be determined based upon the acreage even though it crossed the actual land lot line between Land Lots 76 and 77, and by stating that appellee’s deed was not a specific acreage conveyance but a tract conveyance which used the phrases “more or less” and “tract and parcel of land lying in Land Lot 77.” Storey agreed that there was no factual dispute that the land lot line had been correctly located by the 1955 Westbrook survey and the 1994 Mitchell survey. Since there existed no factual dispute as to where the land lot line between Land Lots 76 and 77 lay, then there was no factual dispute for the jury to decide. It was for the trial court to determine, as a matter of law, that: the dividing line could not be located in the fashion used by Storey; that there existed no dispute as to fact as to the location of the land lot line between Land Lots 76 and 77 on the ground; and that, as a matter of law when legal descriptions gave the land lot line as a boundary, such location of the land lot line controlled over acreage.

Justice Lumpkin, in Riley v. Griffin, 16 Ga. 141, 147-148 (1854), set forth the criteria lay which legal descriptions are interpreted and governed. “1. Where the calls of a deed are for natural as well as known artificial objects, both courses and distances, when inconsistent, must be disregarded.” Pindar, Ga. Real Estate Law & Procedure (4th ed. 1993), § 19-155, citing Riley v. Griffin, supra at 147. “Artificial boundaries as applied to this case include fences, roads, streets, and land lot lines. They are evidence of the points which land owners, past and present, had in mind in their contractual dealings with one another. Pindar, Georgia Real Estate Law, § 13-4.” Lyons v. Bassford, supra at 470. “2. Whenever a natural boundary is called for in a deed, the line is to determine at it: however wide of the course called for it may be, or however short, or beyond the distance specified. 3. Whenever it can be proved that there was a line actually run by the surveyor, or was marked, and a corner made, the party claiming under the grant or deed shall hold accordingly, notwithstanding a mistaken description of the land in the grant or deed. 4. When the lines or courses of an adjoining tract are called for in a deed or grant, the lines shall be extended to them, without regard to distances, provided these lines and courses be sufficiently established. 5. When there are no natural boundaries called for, no marked trees or courses to be found, nor the places where they once stood ascertained and identified by evidence; or where no lines or courses of an adjacent tract are called for, in all such cases, courts are of necessity confined to the courses and distances described in the grant or deed. 6. Courses and distances occupy the lowest, instead of the highest, grade in the scale of evidence, as to identification of land. 7. Any natural object, and the more prominent and permanent the object, the more controlling as a locator, when distinctly called for and satisfactorily proved, becomes a landmark not to be rejected, because the certainty which it affords excludes the probability of mistake. 8. Courses and distances, depending for their correctness on a great variety of circumstances, are constantly liable to be incorrect; difference in the instrument used and in the care of surveyors and their assistants leads to different results. 9. In ascertaining boundaries, the locations of the original surveyor, so far as they can be found, are to be resorted to; and where they vary from the proprietor’s plan, the locations actually made will control the plan. 10. Whenever, in a conveyance, the deed refers to monuments actually erected as the boundaries of the land, it is well settled that these monuments must prevail, whatever mistakes the deed may contain, as to courses and distances. 11. Courses and distances are pointers and guides, rather to ascertain the natural objects of boundaries. 12. Where a given line is exceeded in a grant, according to the courses and distances, evidence may be given of long occupation under it, to prove the boundaries. 13. Boundaries and courses may be proved by hearsay, from the actual necessity of the case. 14. Where a line has been run and agreed on by the coterminous proprietors, and acquiesced in and possession held to it for eighteen or twenty years, the parties and those claiming under them are bound by it, no matter when, nor by whom, the line was run.” Pindar, supra; Lyons v. Bassford, supra at 469-470.

“What is most material and most certain in a description shall prevail over that which is less material and less certain. Thus courses and distances yield to natural, visible, and ascertained objects. Accordingly, when in the description of land in a deed known monuments are referred to as boundaries, they must usually govern, although neither courses nor distances nor the computed contents correspond therewith. Natural monuments have greater weight than artificial ones. Where all other means of ascertaining the true construction of a deed fails, and a doubt still remains, that construction is rather to be preferred which is most favorable to the grantee. [Cits.]. . . On the other hand, where land had been laid off by a government survey into land lots, and a deed conveyed several of the land lots by number (except fifty acres in the southeast corner of one of them), and added, ‘known as the Wooldridge plantation,’ those words were treated as matter of further description, and not as limiting the land granted, though the lots named covered more than the ‘Wooldridge plantation.’ [Cit.] Where a deed conveys a lot of land expressly with reference to a plat, the courses, distances, and monuments appearing on the plat are to be considered in ascertaining the description of the land and the intent of the parties as if they had been expressly enumerated in the deed. [Cits.] Where a lot is conveyed according to its number in a certain plan or plat, so that it is evident that the important thing under consideration in the grant is the particular lot, and there is super-added to this a description which does not include the entire lot, it has been held that the erroneous description will yield to the conveyance by number; and it has also been said that this would be true whether the number immediately preceded the description or vice versa, if it were evident from the deed that the lot known by number was the important or certain thing in the conveyance.” Thompson v. Hill, 137 Ga. 308, 311-312 (1) (73 SE 640) (1912); see also Harris v. Hull, 70 Ga. 831, 838-841 (1) (1883); OCGA § 44-4-5.

Pindar states, “In the construction of a deed to determine the intended boundaries, the-statement of acreage is perhaps the least helpful of all the elements involved. Thus, where there is a definite metes and bounds description, a statement of area will not reduce or enlarge the tract conveyed.” (Footnote omitted.) Pindar, supra at § 19-156; see McCook v. Council, 202 Ga. 313 (43 SE2d 317) (1947); McDonald v. Taylor, 200 Ga. 445, 449 (37 SE2d 336) (1946). Cadle, Ga. Land Surveying History & Law, p. 421, states “[a]rea is usually considered the lowest indicia as to the location of land and the last to be resorted to.” “In the description of land it is usual, after the description by metes and bounds or subdivisions, to add a clause stating that the land described contains so many acres. But unless there is an express covenant that there is the quantity of land mentioned, the clause as to quantity is considered simply as a part of the description, and will be rejected if it is inconsistent with the actual area, when the same is capable of being ascertained by monuments and boundaries. The mention of the quantity of land conveyed may aid in defining the premises, but it can not control the rest of the description.” Collinsville Granite Co. v. Phillips, 123 Ga. 830, 842 (11) (51 SE 666) (1905); Kendall v. Wells, 126 Ga. 343 (55 SE 41) (1906). The absence of title to part of the land described is distinguished from a deficiency in area. Holliday v. Ashford, 163 Ga. 505 (136 SE 524) (1927); Godwin v. Maxwell, 106 Ga. 194 (32 SE 114) (1898); Smith v. Eason, 46 Ga. 316 (1872); Lunsford v. King, 132 Ga. App. 749 (209 SE2d 27) (1974). “When land is conveyed by metes and bounds, whether there be more or less than the quantity named, the purchaser obtains the whole of it. . . . If the quantity conveyed is specified as ‘more or less,’ it is generally understood that the parties assume the risk of a gain or loss in the quantity estimated. ... A deed that describes a tract as containing a definite area and that gives definite boundaries on three sides but an indefinite boundary on the fourth, in the absence of a manifest contrary intent, will be deemed as locating the fourth side parallel to the side opposite it so that the tract encloses the area specified.” (Footnotes omitted.) Cadle, supra at 422-423; Sewell v. Sprayberry, 186 Ga. 1 (196 SE 796) (1938); Shackelford v. Orris, 129 Ga. 791 (59 SE 772) (1907); Walden v. Walden, 128 Ga. 126 (57 SE 323) (1907). When there are no metes and bounds, the area is stated with exact specificity, the description is limited within a land lot, and the description is located within a general geographic portion of the land lot, the trial court, to avoid voiding the deed as indefinite, should construe the deed as occupying a certain portion of the land lot in a square or rectangular shape, utilizing the land lot lines as the definite boundaries and the other boundaries as parallel to such land lot lines, based on an area filled. However, such method of determining boundaries is not applicable when the deed gives definite boundaries that can be found on the ground with reference to monuments, physical objects, either natural or man-made, adjoining property, or land lot lines. Under such boundary determination using land lot lines and acreage, the land lot line is the only certain boundary. See Payton v. McPhaul, 128 Ga. 510 (58 SE 50) (1907); see also Bennett v. Rewis, 212 Ga. 800 (96 SE2d 257) (1957); Head v. Lee, 203 Ga. 191 (45 SE2d 666) (1947); Grace v. Rouse, 202 Ga. 720 (44 SE2d 762) (1947); Guess v. Morgan, 196 Ga. 265 (26 SE2d 424) (1943); Smith v. Fed. Land Bank, 181 Ga. 1 (181 SE 149) (1935); Rowland v. Mathews, 153 Ga. 849 (113 SE 442) (1922); Harper v. Hesterlee, 152 Ga. 251 (109 SE 902) (1921); Glower v. Godwin, 140 Ga. 128 (78 SE 714) (1913); Moody v. Vondereau, 131 Ga. 521 (62 SE 821) (1908); Osteen v. Wynn, 131 Ga. 209 (62 SE 37) (1908); Gress Lumber Co. v. Goody, 94 Ga. 519 (21 SE 217) (1894). If an area is indefinite and the description does not fix the boundaries, then the description is void. Mathews v. Logan, 242 Ga. 69 (247 SE2d 865) (1978); Brown v. Mitchell, 225 Ga. 115 (166 SE2d 571) (1969); Livingston v. Livingston, 210 Ga. 607 (82 SE2d 1) (1954); Crider v. Woodward, 162 Ga. 743 (135 SE 95) (1926); Barley v. Starr, 150 Ga. 88 (102 SE 819) (1920); Sweat v. Mullís, 145 Ga. 450 (89 SE 422) (1916). The indication of more or less or use of “+” and symbols means the same thing, an indefinite or approximate acreage; such designation has no legal value in determining boundaries. See Hanners v. Woodruff, 257 Ga. 73 (354 SE2d 826) (1987); Mathews v. Logan, supra; Bennett v. Rewis, supra; Huntress v. Portwood, 116 Ga. 351, 355 (42 SE 513) (1902). However, boundaries are definitely described, even without metes and bounds, such boundaries cannot be ignored, and even with a deed for specific acreage, the acreage must yield to the definitely described boundaries.

The foregoing analysis is inapplicable in the case sub judice, because all four boundaries were definite and certain, based upon a natural monument (creek), man-made boundaries (roads), abutting property lines, and the land lot line, even though the land lot line had not been previously surveyed and located on the ground, because the land lot line is an exact description that can be located on the ground. In addition, the 1931 Westbrook recorded plat gave metes and bounds and specified an approximate acreage in each land lot, which is not an exact determination of acreage, and the 1931 survey plat was referenced in both deeds; therefore, the deeds are limited by such plat, notwithstanding that the subsequent deeds out of the Cleveland Estate purport to convey an exact acreage at public sale. Although the 1931 survey showed an indefinite acreage on the plat by the use of “+” and after each acreage, the two deeds to the parties were specific and definite in amount. This was a major defect in the deeds, which was controlled by the 1931 plat and which must yield to the actual acreage within the boundaries set by each deed, instead of forcing an artificial dividing line as the boundary line.

While the deeds out of the Cleveland Estate gave exact acreage figures, the 1931 Westbrook plat indicated that the acreage lying in each land lot was more or less such acreage, and such acreage was subsequently used in the respective deeds in error; therefore, the exact acreage must yield to the recorded plat as inexact acreage. Unlike the case of Allen v. Hiwassee Land Co., 162 Ga. App. 356, 357 (290 SE2d 492) (1982), where the boundary line was uncertain and a specific conveyance of acreage was used to assist in determining where the boundary line probably lay based upon the metes and bounds, in the case sub judice, all boundaries except the land lot line were platted on the 1931 survey, and the land lot line was a specific, ascertainable boundary established by the State, used by the grantors, and set forth in the deeds. This land lot line not only serves as the boundary line between the two tracts but also the deeds limited each conveyance within the respective land lots. Such specific intent of the grantor cannot be arbitrarily disregarded by shifting the dividing line to provide an exact acreage, because this boundary is more than a mere dividing line but is a land lot line that is necessary in establishing other land lot lines in the Fourth District as well as the boundary between coterminous property owners. Id.; see also Allen v. Hiwassee Land Co., 172 Ga. App. 814 (324 SE2d 742) (1984). Even the conveyance of an exact amount of acreage must yield to known boundaries established by survey or location of the land lot line. See Thompson v. Hill, supra; see generally Payne v. Terhune, 212 Ga. 169, 170 (91 SE2d 348) (1956); Heard v. Helms, 210 Ga. 669 (82 SE2d 129) (1954); Gunnin v. Carlile, 195 Ga. 861 (25 SE2d 652) (1943); see also Nelms v. Dorsey, 168 Ga. App. 452 (309 SE2d 426) (1983).

Storey testified that he held acreage to be of paramount importance in determining the location of the dividing line between the two parcels of land and a determination of the location of the land lot line. Storey did not seek to determine on the ground the location of the land lot line, although the land lot line was the common boundary stated in the deeds, but instead, determined a dividing line based on the specific acreage in the deeds, although the acreage was limited to separate land lots and shown on the 1931 survey as indefinite in amount. Storey admitted that the Westbrook survey of 1955 and the Mitchell survey of 1994 both located and placed monuments where the land lot line between Land Lots 76 and 77 was located on the ground. Storey testified that the land lot line was not the boundary, notwithstanding that the deeds used the land lot line as the boundary between Land Lots 76 and 77. In his opinion, the acreage and the 1931 survey forced the boundary line and the appellee’s deed should have shown that the land lay in both Land Lots 76 and 77, because it was necessary to cross the land lot line to give appellee the exact acreage called for in the deed and to establish the dividing line. The appellee’s deed, by assent, did not convey to her a specific acreage but, by its express language, conveyed only a “tract or parcel” of land with “more or less” acreage. See Roberts v. Groover, supra.

Decided February 19,1997

Reconsideration denied March 5,1997.

Newton & Howell, John T. Newton, Jr., for appellant.

Howard P. Wallace, for appellee.

Since such opinion is contrary to the law as to the determination of boundary lines by disregarding that each deed located the tract as existing exclusively in one land lot and recognizing the definite boundary as the land lot line, and since Storey admits that the land lot line was correctly determined by the Westbrook survey of 1955 and the Mitchell survey of 1994, then there was no probative evidence to support the jury verdict and judgment decreeing the boundary line as set forth in the verdict. The trial court erred as a matter of law in entering the judgment. The case is reversed and remanded for a new trial.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., concurs. Ruffin, J, concurs in judgment only.


author: Blackburn, Judge.

text:
    A95A2297.
    STAFFORD v. BRYAN COUNTY BOARD OF EDUCATION.
    (484 SE2d 90)
    Decided March 5,1997.

      Henderson & Henderson, Devaul L. Henderson, Jr., Michele M. Henderson, Michael P. Ludwiczak, for appellant.
   Blackburn, Judge.

In Stafford v. Bryan County Bd. of Ed., 219 Ga. App. 750 (466 SE2d 637) (1996), we affirmed the trial court’s entry of judgment on the amended award of a special master, as well as the jury verdict which succeeded that award. In Stafford v. Bryan County Bd. of Ed., 267 Ga. 274 (476 SE2d 727) (1996), the Supreme Court reversed our decision. Accordingly, the prior decision of this Court is vacated, and the decision of the Supreme Court is made the decision of this Court.

Judgment reversed.

Andrews, C. J., and McMurray, P. J., concur.

Edenfield & Cox, Gerald M. Edenfield, Susan W. Cox, Troy W. Marsh, Jr., for appellee.


author: McMurray, Presiding Judge.

text:
    A96A1902.
    HOGAN MANAGEMENT SERVICES, P. C. v. MARTINO.
    (483 SE2d 148)
   McMurray, Presiding Judge.

Hogan Management Services, P. C. (“Hogan”) filed an action against Joseph A. Martino, M. D., d/b/a North Georgia Orthopaedics, P. C. (“North Georgia”), alleging Martino violated two restrictive covenants in a medical services contract entitled, “INDEPENDENT CONTRACTOR AGREEMENT.” After the trial court entered an order temporarily restraining Martino from practicing medicine or surgery within certain geographical limits, Martino and North Georgia filed an answer alleging the restrictive covenants are unenforceable and Martino asserted a counterclaim contending Hogan wrongfully sought and obtained the temporary restraining order. Hogan later filed a motion for judgment on the pleadings and an amended motion for judgment on the pleadings. Martino also filed a motion to dismiss the complaint.

After conducting a hearing, the trial court entered an order (judgment) dismissing Hogan’s complaint on October 16, 1995, concluding “that the restrictive covenants are void and unenforceable as a matter of law.” Following the denial of its motion for new trial, judgment n.o.v. and in arrest of judgment, Hogan filed a notice of appeal to the Supreme Court of Georgia. The Supreme Court transferred the appeal to the Court of Appeals of Georgia for consideration. Held:

1. Hogan’s motion entitled, “MOTION FOR RECONSIDERATION AND RECISSION OF TRANSFER BY SUPREME COURT AND FOR TRANSFER FROM COURT OF APPEALS TO SUPREME COURT,” is hereby denied. “We comply with the Supreme Court’s transfer order and [review this appeal] because Art. VI, Sec. VI, Par. VI of the Georgia Constitution of 1983 provides that ‘the decisions of the Supreme Court shall bind all other courts as precedents.’ See Crotty v. Crotty, 219 Ga. App. 408, 409 (1) (465 SE2d 517).” Bd. of Trustees of the Fulton County Employees Retirement System v. Mabry, 221 Ga. App. 762, 763, n. 3 (472 SE2d 542). We are compelled, however, to dismiss the case sub judice for lack of jurisdiction.

2. In “a case ‘ “involving multiple . . . claims, a decision adjudicating fewer than all the claims ... is not a final judgment. (Cit.) In such circumstances, there must be an express determination [that there is no just reason for delay and express direction for the entry of judgment] under OCGA § 9-11-54 (b) ((cit.)) or there must be compliance with the [certificate of immediate review] requirements of OCGA § 5-6-34 (b) ((cit.)). Where neither of these code sections (is) followed . . ., the appeal is premature and must be dismissed.” ’ Patrick v. Glass, 188 Ga. App. 737 (374 SE2d 229).” Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884). The order appealed in the case sub judice did not constitute a final judgment because the order merely dismissed the complaint but did not dispose of the counterclaim asserted by Martino. The record before this Court does not contain a judgment or voluntary dismissal concerning the counterclaim and the clerk of the trial court informs this Court that there is no such judgment or dismissal. Because Martino’s counterclaim remains pending in the trial court, Hogan’s direct appeal is premature. This, coupled with Hogan’s failure to follow the interlocutory appeal procedures under OCGA § 5-6-34 (b), is insufficient to provide this Court with jurisdiction to consider the case sub judice. Accordingly, this direct appeal is hereby dismissed. See Union Indemnity Ins. Co. v. Cherokee Ins. Co., 168 Ga. App. 82, 83 (308 SE2d 238).

Decided March 5,1997.

Banks & Stubbs, Rafe Banks III, Baylor B. Banks, for appellant.

Morris, Manning & Martin, Jefferson D. Kirby III, David L. Moss, for appellee.

Appeal dismissed.

Johnson and Ruffin, JJ., concur.


author: Ruffin, Judge.

text:
    A96A1978.
    MELVIN v. THE STATE.
    (483 SE2d 146)
   Ruffin, Judge.

Kenneth Melvin appeals his convictions for hit and run and driving under the influence of alcohol. As to both charges, he claims that he was entitled to a directed verdict and that the evidence was insufficient to support a guilty verdict. For reasons which follow, we affirm in part and reverse in part.

“On appeal of a guilty verdict, the appellant no longer enjoys a presumption of innocence, for the [factfinder] has heard the evidence and judged its weight and the credibility of witnesses[.] [T]he evidence is construed so as to uphold the [factfinder’s] verdictf] . . Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667) (1994).

Viewed in the light most favorable to support the verdict, the evidence presented at Melvin’s nonjury trial was as follows. On August 28, 1994, Melvin knocked on the door of Allison Lattie’s apartment in Wayne County, Georgia and asked to speak with her. Refusing to open the door, Lattie informed Melvin that she had obtained a restraining order against him and that the police were coming. Approximately one minute later, Lattie heard an engine crank and saw square headlights through her curtains that matched the shape of the headlights on Melvin’s truck. Lattie then heard a “bam,” stepped out into her apartment complex parking lot, and discovered that her rental car had been hit. Lattie testified that this incident took place about 9:00 p.m.

Around 9:30 p.m., Trooper J. M. Cunningham received a police radio dispatch regarding a “hit and run” at Lattie’s apartment complex and describing Melvin’s pickup truck. Cunningham soon learned that the truck had been located at a convenience store, where he proceeded and found several other officers and Melvin standing by a telephone booth. According to Cunningham, Melvin smelled of alcohol and his truck was scratched on the left rear quarter panel. Although Melvin initially denied driving the truck to the store, he did not identify any other driver and Cunningham could not locate anyone at the convenience store who might have driven Melvin’s truck. Cunningham further testified that Melvin had the keys to the truck.

Cunningham arrested Melvin for driving under the influence and hit and run. He then took Melvin to Lattie’s apartment complex, where they observed minor damage to her vehicle’s right rear bumper. According to Lattie, Melvin and Cunningham arrived at her apartment approximately 30 minutes after Melvin first came to her door that evening. At 10:29 p.m., Melvin submitted to an intoximeter test, which measured his blood alcohol level at .19 grams.

At trial, Melvin did not deny that he was intoxicated when tested at 10:29 p.m. He claimed, however, that he did not drink any alcohol until after he arrived at the convenience store, when he was no longer driving. According to Melvin, he left Lattie’s apartment complex and drove to the convenience store just before 9:00 p.m. There, he purportedly telephoned Lattie, drank almost a pint of 151 proof rum that he had with him, and telephoned a friend to pick him up from the convenience store. The police arrived while he was on the telephone with his friend.

1. Melvin contends that the trial court erroneously found him guilty of driving under the influence because the State presented no evidence that he was intoxicated while driving. We disagree.

To be guilty of the offense of driving under the influence of alcohol, one must be driving or in actual physical control of a moving vehicle while under the influence. Johnson v. State, 194 Ga. App. 501 (1) (391 SE2d 132) (1990). Driving an automobile while intoxicated may be shown by circumstantial evidence. Id.; Walsh v. State, 220 Ga. App. 514, 516 (3) (469 SE2d 526) (1996). In this case, although Melvin initially denied driving his truck to the convenience store, he subsequently admitted to driving the vehicle. Within approximately 30 minutes of leaving Lattie’s apartment, police located Melvin at the convenience store and noted an odor of alcohol about his person. Melvin’s subsequent intoximeter test registered his blood alcohol level at .19 grams.

Decided March 5,1997.

Grady W. Henry, for appellant.

Howard, Carswell & Bennett, Kenneth R. Carswell, Jasper W. Harvey, for appellee.

We conclude that from the circumstantial evidence presented, a rational factfinder could adjudge Melvin guilty of driving under the influence beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although Melvin testified that he drank a pint of rum only after he arrived at the convenience store, the trier of fact was authorized to disbelieve this testimony. “ ‘Matters of witness credibility are within the purview of the [fact-finder], . . . The obligation to weigh the evidence and to determine witness credibility rests with the [factfinder]. This court considers only the sufficiency of the evidence.’ [Cit.]” Walsh, supra at 516; see also Conner v. State, 205 Ga. App. 564 (5) (422 SE2d 872) (1992).

2. Melvin also claims that the evidence was insufficient to support his hit and run conviction. We agree.

Melvin was charged with and convicted of violating OCGA § 40-6-270. This section imposes certain duties on “[t]he driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person” (Emphasis supplied.) OCGA § 40-6-270 (a). Compare OCGA § 40-6-271 (“Duty upon striking unattended vehicle”). As established by her testimony, Lattie was not driving or attending to her vehicle when it was hit in the apartment complex parking lot. Rather, she was in her apartment. Under the plain terms of the statute, the record does not support Melvin’s conviction under OCGA § 40-6-270. Accordingly, his conviction for hit and run must be reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A2071, A96A2072.
    WILLIAMS et al. v. CRISPAIRE CORPORATION; and vice versa.
    (483 SE2d 653)
   McMurray, Presiding Judge.

Plaintiff Crispaire Corporation filed this action on an open account against defendant Jackie D. Williams d/b/a Refrigeration & Mechanical Services. The answer denied any indebtedness and included a counterclaim seeking damages for breach of contract, quantum meruit, fraud, and attorney fees. An amendment to the answer and counterclaim added counterclaims under theories of promissory estoppel, quantum meruit, and unjust enrichment.

These appeals follow the entry of the superior court’s order on plaintiff’s motion for partial summary judgment. Simultaneously with the entry of the summary judgment order, a separate order was entered denying a defense motion to compel discovery and amending the pre-trial order to add a party defendant, Delora E. T. Williams, who had been shown to be a joint owner of the business operated by defendant Jackie D. Williams.

The superior court granted in part and denied in part plaintiff’s motion for partial summary judgment and insofar as plaintiff’s motion was granted such forms the basis for the main appeal taken by the defendants, Case No. A96A2071. In a cross-appeal, Case No. A96A2072, plaintiff appeals from the denial of the remainder of its motion for partial summary judgment. Held:

1. Defendants’ business was a sub-contractor which ordered certain heat pumps from plaintiff for installation in three schools. Count III of the counterclaim alleges fraud in that false representations were made by plaintiff concerning delivery dates of the equipment and the suitability of the equipment for the intended purpose. The superior court order “GRANTS IN PART Plaintiff’s motion for partial summary judgment as to Count III of Defendant’s counterclaim which raises claims based on fraud. . . .” In the main appeal, defendants maintain that this partial grant of summary judgment was error. We agree.

Genuine issues of material fact are presented as to whether plaintiff wilfully or recklessly misrepresented the delivery dates of the equipment to defendants who relied on the misrepresentations to their detriment. Plaintiff argues that any representation as to delivery dates would have necessarily been made prior to the entry of an order and should be regarded as mere “puffing” with regard to a prospective sale. Generally, a claim for fraud cannot be based upon a representation as to a future event. But defendants rely upon well known exceptions to the general rule applicable where promises are made without any present intent to perform or made as an inducement to enter a contract. To support such an action the misrepresentation must be either known at the time to be false, or recklessly made with intent of deceiving the opposite party. Community Federal Savings &c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (1) (348 SE2d 326). Here there is some evidence that plaintiff promised or knew its sales representative had promised unrealistic delivery dates.

Efforts by plaintiff to remedy problems caused by deficiencies in the equipment and delayed delivery may provide evidence that there was no intent not to perform, but do not establish such a conclusion as a matter of law. This would be a factual question for a jury.

We do not accept plaintiff’s contention that the fraud claim must fail due to a lack of proof of damages. While defendants’ evidence of damages suffers from a lack of specific detail such as would more clearly demonstrate the amount of damages, the evidence which is available is more than merely speculative. The provision for labor in defendants’ bids on the three projects was shown to be based on their experience and expertise combined with the specifications for the work which needed to be done. Therefore, defendants’ evidence that the extent to which labor costs exceeded estimates was caused by the delays (resulting in extraordinary efforts being made to quickly install the equipment) and problems with the equipment cannot be arbitrarily rejected and does provide a basis for computing damages. Plaintiff’s challenges as to whether the numbers provided on this issue accurately reflect defendants’ labor costs present factual disputes for the jury.

Defendants’ counterclaims are not defeated by their acceptance of the equipment shipped by plaintiff. Plaintiff’s contentions in this regard rest upon the general rule that a buyer who retains goods in spite of their non-conformity has accepted them. OCGA § 11-2-606 (1). However, defendants again rely on an applicable exception to the general rule, that the buyer may still revoke an acceptance induced by the seller’s assurances. OCGA § 11-2-608. Here there is evidence that plaintiff was well aware of certain problems with certain heat exchangers or “green wheels” on its equipment and had assured defendants that an appropriate adjustment would be made. An adjustment in the form of a credit to defendants’ account was made by plaintiff but has not been found to be adequate by defendants.

2. Defendants also enumerate as error the denial of a motion to compel discovery by which they are attempting to acquire access to certain test data concerning one of the heat pumps they installed. While defendants maintain that this evidence may well support their contention that plaintiff’s representations regarding the suitability of this equipment was intentionally or recklessly false, this seems most unlikely since the testing in question was conducted after the time of the alleged misrepresentations and thus can provide no inference to the earlier state of mind.

3. In the cross-appeal, plaintiff maintains that the remaining portions of its motion for partial summary judgment should have been granted. We agree in part and disagree in part.

Plaintiff seeks a judgment in the principal amount of $74,259.30 which it maintains is the amount of the unpaid amount of the account. We do not need to confirm or refute the accuracy of plaintiff’s calculations in order to recognize that the existence of defendants’ valid, pending counterclaims is sufficient to place within the discretion of the superior court the question of whether to grant a partial summary judgment for the amount of the account. In other words “it is not error for the trial court to deny what appears to be valid grounds for a summary judgment in the face of a valid, pending counterclaim where there is a reasonable probability that the recovery of the plaintiff will be greatly mitigated or even off-set by the defendant’s recovery on the trial of the counterclaim.” Mock v. Canterbury Realty Co., 152 Ga. App. 872, 878 (1) (264 SE2d 489).

Some difficulties were encountered with heat exchangers on the heat pumps requiring modification by adding a supporting “cage.” Williams participated with employees of plaintiff in several meetings for the purpose of designing an appropriate solution to this problem and submitted his own proposed design for this component. One of defendants’ counterclaims maintains that plaintiff appropriated his design and should be required to compensate him for that work. However, the uncontroverted evidence shows that no significant portion of Williams’ design was adopted by plaintiff. The supporting cage was not in itself a new idea but merely a new application of a proven concept. Plaintiff’s original design which apparently predated any attempted participation in the design process by Williams was deemed superior by plaintiff’s engineers and the only idea incorporated from Williams’ suggestions was the use of a specific sealed bearing which was a widely available standard part. There is no evidence controverting plaintiff’s evidence that the choice of this specific bearing was insignificant in that there was little load on the bearing. As there was no evidence that Williams’ design suggestions were of value to plaintiff, the superior court should have granted summary judgment in favor of plaintiff as to this counterclaim.

Since we have determined that the superior court erred in refusing to grant a partial summary judgment in favor of plaintiff on defendants’ claim based on the alleged appropriation of a design for a heat exchanger cage, we must also reverse the superior court’s grant of a motion to compel discovery of financial data concerning plaintiff’s sales of equipment using these heat exchangers. Such data having relevance only to the issue of damages on this unsuccessful claim is not subject to discovery.

The superior court also erred in refusing to grant a partial summary judgment in favor of plaintiff on defendants’ counterclaim for lost business. There was no suggestion on the record that defendants could provide any data which would permit the jury to calculate such a loss. The jury may not be permitted to speculate as to the amount of lost profits. Interstate Development Svcs. &c. v. Patel, 218 Ga. App. 898 (463 SE2d 516).

Plaintiff also maintains that defendants’ quantum meruit counterclaims for installation of heat exchanger cages, extra effort, and delay, are not viable because it was not the owner of the equipment involved after its delivery to defendants, that the owner was on the local board of education, and that the measure of damages in quantum meruit is the value of the work of the owner rather than the cost of producing a result to a workman. Brumby v. Smith & Plaster Co. of Ga., 123 Ga. App. 443 (10) (181 SE2d 303). Nonetheless, it does not appear that quantum meruit is limited to instances involving the improvement of property, instead the concept is also applicable to the rendering of services. Since it appears that defendants may have provided services of value to plaintiff and accepted by plaintiff, we are unable to conclude as a matter of law that there is no viable quantum meruit counterclaim against plaintiff solely because no specific item of property of plaintiff was improved by the rendering of those services. G. Carbonara & Co. v. Helms, 205 Ga. App. 547 (423 SE2d 36).

4. There is evidence supporting defendants’ valid counterclaims which could be viewed by a jury as showing that plaintiff has acted in bad faith, with stubborn litigiousness, or has caused defendants unnecessary trouble and expense. The superior court did not err in denying plaintiff’s motion for partial summary judgment as to defendants’ counterclaim for attorney fees.

5. Plaintiff’s final enumeration of error complains of the denial of a motion in limine seeking exclusion of evidence at trial pertaining to its activities with the local Board of Education dealing with testing, repairing, and other activities subsequent to the installation of the heat pumps. Plaintiff maintains that this evidence related to the defendants’ fraud claim and the superior court should have granted the motion in limine as a ruling consistent with the grant of summary judgment against defendants on the fraud claim. Since we reverse that grant of summary judgment on defendants’ fraud counterclaim, it follows that we find no error in the denial of plaintiff’s motion in limine since the evidence it seeks to exclude may be relevant to prove the alleged fraud.

Judgment reversed in Case No. A96A2071. Judgment affirmed in part and reversed in part in Case No. A96A2072.

Johnson and Ruffin, JJ, concur in the judgments only.

Decided March 5,1997

Ladson, Odom & Des Roches, M. Brice Ladson, Bouhan, Williams & Levy, Joseph A. Mulherin III, for appellants.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellee.


author: Pope, Presiding Judge.

text:
    A96A2134, A96A2135.
    A96A2136.
    A96A2137.
    KINARD v. NATIONAL INDEMNITY COMPANY (two cases). ROSS v. NATIONAL INDEMNITY COMPANY. ROSS et al. v. NATIONAL INDEMNITY COMPANY.
    (483 SE2d 664)
   Pope, Presiding Judge.

On April 24, 1989, plaintiffs Albert and Jack Ross were injured when the vehicle they occupied was struck by a GMC truck driven by defendant Malcolm Stephens and owned by defendant John Kinard d/b/a Roy Bishop Housemovers. It is undisputed Kinard is an intrastate motor common carrier that has been issued a Certificate of Public Convenience and Necessity by the Public Service Commission. Following the collision, Albert Ross and his wife brought suit for negligence and loss of consortium against Kinard and Stephens. Jack Ross sued Kinard and Stephens solely for negligence. Pursuant to OCGA § 46-7-12 (e), the Rosses also sued defendant National Indemnity Company based on the fact that National had issued a business auto insurance policy to Kinard and filed the requisite certificate of insurance and “Form F” endorsement with the PSC on Kinard’s behalf. See OCGA § 46-7-12 (a)-(c); PSC Rules 1-8-1-.01 & 1-8-1-.07, Forms E & F.

On July 31, 1995, National moved for partial summary judgment. In its motion, it claimed that the truck that collided with Jack and Albert Ross was not “covered” under the express terms of the policy it issued to Kinard, and as a result, that any liability on its part arose solely from the Form F endorsement it filed with the PSC. Based on the above contention and the language in the endorsement, National further claimed its liability was limited to the minimum compulsory liability limits established by the PSC at the time of the collision rather than the limits set forth in the policy issued to Kinard. The trial court agreed and granted National’s partial summary judgment motion. Kinard appeals the trial court’s ruling in Case Nos. A96A2134 and A96A2135. Jack Ross appeals in Case No. A96A2136 and Albert Ross and his wife appeal in Case No. A96A2137.

Case Nos. A96A2134 & A96A213S

1. Kinard contends that there are issues of material fact as to whether he was covered under the insurance policy he had with National at the time of the collision, and thus, that the trial court erred in granting partial summary judgment to National with regard to that matter. We disagree.

The insurance policy at issue was in effect from May 7, 1988 to May 7, 1989 and provided liability coverage to Kinard up to $750,000 for “all sums [Kinard] legally must pay as damages because of ‘bodily injury’ or ‘property damage’. . . caused by an ‘accident’ and resulting from the ownership, maintenance, or use of a covered ‘auto.’ ” The policy expressly defined which of Kinard’s autos were covered thereunder by making reference to the numeric symbol placed next to each of the specific types of coverage listed under “ITEM TWO” of the policy’s declarations page. In this case, the symbol listed next to “LIABILITY” coverage found under ITEM TWO is a “7.” According to the specific terms of the policy, when symbol 7 is listed next to a certain type of coverage found in ITEM TWO of the declarations page, that coverage extends “[o]nly to those ‘autos’ described in ITEM THREE of the Declarations for which a premium charge is shown. . . .” The policy further provides that “if symbol 7 is entered next to a coverage in ITEM TWO of the Declarations, an[y] ‘auto’ Kinard acquired would be a covered ‘auto’ for that coverage only if .. . [National] already covered all ‘autos’ that Kinard owned for that coverage or [the acquired auto] replace[d] an ‘auto’ [Kinard] previously owned that had that coverage; and . . . [Kinard told National] within 30 days after [he] acquired it that [he] wanted [National] to cover it for that coverage.” (Emphasis supplied.)

The policy’s declarations page demonstrates that the truck in question was not listed under “ITEM THREE.” Nor was the truck acquired by Kinard after the policy went into effect. To the contrary, Kinard’s deposition testimony shows that the truck was acquired in 1987, when it was purchased. See Lumbermens Mut. Cas. Co. v. Commercial Union Assur. Co., 155 Ga. App. 908 (273 SE2d 649) (1980). Additionally, while there is some evidence that the truck served as a replacement for a vehicle listed on the declarations page, it is undisputed that Kinard did not notify National that he wanted liability coverage for the truck within 30 days of its acquisition. Accordingly, Kinard was not covered under the express terms of the policy based on the unambiguous language found within the policy. And, the policy must be enforced against Kinard as written. Fidelity &c. Co. of Maryland v. Sun Life Ins. Co. of America, 174 Ga. App. 258, 260 (1) (329 SE2d 517) (1985).

As the trial court determined, Kinard is also not entitled to coverage under the policy for any damages he must pay to the Rosses based on his claim that his insurance agent, Jack Harte, told him that he had coverage for the truck after Kinard requested Harte to have the truck added to the policy shortly before the collision. Even if Harte made such a representation to Kinard, which is in question, the representation is not binding on National absent the existence of an actual or apparent agency relationship between Harte and National. In this case, no such relationship existed.

Harte was an independent insurance agent. Independent insurance agents generally are considered agents of the insured, not the insurer, absent evidence that the insurer granted the independent agent authority to bind coverage on the insurer’s behalf. See Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (2) (445 SE2d 791) (1994); European Bakers, Ltd. v. Holman, 177 Ga. App. 172, 174 (2) (338 SE2d 702) (1985); Alexander Underwriters General Agency v. Lovett, 177 Ga. App. 262, 265 (2) (339 SE2d 368) (1985). Here, Harte’s unrefuted deposition testimony demonstrates that he never had been granted the authority to bind coverage. Moreover, Harte specifically denied that he was National’s agent, and that bare denial constitutes a statement of fact, which in this case was not challenged by any competent evidence. See Addley v. Beizer, 205 Ga. App. 714, 716 (423 SE2d 398) (1992). Thus, Harte was not National’s actual agent.

The record further demonstrates that no apparent agency existed between Harte and National. To prove “apparent or ostensible agency, the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.” (Citation and punctuation omitted.) Kirby, 213 Ga. App. at 678 (2). In the instant case, there simply is no evidence that National ever held Harte out as its agent or that Harte ever communicated Kinard’s alleged request to have the truck added to the policy to any agent of National during the applicable policy period. Contrary to Kinard’s assertion, a review of the policy itself does not create a material issue of fact as to Harte’s status because the policy does not, as Kinard contends, demonstrate that Harte countersigned it as National’s authorized representative.

The fact that Harte issued several certificates of insurance to Kinard also does not create an issue of fact regarding whether National ever held Harte out as its agent. The unrefuted evidence shows that the certificates in question were produced and generated by Harte at Kinard’s request and that they were signed by Harte as an authorized representative of Harte Insurance Agency, rather than National. Although one might assume or infer an agency relationship existed between Harte and National based on Harte’s issuance of the certificates, “[w]here the only evidence that a person is an agent of another party is the mere assumption that such an agency exist[s], or an inference drawn from the actions of [the apparent agent indicating] that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists.” (Citation and punctuation omitted.) Howard v. St. Paul Fire &c. Ins. Co., 180 Ga. App. 802, 804 (350 SE2d 776) (1986).

In light of the above, the trial court correctly granted partial summary judgment to National regarding Kinard’s assertion of coverage under the policy.

Case Nos. A96A2136 & A96A2137

2. On appeal, the Rosses and their amici contend that the trial court erred in granting partial summary judgment to National regarding National’s claim that any liability it might have was limited to the statutory minimum compulsory liability limits for motor common carriers in effect at the time of the collision, as established by the PSC pursuant to OCGA §§ 46-7-12 (c) and 46-7-27, rather than the maximum liability limits set forth in the policy. This contention is based on PSC Rule 1-8-1-.01, which in pertinent part provides that: “no certificate [of public convenience and necessity] or permit shall be issued to a motor carrier, or shall remain in force unless and until there shall have been filed with and approved by the [PSC] a surety bond, policy of insurance (or certificate of insurance in the form prescribed herein in lieu thereof) ... in not less than the amounts hereinafter prescribed, conditioned to pay, within the amount of such surety bond, policy of insurance (or certificate of insurance in the form prescribed herein in lieu thereof), . . . any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance, or use of motor vehicles under such certificate or permit,. . . regardless of whether such motor vehicles are specifically described in the policy or not” (Emphasis supplied.) It is argued that the above-emphasized language obligates National to pay the amount of any judgment recovered, up to the maximum limits of the policy, even though the truck involved in the collision was not listed as a covered auto under the policy. We reject this argument.

As the trial court noted, PSC Rule 1-8-1-.01 only describes the insurance policy a motor carrier must have in lieu of bond, that is, one conditioned to pay a judgment resulting from injury due to negligent operation or maintenance of any of the motor carrier’s vehicles regardless of whether the specific vehicle involved is described in the policy. Contrary to the Rosses’ assertions, the above-mentioned rule does not mandate coverage for liability resulting from the negligent use or maintenance of undescribed or unscheduled vehicles in excess of the minimum limits established by the PSC. This becomes evident when Rule 1-8-1-.01 is read in conjunction with PSC Rule 1-8-1-.07, which sets forth the procedure for filing a certificate of insurance in lieu of the actual indemnity policy. Rule 1-8-1-.07 expressly prescribes the form that a certificate of insurance must take and requires that a Form F endorsement be filed along with the certificate. By its terms, the Form F endorsement “amends [any indemnity] policy [issued to a motor carrier] to provide insurance for automobile bodily injury and property damage liability in accordance with [state motor carrier] law and regulations to the extent of the coverage and limits of liability required thereby. . . (Emphasis supplied.)

In the instant case, National filed the appropriate certificate of insurance and Form F endorsement with the PSC on Kinard’s behalf, and thus, brought Kinard into compliance with PSC Rule 1-8-1-.01. By doing so, National also guaranteed that no innocent member of the public would be injured by any of Kinard’s trucks without the benefit of being able to recover at least the minimum indemnity insurance benefits required by law, thereby fulfilling the legislative purpose behind this state’s motor common carrier law and rules. See Progressive Cas. Ins. Co. v. Bryant, 205 Ga. App. 164, 165 (421 SE2d 329) (1992); Seawheels, Inc. v. Bankers &c. Ins. Co. of New York, 175 Ga. App. 528, 531 (2) (333 SE2d 650) (1985). Based on the language in the policy and the endorsement, National also expressly limited its liability under the policy to the minimum statutory limits established by the PSC with regard to injuries resulting from the operation of any of Kinard’s unscheduled vehicles. To hold otherwise would be to create coverage where none previously existed under contract or statute. This should not be done. Fidelity, 174 Ga. App. at 260 (1). Moreover, a contrary holding would be inconsistent with the well settled principle that an insurance company issuing a policy to a motor carrier in lieu of the bond required under OCGA § 46-7-12 cannot be obligated to provide coverage in excess of that fixed by the policy and the statute. See Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (272 SE2d 702) (1980); LaHatte v. Walton, 53 Ga. App. 6, 13 (184 SE 742) (1936). We are not persuaded to the contrary by the holding in Herring v. Rabun Trucking Co., 147 Ga. App. 713 (250 SE2d 167) (1978), because there is no indication that the policy at issue in that case had been amended by an endorsement similar to the Form F endorsement involved in the case at bar.

Decided March 5,1997

Temple, Strickland & Counts, William D. Temple, William A. Dinges, for Kinard.

Philip M. Casto, for the Rosses.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, Scott A. Polhemus, for National Indemnity Company.

Franklin, Taulbee, Rushing, Bunce & Brogdon, W. M. Brogdon, Jr., Lawrence J. Pond, amici curiae.

Accordingly, the trial court did not err in granting partial summary judgment to National, thereby limiting its liability in the case to the minimum amount required by this state’s motor carrier law and rules.

Judgments affirmed.

Andrews, C. J., and Smith, J., concur.

       Pursuant to OCGA § 46-7-27, the PSC is empowered with the authority to implement rules and orders governing motor common carrier operations in this state.

       At the time of the collision in question, the PSC had established the minimum statutory compulsory liability limits for motor carriers to be $100,000 per person and $300,000 per occurrence. PSC Rule 1-8-1-.01.


text:
    A96A2242.
    BOATRIGHT v. THE STATE.
    (483 SE2d 659)
   Blackburn, Judge.

The trial court denied Edwin Kenneth Boatright’s motions to suppress, and he appeals. Boatright was stopped for a traffic violation and searched. When marijuana was discovered on his person, he was arrested. Boatright’s probation officer then issued a probation warrant for his arrest for violating the terms of probation. Boatright was arrested on the probation warrant, consented to a search of his house, and additional marijuana was discovered during the search of the house.

1. Boatright contends the December 3, 1994, search of his person during the traffic stop was illegal. Although he concedes the stop itself was valid, Boatright’s clothing was patted down for weapons during the stop. In one of Boatright’s pockets, the investigating officer felt what he believed to be “some type of plastic,” although when asked, Boatright identified the object as keys. Skeptical of this explanation, the officer then stuck his hands into Boatright’s pocket and pulled out a plastic bag containing marijuana. Further search of Boatright’s pockets revealed more marijuana.

Despite the State’s admission at the suppression hearing that the marijuana should be suppressed, the trial court denied Boat-right’s motion. On appeal of a trial court’s decision on a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Strickland v. State, 221 Ga. App. 120, 121-122 (470 SE2d 508) (1996). Applying that standard to the facts of this case, Boatright’s motion to suppress should have been granted.

Assuming without deciding that the officer reasonably believed a Terry pat-down search was necessary to protect him from attack, the search conducted exceeded the bounds of the “plain feel” corollary to the “plain view” doctrine established by Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993). Under the “plain feel” doctrine, an officer can “seize contraband which is plainly identified through the officer’s sense of touch during a valid Terry pat-down.” State v. Williams, 220 Ga. App. 100, 101 (1) (469 SE2d 261) (1996). “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Dickerson, supra at 375-376.

The facts of this case are identical to those of Williams, supra. In Williams, the officer patted down the defendant and felt an object through a pocket which he knew was not a weapon. Id. at 100. The officer could not identify the object, but did not accept the defendant’s explanation that the object was money. Upon removing the object from the defendant’s pocket, the officer discovered money and a plastic bag containing marijuana. Id. Similarly, the officer who searched Boatright testified he felt an object in Boatright’s pocket, but knew that it was not a gun or a knife. He could not identify the object beyond “plastic,” and manipulated the object in the pocket, pinching it and patting it to determine exactly what it was. Upon removing the object from Boatright’s pocket, the officer discovered a plastic bag containing marijuana.

“Taking this testimony at face value, we find that the object’s contour did not make its identity immediately apparent to [the officer], even after he palpated [the defendant’s] pocket. Accordingly, his continued exploration of [the defendant’s] pocket was not authorized under the plain feel doctrine or Dickerson” Williams, supra at 101. In this case, the officer, by his own testimony, could not immediately identify the plastic as contraband upon touching it. The trial court therefore erred in not granting Boatright’s motion to suppress.

2. Boatright contests the trial court’s denial of his motion to suppress the December 9, 1994, search of his home. Boatright was arrested in his home on December 9 pursuant to a probation warrant issued after his probation officer learned of the marijuana traffic stop. Upon arrest, although the officers had not obtained a search warrant, Boatright consented to a search of his house, and marijuana was discovered. The evidence is uncontroverted that the probation arrest warrant issued was based exclusively upon the marijuana offense of December 3. Citing the fruit of the poisonous tree, Boat-right contends that the December 9 search must therefore be suppressed.

Georgia’s exclusionary rule is codified at OCGA § 17-5-30, and it provides for the suppression of evidence obtained by an unlawful search and seizure conducted either with or without a warrant. Unlike the federal law, there is no good-faith exception to this exclusionary rule in Georgia. Gary v. State, 262 Ga. 573, 574 (422 SE2d 426) (1992). “[T]he introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause” has no application in Georgia jurisprudence due to the legislative mandate of OCGA § 17-5-30. Id.

In this case, the probation arrest warrant reasonably relied upon by the arresting officers was invalid, because it resulted directly from the illegal search of December 3. See Jones v. State, 126 Ga. App. 841, 845 (192 SE2d 171) (1972) (fruit of illegal search cannot be used as basis of arrest). Applying the rule of Gary, supra, to these facts, no evidence obtained as a result of that warrant could be introduced against Boatright at trial. It is also necessary, however, to examine this case in light of the recent Supreme Court decision of Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996).

In Harvey, the defendant was arrested on a bench warrant which, unbeknownst to the arresting officer, had been recalled. Prior to arresting the defendant, the officer had a dispatcher do a computer check of the subject warrant, which check erroneously reported the warrant as valid. Id. In a search incident to the execution of the arrest warrant, cocaine was discovered. Id. The defendant’s subsequent motion to suppress the cocaine was denied.

While recognizing that the defendant was not lawfully arrested pursuant to the bench warrant itself, the Supreme Court .upheld the arrest on grounds that “the validity of an arrest is not necessarily dependent upon the existence of a valid arrest warrant because if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required.” Id. at 672. Examining the issue of probable cause, the court in Harvey stated that in that case, the recalled bench warrant, the erroneously reported validity of which the officer had confirmed by radio transmission, was sufficient probable cause for arrest. “The existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not hindsight. . . . This Court, in hindsight, will not declare an arrest to be invalid when the arresting officer reasonably relied upon information which he had no reason to think was incorrect.” (Punctuation omitted.) Id. at 673.

In reaching this decision, the Supreme Court intentionally did not overrule Gary, supra, but instead factually distinguished it. Examining this case in light of both Gary and Harvey, Boatright’s situation is more closely aligned with the facts of Gary, and Harvey is clearly distinguishable.

Like Gary, this case involves a search of the home, not a search of the person in a public place, as was the case in Harvey. Additionally, unlike Harvey, it was the affirmative acts of the police themselves which invalidated the warrants in this case and in Gary, not an administrative computer glitch. The affiant for the warrant in Gary did not present sufficient facts to establish probable cause, and the officer who searched Boatright in the traffic stop did so illegally. The computer error relied upon in good faith by the arresting officer in Harvey is therefore distinguishable from these two situations, and applying the principles of Gary, the invalid warrant was not probable cause for Boatright’s arrest.

The invalid warrant notwithstanding, it is still possible, as stated in Harvey, for a warrantless arrest to be valid where the individual is arrested outside of his home and probable cause exists for the arrest. Harvey, supra at 672. Examining whether Boatright’s arrest was valid under this standard, the evidence regarding Boat-right’s arrest is uncontroverted. De novo appellate review of that arrest is therefore appropriate. Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994). “While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant, supra at 320.

With respect to the arrest, the undisputed facts show that Boat-right was arrested inside his home without a valid warrant. One officer testified that after knocking on the door, it took Boatright 15 to 20 minutes to come to the door, although the lights and the television were on. Once Boatright opened the door, the officers stepped inside the house and arrested him.

Accordingly, Boatright’s arrest fails even under the warrantless arrest standard of Harvey, supra. This is so because Boatright was arrested inside his home without a warrant. “Absent exigent circumstances or consent, an entry into a private home to . . . effect an arrest is unreasonable without a warrant.” (Punctuation omitted.) Kendrick v. State, 211 Ga. App. 599, 601 (2) (440 SE2d 53) (1993). “The purpose of the warrant requirement in the Fourth Amendment [of the United States Constitution] is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search.” Carranza v. State, 266 Ga. 263, 265 (1) (467 SE2d 315) (1996), citing Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38) (1981). “The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating law enforcement officers gain as a result of an illegal arrest taking place in the home should be excluded to deter such conduct.” (Punctuation omitted.) Carranza, supra at 268, citing United States v. McCraw, 920 F2d 224 (4th Cir. 1990).

Decided March 5,1997.

Applying this standard to the facts, the officers who arrested Boatright in his home had no valid warrant. There is no evidence of exigent circumstances, and no evidence of Boatright’s consent to let the officers enter his home to arrest him. As Boatright’s permission to search his home was given simultaneously with his illegal arrest, there is likewise no evidence of attenuation of the consent from the illegal arrest, as argued by the State. See generally King v. State, 211 Ga. App. 12, 14 (1) (438 SE2d 93) (1993). Boatright was involuntarily detained when he consented to the search, and even construing the evidence most favorably to uphold the trial court’s findings, there is no evidence that Boatright’s consent was anything other than a product of the illegal detention. See VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994). Accordingly, the search must be suppressed, and the trial court erred in not granting Boatright’s motion to suppress.

Finally, it is possible that a warrantless search of Boatright or his home may have been provided for by the terms of Boatright’s probation. See State v. Sapp, 214 Ga. App. 428, 431 (3) (448 SE2d 3) (1994) (searches a special condition of probation). However, the terms of Boatright’s probation were not included in the record for appellate review. See Ross v. State, 214 Ga. App. 385 (448 SE2d 52) (1994) (appellate decisions must be based upon the record). Although it was incumbent upon the State to prove the legality of the searches, it failed to either raise this issue or carry its burden of proof. See OCGA § 17-5-30 (b). The trial court’s judgment is therefore reversed.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.

Lane & Crowe, Grayson P. Lane, for appellant.

Glenn Thomas, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.