text:
    A93A1795.
    HUNTINGTON v. FISHMAN.
    (441 SE2d 444)
   Smith, Judge.

Michael G. Huntington brought suit against his former attorney, Jeffrey M. Fishman, for professional malpractice related to Fishman’s handling of a personal injury action in which Huntington was the plaintiff. The trial court granted Fishman’s motion for summary judgment, and Huntington appeals.

On April 30,1987, Huntington was involved in an automobile collision with Lynn Pickard. Huntington contends that he incurred medical expenses exceeding $3,500 as a result. Pickard’s insurer, Georgia Farm Bureau Mutual Insurance Company, initially offered $2,000 to settle Huntington’s claim. In February or March 1989, Huntington hired Fishman to represent him in the matter. Fishman filed suit on Huntington’s behalf on March 22, 1989. According to Huntington, Fishman failed to exercise due diligence in locating and perfecting service upon Pickard within the two-year statute of limitation for actions based on injury to the person. OCGA § 9-3-33. Fishman appears to concede that at some point he discontinued efforts to locate Pickard, but he asserts that Huntington refused to assume the financial responsibility for the expenses involved in that effort. Fishman maintains that Huntington instead instructed him to settle the claim. It is Huntington’s position, supported by affidavit, that Fishman never informed him that Pickard could not be located and that he therefore never refused to assume financial responsibility for paying an individual to perfect service. Fishman offers no affidavit or other evidence supporting his position regarding Huntington’s knowledge of, or decisions regarding, the issue of late service on Pickard.

In July 1989, Fishman informed Huntington that he had been offered $2,500 to settle his claim. Huntington refused the offer, believing that his case was worth much more. Huntington contends that during a second conversation, Fishman again advised him to accept the settlement and further informed him that, if he did not do so, Fishman would no longer pursue the case. Huntington then agreed to settle his claim for $2,500. Essentially, it is Huntington’s position that the settlement (hereinafter the “Fishman settlement”) was inadequate because Fishman failed to diligently pursue Pickard and that otherwise there would have been no incentive for Fishman to advise Huntington to settle for only $2,500.

When Huntington went to Fishman’s office to sign the settlement documents, he discovered that the $2,500 settlement was dependent upon his wife’s willingness to forego any loss of consortium claim she might have against Pickard. The record does not indicate that Fish-man represented Huntington’s wife at any time, and Huntington states in his affidavit that he was not aware prior to this occasion that his wife could assert such a claim. Huntington then refused to accept the Fishman settlement and terminated Fishman.

Huntington then hired new counsel, Michael Warshauer. Huntington was informed by Warshauer that he was bound by the settlement negotiated by Fishman, at least to the extent of Huntington’s claims. See, e.g., USCR 4.12. Warshauer has filed an affidavit affirming that it was, and continues to be, his opinion that Fishman settled Huntington’s claims for $2,500 as a matter of law and that Huntington’s decision to return the check did not change this result. Warshauer nevertheless managed to negotiate a final settlement (hereinafter the “Warshauer settlement”) totalling $4,000 instead of the original $2,500. Warshauer contends that the difference reflects only additional negotiations regarding his wife’s loss of consortium claim.

“[I]n a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. [Cits.]” Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392) (1985) (physical precedent, but quoted portion cited with approval in Nix v. Crews, 200 Ga. App. 58, 59 (1) (406 SE2d 566) (1991)). In an effort to negate the element of “proximate cause,” Fish-man relies on the affidavit of John Stell, attorney for Pickard’s insurer, stating that “[a]t no time was I instructed ... to file a motion to enforce a settlement agreement based upon the earlier acceptance by plaintiff ... of the sum of $2,500.00 which he had rejected and returned to the insurer in August of 1989. Similarly, at no time did I inform the Huntington [s]’ attorney, David Warshauer, of any plans to enforce the alleged settlement.”

Warshauer filed an affidavit in response, stating, in pertinent part, as follows: “The return of the $2,500.00 check to Ms. Pickard’s insurance company did not, in my opinion, terminate the settlement which had already been reached. I unquestionably recall that Mr. Stell agreed with this interpretation and understanding of the law. As a result, we then focused our attention on settling Mrs. Huntington’s case and I endeavored to maximize her recovery for loss of consortium. I believe Mr. Huntington’s case was worth substantially more than $2,500.00 but there was nothing I could do to improve his position because of the actions Mr. Fishman had already taken. I did threaten to get out of the [Fishman] settlement but used these threats only as a means of increasing the offer on Mrs. Huntington.”

The trial court, relying on the holding of Rogers v. Norvell, supra, and the affidavit submitted by attorney Stell, granted summary judgment to Fishman. The trial court observed that “[although Mr. Warshauer contradicts Mr. Stell’s affidavit in part, this does not negate the fact that at the time Mr. Huntington signed the release there was a viable action pending and the defendant’s [attorney] had not filed any [motion] to enforce [the Fishman settlement].”

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Fishman argues that his actions were not the “proximate cause” of Huntington’s claimed injury as a matter of law. Fish-man offered no rebuttal evidence to overcome evidence indicating that Huntington was not responsible for the lack of due diligence in locating and perfecting service on Pickard. Instead, he argues that, as a matter of law, the Fishman settlement did not render Huntington’s claims nonviable. To support this contention, Fishman relies on the literal language of the Warshauer settlement, which purports to settle “all” claims resulting from the collision between Huntington and Pickard, as well as an affidavit suggesting that Pickard’s insurer never intended to file a motion to enforce the Fishman settlement at any time. We find such evidence insufficient to support a grant of summary judgment to Fishman.

The Warshauer settlement purports to settle “any and all claims, known and unknown, relating to the subject incident.” However, it is undisputed that the Warshauer settlement, unlike the Fishman settlement, disposed of Mrs. Huntington’s claims as well as any arguable claims Mr. Huntington may have had. This language merely begs the question whether an act of professional negligence by Fishman preceding the Warshauer settlement in fact rendered some, though not all, of the Huntingtons’ claims nonviable.

With respect to evidence suggesting that Pickard’s insurer had no intention of enforcing the Fishman settlement, we find this immaterial to any issue presented on appeal. This evidence does not prove that the Fishman settlement was in fact invalid as a matter of law. Even if the Fishman settlement was unenforceable, it would appear, although we do not now decide, that Huntington’s personal injury action no longer was viable as a matter of law due to the failure to exercise any diligence whatsoever in pursuing Ms. Pickard after the two-year limitation period had run. Neither party disputes this. Instead, they dispute whether attorney or client is to blame. We find that questions of fact remain as to whether Mr. Huntington’s claims became nonviable at any time prior to Fishman’s dismissal, and if so, whether those claims became nonviable due to professional malpractice on Fishman’s part.

Decided February 11, 1994.

Mohr & Farnham, David J. Farnham, for appellant.

Weener & Associates, Paul S. Suda, for appellee.

Fishman’s reliance upon Rogers v. Norvell, supra, is misplaced. The defendant attorney in Rogers clearly demonstrated that his former client’s cause of action remained viable at the time he was dismissed from the case. Here, however, Fishman’s burden on summary judgment has not been met. The evidence relied upon by Fishman shows, at most, that Warshauer, as his successor, did not force Pickard’s insurer to file a motion to enforce the Fishman settlement, and it further suggests that there may have been some doubt by Pickard’s insurer regarding the validity of the Fishman settlement as applied to Mr. Huntington’s personal injury claims. We find this insufficient to negate any element of Huntington’s prima facie case. See generally Lau’s Corp., supra; Demarest v. Moore, 201 Ga. App. 90 (410 SE2d 191) (1991). The trial court therefore erred in granting Fishman’s motion for summary judgment.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.

       Huntington explains that he and his wife accepted the Warshauer settlement “because we were advised that the statute of limitations had run on our claim.” Although it has no bearing on the issues presented on appeal, we note that the limitation period for actions based on loss of consortium is four years. The fact that the two-year limitation period may have run on Mr. Huntington’s action for personal injuries due to lack of diligence in perfecting service on Pickard is of no consequence with respect to the viability of the derivative action for loss of consortium. See OCGA § 9-3-33; Parrotte v. Christian, 208 Ga. App. 823, 824 (2) (432 SE2d 255) (1993).

       As disclosed supra, the trial court’s order suggests that the failure of Mr. Huntington to further litigate his claims in the “viable action pending” against Pickard was fatal to any potential cause of action he may otherwise have had against Fishman for malpractice, regardless of the substantive effect of the Fishman settlement. This is incorrect. The “viability” of a given claim in the present context refers only to the question of whether further litigation of that claim may lead to a favorable result as of the time prior counsel was dismissed from the case; it does not refer to the mere potential for continued litigation of a claim as a means of demonstrating conclusively the very futility of the effort. The cases relied upon by the defendant in this case do not use the term in a contrary manner. See Rogers v. Norvell, supra; Hudson v. Windholz, 202 Ga. App. 882 (416 SE2d 120) (1992). See also, e.g., Nix v. Crews, supra; Mauldin v. Weinstock, 201 Ga. App. 514 (411 SE2d 370) (1991); Hendricks v. Davis, 196 Ga. App. 286 (395 SE2d 632) (1990), overruled on other grounds, Hardaway Co. v. Amwest Surety Ins. Co., 263 Ga. 697 (436 SE2d 642) (1993).


source: Caselaw Access Project

author: Johnson, Judge. Blackburn, Judge,

license: Public Domain

text:
    A93A1807.
    PETERSON v. THE STATE.
    (441 SE2d 267)
   Johnson, Judge.

A jury found Nathaniel Peterson guilty of kidnapping with bodily injury, rape, terroristic threats, and sodomy. He appeals from the judgment of conviction entered on the verdict and from the denial of his motion for a new trial.

The evidence at trial showed that Peterson followed the victim home from a bar and forced her inside her apartment. A struggle ensued during which Peterson kicked and bit the victim. They ended up in a bedroom, where Peterson repeatedly hit the victim and pulled out handfuls of her hair. He choked the victim and subsequently raped her. He then forced her to smoke crack cocaine, commit oral sex upon him, and raped her again.

Peterson left the victim’s apartment the next morning, but when the victim opened the door to look outside he was standing in the doorway. He forced his way back into the apartment, and again beat her, bit her, pulled out her hair and raped her. At one point the victim escaped onto the porch, but Peterson pulled her back inside, hit her and threatened to kill her if she tried to escape again. The rapes and beatings continued for another day before the police entered the apartment and arrested Peterson.

1. Peterson contends that the trial court should have dismissed the kidnapping with bodily injury charge as it was established with the same evidence as the rape and sodomy charges. This contention is without merit. “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” (Citation and punctuation omitted.) Turner v. State, 194 Ga. App. 878, 880 (3) (392 SE2d 256) (1990). Here, the evidence used to establish the offense of kidnapping with bodily injury was the asportation of the victim and the bite marks, bumps, and bruises suffered by the victim when she was pushed inside the apartment and prevented from leaving. See Giddens v. State, 190 Ga. App. 723 (380 SE2d 274) (1989). On the other hand, the offenses of rape and sodomy were proved by testimony concerning subsequent events. Because the facts used to prove the crimes of rape and sodomy were different from those used to show the essential elements of kidnapping with bodily injury, the offenses did not merge. Taylor v. State, 194 Ga. App. 871, 873 (3) (392 SE2d 57) (1990).

2. Peterson contends that the trial court erred in denying his motion for a mistrial and in giving the jury a so-called Allen charge. Peterson is precluded from raising this issue on appeal because he did not properly preserve it for review. At trial, the jury interrupted its deliberations to send a note to the judge informing him that one of the jurors thought that he could not be impartial because he was once accused of rape. Peterson’s attorney never made an express motion for a mistrial; rather, he simply stated: “I think that’s a mistrial, Your Honor.” In the ensuing colloquy with the court, Peterson’s attorney stated: “The only thing that I can see is that it’s a mistrial situation.” The judge made no ruling on this implied motion, and Peterson did not request a ruling. Instead, the judge stated that he would give the Allen charge, to which Peterson did not object. Following the court’s charge, Peterson made no further complaint, requested no further instruction, and failed to renew his implied motion for mistrial. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.” (Citation and punctuation omitted.) McAlister v. State, 204 Ga. App. 259, 260 (1) (419 SE2d 64) (1992); Lewallen v. State, 208 Ga. App. 138, 139 (429 SE2d 684) (1993). Therefore, even if we assume that counsel did make a motion for a mistrial, his failure to renew it following the corrective instruction constituted a waiver and leaves this court nothing to review. McAlister, supra at 260; Mack v. State, 208 Ga. App. 513, 514 (430 SE2d 862) (1993).

3. Peterson complains that the trial court erred in not allowing him to cross-examine the victim regarding her past drug use, physical fights with her boyfriend, and promiscuity. We disagree. The right to a thorough and sifting cross-examination is not abridged when the trial judge limits it to relevant matters. Stephens v. State, 207 Ga. App. 645, 646 (1) (428 SE2d 661) (1993). Whether the victim used drugs in the past or was battered by her boyfriend is not relevant to whether Peterson kidnapped, raped, threatened or sodomized her. See generally O’Toole v. State, 258 Ga. 614, 616 (3) (373 SE2d 12) (1988); Harris v. State, 196 Ga. App. 304, 305 (3) (396 SE2d 288) (1990). Nonetheless, the trial judge did allow Peterson to ask the victim whether her boyfriend inflicted the injuries she suffered in the attack for which he was on trial. Peterson failed to ask any questions regarding the victim’s promiscuity and never got any ruling on whether he could ask such questions. “It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” Harris v. State, 190 Ga. App. 343, 348 (4) (378 SE2d 912) (1989). The issue was never properly raised or ruled upon by the trial court and cannot be considered for the first time on appeal. See Hunter v. State, 202 Ga. App. 195, 198 (413 SE2d 526) (1991).

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

OCGA § 16-5-40 (a) defines a kidnapper as a person who “abducts or steals away [another] person without lawful authority or warrant and holds such person against his will.” The majority correctly holds that the distance which the kidnapper abducts the victim is without legal significance under Georgia law. See Giddens v. State, 190 Ga. App. 723, 725 (380 SE2d 274) (1989). While I am constrained to follow the rulings of this court, this legal principle is carried too far when kidnapping is based upon the asportation of the victim from one room in an apartment to another. Under the present holdings, almost any crime in which a victim moves from the point of initial contact with the defendant would authorize a kidnapping charge.

Decided February 11, 1994.

Donald B. Lowe III, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

In Division 2, the majority discusses, without deciding, whether counsel’s statement, “I think that’s a mistrial, Your Honor.” was sufficient to present a motion for mistrial. There is no magic to the word “motion”; counsel’s comments were sufficient to inform the trial court of the action which counsel thought was required. Once such a motion is made, it is the duty of the trial court to rule upon it, and the trial court’s failure to meet its burden should not be held against the movant. In Georgia, the burden is put upon the defendant not only to raise the proper motions and objections, but to insure that the trial court meets its duties, while providing no authority by which he can require the trial court to act.

In Division 3, the majority determined that the victim’s drug use was not relevant to whether Peterson kidnapped, raped, threatened, or sodomized the victim. I agree, that under the facts of this case, such evidence was not relevant. I concur specially in this Division to point out that such facts could be relevant, depending on the defenses raised by the defendant.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). The charge basically advises jurors of the desirability of reaching an agreement and admonishes them to examine the issues with candor and fairness and with a proper regard for and deference to the opinions of the other jurors. For a detailed discussion of the Allen charge, see Romine v. State, 256 Ga. 521, 521-527 (1) (350 SE2d 446) (1986).


author: Smith, Judge.

text:
    A93A1820.
    COOPER v. THE STATE.
    (441 SE2d 448)
   Smith, Judge.

Stanley Robert Cooper was convicted by a jury of child molestation, OCGA § 16-6-4. His motion for new trial was denied, and he appeals. His enumerations of error address the trial court’s denial of his motion to suppress evidence obtained during a search of his residence pursuant to a warrant.

1. Cooper first contends that the search warrant was invalid because it failed to describe his residence with sufficient particularity. The application and warrant stated in part that the investigating officer had reason to believe that evidence was located “in Montgomery County, Georgia, on the person, premises, or property described as follows . . . Stanley Robert Cooper; W/M; D.O.B. 04-26-55; Residence located at Rt. 1 Box 182B Mt. Vernon, GA. A black and white single wide trailer.”

A search warrant must describe the person and premises to be searched with such particularity as would enable a prudent person executing the warrant to locate the person and premises definitely and with reasonable certainty. It should not leave the executing officer in doubt or require him to exercise discretion. If it points out the place to the exclusion of all others, and leads the officer directly to his destination, it will pass constitutional muster. Landers v. State, 183 Ga. App. 691 (1) (359 SE2d 748) (1987). Where the name of the owner or occupant is not given in the warrant, the description of the premises must be exact. Id.

Here Cooper’s name, description, and date of birth were stated. The officers drove directly to the residence, and Cooper accompanied them. The officer testified that there was no other black and white single wide mobile home at this address and that it was located at the dead end of a dirt road. Nothing in the record indicates that the officer had any difficulty in driving to the residence, which was identified by the owner’s name, the postal address, and a physical description. State v. Hardin, 174 Ga. App. 83, 84 (329 SE2d 172) (1985).

Vaughn v. State, 141 Ga. App. 453 (233 SE2d 848) (1977), cited by Cooper, is inapposite here. In Vaughn, the affidavit and warrant did not state the county in which the premises were located, gave no mailing address or rural route number, and gave directions based on proximity to a named road, even though there were three roads of that name, one of which ran into another county. Id. at 454-455. Here the officer’s affidavit and the warrant specifically identified Montgomery County as the location and gave a rural route and box number. See Miller v. State, 155 Ga. App. 399, 401 (I) (B) (270 SE2d 822) (1980) (distinguishing Vaughn where the county of defendant’s residence was identified in the affidavit and was known to the magistrate). Although the officer could not recall whether the box number appeared on the mailbox at the residence, there is no testimony on the record showing that the address was incorrect. See Wells v. State, 196 Ga. App. 133, 134 (1) (395 SE2d 296) (1990) (where no testimony showed an address was incorrect, the trial court did not abuse its discretion in denying a motion to suppress). The trial court did not abuse its discretion in denying the motion to suppress on this ground.

2. Cooper also contends that the search warrant fails because it did not sufficiently describe the materials sought, and because there was no basis for their seizure under OCGA § 17-5-21. The same contentions were considered and rejected in Tyler v. State, 176 Ga. App. 96 (1) (335 SE2d 691) (1985). The material seized was specifically identified by the victim and her brother as photographs and videotapes that were shown to the victim in furtherance of the criminal offense, and the location of the material was described in detail by the victim and her brother. The items described in the warrant were “used in connection with the offense” under OCGA § 17-5-21 (a) (1). The affidavit specifically described the material sought as “[a]ny video tape showing males/females involved in sexual intercourse or any sexual act” and “[a]ny magazine that shows nude males/females posing/involved in any sexual act.” Dobbins v. State, 262 Ga. 161 (415 SE2d 168) (1992) is inapposite both because the defendant in Dobbins was charged with and convicted of distribution of obscene materials and because the materials in Dobbins were not identified in the affidavit as used in connection with the offense charged. “When circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.” (Citations and punctuation omitted.) Tyler, supra at 97. The descriptions in the affidavit and warrant were sufficient, and Cooper’s second enumeration of error is without merit.

Decided February 11, 1994.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, Timothy G. Vaughn, Russell P. Spivey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1995.
    CARR et al. v. STATE OF GEORGIA.
    (441 SE2d 85)
   Smith, Judge.

This action concerns a forfeiture of currency and a firearm under OCGA § 16-13-49. The appellant property owners, Terrell and Carr, are husband and wife. After a hearing under OCGA § 16-13-49 (o) (5), the trial court found that the “property . . . was used directly or indirectly to facilitate a violation of the Georgia Controlled Substances Act,” and ordered the property condemned and forfeited. Carr and Terrell appeal.

The evidence presented at the hearing in support of the forfeiture was as follows. A narcotics detective testified that a police officer, who did not appear at the forfeiture hearing, responded to an audible burglar alarm at the appellants’ residence. That police officer told the detective that he and his sergeant saw through a window “a pile” of what appeared to be marijuana on a kitchen table. Because the detective did not feel that sufficient narcotics officers were available to execute a search warrant, the house was not searched until the next day. At that time, the only contraband found by the narcotics officers consisted of approximately seven grams, or one-quarter ounce, of marijuana on a bedside table and several smoked marijuana cigarette butts in various locations around the house. Two plastic bags that tested positive for cocaine residue were found in the basement. The police did find large amounts of cash in several locations, a packet of cigarette papers, and 50 to 100 small plastic bags. The detective testified that in her opinion they were “crack baggies,” although no “crack” cocaine was found in the house. Parts of a shotgun were found inside and outside the house, but the firearm was not cited as forfeited property because the police believed it to be stolen. A .380 caliber pistol found in Terrell’s truck was also seized.

Much of the State’s case revolved around official suspicion that appellant Carr was using her hair salon as a “front” for drug dealing. However, neither the search nor the forfeiture involved the hair salon. One detective testified that she heard from another police officer that appellant Carr was being investigated for dealing drugs. However, she acknowledged that that officer had never found any evidence and had never arrested or charged Carr. Another detective testified that neither he nor the first detective had any personal knowledge that appellants were dealing in drugs and that he had no evidence, other than his personal belief, that appellants were dealing in drugs.

1. In a forfeiture action under OCGA § 16-13-49, the determination to be made by the finder of fact is not whether appellants possessed or used drugs, nor whether appellants were most likely engaged in selling drugs. The issue to be decided is whether the evidence presented by the state suffices to support a forfeiture under the relevant statute. See generally Alford v. State, 208 Ga. App. 595 (431 SE2d 393) (1993).'

OCGA § 16-13-49 (e) provides: “A property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” (Emphasis supplied.)

This language is distinctly more specific than the general definition of property subject to forfeiture in subsection (d) (2): “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom,” and subsection (d) (4): “[a] 11 weapons possessed, used, or available for use in any manner to facilitate a violation of this article . . . which is punishable by imprisonment for more than one year.” (Emphasis supplied.) In contrast to the provisions of subsection (d), which allow forfeiture of property “available for use” or “intended for use” where larger quantities of drugs are found, subsection (e) provides for forfeiture only where there is actual use of the property in a transaction, sale or purchase, where small amounts of drugs are involved. Compare State of Ga. v. White, 210 Ga. App. 876, 878 (437 SE2d 826) (1993) (provisions of OCGA § 16-13-49 (e) not applicable where property used to facilitate an actual purchase, albeit of counterfeit cocaine).

This is consistent with recent decisions affirming forfeitures under this statute. In the majority of decisions where forfeiture was upheld, there was evidence of an observed, actual sale of drugs by the owner of the property. See, e.g., McMichen v. State, 209 Ga. App. 169 (433 SE2d 92) (1993) (agent observed sale activity taking place as predicted by informer); State v. Wilbanks, 208 Ga. App. 422 (430 SE2d 668) (1993) (sale to informant under direction of police led to search); Crenshaw v. State, 206 Ga. App. 271 (425 SE2d 660) (1992) (sale of cocaine to informant in hotel room).

The remaining decisions in which forfeiture has been affirmed involved large quantities of drugs, packaged for sale, discovered on the person, in the car, or in the house. See, e.g., Moore v. State, 209 Ga. App. 89 (432 SE2d 597) (1993) (seller observed visiting supplier’s house to obtain marijuana; 25 ounce or half-ounce bags of marijuana discovered under supplier’s pillow; 16 live marijuana plants found in the closet; no indication that marijuana was for supplier’s personal use); Bloodworth v. State, 185 Ga. App. 880 (366 SE2d 324) (1988) (large quantities of various controlled substances discovered packaged in small amounts as if for sale, in “close proximity” to claimant’s purse which contained syringes, razor blades, bags containing unidentified “powder,” and $5,000).

The State must carry its burden of proof by a preponderance of the evidence. Bloodworth, supra at 880. In applying this forfeiture statute, the trial court may consider any evidence that would be admissible in determining probable cause at a preliminary hearing. OCGA § 16-13-49 (s) (1). In this case, however, there is neither evidence of an actual sale to undercover officers or anyone else, nor a large quantity of drugs ready-packaged for sale, as in Bloodworth and Moore. The evidence is undisputed that the quantity of drugs confiscated is well below the statutory limit of OCGA § 16-13-49 (e). The only person who allegedly saw an unspecified “large” quantity of what he believed to be marijuana did not testify, and there is no evidence that he observed it packaged for sale in any manner. The State’s case rests upon a circular argument: The non-drug items are used to assert that some sale of drugs must have taken place; then the presumed sale of drugs is relied upon to show that the non-drug items are contraband. Neither the State nor the trial court addressed the exception created by OCGA § 16-13-49 (e) (5), which is controlling here. The evidence was insufficient to support the forfeiture, and the decision of the trial court must be reversed.

2. Because of our decision in Division 1 of this opinion, we need not address appellants’ remaining enumerations of error.

Decided February 11, 1994.

H. Darrell Greene & Associates, Patrick H. Head, for appellants. Thomas J. Charron, District Attorney, for appellee.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2067.
    KLEIN v. WILLIAMS.
    (441 SE2d 270)
   Smith, Judge.

Roy Williams filed a complaint against Ted Klein seeking an injunction prohibiting Klein from breaching an agreement not to compete. The agreement allegedly was made in conjunction with the sale to Williams of Klein’s liquor store in Nelson, Georgia. Following a special jury verdict, the trial court entered an order permanently enjoining Klein from entering into the business of selling liquor and participating in such business in any manner in Nelson so long as Williams owned and operated the store he purchased from Klein. Klein’s motion for a new trial was denied.

Klein filed this appeal in the Supreme Court, which transferred it to this court pursuant to Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993), noting that the appeal did not raise a constitutional attack on a statute within the meaning of Art. VI, Sec. VI, Par. II of the 1983 Georgia Constitution and the injunction issued did not give the Supreme Court jurisdiction. The primary question to be answered in this appeal concerns the existence of the alleged covenant not to compete and, if it exists, its interpretation.

There is no dispute that on the day the sale occurred Klein agreed to sell the store for $175,000. Williams gave Klein a personal check for $25,000 as down payment. Klein took his money out of the cash register, gave Williams change for a few hundred dollars along with the keys to the store, and walked out, leaving Williams to run the store. Williams and Klein had negotiated over a period of time regarding the purchase and sale of the store and had reached an agreement twice previously, but both times Klein backed out.

The evidence presented at trial showed that Klein’s store was the only liquor store in Pickens County and the surrounding area. There is no dispute that the purchase price for the store included its inventory and the land. According to Williams, the terms of the sale also included Klein’s promise that he would not go back into the liquor business in Nelson for as long as Williams owned that store. Klein testified to the contrary. Although another witness who had been interested in purchasing the store testified that Klein had promised that if that witness purchased the store, he would not compete, Klein testified that the subject of noncompetition “never did come up” when he sold the store to Williams. A deed dated October 16, 1986, executed by the parties and recorded in the deed records of Pickens County, is the only document evidencing the transaction, and it contains no reference to a covenant not to compete. It is undisputed that at the time the complaint was filed Klein had erected a building in Nelson in which he intended to operate a package store in competition with the store purchased by Williams.

The jury was asked to decide specifically whether Klein did or did not make an oral agreement, as a part of the contract to sell his business, that he would not enter into a business for the sale of liquor as long as Williams owned and operated the store purchased from Klein. They returned a verdict finding that he did so. Based on that verdict, the trial court granted the injunction.

1. In three enumerations of error, Klein contends the trial court erred in finding that OCGA § 13-8-2.1, pertaining to noncompetition covenants, is not applicable here. In Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (405 SE2d 253) (1991), the Supreme Court held that statute unconstitutional. Therefore, we need not address Klein’s contentions that the statute is applicable here or that it should be applied retroactively.

Relying on OCGA § 13-8-2.1, Klein also contends that the alleged covenant prohibiting competition was void because it was not in writing. Of course, we must apply the law without considering the provisions of that statute, since it has been held unconstitutional. Although post-termination employee noncompetition covenants must be in writing, Pope v. Kem Mfg. Corp., 249 Ga. 868 (1) (295 SE2d 290) (1982), the same rule does not appear to apply to covenants restricting competition in connection with the sale of a business. See, e.g., Mason v. Rabun Waste, 174 Ga. App. 462, 464 (330 SE2d 400) (1985).

2. Although the jury did not specifically include a territorial restriction in the covenant it found to exist, we cannot agree with Klein’s contention that the trial court improperly rewrote the contract found by the jury by making the City of Nelson the area restricted. “[W]here a covenant not to compete made by a seller in conjunction with the sale of a business designates an area greater than that reasonably necessary to protect the buyer, the court will enjoin the seller from competing in only so much of that area as it finds from the clear and convincing evidence is essential to protect the buyer.” Jenkins v. Jenkins Irrigation, 244 Ga. 95, 100-101 (3) (259 SE2d 47) (1979). It is obvious from the record, and the parties agree, that the restricted territory is only the City of Nelson. The clear and convincing evidence showed that restricting Klein from competing in this area was the least burdensome restriction necessary to protect Williams’s purchase.

Klein also contends the language in the trial court’s order reformed the contract found by the jury by expanding the description of the activity prohibited and preventing Klein’s involvement in businesses other than liquor stores. The jury found that Klein had made an oral agreement “that he would not enter into a business for the sale of liquor. . . .” The trial court’s order prohibited Klein from “entering into the business of selling liquor or whiskey, and from participation in such business in any manner. . . .” (Emphasis supplied.) Klein is perhaps technically correct that businesses for the sale of liquor could also encompass bars and restaurants, for example, as well as liquor stores. Nevertheless, in the interpretation of contracts, construction of the contract found by the jury is for the court, and the cardinal rule is to ascertain the intention of the parties. OCGA §§ 13-2-1; 13-2-3. In this case, the record shows clearly that the restriction was intended to apply only to operation of a liquor store.

3. Klein maintains the trial court erred in enforcing the contract found by the jury because its terms were too vague and overbroad to be enforceable.

“A different standard is applied in determining the validity of covenants contained in employment contracts and those which are a part of a contract to sell a business.” Watson v. Waffle House, 253 Ga. 671 (2) (324 SE2d 175) (1985). “ ‘A covenant entered into as part of a sale of a business can generally be drafted more broadly than one which is entered into as part of an employment contract.’ [Cit.]” Drumheller v. Drumheller Bag &c., 204 Ga. App. 623, 626 (1) (420 SE2d 331) (1992). The reasonableness of such a covenant must be analyzed in terms of time, territory, and description of the prohibited activity, not as an arbitrary rule, but as a helpful tool in examining the reasonableness of the covenant in light of the particular factual setting to which the test is applied. Watson, supra at 673. To determine the reasonableness of the restrictions, therefore, we must view them against the factual background involved. “Where the sale of a business is involved, the purchaser’s interest in what he has acquired cannot be effectively realized unless the seller agrees not to act so as to diminish the value of what has been sold. [Cit.] It follows that the reasonableness of any covenant not to compete ancillary to the sale of a business must be measured on the basis of whether the restricted activity protects the purchaser’s legitimate business interests, i.e., the value of the business and its good will. [Cits.]” Drumheller, supra at 627-628 (3).

Decided February 11, 1994.

Weaver & Weaver, George W. Weaver, Brenda S. Weaver, Margaret S. Sanders, for appellant.

Bray & Johnson, H. Michael Bray, for appellee.

The activity prohibited, ownership or operation of a liquor store, and the area protected, the City of Nelson, are not overbroad. As to the time restriction, the covenant prohibits Klein from competing in Nelson for as long as Williams owns and operates the store he purchased from Klein. In certain factual settings such a lengthy restriction might be considered overbroad. See, e.g., Howard Schultz &c. v. Broniec, 239 Ga. 181, 188 (236 SE2d 265) (1977) (nondisclosure covenant in employment contract unenforceable because purported to be effective in perpetuity). Considering, however, that this covenant was made in conjunction with the sale of a business rather than an employment contract, that Nelson is a small community, that the store in issue is the only liquor store in Pickens and neighboring counties, and that Klein was and is currently the mayor of Nelson, this time restriction is not overbroad, particularly since the covenant does not prohibit Klein from opening a liquor store anywhere outside the city limits of Nelson.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       Although the complaint sought damages as well, Klein never actually competed, having been temporarily and then permanently restrained from doing so, and no damages have been incurred by Williams.


text:
    A93A2131.
    MORRIS v. THE STATE.
    (441 SE2d 273)
   Smith, Judge.

Roosevelt Morris was indicted by a Cobb County grand jury on charges of rape, OCGA § 16-6-1, burglary, OCGA § 16-7-1, and aggravated assault, OCGA § 16-5-21. He was convicted on all three counts. His motion for new trial was denied, and he appeals. Both enumerations of error concern the introduction of DNA evidence. See generally Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990).

1. Morris first enumerates as error the alleged failure of the trial court to address the threshold issue of admissibility of DNA test results. Morris acknowledged at trial that DNA testing “is based on sound principles” and that he had “no quarrel” with the qualifications of the State’s expert. While Morris cross-examined the State’s expert extensively and repeatedly regarding the State Crime Lab’s DNA testing procedures, he did not present any expert testimony refuting or challenging the methodology of the tests. His sole objection at trial with respect to the methodology of the State’s DNA testing was to the failure of the GBI lab to perform a “band shift test.” Relying on language in Caldwell, supra at 288, Morris contends that a “band shift test” must be performed on every DNA analysis. This contention is without merit.

As more fully discussed in Caldwell, DNA testing relies upon the variation in genetic cell codes among individuals. The testing process breaks the genetic components of human cells into small units or fragments, which are then arranged in an orderly fashion on a nylon membrane. Radioactive “probes” are used to mark fragments of DNA known to be highly variable or “polymorphic,” and the membrane is exposed on X-ray film. This produces an image known as an “autoradiograph,” showing “bands” or darker stripes created by the radioactively marked DNA. When two autoradiographs created from separate samples are compared, bands of similar length and position on the autoradiographs (a “match”) indicate that the samples have a common source. See Caldwell at 279-285.

As noted both in Caldwell and by the State’s expert, “band shift” is a phenomenon which may occur during DNA testing. While the causes of “band shift” are imperfectly understood, when it occurs it produces non-alignment on the autoradiographs of bands that are actually similar. A “match” may nevertheless be declared if the bands are in essentially the same place within a permissible degree of error. Caldwell at 286.

In Caldwell, non-alignment of several bands was attributed to band shift, and accordingly a test was performed to confirm the presence of band shift and declare a match. Caldwell at 287-288. Here, in contrast, the State’s expert testified that no band shift occurred on any of the five probes used in the tests performed on the DNA samples taken from Morris and the victim. Since the anomaly noted in Caldwell did not exist in this case, performing a test to confirm the presence of nonexistent band shift obviously would have been futile. Moreover, the visual matches obtained in this case were confirmed by use of a computer program which analyzed the autoradiograph bands to an error factor of plus or minus four percent. Morris did not object to this testimony. Under the testimony in this case, the computer analysis therefore fulfills the requirement of a “scientifically acceptable test” for confirming a visual observation under Caldwell.

2. In his second enumeration, Morris contends the trial court erred in allowing the State’s expert witness to testify concerning the statistical frequency with which a particular marked fragment of DNA might occur. Morris first acknowledged at trial that the witness was qualified, and he did not object to the State’s tender of the witness as an expert in the area of DNA analysis. Later, he did object to the witness’s testimony on population genetics, contending he was not qualified in that area. After further qualification of the witness, however, Morris did not renew his objection. He cross-examined the witness extensively on the source of the population samples but did not object to any portion of his testimony other than the band shift test. He has failed to preserve this enumeration of error for appeal. Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990).

Decided February 11, 1994.

Roderick H. Martin, for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

3. Moreover, the DNA testing was by no means the only evidence of Morris’s guilt. Viewed in the light most favorable to the verdict, the evidence showed that the victim, an 87-year-old woman, was raped at knifepoint in her home. She called her daughter after the rape occurred and identified Morris by his nickname and his mother’s name as the rapist. The victim had known Morris for “a long time,” as long as 20 years. The victim identified Morris again in the presence of the police, and she identified him again in court as the man who had raped her. A witness came forward who had seen Morris with a knife on the evening of the rape and then later saw him doing something beside a garbage can near a neighboring apartment. The police searched the garbage can and found two kitchen knives. The victim identified the knives found in the garbage can as the knives used in the attack. Another witness who saw a knife in Morris’s possession earlier on the evening of the rape also identified one of the knives. Even excluding the DNA tests, the evidence was overwhelming as to Morris’s guilt.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Pope, Chief Judge.

text:
    A93A2438.
    JOHNSON v. HARDWICK.
    (441 SE2d 450)
   Pope, Chief Judge.

Defendant hired Bud’s Benz, a corporation of which plaintiff is owner and CEO, to rebuild the engine of his car. Bud’s Benz was unable to complete the work in a timely manner, and plaintiff gave defendant a loaner car to use. While defendant had the car, the windshield was cracked and the right front bumper was damaged. When the defendant returned the car to the Bud’s Benz lot after hours, he left a note on it saying “Please let me know how much the repairs cost and I’ll pay.” Plaintiff obtained an estimate for the repairs in the amount of $3,277.18, but never had the car repaired. He sold the car instead, and he testified that he sold it for approximately $3,500 less than he would have been able to sell it for had it not been damaged. Defendant refused to pay for the estimated cost of the repairs, and plaintiff brought this action. Here, plaintiff appeals from the trial court’s grant of summary judgment for defendant on plaintiffs claim for damage to the loaner car.

1. Plaintiff first brought this action on a contract theory based on the note defendant left on the loaner car. Defendant’s promise to pay for the repairs was not enforceable because it was not given in return for any consideration. See OCGA § 13-3-40 (a). And plaintiffs contention that there was some sort of accord and satisfaction fails for the same reason. See Hall v. Bank South, Washington County, 186 Ga. App. 860 (368 SE2d 810) (1988) (accord and satisfaction is unenforceable if unsupported by consideration).

2. After defendant moved for summary judgment with respect to plaintiff’s contract claim, plaintiff amended his complaint to add a count seeking recovery for damages to the bailed car resulting from defendant’s negligence in his role as bailee. Contrary to defendant’s assertion, such a claim was not barred by the passage of time because the applicable limitation period was four rather than two years. See OCGA § 9-3-31. Moreover, when bailed property is damaged while in the possession of a bailee, a presumption of negligence on the part of the bailee arises, and the burden is on the bailee to show proper diligence. Scott v. Purser Truck Sales, 198 Ga. App. 611 (402 SE2d 354) (1991); OCGA § 44-12-44. “In order to rebut this evidentiary presumption, the bailee must negate every inference of negligence on its part, as the presumption in itself is sufficient to support a verdict in favor of the bailor, [cits.], and it is only after the bailee has met its burden of proof by showing it exercised the required standard of diligence that the burden of going forward with the evidence shifts back to the bailor, who then has the burden of producing evidence to show negligence on the part of the bailee. [Cit.]” Scott, 198 Ga. App. at 613. The only testimony in the record relevant to this issue is defendant’s sworn statement that he was not negligent and the testimony of defendant’s son that the windshield crack was caused by a flying rock which could not have been avoided. As this evidence was not sufficient to negate every inference of negligence on defendant’s part, the burden of producing evidence never shifted to plaintiff, and summary judgment on this count was improper despite plaintiff’s failure to produce evidence of negligence on the part of defendant.

3. Defendant argues that summary judgment was nonetheless warranted because this action should have been brought in the name of the corporation rather than by plaintiff individually. See OCGA § 9-11-17 (a). However, the only evidence of ownership in the record indicates that the damaged car was owned by plaintiff individually. In any case, failure to bring an action in the name of the real party in interest is not a basis for dismissal of the action until the plaintiff has a reasonable time to substitute the real party in interest. Id.

Decided February 11, 1994.

Howell W. Ragsdale, Jr., for appellant.

Clifford H. Hardwick, for appellee.

4. Defendant also points out that plaintiff as appellant did not ask the trial court to send us a transcript of the hearing held on the motion for summary judgment. We do not consider the transcript necessary to our disposition of this appeal from a grant of summary judgment. If defendant as appellee considered the transcript necessary, he could have had it prepared and sent to us himself, see OCGA §§ 5-6-41 and 5-6-42, or moved to compel plaintiff to do so.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A2419.
    HATCHER v. THE STATE.
    (441 SE2d 673)
   Beasley, Presiding Judge.

Following the denial of his motion for new trial, Hatcher appeals his conviction for the burglary of a mobile home, OCGA § 16-7-1 (a).

At issue is the admissibility of his custodial confession, contested on two bases: it was obtained as the result of an illegal warrantless arrest made without probable cause; it was obtained in violation of his Sixth Amendment right to counsel. The latter contention is dis-positive.

1. Hatcher, who had a seventh grade education was given the Miranda warnings when arrested on March 11. At that time he did not indicate to investigating officer Sanders that he wished an attorney, but in accord with arrest procedure, he was provided with and completed at the jail an “eligibility affidavit form” for appointed counsel. It contained the printed introduction, “THE UNDERSIGNED BEING FIRST DULY SWORN ON OATH, DEPOSES AND SAYS: I am the Defendant in the above-styled action. I CANNOT afford a lawyer to assist me. I DO WANT the Court to provide me with a lawyer. I understand that I am providing this information under oath in order for the Court to determine my eligibility for a court-appointed lawyer to defend me on the above charge(s).”

The custodial interview with investigator Sanders occurred two days later, on March 13. Sanders was generally aware of the booking procedure including the eligibility affidavit but he did not know specifically that Hatcher had completed one. Before the start of the interview, the Miranda warnings were read to Hatcher and he signed a written waiver certificate. Four days later, the coordinator of the county indigent defense program determined that Hatcher was not indigent and not eligible for appointed counsel. On May 15, Hatcher executed a second eligibility affidavit and was found to be indigent. Counsel was appointed.

At the conclusion of a pre-trial motions hearing at which the court conducted a Jackson-Denno inquiry, the court expressly found, inter alia, “that the act of filling out an eligibility form for the appointment of counsel by someone who is indigent and not known to the interrogating officer is certainly a different situation than a request during an interrogation or interview by a defendant for counsel” and that “the perfunctory act of filling out an affidavit of eligibility in this process did not rise to the grade of request for counsel that would affect in any way the interrogation, since it was not known to the interviewing or interrogating officer.”

The initial affidavit contained a clear and unequivocal request for counsel. The State’s assertion, that the form was not intended to be such a request but rather designed to address only the question of indigency, mischaracterizes the meaning and purpose of the form. On its face, and as acted upon, the form was created specifically for the purpose of ascertaining indigency of one who wishes legal representation at public expense. If legal representation was not desired and sought, the entire exercise was meaningless. Nor was the request for counsel to represent defendant for a limited purpose; rather, it was “to defend” on the charges brought.

Moreover, “the [S]ixth [A]mendment right to counsel does not depend on a request for counsel. Brewer v. Williams, 430 U. S. 387 (97 SC 1232, 51 LE2d 424) (1977). [But it] has been deemed ‘an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.’ [Cit.]” Roper v. State, 258 Ga. 847, 849 (1), n. 2 (375 SE2d 600) (1989). In Roper, prior to his third police-initiated interrogation in the foreign jurisdiction in which he was arrested, the defendant completed and signed a form requesting a public defender’s assistance. A public defender appeared in court that afternoon to represent Roper at an extradition hearing. The attorney met with Roper only in the courtroom and advised Roper to “keep his mouth shut” until he returned to Georgia and could speak with other counsel. Later that day, Roper was again interviewed by police and admitted the murder of the victim.

In suppressing this confession, the Supreme Court held that “once an accused in custody invokes the right to counsel, he should not be subject to further interrogation by the authorities until counsel is present, unless the accused' himself initiates further communication, exchanges or conversations with the police. [Cit.] If police initiate questioning after the invocation of the right to counsel, any uncounseled waiver of that right is invalid. [Cit.]” Roper at 849 (1), applying the rules of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), and Michigan v. Jackson, 475 U. S. 625 (106 SC 1404, 89 LE2d 631) (1986).

The State’s reliance on Waddell v. State, 160 Ga. App. 743, 745 (2) (288 SE2d 90) (1981), decided eight years prior to Roper, avails it nothing. Waddell, supra at 745 (2), notes “a distinction between having counsel appointed or retaining counsel and a defendant specifically asserting his right to have counsel present during interrogation.” In Waddell there was no indication that the defendant requested counsel prior to his interrogation or oral statement.

The interrogating officer’s apparent ignorance of Hatcher’s earlier petition for counsel is irrelevant. As stated in Roper, supra at 850 (1) (a), “ ‘Edwards focuses on the mind of the suspect and not of the police. . . .’ [Cit.] The U. S. Supreme Court imposed upon law enforcement authorities the duty to maintain a procedure to enable an officer who proposes to initiate an interrogation to determine whether a suspect has previously invoked the right to counsel. [Cit.] Moreover, Sixth Amendment principles require imputation of the State’s knowledge from one state actor to another. [Cit.] ‘One set of state actors (the police) may not claim ignorance of [a defendant’s] unequivocal request for counsel to another state actor (the court).’ [Cit.]” The court in Roper regarded the officer’s lack of knowledge as “constitutionally insignificant.” Id.

Likewise, the fact that counsel had not yet been appointed or indeed ultimately might not have been appointed, did not alter Hatcher’s invocation of his Sixth Amendment right to counsel.

The trial court’s finding in favor of admissibility of Hatcher’s confession, on the basis that Hatcher failed to invoke his federal constitutional right to counsel, was clearly erroneous. See Baird v. State, 207 Ga. App. 44, 46 (4) (427 SE2d 37) (1993). Once such constitutional error is found, it must be determined whether the error was harmless beyond a reasonable doubt. Roper at 852 (1), citing Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967).

Defendant Hatcher did not testify, there was no eyewitness identification of any perpetrator but only a viewing of the suspected vehicle used in the burglary, and there was no forensic evidence linking Hatcher personally to the criminal act. The confession was a significant portion of the State’s case against him. The error in its admission cannot be considered harmless beyond a reasonable doubt. The conviction for burglary must be reversed and a new trial granted.

Decided January 27, 1994

Reconsideration denied February 14, 1994

Joseph F. Bertollo, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

2. It is unnecessary to address the other basis of Hatcher’s attack on his confession.

Judgment reversed.

Cooper and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A2546.
    LEWIS et al. v. EVANS.
    (441 SE2d 425)
   McMurray, Presiding Judge.

This is a tort action arising from a motor vehicle collision. Plaintiff Lewis sought damages for her injuries allegedly received in the collision due to the negligence of defendant Evans.

Shortly after initiation of the action, defendant served upon plaintiff interrogatories and a request to produce certain documents including all medical records and bills. Plaintiff responded that no medical records and bills were available at that time, but would be supplied later. Subsequently, defendant moved for sanctions pursuant to OCGA § 9-11-37 (b) (2) and (d), seeking the dismissal of plaintiff’s complaint and the award of attorney fees for plaintiff’s failure to respond to the interrogatories and request to produce. In support of this motion, defendant attached the affidavit of his attorney which noted his continued efforts to obtain the information sought by writing plaintiff’s attorney and by personally visiting his office. Plaintiff’s response noted that she had filed answers to defendant’s interrogatories, request to produce, and request for admissions. Plaintiff specifically noted that she had responded to defendant’s request to produce documents stating that she had no documents at that time, but would supply them later. In an order filed March 2, 1993, the trial court found that plaintiff failed to comply with the discovery process, ordered plaintiff to furnish defendant with all medical records and bills, and awarded defendant $300 attorney fees against plaintiff and plaintiff’s counsel.

Two days following the trial court’s order, plaintiff filed “PLAINTIFF’S ANSWERS TO INTERROGATORIES, NOTICE TO PRODUCE, AND COURT’S ORDER DATED MARCH 2, 1993.” The body of this document contains a solitary sentence: “The plaintiff has no medical reports, hospital records, treatment expenses or doctor bills.” The plaintiff also filed a notice of appeal from the order of March 2, 1993, which appeal was dismissed by this court as premature.

Defendant then filed a motion to dismiss pursuant to OCGA § 9-11-37 predicated on the continued failure of plaintiff to respond with documentation as to her medical treatment and expenses. After a brief hearing, the trial court entered an order finding that plaintiff has wilfully failed to comply with the order of March 2, 1993, and ordering that plaintiff’s complaint be stricken and dismissed with prejudice. Plaintiff and her counsel appeal from the order dismissing plaintiff’s action and from the order of March 2, 1993. Held:

Throughout the proceedings below and in her brief on appeal, plaintiff has steadfastly maintained that she has been in compliance with the discovery statutes and the order of the trial court of March 2, 1993, in that she had no documents related to her medical treatment or expenses. Meanwhile, defendant has insisted that plaintiff must have at least some bills for the medical expenses because in pleadings, discovery, and settlement negotiations she has repeatedly quoted ever escalating sums as the new total of these expenses. At a hearing on July 30, 1993, plaintiff’s counsel revealed that plaintiff had received some bills from her doctors and stated that they had been produced. Defendant’s attorney stated that he had not received any doctor’s bills from plaintiff’s counsel. In view of this admission by plaintiff’s counsel, we cannot understand the continued assertion, particularly in her brief to this court, that plaintiff had no documents subject to the request to produce.

Plaintiff’s assertions that she had received medical care and had incurred expenses in specified amounts presented further evidence that she had received at least some bills for her medical expenses. In this connection, we note that the trial court, as trier of fact on the motion for sanctions, was entitled to utilize its knowledge of business and commercial practices so as to consider the virtually universal practice of health care providers to bill for those services at the time of or within a short time following the rendition of services. And, of course, any medical bills which plaintiff had received were subject to defendant’s request to produce and to the trial court’s order of March 2, 1993.

The gist of plaintiff’s argument on appeal is that she had responded to the request to produce and other forms of discovery and was, therefore, not subject to the drastic sanctions of OCGA § 9-11-37 (d) which falls only upon those who are guilty of a total failure to respond. It is correct that the response of plaintiff, indicating that she had no documents subject to the request to produce, was sufficient to remove plaintiff from the purview of OCGA § 9-11-37 (d). However, despite the repeated reference to paragraph (d) of the statute by defendant and by the trial court, the process actually applied was consistent with the provisions of OCGA § 9-11-37 (a) which is applicable where a partial and evasive answer to discovery evidences a dispute between the parties which must be resolved by the trial court. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438 (2) (254 SE2d 825); Strejc v. MARTA, 197 Ga. App. 88 (397 SE2d 501); Wills v. McAuley, 166 Ga. App. 4, 5 (2) (303 SE2d 26).

Decided February 1, 1994

Reconsideration denied February 14, 1994

L. B. Kent, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellee.

Plaintiff was afforded a second opportunity to provide discovery by complying with the order of March 2, 1993, but failed to do so. As recited in the trial court’s order, the dismissal of plaintiffs complaint was predicated on the failure to comply with the order of March 2, 1993. Plaintiff clearly had the benefit of the two-step procedure provided by OCGA § 9-11-37 (a) and there was no erroneous application of the one-step procedure of OCGA § 9-11-37 (d). “[A] trial court has broad control over the use and limitations of discovery procedures, and unless there is a clear abuse of this discretion the appellate courts will not interfere. Jackson v. Gordon, 122 Ga. App. 657 (178 SE2d 310).” Rivers v. Goodson, 184 Ga. App. 70, 74 (2) (360 SE2d 740). We find no such abuse of discretion in the case sub judice.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A93A1827.
    LANIER et al. v. STATE OF GEORGIA.
    (441 SE2d 87)
   Cooper, Judge.

Appellants appeal from an order of forfeiture condemning a 1989 Dodge pickup seized under the Georgia Controlled Substances Act. As their sole enumeration of error, appellants raise the general grounds.

The evidence adduced at the bench trial is as follows: An informant arranged for the sale of one pound of marijuana by undercover officers to Jimmy Allen Lanier, the owner of a 1989 Dodge pickup. Lanier arrived at the pre-arranged location in the pickup. He got out of the vehicle and entered the undercover officers’ vehicle. Lanier was shown the marijuana, and he gave an undercover officer $1,400. As the officer counted the money, other officers converged on the car, and Lanier was arrested.

Decided February 14, 1994.

Christopher G. Nicholson, for appellants.

Relying on State of Ga. v. Hamm, 193 Ga. App. 184 (387 SE2d 344) (1989), appellants concede that the pickup might have facilitated the sale of marijuana, by transporting Lanier to the site, but it was not used to facilitate the transportation of the marijuana which was already at the site. Moreover, while it is probable that Lanier would have left the site with the marijuana in the pickup had he not been arrested, the arrest prevented the pickup from actually being used to transport the contraband; thus, the court erred in ordering its forfeiture. The former OCGA § 16-13-49 (a) (4) provided: “ ‘The following are subject to forfeitures: . . . All conveyances, including . . . vehicles . . . which are used, or intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in paragraph (1) or (2) of this subsection. . . .’” (Emphasis supplied.) Hamm, supra at 184. In Hamm, an undercover agent followed the defendant in his vehicle to an apartment complex where the defendant offered to sell the agent cocaine. When the agent agreed to the purchase, the defendant obtained cocaine from one of the apartments, and the sale was consummated in the agent’s vehicle. Id. The court found no direct or circumstantial evidence that the cocaine was ever transported, held or concealed in the defendant’s vehicle or was ever intended to be transported, held or concealed in the vehicle.

“ ‘In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous. (Cit.)’ [Cit.]” Stedry v. Mitchell, 201 Ga. App. 682, 683 (1) (411 SE2d 735) (1991). In the instant case, the court found that the pickup “was intended for use to transport, hold and conceal, in some manner to facilitate the transportation of marijuana for the purpose of sale or receipt.” Lanier arrived at the site in the pickup, and there was no evidence that Lanier had any alternative means of leaving the site with the marijuana; therefore, it was reasonable for the court to conclude that Lanier intended to transport the marijuana in the pickup after the purchase. “Resolution of the use or intended use of the [pickup] for transportation or facilitation of transportation of the [marijuana] was the duty of the [finder of fact]. This is true even where, as in the case sub judice, such resolution is based upon circumstantial evidence since reasonable inferences were raised. . . . [Cits.]” State of Ga. v. Belcher, 165 Ga. App. 139, 140-141 (299 SE2d 57) (1983). We find no error in the judgment of the trial court.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

Daniel J. Craig, District Attorney, Daniel W. Hamilton, Charles R. Sheppard, Assistant District Attorneys, for appellee.


author: Johnson, Judge.

text:
    A93A1982.
    HUSSEY, GAY, BELL & DeYOUNG INTERNATIONAL, INC. v. CLAY-RIC, INC.
    (441 SE2d 274)
   Johnson, Judge.

This is the second appearance of this case before this court. The factual background of the case is set forth in Yow v. Hussey, Gay, Bell & DeYoung Intl., 201 Ga. App. 857 (412 SE2d 565) (1991). Charles Yow, the plaintiff in the case, stipulated he would not assert a professional negligence claim against Hussey. Clay-Ric, Inc., however, was not a party to that stipulation. Subsequent to this court’s affirmance of the trial court’s grant of summary judgment on the negligence claims of Yow asserted against Hussey, the trial court granted Clay-Ric leave to file a third-party complaint against Hussey. The third-party complaint asserts a professional malpractice claim alleging that Hussey failed to exercise the requisite standard of care for engineers by failing to replace a cover on a storm drain where Yow was injured after modifications were made, or alternatively, in failing to issue a change order requiring the construction and installation of a new cover. We granted Hussey’s application for interlocutory review of the trial court’s denial of its motion for summary judgment which raised the issue of the trial court’s improperly permitting Clay-Ric to implead Hussey through a third-party complaint after this court had decided Yow, supra.

“A decision by the appellate court is controlling upon the judge of the trial court, as well as upon the appellate court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case. . . .” (Citation and punctuation omitted.) Navistar Intl. Transp. v. Ogletree, 199 Ga. App. 699, 700 (1) (405 SE2d 884) (1991). Having concluded in the previous case that Hussey is not liable to Yow, we cannot now transform Hussey into a joint tortfeasor from whom Clay-Ric may seek contribution in a third-party action.

While Clay-Ric may have independent professional malpractice claims against Hussey, unrelated to Yow’s injuries, it is also clear from the holding in the previous case that the safety of the construction site was the sole responsibility of Clay-Ric. “The contract provisions, viewed in the context of the agreement as a whole, show that Hussey as architect/engineer did not expressly or impliedly have control over or assume any responsibility for construction site supervision or safety, including alerting construction workers and others affected by the construction of potential hazards at the site.” Yow, supra at 861. The malpractice claims, if any exist, are independent of Yow’s injuries. At the trial, the issue of liability of Clay-Ric to Yow requires consideration of whether Clay-Ric failed to maintain safe conditions at the construction site, and whether Yow was contributorily negligent.

Decided February 14, 1994.

Painter, Ratterree, Connolly & Bart, R. Clay Ratterree, Douglas Smith, for appellant.

Karsman, Brooks & Callaway, Stanley M. Karsman, Stanley E. Harris, Jr., Kent, Williamson & Brannon, A. Martin Kent, Cail & Cail, Kenneth H. Cail, Jr., Bouhan, Williams & Levy, Peter D. Muller, for appellee.

“[A] defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” (Emphasis supplied.) OCGA § 9-11-14 (a). Clay-Ric’s claims against Hussey in its third-party complaint are not derivative, and therefore are inappropriate for adjudication in this action. See Hennessy Cadillac v. Pippin, 197 Ga. App. 448 (398 SE2d 725) (1990); see also Bill Heard Chevrolet v. GMAC, 120 Ga. App. 328 (170 SE2d 454) (1969). Because Clay-Ric may have an independent claim unrelated to Yow’s injuries and any damages it may have to pay for those injuries, a grant of summary judgment, which may bar those independent claims as well, would be improper. However, the trial court should have treated the summary judgment motion as a motion to dismiss the third-party action, and should have granted the motion. The case is remanded, and the trial court is directed to enter an order dismissing the third-party claim against Hussey in this action.

Judgment reversed. Case remanded with direction.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2073.
    COLLINS v. SHEPHERD.
    (441 SE2d 458)
   Cooper, Judge.

Plaintiff brought an action against defendant, a nightclub owner, as a result of injuries her daughter received during a fight at the nightclub. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record reveals that Angela Brown, a 17-year-old, went to the Whiskey River nightclub accompanied by a 26-year-old male friend. Although the nightclub employed a person to check the identification of persons entering the nightclub, Brown’s identification was not checked. Upon entering the nightclub, Brown drank several beers, before going to the ladies rest room. While she was in the rest room, Brown was confronted by a woman who apparently mistook Brown for someone else. A fight broke out in the rest room between the woman and Brown, which continued outside the rest room. During the fight, Brown was hit on the head with a beer bottle by a friend of the woman Brown was fighting. The nightclub employed an off-duty police officer as a security guard, but at the time of the fight, the guard was in the men’s rest room. However, after hearing the altercation, the guard responded to the fight and separated the fighting women. Brown and the other woman were subsequently arrested and charged with disorderly conduct.

1. Plaintiff first contends that summary judgment should not have been granted because a genuine issue of material fact exists as to whether defendant breached its duty to keep the premises safe. “A proprietor’s duty to invitees is to ‘exercise ordinary care in keeping the premises and approaches safe.’ OCGA § 51-3-1. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ ” (Citations omitted.) Lau’s Corp. v. Haskins, supra at 492. The owner of the nightclub testified in his deposition that fights occurred at the nightclub approximately once per month and that over two years prior to the Brown incident, he was involved in a fight in which someone was struck in the head with a pool stick. He also testified that he was not aware of any fights which resulted in injuries to anyone or any fights involving the use of beer bottles. Plaintiff also submitted the affidavit of Brown’s brother who stated therein that he had personally observed fist fights at the nightclub and at least one fight which involved the use of beer bottles or other weapons. Defendant, citing McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130) (1983), argues that the prior incidents were not so “substantially similar” as to put defendant on notice of a danger to Brown. We disagree with defendant and find that the plaintiff’s evidence was “sufficient to give rise to a triable issue as to whether [defendant] had a duty to exercise ordinary care to guard [its] patrons against the risk posed by criminal activity.” Lau’s Corp. v. Haskins, supra at 493.

Decided February 14, 1994.

Dozier, Akin, Lee & Graham, Neal B. Graham, for appellant. Gorby & Reeves, Michael J. Gorby, Amanda H. Burri, Martha D. Turner, for appellee.

2. However, summary judgment for defendant was proper if there was no issue of fact regarding whether defendant exercised ordinary care. Plaintiff argues that a genuine issue of fact exists as to whether defendant breached its duty by failing to provide adequate security. Defendant employed an off-duty police officer as a security guard in the club. While plaintiff argues that there should have been more than one security guard in a club the size of Whiskey River, there is no evidence that the security measures taken by defendant were inadequate. The security guard and other personnel of defendant responded to and broke up the fight as soon as they became aware of it. “[Plaintiff] presents no evidence to show that [defendant] could have prevented the incident from occurring with a different security system in place. ‘A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.’ ” (Citation omitted.) Knudson v. Lenny’s, Inc., 202 Ga. App. 85, 87 (413 SE2d 258) (1991).

Nor do we find any merit to plaintiff’s argument that defendant had a “heightened” duty of care because Brown was a minor. Defendant had a procedure established to exclude minors from the nightclub, although it apparently failed when Brown was admitted. “Although we render no opinion as to [defendant’s] alleged negligence in performing this duty, we nevertheless conclude that if such negligence did occur, it was not the cause of [Brown’s] injuries.” Knudson, supra at 86. Plaintiff having failed to present some evidence that defendant’s security was inadequate or that any such inadequacy was the proximate cause of her injuries, summary judgment was properly granted to defendant. See Knudson, supra.

Judgment affirmed.

Smith, J., concurs. Beasley, P. J., concurs in judgment only.


text:
    A93A2229.
    MACOMBER v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (441 SE2d 276)
   Johnson, Judge.

Loyd E. Pryor sought to borrow funds to finance his peanut and soybean crops from the Farmer’s Home Administration and the Bank of Screven County, predecessor to First Union National Bank of Georgia. Because of the level of Pryor’s outstanding debt, and his nonperformance on previous loans, his requests were denied. Pryor then asked a friend, Roger C. Macomber, to loan him the money. Ma-comber agreed to loan the funds to Pryor, but in order to do so Ma-comber had to borrow $500,000 from First Union. He executed a promissory note on July 15, 1982, the expressly stated purpose of which was to “provide funds to Mr. Pryor for farming.”

W. Thomas Millican II, a local attorney, arranged the loan on behalf of Pryor, and submitted the application on behalf of Ma-comber. Millican also performed regular legal work for First Union and served on its board of directors. Pryor, Macomber and Jim Adams, who was the president of First Union at the time, all testified in their depositions that they believed that Millican was representing Pryor with respect to the transaction. When the loan funded, Millican deposited the money into his “Special Operating Account” at First Union, to be disbursed to Pryor as needed for his farming operations. Pryor assigned the proceeds from the sale of various crops as well as monies from government agricultural programs to Millican to be credited against the loan. Macomber paid accrued interest and renewed the loan on several occasions.

In 1984, the debt was restructured and Macomber’s son-in-law assumed a portion of the loan balance so that Macomber could borrow additional funds to purchase other property. This transaction was never completed, but resulted in the original note being marked paid, and the issuance of another note, dated February 14, 1984, reflecting a new balance of $402,000.

In March 1984, it was discovered that Millican had been embezzling funds from various individuals and entities. Investigations into Millican’s business activities were instituted by the FBI and the GBI. Following Millican’s suicide in June 1984, the Supreme Court of Georgia appointed a receiver to inventory Millican’s files and take such measures as were appropriate to protect the interests of Millican’s former clients. On October 8, 1984, the receiver gave Macomber the files pertaining to his loan with First Union. Macomber continued to pay the interest on the note as it accrued, as well as making an occasional payment to be applied to the principal. In April 1986, Ma-comber paid the remaining balance due, $373,087.

Macomber filed suit against Millican’s estate in June 1987. In his complaint he asserted that he had employed Millican to provide legal services on his behalf in connection with the loan at First Union. In his deposition in this case, however, Macomber denies that Millican represented him in the transaction. Rather, he testified that he understood that Millican was representing Pryor.

This suit, against First Union, was filed in March 1990. It was originally limited to claims of fraud and conversion. First Union filed a motion for summary judgment in June 1991, asserting that the action was barred by the statute of limitation. The complaint was later amended to include a claim for “money had and received.” The trial court granted First Union’s motion for summary judgment on all claims, but later vacated the order. After several extensions of time to conduct discovery, First Union renewed its motion for summary judgment in January 1993. The trial court granted the motion, finding that the statute of limitation had expired. Macomber appeals.

1. Macomber asserts that the statute of limitation had not expired on his claim for money had and received. The statute of limitation in an action for money had and received is four years. OCGA § 9-3-25; Sun Fed. Savings &c. Assn. v. Manny, 156 Ga. App. 807, 808 (2) (275 SE2d 661) (1980). The accrual of such a cause of action begins with the discovery of the fraud. Lowe v. Presley, 86 Ga. App. 328 (71 SE2d 730) (1952). The documents regarding Millican’s activities were provided to Macomber on October 8, 1984, and at that point he knew or should have known the status of his loan, thus triggering the running of the statute of limitation on any claim premised on money had and received. Therefore, the trial court correctly found that the money had and received claim, filed in 1990, was untimely. Furthermore, a claim for money had and received must fail on the merits. Although Macomber states in his brief that Millican was the alter ego of First Union, this assertion is unsupported by the record. According to the deposition testimony of Macomber, Pryor and Adams, everyone involved in the transaction believed that Millican was representing Pryor, not the bank. Clearly, First Union also benefitted from procurement of the loan. See Kirby v. Chester, 174 Ga. App. 881, 884 (2) (331 SE2d 915) (1985); and see generally Legacy Homes v. Cole, 205 Ga. App. 34 (421 SE2d 127) (1992). And even if we go further and allow that Millican, as a member of the board of directors of the bank, was acting in a dual agency role, there is still nothing in the record which would support a theory that Millican was the alter ego of the bank. The money held in Millican’s special operating account, i.e., the proceeds received from crop sales, was not accessible to the bank and could not have been applied to the balance of Macomber’s loan without Millican having done so. Neither has Ma-comber provided any evidence that the funds in Millican’s operating account either became the property of the bank or credited to the loan account at Millican’s death.

Macomber’s assertion that the debt to the bank was extinguished when his loan was restructured in 1984, is contradicted by his own deposition testimony and his own conduct in continuing to renew the new note, pay interest thereon and ultimately satisfying it. Stephens v. C & S Nat. Bank, 170 Ga. App. 793, 794 (1) (318 SE2d 216) (1984). Even after viewing all of the evidence most favorably toward Ma-comber, it is clear that the trial court correctly granted summary judgment in favor of First Union regardless of when such a claim was filed.

2. Similarly, the statute of limitation for Macomber’s fraud claims against First Union ran four years after the documents regarding his loan and Millican’s accounts were provided to him. Under certain circumstances, fraud can toll the statute of limitation, but it must be such as to prevent and deter the plaintiff from bringing his action. Webb v. Lewis, 133 Ga. App. 18, 21 (2) (209 SE2d 712) (1974). Although Macomber knew or should have known in October 1984 that certain credits had not been made to his loan account, he waited nearly six years, until 1990, to bring his action. No evidence has been presented indicating that those certain documents kept under seal after Millican’s death contained any information relevant to Ma-comber’s loan which had not been provided to him in 1984.

The statute of limitation begins to run on a cause of action on the date that suit on the claim can first be successfully maintained. Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992). Assuming arguendo that there was fraud perpetrated by the bank, Macomber could have protected himself by demanding to see the evidence of indebtedness from the date the note was signed and as a customer of the bank he could have obtained such information. Despite the numerous extensions of time to conduct discovery, and even if the bank had records other than those which were provided to Macomber in 1984, Macomber is not excused from ascertaining the status of his loan. “Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitations, for a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action.” (Citations omitted.) Limoli v. First Ga. Bank, 147 Ga. App. 755, 757 (250 SE2d 155) (1978). Macomber knew, or should have known, that payments were not being applied to the loan as contemplated when he first heard rumors regarding Millican’s activities, after Millican committed suicide, or when the records were given to him in 1984. Any of these occurrences could be construed as having commenced the running of the statute of limitation demanding the trial court grant summary judgment to First Union.

Decided February 14, 1994.

Edenfield, Stone & Cox, Gerald M. Edenfield, E. Lee Davis, Jr., for appellant.

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, Roland B. Williams, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.