author: McMurray, Presiding Judge. Pope, Chief Judge, Beasley, Presiding Judge,

text:
    A93A0319.
    WILSON v. THE STATE.
    (432 SE2d 211)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with murder, felony murder, armed robbery and burglary. The jury acquitted defendant on the murder, felony murder and armed robbery charges; it could not reach a unanimous decision on the burglary charge. The trial court declared a mistrial on the burglary charge and defendant was re-indicted and tried for burglary. Following a conviction on the burglary charge, defendant appeals. Held:

1. The testimony of an accomplice, coupled with defendant’s statements to the police, a deputy sheriff and a cellmate, were sufficient to enable any rational trier of fact to find defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Murphy v. State, 203 Ga. App. 152, 155 (4) (416 SE2d 376). See also Thurston v. State, 186 Ga. App. 881 (1) (368 SE2d 822).

2. Defendant voluntarily accompanied the police to the sheriff’s office in Sevier County, Tennessee, where he was interviewed in connection with the burglary. The police officers were in plain clothes and they were not armed. Defendant was told he was not under arrest and he was not restrained. In a small room at the sheriff’s office, the police asked defendant general questions about his background and they asked him what he knew about the burglary. Defendant began telling the officers what he had “heard.” When it became apparent to the officers that defendant “knew too much about what was supposed to have been taken, where the house had been entered, and the gauge of shotgun that was actually used in the crime,” they gave him Miranda warnings. See Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694).

Defendant asserts the trial court erred in refusing to suppress his pre-Miranda statement. We disagree. The statement was made before defendant was taken into custody. “For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. Shy v. State, 234 Ga. 816 (1) (218 SE2d 599) (1975); Miranda v. Arizona, [supra]. Miranda warnings are not required simply because questioning takes place in a building containing jail cells. Woods v. State, 242 Ga. 277, 280-281 (248 SE2d 612) (1978); Oregon v. Mathiason, 429 U. S. 492, 495 (97 SC 711, 50 LE2d 714) (1977). . . . [T]here is no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way by action of the officers when he made his first statement to the police. The defendant’s statement was admissible as a statement made prior to any in-custody interrogation. Davis v. State, 242 Ga. 901 (5) (252 SE2d 443) (1979).” Hardeman v. State, 252 Ga. 286, 287 (1), 288 (313 SE2d 95).

Judgment affirmed.

Birdsong, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., concurs specially. Beasley, P. J., Cooper, Blackburn, JJ., and Senior Appellate Judge John W. Sognier dissent.

Pope, Chief Judge,

concurring specially.

It is true, as noted in the dissenting opinion, that in determining whether a suspect was questioned in a custodial interrogation, so as to require that he be informed of his rights, the question is how a reasonable man in the suspect’s position would have understood his situation. See Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984). It has been settled, however, that in a setting of the type involved in the case at hand, the suspect is not in custody or otherwise deprived of freedom so as to require a warning pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). “[W]e have explicitly recognized that Miranda warnings aré not required ‘simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.’ [Oregon v. Mathiason, 429 U. S. 492, 495 (97 SC 711, 50 LE2d 714) (1977).]” California v. Beheler, 463 U. S. 1121, 1125 (103 SC 3517, 77 LE2d 1275) (1983).

Beasley, Presiding Judge,

dissenting.

I respectfully dissent because the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), were not timely given.

On review of a trial court’s determination of voluntariness of incriminating statements, after a Jackson-Denno hearing relating to admissibility, the trial court’s findings as to factual determinations and credibility are upheld unless clearly erroneous. Crawford v. State, 245 Ga. 89, 90 (2) (263 SE2d 131) (1980). In a Jackson-Denno hearing, the burden is on the State to show by the preponderance of evidence that defendant’s statements were voluntary. Hurt v. State, 239 Ga. 665, 668 (2) (238 SE2d 542) (1977).

In Miranda, the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates. the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. 384 U. S. at 444. To this statement it added a footnote: “This is what we meant in Escobedo [v. Illinois, 378 U.S. 478 (84 SC 1758, 12 LE2d 977) (1964)] when we spoke of an investigation which had focused on an accused.” Id. fn. 4.

“In custody” in the Miranda sense is broader than “under arrest.” It includes circumstances where the person is “significantly deprived of his freedom of action,” California v. Beheler, 463 U. S. 1121, 1123 (103 SC 3517, 77 LE2d 1275) (1983), that is, “where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Oregon v. Mathiason, 429 U. S. 492, 495 (97 SC 711, 50 LE2d 714) (1977), a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” Beheler, supra at 1125. “It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam).” Berkemer v. McCarty, 468 U. S. 420, 440 (104 SC 3138, 82 LE2d 317) (1984). “Custody” for Miranda purposes is not limited to that period after a suspect “is formally placed under arrest,” for such a rule “would enable the police to circumvent the constraints on custodial interrogations established by Miranda.” Berkemer, supra at 441.

The Second Circuit summarized what has evolved as the meaning of “custodial interrogation” for the purpose of the Miranda requirements: “The situations requiring that Miranda warnings be issued have generally been termed ‘custodial interrogation(s).’ See Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984). Custodial interrogation exists when a law enforcement official questions an individual and that questioning was (1) conducted in custodial settings that have inherently coercive pressures that tend to undermine the individual’s will to resist and to compel him to speak, Miranda, 384 U.S. at 467, 86 S.Ct. at 1624 (the in custody requirement) and (2) when the inquiry is conducted by officers who are aware of the potentially incriminatory nature of. the disclosures sought, Garner v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 1183, 47 L.Ed.2d 370 (1976) (the investigative intent requirement). Only questioning that reflects a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation the fruits of which may be received in evidence only after Miranda warnings have been given. See United States v. Moody, 649 F.2d 124, 127-28 (2d Cir. 1981). The questions asked must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the ‘will’ of his examiner. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980); Miranda, 384 U.S. at 457-58, 86 S.Ct. at 1618-19 (1966).” United States v. Morales, 834 F2d 35, 38 (2nd Cir. 1987).

Whether a person is “in custody” in the Miranda sense at a particular time depends on “how a reasonable [person] in the suspect’s position would have understood his [or her] situation.” Berkemer, supra, at 442.

It is in this context that we must consider this case.

Defendant was first interviewed by Ballew, an investigator of the State, when a large number of employees at a fair near the scene of the crimes was interviewed soon after the incident. Thereafter, in the course of the investigation, Perez, a co-worker, described defendant as one of the three people (Perez was one) involved in the incident and said defendant came from Sevier County, Tennessee. The investigator remembered defendant as fitting the description and the place of residence. A photo lineup was shown to Perez, who selected defendant’s photo. The investigators could not locate him at first but then received a call from the sheriff’s department in Sevier County advising that defendant was there. That sheriff had learned that the Gwinnett authorities were looking for defendant and arrested him at his mother’s home on an outstanding probation violation warrant. One of the purposes of the arrest at that time was to assure that the sheriffs department would know where defendant was when the Gwinnett authorities came to talk with him.

Ballew spoke with defendant while he was in custody at the jail and asked if they could talk. Defendant asked if it was about the incident in Lawrenceville. Ballew responded affirmatively and said there was no arrest warrant for him. Defendant agreed to talk at his mother’s house, where he lived, because he had no transportation to go elsewhere. Before Ballew and the two other law enforcement officers who accompanied him arrived the next morning, defendant was released on bond. They considered him to be “the prime suspect.”

Ballew and an armed Sevier County deputy went in a marked patrol car to defendant’s mother’s home. He agreed to talk with them, was patted down, and was taken in the patrol car to an office in the sheriffs department eight or nine miles from home, arriving about 10:30 a.m.

Present during the interview were Ballew, another investigator from the district attorney’s office, and a sheriffs investigator. All were in plain clothes. The room was about 10’ x 10’ or 12’ x 12’, had two desks, file cabinets, a window, and a door. Defendant was told that he had been implicated in a burglary in Lawrenceville but there was no arrest warrant for him and he was not under arrest. The investigators first obtained general personal background information about defendant for about 25 minutes to “set[ ] the mode and the tone of the interview [they] were getting ready to go into.”

At about 11:15 a.m. they asked him if he knew or had heard anything about the incident on Moon Road at the Couch house. Defendant said he had héard about it at the fair. He denied being present but in response to questioning went into details such as the gauge of the gun found at the scene, what items were stolen, where and how the house had been entered, and the location of the wound on the victim’s body. The investigators went over this several times with defendant. They showed him a picture of Perez, which he identified as “Bobby,” a person who worked at the fair in the dime pitch for Doug Dance. They told him that Perez had been arrested and had implicated defendant in the burglary. A few minutes later defendant picked up the photo and said Perez did not do the shooting, Kenny Howard did it. The investigators came to the conclusion that defendant knew too much not to have been there. They told him this and that they needed a written statement from him.

Then, which was about 12:10 p.m., one of the investigators advised defendant of his Miranda rights. Defendant, who had nine years of schooling and could read and write, signed a written Miranda waiver at 12:16 p.m. The investigator testified that this was not done sooner because there was no arrest warrant, they did not have enough information, he was a suspect, and he could leave the interview at any time. However, he was never told that he could leave, and he had no means to return home other than by walking or by police escort.

After the waiver, in response to questioning, defendant admitted that he was in the house with Kenny and Bobby. The investigators considered him to be under arrest at that point, and one of them left the room to telephone for an arrest warrant. A written statement was started, and defendant signed the first paragraph to the effect that the statement was being made voluntarily. Through questioning, defendant detailed the events of the crimes step by step, which the investigator made notes of and testified to at trial.

The interview was moved into the detective commander’s office downstairs because the first office was needed for another purpose. This was about 1:45 p.m. The written statement was not completed and was not signed by defendant because when they arrived at the second office, defendant indicated he wanted to call an attorney for advice. The questioning ceased.

Defendant was unable to obtain private counsel, so the public defender came. He testified that defendant “looked like he had been hassled,” was a “little bit nervous,” “didn’t exactly like being held there” and was “fairly slow” (mentally). He did not believe that defendant would have understood what “indictment” meant, and he explained to him what he was being charged with. The Sevier County deputy who went with Ballew to defendant’s mother’s house for him had been defendant’s probation officer and testified that defendant was “slow-functioning educationally,” had some “learning blocks,” and could not read or write very well.

According to investigator Ballew, defendant was cooperative throughout the interview, and the investigators tried not to intimidate him but knew that if he was involved, they would find out. And that if he was not involved, they would discover that also.

In sum, the facts of this case are that before defendant was advised of his rights, there was a “prolonged station house interrogation” which was “police dominated” and the detained person’s “freedom of action” was curtailed to “a degree associated with formal arrest,” all of which are “coercive aspects” of the circumstances. Compare Pennsylvania v. Bruder, 488 U. S. 9, 10 (109 SC 205, 102 LE2d 172) (1988), where these decisive factors were absent. There is no doubt that defendant had been “significantly deprived of freedom of action” when he made the statements and answered the questions which were aimed at and did lead him to the brink of confession. Only when he was standing on the precipice, surrounded by the knowledge that he had given so many details that he was doomed, and after the investigators concluded that he must have been present and implicated as Perez had accused, did the investigators advise him of his rights, including his right to be silent.

Before defendant was advised of his rights, he “was subjected to restraints comparable to those associated with a formal arrest.” Berkemer, supra at 441. Among the restraints were that he had been brought to the sheriff’s office although he preferred interview at home; he was unaware of any transportation back; he was questioned incommunicado for over an hour and a half in a small room cut off from the outside world, with three investigators, about an incident in which he had been implicated by a person who confessed; he was not told he could leave whenever he desired; he was subject to probation revocation due to arrest the day before for probation violation; and he was educated only to the ninth grade and was “slow.”

The relevant inquiry is “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, supra at 442. A reasonable man in defendant’s circumstances, considering everything, would have understood that he was “in custody or . . . deprived of his freedom of action in [a] significant way,” Miranda, supra at 445, prior to the time his rights were given. It cannot be concluded that the interrogation environment did not create an atmosphere of intimidation subjugating defendant to the will of the examiners. See Miranda, supra at 457. Compare Beheler, supra, where defendant was the person who originally called the police to report the crime, talked to them on the scene, gave consent to search the yard for the gun, voluntarily accompanied the police to the station, was interviewed for less than 30 minutes and left without hindrance. Compare also Mathiason, supra, where defendant later admitted that his interview was voluntary.

It is clear that the detectives were interrogating defendant “for the purpose of obtaining evidence to establish [his] guilt of a crime,” so that Miranda warnings had to be given. Shy v. State, 234 Ga. 816, 818 (I), 823 (218 SE2d 599) (1975). They had passed the point of mere investigation or inquiry aimed at determining the nature of the situation. As in Brown v. Beto, 468 F2d 1284, 1286 (5th Cir. 1972), “the focus of the investigation was clearly centered on” defendant. See also Aldridge v. State, 247 Ga. 142, 144-145 (2) (274 SE2d 525) (1981). “[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, supra at 302. What occurred here was “sustained and intimidating interrogation at the scene of [defendant’s interrogation].” See Berkemer, supra at 440.

Decided May 6, 1993 —

Reconsideration denied June 3, 1993

Jeffrey R. Sliz, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Since this occurred while defendant was under significant deprivation of his freedom of action, he was entitled first to be advised of his silence and counsel rights. Shy, supra at 819. Unlike Hardeman v. State, 252 Ga. 286 (313 SE2d 95) (1984), this case involves a suspect who was not warned before he was questioned at length and who was deprived of his freedom of action in a significant way. Unlike Vaughn v. State, 261 Ga. 686, 687 (2) (410 SE2d 108) (1991), this case does not involve a suspect who came to the station with his wife to make a statement and was permitted to leave afterwards; Vaughn was not “in custody” in the Miranda sense.

Defendant was not timely advised. His pre-Miranda elicited responses to questioning constituted indirect proof of involvement. These telltale statements, which predictably led to the conclusion reached by the investigators that he was in fact a participant in the crimes, were inadmissible. It inescapably follows as a matter of law that the confession which followed as a matter of fact was the product of the illegally obtained information and was tainted by it. The confession, too, is inadmissible evidence, because the appropriate safeguards were not timely afforded “to insure that the statements were truly the product of free choice.” Miranda, supra at 457.

The Miranda requirements “reflect[ ] the concern that the compulsive or coercive aspects of a custodial situation will cause a suspect to confess or to make incriminating statements involuntarily, not knowing of the Fifth Amendment protection against required self-incrimination.” United States v. Roark, 753 F2d 991, 992 (11th Cir. 1985). The State did not prove “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (58 SC 1019, 82 LE 1461) (1938).

I am authorized to state that Judge Cooper, Judge Blackburn, and Senior Appellate Judge John W. Sognier join in this dissent.

       Howard was later convicted of the murder and sentenced to life imprisonment.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A1283.
    HIXSON-HOPKINS AUTOPLEX, INC. v. CUSTOM COACHES, INC.
    (432 SE2d 224)
   Blackburn, Judge.

This is a suit on account in which the appellee Custom Coaches sought damages resulting from appellant Hixson-Hopkins Autoplex, Inc.’s (Autoplex) failure to pay for the purchase of six customized vans from Custom Coaches. Autoplex denied the existence of a contract to purchase the six vans and counterclaimed for damages arising out of Custom Coaches’ alleged breach of a different, but related, contract for the purchase of vans by Custom Coaches. The jury returned a verdict in favor of Custom Coaches for $33,330 as actual damages for breach of contract, $2,184.11 as interest, $5,000 as expenses of litigation, and $36,670 as consequential damages. Autoplex’s motions for directed verdict, judgment n.o.v., and new trial were denied, and Autoplex appeals.

1. In its first enumeration of error Autoplex asserts that the trial court erred in failing to grant its motion for directed verdict at the close of plaintiffs evidence. Autoplex argues that Custom Coaches did not establish an agreement to purchase the six custom vans, and that Custom Coaches’ claim for consequential damages was too remote and incapable of computation without speculation and conjecture.

“In Georgia, the standard used to review the grant or denial of a directed verdict is the any evidence test. [Cits.]” (Punctuation omitted.) Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 94 (406 SE2d 502), cert. den., 200 Ga. App. 895 (1991). “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50. In reviewing grant of a directed verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. [Cits.]” (Punctuation omitted.) Id.

(a) We find that there was sufficient evidence to support the finding of an agreement between Autoplex and Custom Coaches for the purchase of the six vans. Even the principal of Autoplex testified that he agreed to pay the purchase price of $5,500 for each of the six vans. Therefore, the trial court did not err in failing to grant Autoplex’s motion for directed verdict as to this issue.

(b) In its second basis for directed verdict, Autoplex argued that Custom Coaches’ claim for consequential damages was too remote. “Remote or consequential damages are not recoverable unless they can be traced solely to the breach of the contract or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract.” OCGA § 13-6-8. Custom Coaches claims that because Autoplex failed to pay the purchase price for the six vans, Custom Coaches was unable to purchase conversion packages for additional vans which, once sold, would have created a profit which would have, in turn, allowed for the purchase of additional conversion packages, again creating a profit. This circular method of computing lost profits could continue ad infinitum. Custom Coaches sought to obtain their “lost profits” from the time of the breach to the time of the trial.

Custom Coaches’ “lost profits” are clearly precluded by OCGA § 13-6-8. The lost profits sought by Custom Coaches are not independent of any collateral enterprise entered into in contemplation of the claimed contract. In fact, they are very dependent upon the market for Custom Coaches’ vans; a market which the testimony indicated was suffering from a recession. “The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” (Citation and punctuation omitted.) Crosby v. Spencer, 207 Ga. App. 487 (428 SE2d 607) (1993). “Further, the losses must be directly traceable to the acts of the other party. [Cit.]” Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (395 SE2d 592) (1990). Custom Coaches’ claimed lost profits of $36,670 are not directly traceable to Autoplex’s failure to pay $33,300 on a disputed contract. Custom Coaches’ claim appears to be more similar to a new form of pyramid scheme, than one for lost profits. Therefore, irrespective of whether the necessary proof was provided, Custom Coaches was not entitled to consequential damages, and the trial court should have granted Autoplex’s motion for directed verdict as to this issue.

(c) Assuming arguendo, that Custom Coaches was entitled to consequential damages, Autoplex further argues that the proof submitted by Custom Coaches as to its “lost profits” was insufficient as a matter of law. We agree. “The rule of course is that where, in a suit for damages for breach of contract, the plaintiff fails to present evidence supplying data sufficient to enable the jury to estimate with reasonable certainty the amount of his loss traceable to the breach, he is not entitled to judgment in his favor. [Cit.]” (Emphasis supplied.) Radlo of Ga. v. Little, 129 Ga. App. 530, 533 (199 SE2d 835) (1973). The only evidence supporting Custom Coaches’ calculations of lost profits was the testimony of Revonda Sartain, secretary/treasurer of the corporation and its bookkeeper since 1982.

Sartain’s testimony as to her calculations of lost profits did not provide the jury with sufficient data to estimate lost profits, if any. She testified that she “kind of used a formula where — how much profit we would have made off of each van after we sold it.” She further testified, “Normally the profit is around $1,000.00 a van. That’s before expenses. The truck driver, that figure is not in there, the delivery. Normally it’s around $350.00, but I used $1,000.00 as the base for the profit on each van. $33,330.00 would do six conversion packages based on $5,000.00 per package which is a little low on some, a little high on others, but I used this as an average figure. After I did that, I divided that into how many kits that I could have done that particular week and then just kept going from there, like by not having the $33,330.00, I was not able to turn the money. If I had the $33,330.00 I could — I don’t know how to explain this and it be simple — I could take that money and sell my vans and if I have that money, I would have $6,000.00 profit.”

Over objection by Autoplex’s counsel, Sartain testified, “Well, I can just take for instance in 1988, Custom Coaches did 2,000 vans that year. Recessionary trends, the next year when everyone seemed to be having a discrepancy whether we were or not, you could see van sales start dropping a little bit. So gradually sales with the Persian Gulf situation, van sales did drop and I used that figure because I know what we were running prior to that time and I felt like that March, things would have picked up like it normally does and we probably would have been doing not wide open like we did in ‘88 with 2,000 units, but I’m sure that we would have been turning more than five or six a week.” She further testified that Custom Coaches had turned as many as thirty-five vans a week and as few as ten vans per week; however, they had only turned three per week during the past year. Sartain “assumed” that they could have turned six vans per week, but for Autoplex’s actions. Whether this is six additional vans, or a total of six vans per week is unclear. Finally, again over Autoplex’s objection, Sartain testified that her calculations revealed $353,300 in lost profits.

The substance of Sartain’s testimony regarding her calculations as to lost profits has been set forth in our opinion. No additional evidence regarding past or projected gross or net profits, expenses incurred for gross profit, or saved expenses was presented during the trial. “[T]here is no evidence of either net profits or data from which [Custom Coaches’] net profits . . . could be calculated. . . . [T]here is nothing in the record to indicate what expenses [Custom Coaches] incurred iii performing the services . . . and thus no evidence from which an inference could be drawn that [its] net profits had declined. . . .” Grossberg v. Judson Gilmore Assoc., supra. See also Bennett v. Smith, 245 Ga. 725, 726 (267 SE2d 19) (1980). Therefore, assuming arguendo Custom Coaches’ entitlement to lost profits, its proof of lost profits was insufficient as a matter of law.

2. In its second enumeration of error Autoplex contends that the trial court erred in admitting Revonda Sartain’s testimony concerning her opinion respecting Custom Coaches’ potential profits. Autoplex argues that Sartain’s testimony was too vague to be considered by the jury. However, “ [admissibility of evidence is a matter which rests largely within the discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible.” (Citations and punctuation omitted.) Crosby, supra. We do not doubt that Sartain’s testimony did not prove the amount of Custom Coaches’ “lost profits”; however, the trial court did not abuse its discretion in allowing the testimony.

Decided May 20, 1993 —

Reconsideration denied June 3, 1993.

John S. Jenkins, for appellant.

J. Hue Henry, for appellee.

3. In Áutoplex’s third enumeration of error, it argues that the trial court erred in failing to grant its motion for judgment n.o.v. or for new trial. On appeal, Autoplex asserts that its motion for judgment n.o.v. or for new trial should have been granted on the same issues to those in its motion for directed verdict. Such issues were dealt with in Division 1 of our opinion.

We find that Custom Coaches did present sufficient evidence to support the jury’s finding of a contract for the purchase of six custom vans between Autoplex and Custom Coaches. The judgment is affirmed as to that issue. However, we further find that the trial court erred in failing to grant Autoplex’s motion for directed verdict on the issue of Custom Coaches’ entitlement to lost future profits. Therefore, the judgment is reversed as to the award of consequential damages.

Judgment affirmed in part and reversed in part.

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


author: Smith, Judge.

text:
    A93A0136.
    PARROTTE et al. v. CHRISTIAN et al.
    (432 SE2d 255)
   Smith, Judge.

Thomas and Maureen Parrotte appeal the dismissal of their complaints against appellee Bryan D. Christian and uninsured motorist carriers State Farm Mutual Insurance Company and Allstate Insurance Company. The trial court dismissed on the grounds of laches and expiration of the applicable statute of limitation. The accident giving rise to the complaint occurred on August 19, 1989. Plaintiffs filed suit on August 16, 1991 seeking damages for personal injury and loss of consortium. The plaintiffs perfected service on defendant Christian on January 17, 1992 — two years and almost five months after the cause of action arose. Appellees contend that during the latter five-month period plaintiffs failed to act in a reasonable and diligent manner in attempting to serve Mr. Christian as quickly as possible. Held:

Decided June 3, 1993.

Repasky & Bates, Alexander J. Repasky, Gaye N. Heck, for appellants.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Ware & Associates, Suzanne T. Fink for appellees.

1. This court three times ordered counsel for appellant Thomas Parrotte to file an enumeration of error and brief by dates certain. Since he has failed without cause to present either despite repeated orders to do so, this appeal is hereby dismissed as to him pursuant to Court of Appeals Rule 14 (a). McBride v. Knight, 205 Ga. App. 549 (422 SE2d 675) (1992).

2. The trial court erred in dismissing the loss of consortium claim of Maureen Parrotte. “[I]nsofar as the plaintiff [wife] sought damages for loss of consortium the statute of limitation was four years, and the time had not run. Thus, even though the court determined the plaintiffs had not been diligent in obtaining service upon the defendant the action was not barred by the passage of time.” Elwell v. Haney, 169 Ga. App. 481, 482 (313 SE2d 499) (1984). See OCGA § 9-3-33.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A0195.
    McCRARY v. THE STATE.
    (432 SE2d 254)
   Pope, Chief Judge.

Defendant Terry McCrary was convicted of aggravated assault for stabbing a neighbor in the back with a knife. We affirm the conviction.

1. Defendant first argues the trial court erred in admitting the testimony of the State’s rebuttal witness concerning a threatening statement made by defendant to the victim’s girl friend after the incident. Defendant had testified earlier and denied that he had made any statements to the woman. Defendant argues no proper foundation was laid to present the testimony as a previous contradictory statement pursuant to OCGA § 24-9-83 or to present the testimony as evidence of bad character pursuant to OCGA § 24-9-84. We agree with the State that the testimony was not of the sort covered by either of these statutes but was simply presented to impeach the defendant’s testimony pursuant to OCGA § 24-9-82. Moreover, because defendant failed to raise these objections at trial, we cannot now consider them on appeal. See Price v. State, 204 Ga. App. 288 (1) (419 SE2d 126) (1992). Before the witness testified concerning the statement he heard defendant make to the woman, defendant’s attorney interrupted the questioning of the witness to state that it appeared the testimony would be irrelevant. The trial judge instructed the prosecutor to keep the questioning to matters which were relevant. Even if the statement of defendant’s attorney is considered to be an objection on the ground of relevance, this is not the objection raised on appeal. Moreover, even as to relevance, defendant’s attorney made no further objection and requested no further ruling and her failure to pursue a ruling on the objection results in waiver. See Harris v. State, 190 Ga. App. 343 (4b) (378 SE2d 912) (1989).

Decided June 3, 1993.

Janet S. Willy, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

2. We reject defendant’s argument that the evidence was insufficient to sustain the conviction. “Although the appellant pleaded justification and self-defense, the testimony of the witnesses . . . authorized the jury in rejecting these defenses and finding the appellant guilty of [aggravated assault].” Felts v. State, 244 Ga. 503 (1) (260 SE2d 887) (1979). See also Parham v. State, 204 Ga. App. 659 (420 SE2d 356) (1992).

Judgment affirmed.

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


text:
    A93A0217.
    THOMPSON v. THE STATE.
    (432 SE2d 250)
   Smith, Judge.

Charles Edward Thompson was charged by accusation with two felonies, possession of cocaine and obstruction of a law enforcement officer. He pleaded guilty to the cocaine possession charge and the other accusation was dropped. In Thompson v. State, 204 Ga. App. 220 (419 SE2d 541) (1992), this court rejected Thompson’s contention that his plea was not knowingly and voluntarily entered, but remanded the case for consideration of his claim of ineffective assistance of counsel. After a hearing, the trial court concluded Thompson’s trial counsel provided effective assistance during the prior proceeding, and Thompson filed this appeal.

At the hearing, trial counsel testified that he met with appellant on a number of occasions to discuss the case, and appellant insisted from the beginning that he wished to plead guilty. Counsel testified that after he reviewed the district attorney’s file, which included witness statements, documents detailing appellant’s lengthy criminal record, and the crime lab report of the cocaine found in appellant’s possession, he encouraged appellant to go forward with a jury trial, but appellant declined to do so. Trial counsel did succeed in persuading the prosecutor to drop the obstruction charge before the plea was entered. Although appellant testified he suffered from a mental or emotional disorder, counsel explained that he had sought no psychiatric tests because appellant appeared coherent and intelligent and did not mention his prior medical history. Appellant denied that counsel had advised against a guilty plea. He stated his understanding had been that an insanity plea was to be entered, although no plea of insanity was mentioned at the plea hearing.

Decided June 3, 1993

Closson & Bass, J. Michael Bass, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

“ ‘When a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision so to plead is voluntarily and knowingly made.’ [Cits.]” Walker v. Hopper, 234 Ga. 123, 125 (1) (214 SE2d 553) (1975). Appellant has presented no evidence to show that his trial counsel breached this duty. “On the contrary, before entering his plea, appellant affirmed that his attorney explained to him the consequences of entering a plea [and] also responded affirmatively to the trial court’s inquiry as to whether he was satisfied with his attorney’s representation. [Cit.]” Scott v. State, 185 Ga. App. 568, 570 (3) (365 SE2d 127) (1988). The record shows that trial counsel had ample time to evaluate the merits of the State’s case, confer with appellant and advise him of his options, and assess appellant’s understanding of the consequences of his actions. Compare Wharton v. Jones, 248 Ga. 265 (282 SE2d 310) (1981).

The gist of appellant’s argument on appeal is that trial counsel failed to file all the motions and conduct all the inquiries that might have been advisable had the case proceeded to trial. However, in Walker, supra, the Supreme Court rejected a similar contention, holding that when a defendant has previously stated an intention to plead guilty, the representation is adequate if counsel had sufficient opportunity to determine whether the plea was knowing and voluntary. The trial court’s finding on this issue was not clearly erroneous, and we affirm the judgment below.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0288.
    NEAL v. SUPERIOR INSURANCE COMPANY.
    (432 SE2d 253)
   Smith, Judge.

Appellant Neal sued Superior Insurance Company to collect Personal Injury Protection (PIP) benefits allegedly owed him for certain chiropractic treatments pursuant to the now repealed but herein applicable Georgia Motor Vehicle Accident Reparations Act (former OCGA § 33-34-1 et seq.). Appellant also sought a statutory “bad faith” penalty, attorney fees, and punitive damages. The insurer filed a motion for partial summary judgment as to its nonliability for bad faith penalties, showing that it refused to pay only for those chiropractic treatments received after an independent medical examination indicated that the appellant required no further treatments for symptoms arising out of the covered event. Defendant’s motion was granted, and this appeal followed. Held:

The trial court did not err in granting the defendant’s motion for partial summary judgment on the issue of the insurer’s alleged bad faith refusal to pay. “A judgment against an insurer for a bad-faith penalty and attorney fees [was] not authorized [pursuant to former OCGA § 33-34-6] if the insurer had reasonable and probable cause for defending the claim. [Cit.] ‘Not every defense bars a finding of bad faith. It is a defense which raises a reasonable question of law or a reasonable issue of fact though not accepted by the trial court or jury’ [Cit.]” Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212 (1) (322 SE2d 510) (1984). Where a licensed physician advises that continued treatments are not in fact necessary, unless the physician’s opinion is patently erroneous based on facts timely brought to the attention of the insurer, the insurer’s defense for refusing to pay for such treatments was reasonable as a matter of law. See, e.g., Colonial Life, supra at 213 (1).

While normally “the question of good or bad faith is for the jury, . . . when there is no evidence of unfounded reason for the nonpayment . . . the court should disallow imposition of bad faith penalties. [Cit.]” Intl. Indem. Co. v. Collins, 258 Ga. 236, 238 (2) (367 SE2d 786) (1988). The trial court correctly disallowed “bad faith” penalties against the insurer by grant of partial summary judgment since the insurer presented a defense that was reasonable as a matter of law. See King v. Public Savings Life Ins. Co., 162 Ga. App. 49 (290 SE2d 134) (1982).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided June 3, 1993.

Reynolds & McArthur, Bradley J. Survant, for appellant.

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


text:
    A93A0320.
    BAYSHORE v. THE STATE.
    (432 SE2d 251)
   Pope, Chief Judge.

Defendant Thomas Guy Bayshore was indicted for three counts of burglary and three counts of theft by receiving stolen property. The jury acquitted him of the burglary charges but convicted him on each count of theft by receiving stolen property. Defendant appeals.

1. Defendant argues the trial court erred in denying his motion to suppress evidence seized from a search of the defendant and in admitting the evidence at trial. We agree.

The evidence shows defendant was a suspect in the three burglaries and the police obtained a search warrant to search for stolen property at the apartment in which defendant was residing. Although the pre-printed portion of the search warrant permitted the naming of a person as well as a premises to be searched, the warrant was issued only for the search of the premises. When the police arrived at the apartment, defendant was standing outside, twelve to fifteen feet from the front door of the apartment, leaning against a car parked in the common parking lot serving the four apartment units in the building. Two officers detained defendant while the others conducted the search of the apartment but defendant was not placed under arrest. When the search was fruitless, the officers also searched a gym bag which was sitting within arm’s reach of defendant on the trunk of the car on which defendant had been leaning. Items which had been reported stolen in the three burglaries were found in the bag.

The issue in this case is whether a search warrant for an apartment in a multi-unit building is broad enough to include the search of the individual suspect who is standing outside the premises in a common area, in this case the parking lot which served all four apartment units in the building. The State argues the search was proper pursuant to OCGA § 17-5-28, which permits an officer executing a search warrant to search “any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” By the officer’s own account, however, defendant was not threatening any officer. That the defendant was not searched for protective purposes is illustrated by the fact the two officers who stayed outside to detain defendant did not search defendant or the bag until after the search of the apartment was complete and yielded no evidence.

Moreover, defendant was not “in the place” to be searched, as that phrase is used in the statute. A search warrant for a dwelling house is commonly held to apply not only to the dwelling but also to the curtilage of the dwelling. For example, in Bellamy v. State, 134 Ga. App. 340 (214 SE2d 383) (1975), this court concluded a search warrant for a certain address permitted the search of a vehicle parked in the driveway of the property. But the concept of curtilage is more easily applied to land surrounding a single-family dwelling than to common areas surrounding a multi-family dwelling. When the area in question is a common area serving multiple dwellings, it is less likely that the residents of any one unit have an expectation of privacy or reasonably consider the area to be an extension of the dwelling.

The facts of this case are similar to those in United States v. Stanley, 597 F2d 866 (4th Cir. 1979), in which the Fourth Circuit Court of Appeals held that a car parked directly in front of a mobile home which was the subject of a search warrant was not within the curtilage of the home because it was common property which served three other homes in the mobile home park and therefore could not be searched pursuant to the warrant. Just as the case at hand, the Stanley case presented a “unique twist in the law” because in the usual case the government argues the area searched was not within the curtilage of a home and therefore could be searched without a warrant. Id. at 870. Here, however, the State argues that the common area where the defendant was standing during the search was part of the curtilage and thus defendant and the bag in his constructive possession were covered by the search warrant for the apartment. “The ‘common area’ curtilage issue has been a thorny one for the courts. [Cits.] ‘Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.’ [Cit.]” Id. We conclude that the common parking area was not part of the curtilage of the apartment and was not included in the search warrant issued in this case.

The police could have named defendant in the search warrant or could have continued to detain him while a warrant for the search of his person and possessions was obtained. However, since the facts show defendant was not under arrest, was not attempting to flee and no other exigent circumstances were present to justify a warrantless search, the search of defendant’s bag was illegal and the trial court erred in permitting the fruits of that search to be presented in evidence at trial.

Decided June 3, 1993.

Peevy & Lancaster, G. Wayne Lancaster, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Assistant District Attorney, for appellee.

2. Without the improperly seized evidence, insufficient evidence was presented to permit a rational trier of fact to find defendant guilty beyond a reasonable doubt. Thus, defendant’s conviction must be reversed.

Judgment reversed.

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


author: Beasley, Presiding Judge.

text:
    A93A0656.
    NORMAN v. THE STATE.
    (432 SE2d 216)
   Beasley, Presiding Judge.

Norman was convicted of possession of cocaine. OCGA § 16-13-30 (a). His motion for new trial was denied.

Two plain-clothes detectives were patrolling a high drug activity area in an unmarked car at about midnight, having received information that a drug shipment had arrived. They observed Norman and a female engaged in what looked to them like a drug transaction, in a vacant lot next to a house under surveillance in which drugs had previously been found. They approached and identified themselves as police officers, and Norman and others around him scattered. Norman fled and was apprehended when he tripped and fell as Detective Pierce chased him. Norman was recognized as the other detective’s cousin. He was arrested, patted down for weapons, advised of his rights, and placed without handcuffs in the back seat of the unmarked car directly behind Pierce, who was driving, and alongside another individual who had previously been arrested. After Norman was placed in the car, Pierce noticed him reaching into his pocket and fidgeting with his sock. He suspected he was attempting to conceal something. Because of this suspicion, he kept looking back even though he was driving, and he noticed that Norman had dropped something on the floorboard. When they arrived at the station and removed the arrestees, Pierce reached into the rear floorboard, picked up a guitar pick and a piece of what was later proved to be crack cocaine, showed them to Norman, and asked whether they were what he had dropped. Norman admitted the guitar pick was his but denied any knowledge of the cocaine. Pierce testified that he had found these items together on the side of the rear seat occupied by Norman.

1. Norman contends the evidence was insufficient because the only evidence was his presence in the car near where the cocaine was found. He argues that others, namely the other arrestee in the back seat with him, and narcotics officers and other suspects previously transported in the car, which was used routinely in narcotics undercover work, had equal access to the back seat of the car and could have left the contraband.

This argument is not supported by the record. Unlike In the Interest of C. A. A., 187 Ga. App. 691 (371 SE2d 247) (1988), cited by Norman, ample evidence was adduced showing that others did not have equal access. Pierce testified that on that night, as was his usual practice before going on duty, he had “pull[ed] the back seat out, check[ed] it and [made] a visual inspection of the vehicle with the flashlight.” The hands of the other arrestee in the back seat were cuffed behind his back.

Although the evidence against Norman was circumstantial, it excluded every other reasonable hypothesis save that of his guilt, as required by OCGA § 24-4-6. Questions as to reasonableness are for the jury, and this court will not disturb the jury’s finding unless the verdict is insupportable as a matter of law. Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976). The evidence is sufficient.

2. No request was made for charges on equal access and mere presence and, since such charges would not have been adjusted to the evidence for the reasons discussed in Division 1, failure to give them was not error. Chandler v. State, 204 Ga. App. 512, 513 (6) (419 SE2d 751) (1992).

3. Norman asserts that his trial counsel was ineffective. This claim is made for the first time on appeal. Norman retained new counsel after his conviction, and second counsel filed a motion for new trial which did not include the ineffectiveness issue. Second counsel also filed a notice of appeal. Subsequently, second counsel was permitted to withdraw and Norman hired yet a third counsel, who filed the enumerations of error and brief.

In appropriate cases, claims for ineffective assistance of counsel are remanded to the trial court for an evidentiary hearing. See Johnson v. State, 259 Ga. 428, 429-430 (3) (383 SE2d 115) (1989). In cases where such remand “would serve no useful purpose,” Brundage v. State, 208 Ga. App. 58 (2) (430 SE2d 173) (1993), the ineffectiveness issue may be decided on the record by this court. Id. “However, in determining whether the claim should be remanded we must first decide whether the claim was raised ‘at the earliest practicable moment.’ ” (Citations and punctuation omitted.) Watts v. State, 200 Ga. App. 54, 55 (1) (406 SE2d 562) (1991). If not, it is waived. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991); Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). We note that White was a habeas corpus case. Waiver is strictly governed in such proceedings by OCGA § 9-14-48 (d); cause and actual prejudice must be shown to overcome it.

Second counsel represented Norman in ample time to have raised the ineffectiveness issue in the motion for new trial, and ordinarily failure to raise the claim under those circumstances would be deemed a waiver of the claim. See Thompson, supra at 388; Watts, supra. However, the circumstances in this case, including appellant’s affirmative actions in pursuing the issue, preclude a waiver.

Second counsel agreed to represent Norman after the verdict and sentencing, represented him through the motion for new trial, and filed a notice of appeal. He then notified Norman that he did not believe there were grounds for appeal and sought to dismiss it. Norman notified this court that he disagreed with the dismissal and attached copies of his correspondence with second counsel, indicating, inter alia, that Norman particularly objected to second counsel’s failure to raise the ineffectiveness issue. At Norman’s request, we permitted a change of counsel. Current counsel, the third, raised it. These facts establish that Norman took steps in perhaps the only manner available to a lay person to see that the issue, of ineffectiveness was raised at the earliest practicable moment. Post-conviction counsel whose professional judgment is that it would not be a valid claim cannot be expected to, and has no obligation to, raise it, just as “an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, . . .” White, supra at 32. See generally Sixayaketh v. State, 261 Ga. 690, 691 (2) (410 SE2d 112) (1991) (appellant was pro se after trial and did not file a motion for new trial; earliest practicable moment to raise ineffectiveness claim was on appeal); Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990) (no evidence that “appellant or his appellate counsel authorized, were aware of or participated in” timely motion for new trial filed by trial counsel, the public defender, after new appellate counsel had filed timely notice of appeal; under these circumstances, no waiver of ineffectiveness claim).

Having determined that the claim has not been waived, we turn to its merits. Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), set the standard for evaluating a claim of ineffectiveness of counsel. Its two-prong test was acknowlédged and applied by the Georgia Supreme Court in Smith v. Francis, 253 Ga. 782, 784 (1) (325 SE2d 362) (1985): The defendant must show (1) that his attorney’s representation was deficient; and (2) that the deficient representation prejudiced his defense, i.e., that a reasonable probability exists that but for the ineffective representation the result of the proceeding would have been different. Id. at 783. Both prongs must be proved. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989).

Norman’s claim of ineffectiveness of his trial counsel rests on two instances of alleged deficiency in representation. One is the failure to request charges on equal access and mere presence, which we have concluded were not adjusted to the evidence here and thus cannot form the basis of an ineffectiveness claim.

The other deficiency alleged is trial counsel’s failure to file a motion to suppress the contraband. Norman argues that the circumstances parallel those in Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989) and DiSanti v. State, 190 Ga. App. 331 (378 SE2d 729) (1989), where we ruled that although the officers involved had an articulable suspicion sufficient to warrant a brief, Terry-type stop, continued detention without any evidence of a crime was illegal and motions to suppress should have been granted.

Like Brown and DiSanti, the initial stop was justified. The officers’ observation of Norman engaged in what appeared to them as experienced narcotics detectives to be a drug transaction and Norman’s flight when police officers approached and identified themselves, coupled with the time of day (midnight) and the location (an area known for drug sales) provided an articulable suspicion sufficient to warrant further investigation. Compare Ruffin, supra. Unlike Brown and DiSanti, supra, however, we are unable to say whether probable cause existed for Norman’s arrest because that was not an issue below. The arrest was not challenged by way of a motion to suppress or by an objection at trial, so there was no development of its justification. Pierce’s testimony establishes that he placed Norman under arrest before putting him in the back seat of the car. The evidence at trial does not identify the charge on which Pierce based an arrest at that point. The cocaine had not yet been found.

Both prongs of the Strickland test — whether counsel’s performance was deficient and whether a reasonable probability exists that a different result would have been obtained but for the deficiency — depend on whether probable cause existed for the arrest. This court cannot decide the claim on the current record, as it could in Brundage, supra. The case is remanded to the trial court for an evidentiary hearing limited to whether counsel was deficient, and therefore ineffective, in failing to file a motion to suppress.

Judgment affirmed in part and remanded with direction.

McMurray, P. J., and Cooper, J., concur.

Decided May 6, 1993 —

Reconsideration denied June 4, 1993.

Garner, Reynolds & Pruitt, Michael D. Reynolds, for appellant.

Douglas C. Pullen, District Attorney, Kim B. Hoffman, J. Mark Shelnutt, Assistant District Attorneys, for appellee.

       He also cites Ruffin v. State, 201 Ga. App. 792 (412 SE2d 850) (1991), but distinguishes it himself. In that case there was insufficient articulable suspicion to support the initial stop, but during the stop an outstanding warrant for the appellant’s arrest was discovered, legitimizing the arrest.


author: Cooper, Judge.

text:
    A93A0181.
    BROWN v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    (432 SE2d 256)
   Cooper, Judge.

This appeal is from the trial court’s grant of summary judgment for appellee, plaintiff below, in an action to domesticate a default judgment entered in a New York state court.

Appellant purchased a limited partnership interest in Palm Beach North Limited Partnership (“PBNLP”) by paying $20,700 in cash and signing a promissory note for $293,600. As part of this transaction, PBNLP required that appellant provide a surety to guarantee payments due on the note. Appellee agreed to become appellant’s surety, and as partial consideration for this agreement, appellant signed an indemnification agreement in which he promised to indemnify appellee for all payments made and costs incurred if he defaulted. Paragraph 13 of the indemnification agreement stated: “The Undersigned hereby agrees that [this document] shall be deemed to have been executed in the State of New York, and the rights and liabilities of the parties hereto shall be determined in accordance with the laws of the State of New York. Any action or proceeding of any kind against the Undersigned arising out of or by reason of [this document] may be brought in any state or federal court of competent jurisdiction in any County in the State of New York, in addition to any other court in which such action might properly be brought.” (Emphasis supplied.) The indemnification agreement also provided that “[t]he Undersigned represents and warrants that he has knowledge and experience in financial and business matters (or has qualified and sophisticated investment counsel).”

When appellant learned that a class action had been filed alleging that the promoters of PBNLP were guilty of securities fraud, he stopped making payments on his note. Appellee as surety made two installment payments to cure the default and then brought suit against appellant in New York to recover for the payments made and costs. Although appellant was properly served with the New York summons in Georgia, he did not answer, and a default judgment was entered against him. Appellee then brought this action to domesticate the default judgment and moved for summary judgment. After a hearing at which appellant argued that the New York court lacked personal jurisdiction over him, appellee’s motion for summary judgment was granted.

1. In his first three enumerations of error, appellant argues that New York law governs all issues in this case, and that under New York law, the foreign judgment appellee seeks to domesticate should not be domesticated. However, appellant failed to provide written notice of his intent to rely on foreign law, see OCGA § 9-11-43 (c); nor did he prove the New York law on which he now seeks to rely, see OCGA § 24-7-24. Accordingly, the trial court did not err in applying Georgia law to determine whether or not the New York judgment should be domesticated. See Abruzzino v. Farmers’ &c. Bank, 168 Ga. App. 639 (1) (309 SE2d 911) (1983).

2. Appellant contends that the trial court erred in granting appellee’s motion for summary judgment because a question of fact remains regarding whether the New York court had personal jurisdiction over appellant. When a suit is brought to domesticate a foreign judgment, the judgment may be collaterally attacked on the ground that the foreign court lacked personal jurisdiction over the defendant. Economou v. Economou, 196 Ga. App. 196 (1) (395 SE2d 830) (1990). Moreover, if the foreign judgment is a default judgment entered against a nonresident of the foreign state, there is no presumption of personal jurisdiction and the burden is on the plaintiff seeking to domesticate the judgment, in this case appellee, to negate the defendant’s lack of jurisdiction defense. Atlantic Nat. Bank of Fla. v. Chance, 194 Ga. App. 634 (391 SE2d 677) (1990).

Appellee met its burden of negating appellant’s lack of jurisdiction defense by pointing to paragraph 13 of the indemnification agreement signed by appellant. Contrary to appellant’s contention otherwise, he clearly consented to jurisdiction in the courts of New York when he agreed that “[a]ny action or proceeding of any kind against [him] arising out of or by reason of [this document] may be brought in any state or federal court of competent jurisdiction in any County in the State of New York, in addition to any other court in which such action might properly be brought.” We cannot read this language as a choice of law provision, and we cannot accept appellant’s assertion that it meaninglessly states the “mere truism” that suit might be Brought in New York if New York would be an appropriate jurisdiction for suit under general principles of law. See Ga. Farm &c. Ins. Co. v. Ray, 148 Ga. App. 85 (251 SE2d 34) (1978). Contractual clauses providing advance consent to the jurisdiction of a court which would not otherwise have personal jurisdiction are valid and enforceable. Harbin Enterprises v. Sysco Corp., 195 Ga. App. 694 (1) (394 SE2d 618) (1990); see also Nat. Svc. Indus. v. Vafla Corp., 694 F2d 246 (11th Cir. 1982). Accordingly, the trial court did not err in concluding that appellant contractually consented to personal jurisdiction in New York as a matter of law.

3. Appellant further argues that, even if paragraph 13 of the indemnification agreement is read as a consent to jurisdiction in New York, reliance on that provision offends principles of due process because its language is not clear enough to provide appellant with fair warning that he might be subjected to the jurisdiction of a foreign cpurt. However, as we discussed in Division 2, we do not agree that the consent contained in paragraph 13 is not clear, and neither the use of the word “may” nor the failure to specify an agent for or means of service renders it ambiguous.

4. Appellant next contends that the contractual consent provision should not be recognized as valid because it was the product of undue influence rather than free negotiation. This contention may be raised to collaterally attack the foreign judgment only if the undue influence, if any, rises to the level of fraud in the procurement of the judgment. See Economou, supra. There is no evidence in the record to support the allegation that appellant was unduly pressured or defrauded when he signed the indemnification agreement. Rather, the record shows that appellant was a well-educated medical doctor who chose to invest in a tax shelter requiring a bond and entered into an agreement with appellee to supply that bond. This contention is therefore without merit.

5. In his last enumeration of error, appellant asserts that domestication of the foreign judgment was inappropriate because appellee was a participant in the securities fraud scheme allegedly perpetrated by the promoters of PBNLP. As noted above, a foreign judgment may be collaterally attacked in a domestication action if the foreign judgment was procured by fraud. Economou, supra. However, even if we assume appellee participated in the alleged securities fraud — an assumption which has no support in the record — such participation would constitute “intrinsic” fraud which, unlike fraud in the procurement of the foreign judgment, would not undermine the validity of the judgment and could not be raised by collateral attack. See Dixie Cash Register Co. v. S. D. Leasing, 172 Ga. App. 424 (323 SE2d 284) (1984). Appellee did nothing to prevent appellant from contesting the New York action. Accordingly, appellant’s final contention is without merit and the trial court did not err in granting appellee’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.

Decided June 4, 1993.

Scott & Quarterman, Russell T. Quarterman, Donald T. Wells, for appellant.

Blasingame, Burch, Garrard & Bryant, William S. Cowsert, John H. Peavy, Jr., for appellee.


text:
    A93A0205.
    TRANSPORTATION INSURANCE COMPANY v. ALLSTATE INSURANCE COMPANY.
    (432 SE2d 259)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of appellee Allstate Insurance Company’s (Allstate) motion for summary judgment. Appellant Transportation Insurance Company (Transportation) issued an automobile liability insurance policy to Automatic Data Processing (ADP) covering permissive use of automobiles owned by ADP. ADP permitted certain employees to use company cars for business and personal use. Gwendolyn Flitter was an employee of ADP who had obtained a company car for her use.

In March 1990, Flitter allowed a visiting friend, Delois Clark, to drive the subject vehicle on an errand to the grocery store for their mutual benefit. Clark was involved in a motor vehicle collision during the errand. The occupants of the car struck by Clark, the LaFavors, sued Clark for damages. Clark filed a claim with Transportation under the insurance policy issued to ADP. Clark’s personal automobile liability coverage was with Allstate.

Transportation filed a declaratory judgment action, and subsequently moved for summary judgment on the ground that coverage did not exist under its policy with ADP because Clark was not a permissive user of the vehicle. Allstate moved for summary judgment and claimed that Clark was a permissive user under Transportation’s policy, and that Transportation was the primary liability carrier while Allstate was the excess carrier. The trial court granted Allstate’s motion and Transportation appealed.

1. In its first enumeration of error, Transportation asserts that the trial court abused its discretion in ruling inadmissible, a copy of ADP’s Leased Vehicle Policy Agreement (LVPA) signed by Flitter and offered as evidence of ADP’s agreement with Flitter regarding the responsibilities and duties required of employees in obtaining a company car, where no explanation was offered as to the whereabouts of the original document. The agreement contained a prohibition against the use of the company vehicle by anyone other than the employee’s spouse. Transportation argued that Flitter identified the document and her signature on the last page of the document, thereby authenticating the document. Transportation further argued that the contents of the document were not disputed by Allstate and, therefore, the trial court should have admitted the copy into evidence.

“[A]s a general rule, admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. [Cit.]” West v. Nodvin, 196 Ga. App. 825, 827 (397 SE2d 567) (1990). The trial court determined that the copies of the LVPA were secondary evidence pursuant to OCGA § 24-5-4, and, therefore, inadmissible. OCGA § 24-5-4 provides: “(a) The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for. (b) Written evidence of a writing is considered of higher proof than oral evidence. In all cases where the parties have reduced their contract, agreement, or stipulation to writing and have assented thereto, such writing is the best evidence of the same.”

Flitter identified the LVPA as a document which she had seen on prior occasions. She also identified her signature on the document; however, she could not testify as to the contents of the writing because she could not recall reading them. Flitter further testified that she was unaware that she was not permitted to allow anyone other than a spouse to use the vehicle. Flitter’s testimony regarding the LVPA does not affect Allstate’s best evidence objection to the document’s admissibility. “A photocopy is ordinarily secondary evidence which may not be admitted over objection without properly accounting for the original. [Cits.]” Jones v. Sudduth, 162 Ga. App. 602, 603 (292 SE2d 448) (1982). The record contains no evidence of any attempt to account for the original LVPA. Therefore, it was not error to disallow the photocopy.

Transportation next argues that OCGA § 24-5-4 does not apply because the contents or existence of the document were not disputed. See Shivers v. State, 188 Ga. App. 744 (374 SE2d 233) (1988). The facts in Shivers, supra, are distinguishable, as it involved the introduction of a photocopy of a certified mail receipt introduced for the purpose of proving only the fact of mailing of the subject evidence. The custodial officer testified he had lost the original receipt. Upon objection the court properly held, and this court affirmed, that OCGA § 24-5-4 (a), the best evidence rule, applies only when a document is introduced to establish the existence or contents of the document and is not applicable when a party uses the document to prove a fact. In the subject case, the LVPA was sought to be introduced for the purpose of establishing both its existence and contents and, therefore, it was not error to exclude it. Had the LVPA been admitted, it would not have resulted in a different disposition of this case. The coverage terms provided by the insurance policy entered between Transportation and ADP and covering the subject vehicle, controls the outcome of this case, not any agreement entered between ADP and its employee as may have been evidenced by the LVPA. See Division 2.

2. In Transportation’s second enumeration of error, it asserts that the trial court erred in finding that Clark was a permissive user and thus an insured under the omnibus clause of its insurance policy. Transportation first argues that Clark’s use of the ADP-owned vehicle was not within the scope of the permission for the use of the vehicle given by ADP to Flitter. However, the only evidence regarding the scope of permission is Flitter’s testimony. She testified that she was allowed to use the vehicle for “nonbusiness” or “personal” needs. Transportation contends that Clark’s trip to the grocery store was for Clark’s personal benefit and not for Flitter’s benefit. However, this argument does not account for Flitter’s testimony that it was her dinner party and her guests. Clark’s use of the vehicle, with Flitter’s permission, was for both Clark’s and Flitter’s benefit and convenience.

In the present case, Transportation’s liability is dependent upon the terms of its insurance policy with ADP. Therein, an “insured” is defined as ADP and “[a]nyone else while using with your permission a covered ‘auto’ you own, hire or borrow except . . . (the exceptions are not applicable to the case sub judice).” In Hemphill v. Home Ins. Co., 121 Ga. App. 323 (174 SE2d 251) (1970), we were faced with a similarly worded omnibus clause. Therein, a father allowed his son to use the father’s car for. “general transportation purposes without restriction as to use, except that he was not to let anyone else drive it.” Id. at 324. The son lent the car to one of his friends who was involved in a collision. The father’s insurance policy provided coverage for “ ‘any other person using such automobile with the permission of the named insured.’ ” Id. at 329.

As in the present case, the question in Hemphill was what the language “ ‘use with permission’ ” meant. In Hemphill, we held “that the requisite permission relate [d] only to the purpose for which permission was given and not to the identity of the operator.” Id. We find that Hemphill controls the interpretation of the omnibus clause contained in Transportation’s insurance policy, and, as discussed above, Clark’s use was within the scope of permission given.

Transportation argues that under similar circumstances as found herein, we held that the second permittee’s use of the owner’s vehicle was found to lie outside the scope of the owner’s initial grant of permission for use of the vehicle; and, therefore, the second permittee was not an insured under the owner’s policy. See DeWorken v. State Farm &c. Ins. Co., 151 Ga. App. 248 (259 SE2d 490) (1979). However, that was not the basis for our holding. In DeWorken, the father allowed his son to use the father’s vehicle after the son obtained permission for each use from the father. Furthermore, it was undisputed that both the son and the friend to whom the son loaned the vehicle knew that no one other than the son was allowed to drive the car. The son borrowed the car and, with his friend, drove to his girl friend’s house. The son decided to stay at his girl friend’s house and allowed his friend to take the car. The friend was involved in an automobile accident with the car. Contrary to Transportation’s argument, we held that the friend was not an insured under the policy because it “required that an additional insured both use and operate the vehicle with the permission of the named insured or his spouse.” Id. at 250. Therefore, DeWorken does not apply to the instant facts because Transportation’s insurance policy only required that an insured use the vehicle with ADP’s permission, not that the vehicle be used and operated with ADP’s permission.

Decided June 4, 1993.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, William T. Clark, Julianne L. Swilley, for appellant.

Chambers, Mabry, McClelland & Brooks, David A. Komie, Francis G. Jones, Jr., Fain, Major & Wiley, Roger W. Orlando, Winston P. Bethel, James A. Barnett, for appellee.

Transportation next argues that the trial court’s ruling constitutes an application of the “first instance permission rule” that we have previously rejected. This argument would be applicable to the present case only if the trial court had not determined, and we did not agree, that Clark’s use of the vehicle was within the scope of permission given. Under the “first instance permission rule” once an owner permits another person to use his vehicle, the owner becomes liable for all uses of the vehicle by that person. This doctrine was rejected in Hodges v. Ocean Accident &c. Corp., 66 Ga. App. 431 (18 SE2d 28) (1941), and is not relevant to the holding of this case because we find that the trial court was correct in determining that Clark’s use of the vehicle was within the scope of the permission given to Flitter for use of the vehicle.

Judgment affirmed.

Smith, J., concurs. Johnson, J., concurs in the judgment only.


text:
    A93A1307.
    CLAPSADDLE v. THE STATE.
    (432 SE2d 262)
   Blackburn, Judge.

On March 5, 1992, Tim Clapsaddle, appellant, was tried and convicted of driving under the influence of alcohol, making him a less safe driver, and driving under the influence of alcohol with an unlawful blood alcohol level of .10 or more, both in violation of OCGA § 40-6-391. After Clapsaddle’s motion for new trial was denied, he appealed his conviction.

1. In his first enumeration of error, Clapsaddle asserts that the trial court erred in admitting into evidence, over his objection, the result of the intoximeter test. Clapsaddle objected to the admissibility of the result on the ground that he was not advised of his implied consent rights, at the time of his arrest, pursuant to OCGA § 40-6-392 (a) (3) and (4).

OCGA § 40-6-392 (a) sets forth guidelines for the admissibility of evidence of the amount of alcohol or drug in a person’s bodily fluids, as determined by a chemical analysis of the person’s bodily fluids. Subparagraph (a) (3) provides that “[t]he person tested may have a physician ... of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” OCGA § 40-6-392 (a) (4) provides, in pertinent part, that “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.”

The Georgia Supreme Court determined in Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983), that “the statute mandates that this advice be given ‘at the time of arrest.’. . . ‘[T]his (directive) cannot be interpreted to mean sometime in the future.’ ” In the present case, however, it is uncontroverted that the arresting officer did not inform Clapsaddle, at the time of his arrest, of his right to an independent chemical analysis. Deputy Hardman, of the Jackson County Sheriff’s Department, testified that he informed Clapsaddle of his implied consent rights at the police station approximately one hour after he had arrested Clapsaddle.

In Perano, supra, the Supreme Court was faced with answering a certified question regarding whether, under all circumstances, it was necessary to inform the defendant of his implied consent rights precisely at the point of physical arrest. The court concluded, “[u]nder ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” Perano, supra at 708. The court did recognize limited situations “where advising the accused at the moment of physical arrest would not enable the accused to make an intelligent choice concerning the state’s request and his right to undergo an independent test.” Id. at 707.

The circumstances of Clapsaddle’s arrest make it abundantly clear that he should have been advised of his implied consent rights at the time of his arrest, rather than one hour later. Hardman made a traffic stop of Clapsaddle’s vehicle for Clapsaddle’s failure to dim his bright headlights. Hardman detected an odor of alcoholic beverage about Clapsaddle and requested an alco-sensor test. Upon testing positive for alcohol, Hardman arrested Clapsaddle for the offense of driving under the influence of alcohol and placed him in the back seat of his patrol car. Hardman testified that he did not observe Clapsaddle violate any other traffic law other than failure to dim his headlights. Furthermore, Hardman testified that Clapsaddle was cooperative and coherent.

Decided June 4, 1993.

McArthur & McArthur, John J. McArthur, Jeffrey A. Rothman, for appellant.

Donald E. Moore, Solicitor, for appellee.

“There is no indication that [Clapsaddle] was too intoxicated to understand the warnings, compare Rogers v. State, 163 Ga. App. 641, 643 (295 SE2d 140) (1982), or too emotionally distraught, compare Hadden v. State, 180 Ga. App. 496-497 (1) (349 SE2d 770) (1986), or that [Hardman] was delayed by the exigencies of his duties, compare Mason v. State, 177 Ga. App. 184, 186 (2) (338 SE2d 706) (1985); Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986), or that [Hard-man] was unaware that [Clapsaddle] would be charged with violating OCGA § 40-6-391. See generally Whittington v. State, 184 Ga. App. 282, 284 (361 SE2d 211) (1987).” State v. Fleming, 202 Ga. App. 774, 776 (2) (415 SE2d 513) (1992). We must conclude, therefore, that the trial court erred in admitting into evidence, over Clapsaddle’s objection, the result of the intoximeter test.

2. In his second enumeration of error, Clapsaddle contends that the trial court erred in allowing Hardman to testify as to his opinion that Clapsaddle was under the influence of alcohol to the extent that it was less safe for him to drive. Clapsaddle argues that Hardman’s opinion was not supported by a proper evidentiary foundation and, therefore, it should not have been allowed. The foundation for Hard-man’s opinion was his experience dealing with and testing individuals who had consumed quantities of alcohol, as well as his observations of Clapsaddle. This evidence was admissible. See OCGA § 24-9-65; Gilbert v. State, 150 Ga. App. 339 (258 SE2d 27) (1979); Grier v. State, 72 Ga. App. 633 (34 SE2d 642) (1945). Clapsaddle’s second enumeration of error is, therefore, without merit.

Judgment reversed.

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


text:
    A93A0623.
    BRADDOCK v. THE STATE.
    (432 SE2d 264)
   Blackburn, Judge.

The appellant, Gary D. Braddock, was convicted by a jury of two counts of child molestation and one count of rape of his former stepdaughters and was subsequently sentenced to twelve years in prison on each offense, to serve concurrently. The trial court denied his motion for new trial and this appeal followed.

1. The defendant contends that the trial court erred in allowing the jury to question the absence of an individual who had not been called as a witness during the trial. He further asserts as error the failure of the trial court to declare a mistrial after receiving knowledge that the jury was deliberating prior to the conclusion of the trial based on the fact that a note from the jury was sent to the court inquiring into the absence of this witness before the case had actually been submitted to the jury for deliberation. We disagree.

The transcript of the trial shows that the jury submitted to the trial judge a handwritten note in which they questioned the absence of the mother of the victims and her failure to testify in support of her children in court. The note was presented to the court during a five-minute-recess period that had been provided for the purpose of allowing the state time to consider whether the state intended to present any rebuttal evidence. Counsel for the defendant immediately objected to the contents of the note and objected to the submission of the note in the court’s files. Thereafter, the court asked both counsel for the defendant and the prosecutor if either wanted to call the witness to the stand. Although the defendant declined the offer, the prosecution proceeded to call the mother of the victims to rebut allegations made by the defendant during his testimony.

In Bailey v. State, 203 Ga. App. 133, 137 (4) (416 SE2d 151) (1992), this court held that a juror’s conduct did not merit the granting of a new trial where the juror asked in a note presented to the court whether one of the defendants had pled guilty to the offense of burglary. This court concluded in Bailey that the juror was attempting to clear up any misconception that had been created by the defendant prior to the start of deliberations. Likewise, in Ellis v. State, 164 Ga. App. 366, 370 (9) (296 SE2d 726) (1982), a handwritten note was submitted by a juror to the trial judge before deliberations seeking clarification on the definition of the words agent and officer, as the terms were used interchangeably at trial. This court in Ellis at 370, found that the contents of the note did not indicate that an improper discussion had taken place, that any of the jurors had already formed an opinion on the case, or that a fair and impartial trial could not be had with that jury. In the present case, the question asked by the jury concerning the absence of the victims’ mother did not indicate that the jury had engaged in any improper discussions. The note did not imply that the jurors had formed an opinion on the case or that a fair and impartial trial could not be had with that particular jury. Although the defendant complains that the trial court erred in failing to grant a mistrial on this ground, “there was no motion made for a mistrial [on this basis] and there is nothing for this court to review. A mere objection . . . does not constitute a motion for mistrial. [Cits.]” Johnson v. State, 158 Ga. App. 398, 399 (2) (280 SE2d 419) (1981).

Decided June 7, 1993.

Lloyd D. Murray, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assis tant District Attorney, for appellee.

The defendant also contends that the prosecution improperly presented testimony from the victims’ mother after the jury questioned her whereabouts. However, our Supreme Court “has long held that, ‘(w)hether the State should be permitted to introduce . . . evidence after the defendant ha(s) closed his testimony, even if it was not strictly in rebuttal, (is) a matter resting in the sound discretion of the court.’ [Cit.]” Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991). The testimony of the victims’ mother was presented to rebut the defendant’s assertion that the victims fabricated the allegations on behalf of their mother as a part of a conspiracy against the defendant. “Under the facts of this case, ‘(t)he trial court did not abuse its discretion in controlling the scope of rebuttal testimony.’ [Cit.]” Id.

2. In his third enumeration of error, the defendant asserts that the trial court improperly admitted, over his objection, testimony concerning an alleged prior similar act that occurred approximately 15 years earlier. Specifically, the defendant asserts that he was never charged, arrested, indicted or tried for the offense and the incident is too remote in time to be considered. On the contrary, “[w]here ‘similar transaction’ evidence has been admissible otherwise, lapses of time of 11 years (Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985)) and of 19 years (Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985)) have not demanded that the evidence was inadmissible.” Gilstrap v. State, 261 Ga. 798, 799 (1) (410 SE2d 423) (1991). Further “[t]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” Cooper, supra at 255. Moreover, the prior acts need not have resulted in a conviction before the acts are deemed admissible. See Williams v. State, 251 Ga. 749 (4) (312 SE2d 40) (1983). Consequently, this enumeration is without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0054.
    DAVIS v. THE STATE.
    (432 SE2d 229)
    Decided May 25, 1993 —
    Reconsideration denied June 8, 1993

      Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.
   Blackburn, Judge.

On October 21, 1988, the appellant was issued a uniform traffic citation charging him with driving under the influence. He was tried and convicted of that offense in the Probate Court of Upson County, and that conviction was upheld on appeal to the Superior Court of Upson County. On November 27, 1990, however, this court reversed the conviction on the grounds that in the probate court the appellant had not waived in writing his right to trial by jury. Davis v. State, 197 Ga. App. 746 (399 SE2d 554) (1990). (That holding has since been invalidated by Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991), in which the Supreme Court held that in the absence of a timely objection to proceeding without a jury, the right to jury trial is waived.)

Upon retrial of the case, the appellant requested a jury trial, and the matter was transferred to the Superior Court of Upson County. Pursuant to OCGA § 40-13-3, the appellant’s case could not be tried in the superior court without a formal accusation, and on July 25, 1991, an accusation was filed charging the appellant with the same offense for which he was originally tried and convicted. The appellant then filed a plea in bar, asserting that prosecution of the DUI charge is now barred by the statute of limitation. The trial court denied that plea in bar, and this appeal followed.

The appellant’s sole contention is that because the accusation was filed more than two years after the date of the offense, his prosecution is barred by the statute of limitation. In the recent case of State v. Rustin, 208 Ga. App. 431 (430 SE2d 765) (1993), this court considered the identical issue presented by the instant case, and decided it adversely to the appellant. Specifically, the prosecution actually was commenced upon the issuance of the uniform traffic citation, and the filing of the accusation in July 1991, required by OCGA § 40-13-3 before the matter could be tried in the superior court, in no way constituted commencement of a new prosecution. Accordingly, the trial court properly denied the appellant’s plea in bar.

Judgment affirmed.

Johnson and Smith, JJ., concur.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.


text:
    A93A0130.
    FERST et al. v. FERST et al.
    (432 SE2d 227)
   Blackburn, Judge.

The appellant, Jeanne R. Ferst, petitioned the trial court for confirmation of her appointment as trustee of a trust agreement executed in March 1937 by her late father-in-law, M. A. Ferst, and for the removal of the sole surviving trustee, Helen Ferst, her mother-in-law and the widow of the grantor of the trust. The appellees, Suzanne Ferst Bloom, daughter of Helen and M. A. Ferst, and Suzanne Ferst Renfrow and Robin Ferst Howser, the grandchildren of Helen Ferst and children of Jeanne Ferst and the late Robert Ferst, remainder beneficiaries of the trust, responded to the petition, asserting a counterclaim for their appointment as co-successor trustees and for the removal of Helen Ferst as a trustee. The appellees also requested that the trial court deny the petition for the confirmation of the appointment of Jeanne Ferst as a trustee. In its order of June 16, 1992, the trial court removed Helen Ferst as a trustee because of her age and diminishing mental and physical capabilities and appointed Suzanne Ferst Bloom, Suzanne Ferst Renfrow, and Robin Ferst Howser as co-trustees. The court did not confirm the appointment of Jeanne Ferst as trustee because the appointment was not authorized “by a majority of the surviving trustees” as provided in the trust agreement, and this appeal followed.

On March 1, 1937, M. A. Ferst, as grantor, executed the subject trust agreement, naming Helen M. Ferst, his wife, Frank Ferst and M. E. Kilpatrick as trustees, for the lifetime benefit of Helen M. Ferst and following her death, for the benefit of the previously listed remaindermen. Frank Ferst and M. E. Kilpatrick have been deceased for a number of years.

Robert Ferst, the grantor’s son, became a co-trustee pursuant to paragraph 15 of the trust agreement after he reached 21 years of age and acknowledged the duties of a co-trustee. Paragraph 15 further provided that “[a] majority of the trustees shall control in all matters.” According to this paragraph, “[t]he trustees . . . shall be authorized to name successors hereunder for any Trustee or Trustees who may die . . . [but] are not required to appoint successors for such Trustees who may die. . . . Successor Trustees shall be appointed in writing by a majority of the surviving Trustees hereunder and shall qualify by acknowledgment in writing.” Successor trustees were not appointed to succeed Frank Ferst and M. E. Kilpatrick after their death.

On May 28, 1991, approximately one month prior to his death in June 1991, Robert Ferst appointed his spouse, Jeanne Ferst, as successor trustee, under the purported authority of paragraph 15 of the trust agreement, in the event that he became unable or unwilling to serve or to continue serving as trustee under the agreement. The record is devoid of any evidence that Helen Ferst, the sole remaining trustee at the time of the appointment of Jeanne Ferst, authorized in writing the appointment of Jeanne Ferst as a successor trustee.

“In construing trusts as well as other instruments th[e appellate] court [s] must interpret the language to effectuate the intent of the settlor within the guidelines of the law. . . .” Perling v. C & S Nat. Bank, 250 Ga. 674, 676 (1) (300 SE2d 649) (1983). In the instant case, the grantor specifically indicated in paragraph 15 of the trust agreement that a majority of the trustees shall control in all matters, including the appointment in writing of the successor trustees. Jeanne Ferst was not appointed by a majority of the two trustees living at the time of her appointment, but instead, was only appointed by her husband, Robert Ferst, as his successor. Moreover, the trust agreement did not contain a provision permitting a trustee to appoint his successor and only provided that trustees could appoint successors for deceased trustees.

The clear meaning of the language of the subject trust agreement is to authorize a majority of the serving trustees to appoint a successor for any deceased trustee. The authority to appoint does not arise until after the death of the trustee sought to be replaced and for that reason also, no trustee could possibly appoint his own successor while in life. The express language is unambiguous and creates a legitimate restriction on the appointment power of a trustee which this court must assume was intended by the grantor.

Appellant argues that OCGA § 53-12-172 (3) provides that a remaining co-trustee may act as if he or she was the only trustee in order to accomplish the purpose of the trust if a co-trustee is unable to act because of illness or other incapacity. This Code section became effective in July 1991, after Jeanne Ferst’s appointment and after the death of Robert Ferst. For this reason and the fact that Robert Ferst was not authorized by the trust instrument to appoint his successor, OCGA § 53-12-172 (3) is inapplicable to the facts of this case. Based upon the language contained in the trust agreement, we conclude that the appointment of Jeanne Ferst was not in compliance with the clear and unambiguous terms of the trust agreement and was not authorized thereby. Accordingly, the trial court did not abuse its discretion in appointing Suzanne Ferst Bloom, Suzanne Ferst Renfrow, and Robin Ferst Howser, the daughter and grandchildren of Helen Ferst, the grantor’s widow, as co-trustees of the trust agreement.

Decided May 24, 1993 —

Reconsideration denied June 8, 1993

Millkey & Associates, John M. Millkey, for appellants.

Robin Ferst Howser, pro se.

Suzanne Ferst Renfrow, pro se.

Doffermyre, Shields, Canfield & Knowles, Everette L. Doffermyre, Jr., Jane B. Long, for appellees.

Judgment affirmed.

Johnson and Smith, JJ., concur.