author: Carley, Chief Judge.

text:
    A90A0897, A90A0898, A90A0899.
    KUBLER v. GOERG.
    (339 SE2d 229)
   Carley, Chief Judge.

A simplified statement of the facts relevant to these appeals is as follows: Dr. Bruno Kubler is the trustee in bankruptcy for a German corporation that had secured a personal judgment in Germany against Ms. Ingeborg Skowronek. Since Ms. Skowronek had accounts at C & S National Bank (Bank), Dr. Kubler domesticated the German judgment in Georgia and then initiated garnishment proceedings against the Bank in the State Court of Fulton County. Thereafter, Dr. Klaus Goerg, in his capacity as the German-appointed trustee in bankruptcy of the estate of Heinz Kaussen, filed a claim in Dr. Kubler’s garnishment proceeding, and he also filed a complaint against Ms. Skowronek and the Bank in the Superior Court of Fulton County. In both his garnishment claim and his superior court complaint, Dr. Goerg alleged that Ms. Skowronek’s accounts at the Bank consisted of the proceeds of a fraudulent transfer to her from Kaussen and that, as to the creditors of the estate, those proceeds remained the property of Kaussen. The Bank was subsequently dismissed from Dr. Goerg’s fraudulent conveyances action and Ms. Skowronek failed to file a timely answer to his complaint. However, before a default judgment was entered against Ms. Skowronek, Dr. Kubler moved to intervene in Dr. Goerg’s fraudulent conveyances action but, because of a stay mandated by the pendency of a related bankruptcy proceeding, no ruling was made in either the garnishment proceeding or the fraudulent conveyances action for a ten-month period. At the end of that period, Dr. Kubler’s motion to intervene was denied and Dr. Goerg was granted a default judgment against Ms. Skowronek. In Case No. A90A0897, Dr. Kubler appeals from the denial of his motion to intervene and, in Case No. A90A0898, he appeals from the grant of default judgment in favor of Dr. Goerg. In Case No. A90A0899, Dr. Goerg cross-appeals from the grant of the default judgment, contending that the same did not provide the full relief to which he was entitled.

Case No. A90A0897

1. OCGA § 9-11-24 (a) (2) provides, in relevant part, that “[u]pon timely application anyone shall be permitted to intervene in an action . . . [w]hen [he] claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless [his] interest is adequately represented by existing parties.” Thus, “the requirements for intervention under the rule are three-fold: interest, impairment resulting from an unfavorable disposition, and inadequate representation. [Cit.]” Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 517 (191 SE2d 324) (1972).

With regard to the first requirement of OCGA § 9-11-24 (a) (2), Dr. Kubler, as Ms. Skowronek’s judgment creditor, clearly had an interest in the outcome of Dr. Goerg’s fraudulent conveyances action. However, merely having an interest in the outcome of that litigation would not be sufficient to authorize Dr. Kubler to intervene therein. OCGA § 9-11-24 (a) (2) requires that an applicant for intervention claim “an interest relating to the property or transaction which is the subject matter of the action. . . .” (Emphasis supplied.) The “property” which is the subject matter of Dr. Goerg’s action is Ms. Skowronek’s accounts at the Bank and the “transaction” which is the subject matter of that action is the alleged fraudulent conveyance of that property to Ms. Skowronek. Accordingly, in the absence of Dr. Kubler’s claim of an interest relating to that specific property or to that specific transaction, he had no right to intervene pursuant to OCGA § 9-11-24 (a) (2).

The record shows, however, that Dr. Kubler was not only Ms. Skowronek’s judgment creditor, but that he had also secured the domestication of the German judgment in Georgia and had filed a garnishment proceeding against the Bank. “Courts and text-writers have in different ways undertaken to describe the effect created by serving a process of garnishment. It is at least an inchoate or an incomplete lien.” Anderson v. Ashford & Co., 174 Ga. 660, 662 (1) (163 SE 741) (1932). Thus, by the time Dr. Goerg filed his fraudulent conveyances action, Dr. Kubler already had “at least an inchoate or an incomplete lien” on Ms. Skowronek’s accounts at the Bank and he had, therefore, an “interest” relating to the specific property which was the subject matter of Dr. Goerg’s action. See First Nat. Bank in Newnan v. Blackburn, 254 Ga. 379 (1) (329 SE2d 897) (1985); Moore v. Moore, 247 Ga. 243, 244 (1) (275 SE2d 334) (1981). Compare Brown v. Truluck, 239 Ga. 105 (236 SE2d 60) (1977); Braddy v. Dessau Realty & Ins. Co., 148 Ga. App. 589 (252 SE2d 10) (1978). Dr. Goerg had an interest in the accounts sufficient to authorize him to file a claim in Dr. Kubler’s pending garnishment proceeding (see Perry v. Freeman, 163 Ga. App. 186 (293 SE2d 381) (1982)) and Dr. Kubler likewise had an interest in those accounts sufficient to authorize him to intervene in Dr. Goerg’s subsequent fraudulent conveyances action. “The interest of the intervenor must be of such a direct and immediate character that he will either gain or lose by the direct effect of the judgment, and such interest must be created by the claim in suit, or a claim to a lien upon the property, or some part thereof, which is the subject matter of the litigation. [Cits.] The fact that a [lien] held by the intervenor would lose its priority under the contentions of the plaintiff is such an interest as would entitle him to intervene as a party defendant to resist the prayers of the plaintiff’s petition. [Cit.]” (Emphasis supplied.) Rossville Fed. Savings &c. Assn. v. Chase Manhattan Bank, 223 Ga. 188, 189 (1) (154 SE2d 243) (1967) (construing pre-CPA law).

Turning to the second requirement of OCGA § 9-11-24 (a) (2), it appears that a disposition favorable to Dr. Goerg in his fraudulent conveyances action would “as a practical matter impair or impede [Dr. Kubler’s] ability to protect” his inchoate or incomplete lien on Ms. Skowronek’s accounts at the Bank. A holding that the proceeds of those accounts were not the property of Ms. Skowronek would certainly impair or impede, if not preclude, the perfection of the lien on those specific accounts at issue in Dr. Kubler’s pending garnishment proceeding. See generally State Farm &c. Ins. Co. v. Five Transp. Co., 246 Ga. 447, 453 (3b) (271 SE2d 844) (1980). Compare Shoemake v. Woodland Equities, 252 Ga. 389, 394 (3) (313 SE2d 689) (1984). Intervention is authorized “where the applicant [is] so situated, as in our case, to be adversely affected by disposition of property under court control. [Cit.]” Sta-Power Indus. v. Avant, 134 Ga. App. 952, 959 (3) (216 SE2d 897) (1975). See also Rossville Fed. Savings &c. Assn. v. Chase Manhattan Bank, supra at 189 (1).

Finally, insofar as the inadequacy of representation ... is concerned, it cannot be said that Dr. Kubler’s interest in the accounts was adequately represented by Ms. Skowronek. She had failed to file an answer to Dr. Goerg’s complaint and allowed the case to go into default. See First Nat. Bank in Newnan v. Blackburn, supra. A finding “that the representation . . . is . . . inadequate [may be] based solely on the status and claims of the parties as revealed by the pleadings and representations of counsel. In this case[, there were no defensive pleadings filed by Ms. Skowronek and] the application for intervention revealed a claim of the applicant ([Dr. Kubler]) adverse to [Dr. Goerg] involving the subject matter of the pending suit. . . .” Southwest Ga. Production Credit Assn. v. Wainwright, 241 Ga. 355, 356-357 (2) (245 SE2d 306) (1978). Therefore, “[w]e conclude that . . . [Dr. Kubler’s] interest [was] not adequately represented by existing parties.” State Farm &c. Ins. Co. v. Five Transp. Co., supra at 453-454 (3b). Compare Shoemake v. Woodland Equities, supra at 394 (3).

2. Notwithstanding the merits of Dr. Kubler’s motion to intervene, Dr. Goerg urges that it nevertheless was not timely filed and that, on this procedural basis, the trial court’s denial of the motion was authorized.

Ms. Skowronek was in default at the time Dr. Kubler filed his motion to intervene. However, default judgment had not yet been entered and, in fact, was not entered until some ten months thereafter. See generally First Nat. Bank in Newnan v. Blackburn, supra. Compare Cipolla v. F.D.I.C., 244 Ga. 444 (260 SE2d 482) (1979); Harkness v. State of Ga., 185 Ga. App. 770 (365 SE2d 552) (1988); Doe v. Garcia, 177 Ga. App. 61 (338 SE2d 710) (1985). Moreover, “a consideration of whether an application to intervene has been timely filed does not depend solely on the amount of time that may have elapsed since institution of the action.” Liberty Nat. Bank &c. Co. v. Diamond, 231 Ga. 321, 325-326 (IV) (201 SE2d 400) (1973).

As we have held in Division 1, Dr. Kubler did have an interest in Ms. Skowronek’s accounts at the Bank by virtue of his pending garnishment proceeding, and he was so situated that his ability to protect his interest would, as a practical matter, be impeded or impaired by an unfavorable disposition of Dr. Goerg’s fraudulent conveyances action. Accordingly, Dr. Kubler should have been named and served as a defendant in Dr. Goerg’s fraudulent conveyances action from the outset. See OCGA § 9-11-19 (a) (2) (A). “Generally, whether an intervention is timely is a matter within the sound discretion of the trial court and such discretion will not be controlled. Yet, where, as in the present case, intervention is sought prior to judgment by a necessary party who should have been named and served in the original complaint, such intervention should have been allowed and the failure to do so amounts to an abuse of discretion. Rather than prejudicing the rights of [Dr. Goerg,] the permitting of such intervention would result in a judgment (assuming that [he was] finally successful) binding against [Dr. Kubler] whereas otherwise [Dr. Goerg’s right to the proceeds of Ms. Skowronek’s accounts in the Bank] would remain doubtful.” (Emphasis supplied.) State of Ga. v. Bruce, 231 Ga. 783, 786 (204 SE2d 106) (1974).

3. Dr. Kubler met all three of the requirements for intervention of right pursuant to OCGA § 9-11-24 (a) (2). State Farm &c. Ins. Co. v. Five Transp. Co., supra at 452 (3). His motion to intervene was timely filed. State of Ga. v. Bruce, supra. It follows that the trial court erred in denying Dr. Kubler’s motion.

Case No. A90A0898

4. “Only a party to the case can appeal from a judgment or one who has sought to become a party by way of intervention, and has been denied that right. [Cits.]” Johnson v. Rex Evans RV Center, 160 Ga. App. 189, 191 (286 SE2d 509) (1981). Dr. Kubler is one who sought to become a party-defendant by way of intervention and, as we have held in Case No. A90A0897, he was erroneously denied the right to become Ms. Skowronek’s co-defendant in Dr. Goerg’s fraudulent conveyances action.

However, in the instant appeal, Dr. Kubler seeks appellate review of the default judgment that was entered in favor of Dr. Goerg against Ms. Skowronek. “[W]hen a judgment is entered by default, the parties to that judgment are the plaintiff and the defaulting defendant. His default operates as an admission of the truth of the well-pleaded material facts alleged against him. [Cits.] However ‘. . . an admission predicated upon a default is operative [only] against the particular party who makes default, and does not bind a co-defendant who appears and contests the litigation.’ [Cit.] Just as a judgment is not binding on persons who are neither parties nor privies to it ([cits.]), so a default judgment is not binding on co-defendants who are not in default. [Cits.]” Peek v. Southern Guar. Ins. Co., 240 Ga. 498, 499 (1) (241 SE2d 210) (1978).

“ ‘(P)roper procedure is followed, after a default is entered against the nonappearing defendant, by proceeding to a trial of all the issues raised by the appearing defendants.’ [Cits.] Thus as against [Dr. Kubler], [Dr. Goerg] must prove [the allegations of his complaint]. We do not perceive how the default judgment [against Ms. Skowronek] has adversely affected [Dr. Kubler] as [an intervening] co-defendant, and [his] appeal [from that default judgment] must be dismissed. [Cits.]” Avis Rent A Car System v. Rice, 132 Ga. App. 857, 858 (2) (209 SE2d 270) (1974).

Case No. A90A0899

5. Although Dr. Goerg’s cross-appeal from the grant of the default judgment was timely filed, the result of our holding in Case No. A90A0897 is that he does not now “stand to receive benefit or advantage by a decision of his cross-appeal.” OCGA § 5-6-48 (e). If an appellant or cross-appellant “would receive no benefit by reversal of the case, [his appeal] is moot. [Cits.]” Chaplin v. State, 141 Ga. App. 788, 789 (1) (234 SE2d 330) (1977). Accordingly, Dr. Goerg’s cross-appeal is hereby dismissed pursuant to OCGA § 5-6-48 (b) (3).

Judgment reversed in Case No. A90A0897. Appeals dismissed in Case Nos. A90A0898 and A90A0899.

McMurray, P. J., and Sognier, J., concur.

Decided November 5, 1990

Rehearing denied November 21, 1990.

Macey, Wilensky, Cohen, Wittner & Kessler, Morris W. Macey, James R. Sacca, for appellant.

Richard B. Herzog, Jr., Doffermyre, Shields & Canfield, Robert E. Shields, Powell, Goldstein, Frazer & Murphy, Eric W. Anderson, Kilpatrick & Cody, Thomas C. Shelton, Laurel J. Lucey, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A90A0951.
    AETNA CASUALTY & SURETY COMPANY et al. v. CANTRELL.
    (399 SE2d 237)
   Carley, Chief Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee-plaintiff filed suit against appellant-defendants, alleging the existence of a fraudulent conspiracy to deny her no-fault benefits and seeking a recovery pursuant to the Georgia RICO Act. See OCGA § 16-14-6. After appellants answered and cross-motions for summary judgment had been denied, appellee sought class action certification as to “all persons who have been wrongfully denied personal injury protection benefits as a result of [appellants’ alleged] conspiracy. . . .” Class action certification was granted but, some months later, a motion for reconsideration was filed and denied. The trial court’s denial of the motion for reconsideration was certified for immediate review and the instant appeal results from the grant of an application for an interlocutory appeal from that order.

1. Appellee has moved to dismiss this appeal. However, the denial of the motion for reconsideration was an interlocutory order which was certified for immediate review by the trial court and, in compliance with OCGA § 5-6-34 (b), an application for an interlocutory appeal from that order was both sought from and granted by this court. Accordingly, we clearly have jurisdiction over the instant appeal. Rollins Communications v. Henderson, Few & Co., 140 Ga. App. 504 (1) (231 SE2d 412) (1976).

There is likewise no jurisdictional impediment to our consideration of the merits of appellants’ enumeration of error which challenges the trial court’s original grant of class action certification. There is a significant difference between initial appellate jurisdiction over an appeal and subsequent appellate authority to address the merits of an issue which is otherwise properly raised in an appeal. Since we clearly have jurisdiction over the instant interlocutory appeal pursuant to OCGA § 5-6-34 (b), we are not merely authorized but are, in fact, compelled to address the trial court’s original grant of class action certification which has been properly raised by appellants as an issue in this appeal. “Where an appeal is taken under . . . subsection (b) . . . of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.” OCGA § 5-6-34 (d).

It follows that appellee’s motion to dismiss the instant interlocutory appeal must be and is hereby denied.

2. As noted, appellee asserted the existence of a fraudulent conspiracy to deny no-fault benefits to herself and to that class comprised of other insureds whose claims for no-fault benefits had been denied after submission to appellants. The trial court found that the members of this class had potentially viable causes of action evincing “a mutuality and similarity of law, facts and relief [to that] being sought in this litigation.” It is appellants’ contention that the trial court erred in granting class action certification because the common, issues of law and fact which might otherwise exist do not predominate over those individual questions of law and fact upon which any recovery by each specific member of the class ultimately would depend. See generally Georgia Investment Co. v. Norman, 229 Ga. 160 (190 SE2d 48) (1972).

The existence of an alleged fraudulent scheme involving the wide-spread distribution of the identical “printed misrepresentation” to a group of individuals will authorize initiation of a class action on behalf of those recipients who were collectively misled thereby. See Stevens v. Thomas, 257 Ga. 645, 650 (2) (361 SE2d 800) (1987) (discussing class action certification in the case of an allegedly fraudulent scheme involving “printed misrepresentations in brochures, prospectuses, and other forms of advertisement”). However, appellee does not allege the existence of such a fraudulent scheme. The only common factor shared by the numerous members of the instant class is that each individual ultimately received a written notification of the denial of no-fault benefits after having submitted a specific claim for the payment of those benefits. Thus, the factual and legal focus must of necessity be upon the specific claim for no-fault benefits that each individual member of the class submitted rather than upon any common fraudulent misrepresentation that was made to each of them by appellants. “Assuming that there are other persons [than appellee] who [were denied no-fault benefits], their [recovery for the denial of those benefits] must be assessed on an individual basis [to determine whether their claims for benefits were compensable and were accompanied by reasonable proofs of loss], as must the amount of their [recoverable penalties and attorney’s fees under OCGA § 33-34-6] in the event any of them can establish a cause of action against [appellants]. A class action is particularly inappropriate under such circumstances.” Williams v. Cox Enterprises, 159 Ga. App. 333, 336 (5) (283 SE2d 367) (1981). A class action is not authorized where the “issue presented must be resolved on a ‘contract-by-contract basis,’ [cit.], and ‘ “(w)here the resolution of individual questions plays such an integral part in the determination of liability. . . .” [Cit.]’ [Cit.]” West v. Southern Guar. Ins. Co., 194 Ga. App. 412, 414 (2) (390 SE2d 619) (1990). See also Winfrey v. Southwest Community Hosp., 184 Ga. App. 383 (1) (361 SE2d 522) (1987).

Decided November 6, 1990

Rehearing denied November 21, 1990

Bondurant, Mixson & Elmore, H. Lamar Mixson, Michael A. Sullivan, Arrington & Hollowell, Marvin S. Arrington, W. Ray Persons, Crim & Bassler, Harry W. Bassler, for appellants.

Robert A. Falanga, Jesse E. Barrow III, for appellee.

“Although cognizant of the benefits of judicial economy and although reluctant to increase the burdens upon the plaintiff who seeks to litigate an action based upon an allegation of a fraudulent scheme, we find that the action here does not have the commonality of law and fact which would make it an appropriate case for class action treatment under [the Supreme Court’s] holding in [Georgia] Investment Co. v. Norman, supra. Accordingly, we reverse the trial court’s certification of this matter as a class action.” Stevens v. Thomas, supra at 650 (2). See also Tanner v. Brasher, 254 Ga. 41, 44 (2) (326 SE2d 218) (1985).

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1061.
    DEMPSEY v. THE STATE.
    (399 SE2d 239)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the aggravated child molestation of his ten-year-old daughter. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Urging that the State had not given the applicable notice required by the Uniform Superior Court Rules (USCR), appellant objected to the admission of certain evidence regarding his alleged commission of sexual acts against his daughter other than that for which he was being tried. The State’s response was that appellant’s “other” acts were part of a continuous transaction for which no notice was required. The trial court overruled appellant’s objection and allowed the State to adduce evidence of appellant’s commission of sexual acts against his daughter occurring some months prior and subsequent to the specific act for which he was being tried. This evidentiary ruling is enumerated as error.

Contrary to the State’s contentions, its compliance with the USCR was a condition precedent to the admissibility of the evidence because the “continuous transaction” exception that is provided in Rule 31.3 (E) is not so broad as to cover acts committed months prior or subsequent to the offense charged. Evidence of appellant’s commission of the other sexual acts against his daughter “would have been admissible upon the State’s compliance with Rule 31.3 (B), but would not come within the res gestae exception that is provided by Rule 31.3 (E). [Cit.]” (Emphasis in original.) Story v. State, 196 Ga. App. 590, 591 (396 SE2d 547) (1990). The “incidents involved here were not part of a single continuous transaction, but occurred at separate times. Therefore, the exception relied upon by the State is not applicable.” Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986).

Even though appellant’s “other” acts did not come within the exception of Rule 31.3 (E), evidence of their commission nevertheless would have been admissible if they had been sufficiently similar to the specific act of molestation charged in the indictment so as to be probative of appellant’s commission of that act. Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987). However, “the similar offense [s] admitted here, although within the statute of limitations, [were] not so similar as to be admissible as direct evidence of [appellant’s commission of] the crime charged [in the allegations of the indictment]. [Cits.]” (Emphasis in original.) Story v. State, supra at 591.

It follows that the trial court erred in failing to sustain appellant’s objection. Since, as in Story v. State, supra, we cannot say that the error was harmless, appellant’s conviction must be reversed and a new trial held.

2. Although the trial court’s failure to grant a motion for mistrial is enumerated as error, the record shows that appellant did not renew his motion after the trial court had given curative instructions. Accordingly, this enumeration of error has not been preserved for appellate review. Morgan v. State, 181 Ga. App. 113 (1) (351 SE2d 517) (1986).

3. The trial court’s refusal to allow appellant to introduce evidence that his daughter had previously made a false accusation of molestation against another man is enumerated as error.

Decided November 6, 1990

Rehearing denied November 21, 1990

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

Since appellant’s conviction must be reversed for the reason discussed in Division 1, we need not determine whether this evidentiary ruling constitutes an independent ground for reversal. If the issue arises at appellant’s retrial, the procedure established by Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989) should be followed in determining the admissibility of the evidence.

Judgment reversed.

Sognier, J., concurs. McMurray, P. J., concurs in the judgment only.


author: Beasley, Judge.

text:
    A90A1216.
    REID RENTAL, INC. et al. v. CITY OF WAYCROSS.
    (399 SE2d 247)
   Beasley, Judge.

Reid Rental Company (Reid) and Ms. Reid appeal the determination that three provisions of Waycross ordinances dealing with street paving assessments are not in conflict, the issue remaining after this court’s decision in City of Waycross v. Reid Rental Co., 186 Ga. App. 452, 453 (367 SE2d 305) (1988).

In 1980 an ordinance was passed establishing a paving district for the purpose of improving certain roads in what is known as Reid’s Subdivision Improvement District. The ordinance assessed one-third of the costs against the property abutting the streets improved according to its footage on the improved portion. The Reids own more than 50 percent of the property located on two streets assessed in the amount of $45,450. Waycross filed a lien upon the property when payment was not made and the Reids sought declaratory judgment, contending the lien was improper because the assessment was not made in compliance with the ordinance of 1925, which includes a publication requirement. No publication occurred.

The Waycross charter was amended by Ga. L. 1905, p. 1220 et seq., giving the city the power to make paving improvements and to make a direct assessment against the owner’s abutting property. It was amended again by Ga. L. 1913, p. 1234 et seq. and Ga. L. 1925, p. 1557 et seq. Only the 1925 Act contains the publication requirement.

Appellants contend that, since the earlier acts contained no publication requirement, the 1925 Act impliedly repealed the non-publication aspect of the other methods for imposing assessments.

Section 16 of the 1925 Act states that “[t]his Act shall not repeal or alter the present street improvement laws of the City of Way cross, except where the same are in direct conflict with this Act, it being intended that the provisions of this Act shall be cumulative and in addition to the present laws.”

The applicable rules of construction in this case are as follows. The intent of the legislature is paramount. OCGA § 1-3-1 (a). Moss v. Bishop, 235 Ga. 616, 619 (221 SE2d 38) (1975) overruled on other grounds, Shaheen v. Dunaway Drug Stores, 246 Ga. 790, 793 (273 SE2d 158) (1980). “Construction of a statute which would give effect to legislative intent and preservation of the Act is preferred to a construction which would necessarily destroy the Act. [Cit.]” Fulton County &c. Fund v. Teachers Retirement &c., 176 Ga. App. 612, 616 (337 SE2d 57) (1985). Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 61 (2c) (390 SE2d 55) (1989). “ ‘ “Repeals by implication are not favored by law, and a subsequent statute repeals prior legislative acts by implication only when they are clearly and indubitably contradictory, when they are in irreconcilable conflict with each other, and when they can not reasonably stand together.” ’ Kilpatrick v. State, 243 Ga. 799 (256 SE2d 900) (1979).” Sutton v. Garmon, 245 Ga. 685, 687 (1) (266 SE2d 497) (1980). Statutes in pari materia are to be construed together and harmonized. Georgia Marble Co. v. Whitlock, 260 Ga. 350, 354 (392 SE2d 881) (1990); Butterworth v. Butterworth, 227 Ga. 301, 303 (3) (180 SE2d 549) (1971). Legislation conferring the power to assess for public improvements is, of course, construed “ ‘strictly as against the municipality and liberally in favor of the property owner.’ ” City of Griffin v. Crossfield, 95 Ga. App. 289, 293 (97 SE2d 618) (1957).

The 1925 Act stands together with its predecessors. All three acts grant the power to improve city streets. The 1905 Act provided only for the assessment of costs against abutting property owners and for collection by execution, levy and sale. The 1913 Amendment expands the original Act by providing for improvement districts, assessment methods, the issuance of notes or other obligations to be paid by assessments and a special tax for street improvements. The 1925 Act expands the subject to provide an alternative method for financing improvements by use of Street Improvement Bonds. This is the only financing mechanism providing for issuance of bonds and requiring the publication here sought.

The construction urged by Reid would result in the limiting and unintended effect of not only requiring publication, but also requiring that the only method of financing such improvements would be Street Improvement Bonds. The more logical interpretation and the one giving effect to all three statutes is that the requirement of this publication relates only to financing through Street Improvement Bonds, offering the city alternative methods. See City of Waycross v. Cowart, 164 Ga. 721, 722 (1) (139 SE 521) (1927).

Decided November 8, 1990

Rehearing denied November 21, 1990

Dillard & Landers, Terry A. Dillard, Joseph E. East, Bryant H. Bower, Jr., for appellants.

W. Grady Pedrick, for appellee.

There was no error in the grant of summary judgment to the City of Waycross nor in its denial to appellants.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1303.
    TAYLOR v. THE STATE.
    (399 SE2d 213)
   Beasley, Judge.

Defendant, convicted of possession of firearms by a convicted felon (OCGA § 16-11-131), contends denial of his motion for new trial was error. The motion was based on grounds he was deprived of an evidentiary hearing on his motion to suppress and, if the motion were meritless as held by the trial court, he was deprived of effective assistance of counsel.

1. The first enumeration contends there was a failure to give an evidentiary hearing on the suppression motion, depriving defendant of his Fourth and Fourteenth Amendment rights.

The motion was filed on December 27, 1988, and the trial was held on January 10, 1990. At the beginning of the trial, the court did conduct a hearing, although no evidence was presented. At the beginning of the discussion, the prosecutor acknowledged that the State had the burden of proof, but contended it was not necessary to go forward because the motion failed to set forth any facts supporting the contention of illegality, containing only boilerplate allegations.

Upon inquiry by the court, the defendant abandoned all of the grounds except the following three: “that the search and seizure was illegal, in violation of his rights and unconstitutional for the following reasons: (e) That the information contained in the affidavit constitutes false swearing (g) That the information contained in the affidavit was stale (h) That the affidavit is based solely on hearsay and is not corroborated by the affiant.” There were no further factual allegations in support of these grounds, nor was any brief of legal argument provided. The state produced the affidavit and warrant before the trial court.

As in Boatright v. State, 192 Ga. App. 112, 118 (385 SE2d 298) (1989), so here, “[w]e find that the trial Judge correctly concluded that the motion to suppress did not state facts showing that the search and seizure were illegal. Rather the motion contains only a series of conclusions unsupported by statements of fact. Accordingly, the motion did not meet the statutory requirements of OCGA § 17-5-30 (b), and the trial court did not err in its disposition of the motion. [Cits.] . . . Moreover, our Supreme Court has held that ‘all motions to suppress [evidence obtained during an unlawful search or seizure whether based on statutory or non-statutory grounds] should be governed by OCGA § 17-5-30. . . . [State v.] Slaughter, [252 Ga. 435], 439. Thus, all motions to suppress, whether based on statutory or non-statutory grounds must ‘ “state facts” ’ and not merely ‘conclusions.’ ”

No facts were stated and the court was not required to hear evidence. Smith v. Hopper, 240 Ga. 93, 95 (3) (239 SE2d 510) (1977); Hayes v. State, 168 Ga. App. 94, 95 (4) (308 SE2d 227) (1983).

Other arguments are made here, but will not be considered, not having been presented below. Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).

2. Defendant’s retained counsel was replaced by new counsel after trial. New counsel filed a motion for new trial on the general grounds and on the ground that defendant was rendered ineffective assistance of counsel. A hearing was set for February 20, 1990, in which this counsel apparently participated. What transpired was not recorded. The same counsel argues on appeal that failure to effectively draft and pursue the suppression motion was ineffective assistance as a matter of law.

“Under the standards set forth in Strickland v. Washington, 466 U. S. 668, 687-688 (104 SC 2052, 80 LE2d 674) (1984), ‘appellant’s burden on challenging his counsel’s effectiveness was to establish that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Cit.) He was required to show that there was a reasonable probability that the result of the proceedings would have been different but for his counsel’s unprofessional deficiencies. (Cit.) Further, he had to overcome the strong presumption that the representation was effective.” Close v. State, 195 Ga. App. 652, 653 (394 SE2d 563) (1990).

The record contains a transcript of only a portion of the beginning of the trial in which the motion to suppress was discussed. While the issue of ineffectiveness of counsel may sometimes be determined without the testimony of trial counsel, it generally cannot be done when the basis of the claim involves matters outside the record, such as discussions between counsel and client of grounds for the motion, if any, and investigation by counsel of such grounds, if any. Dawson v. State, 186 Ga. App. 718, 721 (6) (368 SE2d 367) (1988), rev’d in part, 258 Ga. 380.

Decided September 4, 1990

Rehearings denied November 6, 1990 and November 21, 1990.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Kenneth D. Feldman, Assistant District Attorneys, for appellee.

“ ‘ “(T)he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. [Cits.] . . . ‘(W)here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.’ (Cits.)” ’ In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988).” Coffee v. Silver, 195 Ga. App. 247, 248 (393 SE2d 58) (1990). Moss v. State, 194 Ga. App. 181 (390 SE2d 268) (1990).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Beasley, Judge. Pope, Judge,

text:
    A90A0767.
    L & W SUPPLY CORPORATION v. WHALEY CONSTRUCTION COMPANY, INC.
    (399 SE2d 272)
   Beasley, Judge.

Defendant Whaley Construction Company, a general contractor, subcontracted with defendants Drury and Swain d/b/a Southeastern Custom Services to install sheetrock on two separate construction projects. Southeastern purchased its sheetrock materials on an open account from plaintiff, a building materials supplier. When Southeastern failed to pay plaintiff for the materials, plaintiff filed a claim of lien against the real property of both projects pursuant to OCGA § 44-14-361 et seq. Whaley filed discharge bonds, releasing the real property from the liens as provided by OCGA § 44-14-364.

Plaintiff subsequently sued to recover on the bonds. Whaley answered, cross-claimed, and moved for summary judgment. It contended, in part, that the liens were insufficient as a matter of law because they failed to specify the date the claims became due as required by OCGA § 44-14-361.1. It provides the procedure for creating and declaring those liens specified in OCGA § 44-14-361. The trial court granted Whaley’s motion, and plaintiff appeals.

Mechanics’ and materialmen’s liens under OCGA § 44-14-361 are in derogation of common law and thus are to be strictly construed against the mechanic and materialman. See, e.g., Pacific Southern Mtg. Trust v. Melton, 151 Ga. App. 593, 594 (260 SE2d 910) (1979). Although as a general proposition strict compliance with the statute is required, Roberts v. Porter, Davis &c., 193 Ga. App. 898, 902 (3) (389 SE2d 361) (1989), the statute itself expressly provides for “substantial compliance” with the underlying contract and the providing of certain information in the claim “in substance.” OCGA § 44-14-361.1 (a).

As to the form of the claim, which is what we are solely dealing with here, the statute sets out what it shall be “in substance.” OCGA § 44-14-361.1 (a) (2). The filed document is to identify the claim by specifying, for one thing, the date upon which the claim became due.

By stating in the forms that the “last day . . . material [was] delivered was [August .16, 1988 and September 21, 1988 respectively],” rather than that “the claim was due” on the said date in each case, the lienholder did not lose its right to enforce the liens against the property owners. What it stated was the same thing as what is required.

There are two critical dates for the enforcement of mechanics’ liens. One is that the claim of lien must be filed within three months after, as it relates to this case, “the material... is furnished.” OCGA § 44-14-361.1 (a) (2). The other is that an action for recovery of the amount of the claim must be commenced within 12 months from “the time the [claim] shall become due.” OCGA § 44-14-361.1 (a) (3). Foster & Kleiser v. Coe & Payne Co., 185 Ga. App. 284, 286 (363 SE2d 818) (1987), rev’d on other grounds, 258 Ga. 161 (366 SE2d 292) (1988); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 961 (1) (216 SE2d 659) (1975). In both instances, the date from which the measurements are made is the same. That was recognized long ago: “The lien comes into potential existence only when the statute is satisfied. Its vitality as an enforceable lien depends upon the concurrence in fact of three things, viz., the furnishing of the materials, the record of the claim of lien within three months, and the institution of foreclosure suit in twelve months; if there is a failure in either, the lien is inoperative.” Chamlee Lumber Co. v. Crichton, 136 Ga. 391, 393 (71 SE 673) (1911).

As recognized in Dixie Lime &c. Co. v. Ryder Truck Rental, 140 Ga. App. 188, 189 (1) (230 SE2d 322) (1976): “Generally, the account becomes due ‘upon the delivery of the last item constituting a part of the . . . account.’ [Cit.] ” In other words, the supplier did specify the date the claim was due; it was by its statement the last date material was delivered. The date specified was, for legal purposes, the equivalent of the due date.

The phrases have been used fairly interchangeably. For instance, the 12-month requirement of subsection (a) (3) “from the time the [claim] shall become due” is referred to in subsection (a) (4) as “12 months from the date such . . . supplies . . . are furnished to [the contractor or subcontractor]. . . .” Another example is that the title of the act amending subsection (a) (3) in 1968 recites that it is to provide that lien enforcement “shall be brought within twelve (12) months from the time such . . . supplies were furnished,” whereas the content of the change recites that lien actions are to be filed “within 12 months from the time the same shall become due, ...” A third illustration is Dodson v. Earley, 161 Ga. App. 666, 667 (1) (290 SE2d 105) (1982): February 1 was the last day on which labor and materials were furnished. That date a year hence was therefore, the court concluded, the last date on which suit could be brought because that was the date on which the claim became due.

The date the material was “furnished” or “delivered” is crucial to the timeliness of the lien. See Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703 (397 SE2d 122) (1990). The date the claim is due means the same thing for mechanics’ lien purposes, even if the parties agree on a different due date. Dixie Lime &c. Co., supra at 190. The latter is of no consequence in determining the validity of the lien.

Most telling is an analysis of the language of the statute. A reading of subsection (a) shows that “the date the claim was due” is the comprehensive term used to cover all of the events which will trigger the lien for the various types of purveyors who can claim this statutory lien. Subsection (a) (1) sets out the types of activities covered, and subsection (a) (2) specifies the date in the various categories from which timeliness of filing is to be measured. For “building, repairing, or improving” real property, the lien arises on the date of “the completion of the work”; for “architectural services” it arises on the date of the “furnishing” thereof; for land surveying or professional engineering services it arises on the date of the “furnishing or performing” of such; for materials or machinery it arises on the date the material or machinery is “furnished.” Then, in setting out the form to be followed “in substance,” the Code draws all of these types of events together under the umbrella of “the date the claim was due.”

The Supreme Court has held that if the lien is filed on time and the action is commenced on time, it is still effective against the property owner despite the lienholder’s failure to specify the amount or due date in the lien claim. J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 (264 SE2d 9) (1980). This holding is not adversely affected by the subsequent change in the statute in 1983 (Ga. L. 1983, p. 1450) insofar as property owners are concerned. The change simply deleted the caveat that if the claim of lien did not specify the amount and due date it would not constitute notice for any purpose. The Supreme Court had carved out from this death knell and saved lien claims but only as against property owners under certain conditions. The removal of the caveat in 1983 left the principle of strict construction, tempered by the statute’s “in substance” standard, to govern the efficacy of lien claims and their enforceability.

Supplier L & W Supply Corporation’s stating the specific rather than the generic did not deviate from the requirements of the Code so as to render its lien claim defective and unenforceable. The supplier complied with the requirements for valid liens when it stated the date materials were last delivered to each project. Defendant Whaley was not entitled to summary judgment.

Judgment reversed.

Corley, C. J., Deen, P. J., McMurray, P. J., Birdsong and Cooper, JJ., concur. Sognier, J., concurs in the judgment only. Banke, P. J., and Pope, J., dissent.

Pope, Judge,

dissenting.

I respectfully dissent. Although the majority recognizes that the governing statute requires the claim of lien to specify the date the claim became due (as well as the amount of the claim), the majority nevertheless finds that substantial compliance with this provision is all that is necessary to render the lien enforceable. With this result I cannot agree.

OCGA § 44-14-361.1 provides in pertinent part as follows: “To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 41-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall be not be effective or enforceable. . . .” Subsection (a) (2) of that section requires that the claim of lien specify both the amount of the claim and the date the claim became due. As I read the statute there can be but one result — if the materialman or mechanic fails to specify the date the claim became due, (or fails to follow any of the statutory mandates for creating and declaring liens of this type), the lien is unenforceable. Consequently, I disagree that a materialman seeking the protection afforded by OCGA § 44-14-361 need only substantially comply with that section by stating when the services or materials were furnished.

The majority cites the case of J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 (264 SE2d 9) (1980) in support of its conclusion. In that case, the Georgia Supreme Court, construing the predecessor to OCGA § 44-14-361.1 (Ga. Code Ann. § 67-2002), held that “the lien is rendered ineffective against the property owner only in the event that there is not a substantial compliance by the party claiming the lien with his contract; or that the claim of lien is not filed for record within three months after the completion of the work or furnishing of material; or that the action for recovery of the amount of claim of lien is not commenced within 12 months from the time the claim became due. The failure to specify in the claim of lien the amount claimed due and the date the claim became due does ‘result in such lien not constituting notice for any purpose,’ but this does not render the lien ineffective.” (Emphasis supplied.) Id. at 178-179. Morris was decided in 1980. In 1983 the provisions of the Code relating to the filing of materialmen’s and mechanics’ liens were amended. At that time the legislature deleted the language relied on by the court in Morris concerning the failure of a claim of lien which omits the amount of the claim or the date the claim became due to constitute notice for any purpose. Ga. L. 1983, p. 1450, § 1. Consequently, I believe the holding in Morris is inapplicable to cases involving claims of liens filed after the 1983 amendment. OCGA § 44-14-361.1 (a) as presently drafted clearly provides that those liens specified in OCGA § 44-14-361 “must be created and declared in accordance with the . . . provisions [of 44-14-361.1], and on failure of any of them the lien shall not be effective or enforceable.” “The lien statutes are strictly construed and strict compliance with them is required. [Cit.]” Roberts v. Porter, Davis &c., 193 Ga. App. 898, 902 (389 SE2d 361) (1989). Thus I would uphold the grant of summary judgment to defendant Whaley inasmuch as I believe the claim of lien in this case is ineffective and unenforceable because it does not comply with the requirements of OCGA § 44-14-361.1.

Decided November 21, 1990.

Stein & Cauthen, Robert H. Cauthen, for appellant.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellee.

I am authorized to state that Presiding Judge Banke joins in this dissent.

       A default judgment was entered against defendants Swain and Drury.


author: Cooper, Judge.

text:
    A90A1253.
    DIXON v. THE STATE.
    (399 SE2d 275)
   Cooper, Judge.

Appellant was tried before a jury and convicted of two counts of aggravated assault. He appeals from the trial court’s denial of his motion for a new trial. In his sole enumeration of error, appellant contends the State failed to prove the lack of self-defense beyond a reasonable doubt.

Decided November 21, 1990.

J. Philip Carr, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

The assaults occurred in a trailer belonging to one of the two victims, Mary Jordan. Appellant was present in the home, awaiting the return of Mary Jordan’s daughter, whom he had been dating. Shortly after appellant arrived, Mary Jordan went to sleep on a mattress in the living room. While appellant waited in the kitchen, which was adjacent to the living room, Mary Jordan’s son, Willie Jordan, sat on a sofa in the living room directly in front of the appellant watching television. Willie testified that as he arose from the sofa to go to the bathroom, appellant asked, “Must I or mustn’t I?” and then for no explicable reason, appellant shot Willie twice, rendering him a quadriplegic. Appellant testified that he shot Willie because Willie was angered when appellant “joked” that he should take Willie’s sister’s baby away and because Willie had threatened to kill him. Appellant insisted that he feared Willie was going to harm him; however, he admitted that Willie never had a weapon. Mary Jordan was awakened by the gunfire and went to attend to her son when appellant shot her in the leg. Appellant testified that he fired because Mary Jordan pursued him with a knife. The police found no weapons in the house. Appellant testified he had been drinking corn liquor and beer earlier in the evening, and the record reflects that a peace warrant had been issued which banned appellant from the house. The investigating officer testified that a total of five shots was fired and that after appellant’s arrest, appellant admitted the shooting, claiming he acted in self-defense. Appellant also told the officer, “If I had had another bullet, I would have shot her again.”

Appellant contended that he shot the victims in self-defense; therefore, the State had the burden of proving beyond a reasonable doubt that appellant did not act in self-defense. State v. Shepperd, 253 Ga. 321 (320 SE2d 154) (1984). In the instant case, we find the State presented ample evidence from which the jury could have found beyond a reasonable doubt that appellant did not act in self-defense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wesley v. State, 166 Ga. App. 28 (1) (303 SE2d 124) (1983).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1331.
    HARDEN v. THE STATE.
    (399 SE2d 276)
   Cooper, Judge.

Appellant was convicted by a jury of two counts of aggravated assault, three counts of mutiny and kidnapping, two counts of theft by taking and escape stemming from his involvement in a jail break from the Houston County Jail. He appeals from the trial court’s denial of his motion for new trial, enumerating as error the sufficiency of the evidence and the trial court’s imposition of a felony sentence for escape.

The record of the evidence adduced at trial, construed to support the jury’s verdict, demonstrates that two deputies were distributing medications in one of the cell blocks when they were attacked by several prisoners. One deputy testified that appellant struck him with what he believed to be a battery wrapped in a sock. A third deputy, the shift supervisor, was dragged from the office to the cell block where he was nearly strangled by one of the inmates. While in the cell block, the shift supervisor witnessed appellant and another inmate wrestling with the two deputies on the floor. The three deputies were locked in the cell, and seven prisoners, including appellant, escaped. An inventory of the jail subsequent to the escape revealed that guns, money, handcuffs, clothes, keys and a truck belonging to one of the deputies were missing. The jail break began at approximately 11:00 p.m., and the truck was located in neighboring Peach County at about 4:00 the following morning. Appellant was apprehended during the early morning hours in Peach County as well.

1. Appellant contends the verdict was not supported by the evidence and argues that his convictions cannot stand because there was no showing of common plan or conspiracy, his mere presence did not make him a party to the crime and he did not aid or abet fellow inmates. “ ‘Under (OCGA § 16-2-20 (a)) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. (OCGA § 16-2-20 (b).)’ [Cits.]” Stoe v. State, 187 Ga. App. 171 (3) (369 SE2d 793) (1988). In the instant case, the evidence was sufficient to establish that appellant was concerned in the offenses of which he was convicted, and “the jury was authorized to find appellant guilty as a principal.” Glover v. State, 192 Ga. App. 798, 800 (1) (386 SE2d 699) (1989). Although the evidence indicates that appellant assaulted and committed mutiny against only one of the deputies, he clearly took advantage of the assaults, mutinies and kidnappings by his fellow inmates to flee the jail. Lubiano v. State, 192 Ga. App. 272 (1) (b) (384 SE2d 410) (1989). Likewise, the other escapees were aided by appellant’s detention of the deputy in accomplishing their assaults, mutinies, kidnappings, and thefts.

Decided November 21, 1990.

Robert E. Bergman, for appellant.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

Appellant also contends the conviction for kidnapping cannot stand because there was no showing of asportation. “The determinative factor with regard to the element of asportation is whether ‘appellant even momentarily caused the victim(s), “without lawful authority or warrant,” through intimidation and coercion, to engage in actions (including moving from one place to another) “against (their) will(s).” ’ [Cit.]” Briard v. State, 188 Ga. App. 490 (1) (373 SE2d 239) (1988). The record shows that the deputies were attacked, forced into a cell and locked in against their wills; hence, asportation was established.

Based on the foregoing, we conclude that a rational trier of fact could have found appellant guilty beyond a reasonable doubt of the offenses of aggravated assault, mutiny, kidnapping, theft by taking and escape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant charges the trial court erred in imposing a felony sentence on the conviction for escape inasmuch as the jury found him guilty of escape without a dangerous weapon, which should have been punishable as a misdemeanor. OCGA § 16-10-52 (b). It appears that the box designated “Felony Sentence” on appellant’s sentence for escape was erroneously checked, instead of the box designated “Misdemeanor Sentence”; therefore, the case shall be remanded for the entry of a misdemeanor sentence on the escape conviction.

Judgment affirmed and case remanded with direction.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1361.
    STINSON v. THE STATE.
    (399 SE2d 278)
   Cooper, Judge.

Appellant was charged in two indictments with crimes stemming from two separate incidents. He appeals the judgment of conviction entered on the jury verdict.

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion for separate trials. In the first indictment, appellant was charged with cruelty to children by throwing his youngest daughter, Lucenia, against the bed and wall causing multiple bruises to her body. In the second indictment appellant was charged with the one count each of child molestation, rape, incest and cruelty to children of his oldest daughter, Natasha. Appellant argues that he was entitled to have the crimes tried separately because the offenses charged in the first indictment were unrelated to the offenses charged in the second indictment. “ ‘The right of severance where the offenses are joined solely on the ground that they are of the same or similar character is “because of the great risk of prejudice from a joint disposition of unrelated charges.” ’ (Cit.) However, where, as here, the similarity of the crimes reaches the level of a pattern, severance of the crimes is not required. [Cit.] ‘(I)n this particular kind of circumstance (,severance) lies within the sound discretion of the trial judge. . . .’ [Cit.]” Weddington v. State, 191 Ga. App. 738 (5) (382 SE2d 661) (1989). The offense charged in the first indictment was related to the offenses charged in the second indictment because both involved physical abuse directed by appellant toward his daughters while they were living in the same household. Accordingly, we find no error in the denial of appellant’s motion for separate trials. See Thompson v. State, 181 Ga. App. 163, 165 (351 SE2d 483) (1986).

2. Appellant contends that the trial court erred in denying his motion in limine to exclude testimony regarding other violent acts committed by appellant on the grounds that the evidence impermissibly placed his character into evidence. Natasha testified that appellant beat her on numerous occasions and that she also witnessed appellant beating her mother. The victims’ mother testified that appellant beat her on numerous occasions in the presence of Natasha and Lucenia. Lucenia testified that she has also seen appellant beat her mother. “[Natasha’s] credibility, which might be sustained by prompt reporting of the offense or by offering an explanation for the failure to do so, as well as by her reaction to and interaction with [appellant], were relevant issues for the jury’s consideration. [Cit.]” Brinson v. State, 191 Ga. App. 151, 154 (5) (381 SE2d 292) (1989). Accordingly, we find no error with the denial of appellant’s motion in limine.

3. Appellant enumerates as error the trial court’s denial of his motion for directed verdict on the first indictment. Appellant contends that there was a fatal variance between the indictment and the proof in that the indictment alleged that appellant threw the victim against a bed and the wall, whereas the evidence did not establish that he threw the victim against the bed or the wall. The victim’s mother testified as follows: “He told me to spank her and I wasn’t spanking her hard enough so he came in and saw it then he started to, like, hitting her real hard with a belt and made me go out of the room, but I only went out in the hall and I turned around and he had thrown her against the wall and bursted something like a light socket . . . The victim testified that appellant hit her and she fell off the bed and hit the electric socket. “A variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. [Cit.]” Hancock v. State, 188 Ga. App. 870, 871 (374 SE2d 757) (1988). Since it does not appear that appellant was misled or prejudiced, it was not error for the trial court to deny appellant’s motion for directed verdict.

Decided November 21, 1990.

Kendall, Dixon & Turk, Kenneth A. Glenn, for appellant.

W. Fletcher Sams, District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Pope, Judge.

text:
    A90A1424.
    MORROW v. STEWART.
    (399 SE2d 280)
   Pope, Judge.

Appellant Richard E. Morrow and appellee James G. Stewart entered into a written contract of employment pursuant to which Morrow retained Stewart to represent him in a personal injury action against Billie S. Kirtley. As is pertinent here, the employment contract provided that Stewart would receive “thirty-three and one-third percent (33-Vá %) of the gross amount paid in satisfaction of any compromise settlement proceeds and forty percent of any settlement, verdict or recovery obtained in said action after the instituting of suit as compensation for legal services rendered in connection with the handling of [Stewart’s] claims.” The contract further provided “I understand that I may dismiss my attorney at anytime, for any reason, upon written notice to him and payment of unpaid expenses and services rendered to the date of the receipt of such notice; payment to be based upon time devoted to my case at any hourly rate of $80.00 per hour, or the applicable percentage of fee due him under the terms of this agreement of any offers which have been made by any adversary or collateral party, whichever is greater.”

Stewart filed suit on behalf of Morrow against Kirtley on March 21, 1988. On August 18, 1989, Kirtley, through his attorney, offered Morrow $75,000 to settle his claims. By letter dated September 6, 1989, Morrow notified Stewart he was discharging him as his legal representative. On November 11,1989 Stewart filed his attorney’s lien contending that pursuant to the terms of the employment contract he was entitled to receive $30,000 (40 percent of the offer that had been received at the time he was dismissed), plus expenses of $946.18. Stewart also filed a motion to intervene in the action between Morrow and Kirtley, which was granted by the trial court on January 3, 1990. A consent order was filed on January 17, 1990 which provided that Morrow and Kirtley had agreed to settle for the sum of $80,000. Pursuant to that order $30,000 was paid into the registry of the court on account of Stewart’s attorney’s lien, $946.18 was paid to Stewart for his expenses, $21,000 was paid to Emily Sherwinter (whom Morrow had retained to represent him after he dismissed Stewart), $1,761.77 was paid to certain medical providers and the remainder ($26,292.05) was paid to Morrow. Morrow appeals from the trial court’s order denying his motion to set aside the attorney’s lien and awarding Stewart $30,000 in attorney fees. We affirm.

Morrow agrees that Stewart was entitled to receive compensation for legal services provided to him, but argues Stewart is entitled only to receive the reasonable value of his services under the remedy of quantum meruit instead of a percentage of the offer of settlement received prior to Stewart’s dismissal as found by the trial court. Although we agree that this is the usual rule in cases where the attorney is dismissed or withdraws from the representation of the client under a contingency fee arrangement prior to the happening of the contingency (i.e. settlement or verdict), see, e.g., Overman v. All Cities Transfer Co., 176 Ga. App. 436 (336 SE2d 341) (1985), we agree with appellee Stewart that the present case is distinguishable because the parties here expressly agreed upon the compensation to be paid to Stewart in the event of his dismissal or withdrawal.

At the time Morrow dismissed Stewart, Morrow had received an offer to settle his claims against Kirtley for $75,000. Pursuant to the plain and unambiguous terms of the employment contract, Stewart was entitled to receive 40 percent (the applicable percentage) of that offer in compensation for services he rendered to Morrow. Consequently, the order of the trial court denying Morrow’s motion to set aside the attorney’s lien and awarding Stewart $30,000 in attorney fees is affirmed. Cf. Burnette v. Bradley, 190 Ga. App. 427 (1) (379 SE2d 225) (1939) (in which the offer of settlement was made subsequent to the discharge of appellee/attorney).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided November 21, 1990.

Emily Sherwinter, for appellant.

James G. Stewart, pro se.


text:
    A90A1472.
    MILLER v. THE STATE.
    (399 SE2d 281)
   Cooper, Judge.

Appellant appeals his conviction by a jury of aggravated child molestation, enumerating as errors the sufficiency of the evidence, the trial court’s failure to grant a mistrial and the admission of inadmissible hearsay.

1. Viewing the evidence in a light to support the jury’s verdict, the record shows that appellant was a friend of the 11-year-old victim’s family. On the day of the offense the victim came to appellant’s home to bring him a cat. Appellant invited the victim inside the house, leading her into the living room which he used as a bedroom. As the two sat on a bed watching television, the victim testified that appellant began kissing her ear and touching her breasts; that he pulled her pants down and placed his mouth on her vagina and that he pulled his own pants down and asked her if she wanted to touch his penis. Appellant told the victim not to tell anyone what had happened, and she testified that she told no one until nearly ten months later when her mother came to her school, got her out of class and asked her if appellant “had messed with her.” Appellant’s common law wife testified that appellant admitted to her that he molested the victim, and the victim’s mother testified that the wife’s sister, Pamela Smith, told the mother that she overheard appellant’s wife discussing the incident with family members. When the victim confirmed that she had been molested, her mother took her to the police where the investigation commenced.

Appellant denied molesting the victim. He testified that the victim had visited his home several times and on those occasions had asked him questions about sex; that his wife was angry with him because he had an affair with the victim’s mother; that the victim’s mother was angry because he sold her a car which did not run, and appellant intimated that the victim was jealous because he had sex with her mother.

Construing the evidence to support the verdict, we are satisfied that any rational trier of fact could have found appellant guilty of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the court erred in failing to grant a mistrial when the State elicited testimony from the victim of a separate crime for which he was not indicted. The indictment provided that the act which supported the charge of aggravated child molestation was the placing of appellant’s mouth on the victim’s vagina. Appellant complains that the victim’s testimony that appellant exposed and asked the victim to touch his penis tended to show evidence of a separate crime and improperly placed his character in issue. We determine that the victim’s testimony included a statement made by appellant during the commission of the offense for which he was indicted and was an integral part of the res gestae. OCGA § 24-3-3. Yarbrough v. State, 186 Ga. App. 845, 847 (368 SE2d 802) (1988). “ ‘Surrounding circumstances constituting part of the res gestae may. always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense. . . .’ [Cits.]” Cooper v. State, 188 Ga. App. 629 (1) (373 SE2d 796) (1988). “The fact that such part of the res gestae incidentally placed [appellant’s] character in issue does not render it inadmissible. [Cits.]” Yarbrough, supra.

Decided November 21, 1990.

John H. Tarpley,. for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan, Assistant District Attorneys, for appellee.

“ ‘(A) trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered . . . will not be disturbed on appeal unless that determination is clearly erroneous.’ [Cits.]” In re J. B., 183 Ga. App. 229, 230 (4) (358 SE2d 620) (1987). Accordingly, we find no basis for reversal.

3. Finally, appellant argues that the court erred in admitting over his objection the victim’s mother’s testimony regarding what she had been told by Pamela Smith, that Smith overheard appellant’s wife discussing the incident with family members. We find that the testimony was admissible for the purpose of explaining the mother’s conduct in taking the victim out of school and going to the police nearly ten months after the. incident occurred. OCGA § 24-3-2. See Thomas v. State, 169 Ga. App. 119, 120-121 (312 SE2d 373) (1983). The record reflects that the State elicited the testimony for that purpose; therefore, the trial court did not err in admitting the testimony.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1557.
    HOWARD v. THE STATE.
    (399 SE2d 283)
   McMurray, Presiding Judge.

Law enforcement officers were conducting a surveillance of the residence of a known drug dealer in an attempt to determine the identity of the dealer’s supplier of methamphetamine. Defendant was observed driving past the residence and throwing out a plastic bag onto the driveway containing approximately 28 grams of methamphetamine. Following his arrest, various contraband was seized from property owned by defendant including 124 marijuana plants, 178 plastic bags of marijuana, 41 grams of methamphetamine and an “underground” laboratory equipped with timers, growing lights and a book containing a formula to make methamphetamine.

At a bond hearing, evidence was also presented that defendant was 50 years old, married, with three children, had lived most of his life in the area, and had never been convicted of any crime. Several witnesses gave testimony as to defendant’s good character and their confidence that if released pending trial defendant would comply with any conditions imposed by the superior court. Defendant testified that he suffered with asbestosis, an irreversible lung disease which required the regular attention of a physician in order to regulate his medication and provide immunization from respiratory ailments which were particularly dangerous to him. Additionally, defendant stated that if released on bond he would not engage in any criminal activity, would comply with any special provisions imposed by the superior court, and would place his considerable real estate holdings as security for his appearance.

Defendant’s motion for bond was denied on the grounds that he posed a significant risk of committing another felony pending trial. See Birge v. State, 238 Ga. 88 (230 SE2d 895). Nonetheless, after defendant had been held in confinement for more than 90 days without the charges against him having been heard by a grand jury he became entitled, upon application, to have bail set pursuant to the provisions of OCGA § 17-7-50. Accordingly, upon defendant’s application, defendant’s bail was set at $500,000. Defendant’s petition for permission to file an interlocutory appeal was granted and he now appeals the amount at which his bail was set, contending that such is so excessive as to be a denial of his Eighth Amendment rights in that in substance it amounts to a denial of bail. Held:

Decided November 21, 1990.

Herbert Shafer, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assis tant District Attorney, for appellee.

“The amount of bail to be assessed in each criminal case is generally within the sound discretion of the trial judge, whose decision will not be reversed on appeal absent a clear abuse of that discretion. OCGA § 17-6-1 (Code Ann. § 27-901); Jones v. Grimes, 219 Ga. 585 (134 SE2d 790) (1964). When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused’s ability to pay, the seriousness of the offense, and the accused’s character and reputation. Id. at 587.” Spence v. State, 252 Ga. 338, 340 (2b), 341 (313 SE2d 475).

“ ‘The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of the defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive.’ 8 Am. Jur. 2d 824, § 70.” Jones v. Grimes, 219 Ga. 585, 587 (2) (134 SE2d 790). Excessive bail is the equivalent of a refusal to grant bail. Id. at 587 (1b).

We are unable to conclude, under the facts and circumstances of this case, that defendant’s bail is excessive. There is evidence of defendant’s ability to give bail. The record shows that defendant owns real property in three counties, including a tract of some 40 acres in Butts County and in Rockdale County, two separate residences and a third tract on Irving Bridge Road. In connection with this issue and others we note that we are unable to consider factual assertions contained only in defendant’s brief. Morrison v. State, 181 Ga. App. 440, 443 (352 SE2d 622).

While defendant’s evidence of his good character and poor health may provide support for his contention that if freed, he will appear at trial, the serious nature of the charge against defendant and the assets which the record show are available to defendant authorized the superior court to set defendant’s bail at a significant level. The evidence of record fails to show that the amount of bail set for defendant was so excessive as to amount to an abuse of discretion. Spence v. State, 252 Ga. 338, 340 (2b), 341, supra.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

       In Howard v. State, 194 Ga. App. 857 (392 SE2d 562), we dismissed defendant’s direct-appeal from the denial of bail since defendant should have followed the interlocutory procedure set forth in OCGA § 5-6-34 (b).


author: Banke, Presiding Judge.

text:
    A90A1960.
    HARRIS v. THE STATE.
    (398 SE2d 284)
   Banke, Presiding Judge.

Based on a series of transactions which occurred on the premises of three separate fast-food restaurants during the early morning hours of December 29, 1987, the appellant was convicted of eight counts of kidnapping, five counts of armed robbery, and two counts of aggravated assault upon a police officer. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the evidence was insufficient to support his convictions on one of the kidnapping counts and two of the armed robbery counts because the person who was alleged to have been the victim of those three offenses did not testify. The appellant was positively identified at trial by the victims of each of the remaining offenses of which he was convicted; and there was testimony that he had made a statement while in police custody admitting some, though not all, of the conduct for which he was on trial. There was also evidence that at the time of his arrest he was in possession of the pistol used in the commission of the aggravated ássaults, as well as a briefcase containing receipts and deposit slips stolen from one of the restaurants.

The victim who did not testify was identified in the indictment as Leonard Francis. As previously indicated, the appellant was alleged to have kidnapped this individual once and to have robbed him twice, taking “a leather briefcase and miscellaneous personal items” belonging to him in one of the robberies and approximately $900 belonging to Burger King Corporation (which owned the restaurant where the offenses at issue allegedly occurred) in the other. During the trial, two employees of this Burger King testified that they had witnessed the appellant force their manager at gunpoint to place the receipts from the restaurant inside his (the manager’s) briefcase; and the briefcase found in the appellant’s possession at the time of his arrest was identified as being that briefcase. A third eyewitness, the assistant manager of another Burger King, which had been the site of most of the other offenses for which the appellant was on trial, corroborated the testimony of these two employees. All three of these witnesses referred to the Burger King manager simply as “Leonard,” without revealing his last name. However, there was apparently some indication at trial that his last name was in fact Francois rather than, as alleged in the indictment, Francis.

“[A] variance between the victim’s name as alleged in the indictment and as proven at trial ... is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved. . . Harrison v. State, 192 Ga. App. 690, 691 (385 SE2d 774) (1989). Indeed, in McKisic v. State, 238 Ga. 644 (2), 646 (234 SE2d 908) (1977), the Supreme Court held that “the identity of the person alleged to have been robbed is not an essential element of the crime [of armed robbery] and need not be proved by direct evidence.” The evidence in this case was amply sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the Leonard Francis referred to in the indictment was in fact the victim identified as Leonard during the trial of the case. Accord Jackson v. State, 158 Ga. App. 702 (2) (282 SE2d 181) (1981). See also Collier v. State, 157 Ga. App. 109, 110 (2) (276 SE2d 262) (1981). However, it is clear that the appellant did not commit two separate armed robberies against this individual but rather committed a single armed robbery in which property belonging both to him and to the restaurant was taken. “Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a cash drawer. [Cit.]” Creecy v. State, 235 Ga. 542 (5), 544 (221 SE2d 17) (1975). Accordingly, the case is remanded to the trial court with direction to strike one or the other of these two armed robbery convictions.

2. The appellant enumerates as error the admission of testimony concerning statements he had made to a police officer following his arrest, contending that the evidence at the Jackson v. Denno hearing established without dispute that he had advised the officer before making the statements “that he wanted to make no further statements until he had consulted with an attorney.” However, the officer, who was the only witness to testify at the hearing, testified that after being advised of his Miranda rights and after affirmatively acknowledging that he understood those rights, the appellant had told him that “he was willing to talk about the incident with me, but he did not want to put it on paper” until he had talked with an attorney. After the evidence concerning his in-custody statement had been admitted, the appellant testified before the jury and at that time denied having made any of the statements attributed to him by the officer, insisting that he had refused to talk at all without an attorney present.

In Connecticut v. Barrett, 479 U. S. 523, 529 (107 SC 828, 93 LE2d 920) (1987), the United States Supreme Court held that where an accused, after being advised of his Miranda rights, advises the police that he is unwilling to make a written statement without an attorney but that he is willing to make an oral statement, the police are not constitutionally required to discontinue their questioning of him, and his federal constitutional rights are not violated by the introduction of evidence concerning oral admissions voluntarily made by him during such continued questioning. Accord Pitts v. State, 259 Ga. 745, 748 (386 SE2d 351) (1989). Accordingly, this enumeration of error is without merit.

Decided November 21, 1990.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

3. Responding to a request by the appellant for a charge on the consideration to be given evidence of good character, the trial judge gave the pattern charge on that issue set forth in the Suggested Pattern Jury Instructions prepared by the Council of Superior Court Judges of Georgia. (Vol. IL, Criminal Cases, p. 46, Nov. 1986 Rev.) The appellant contends on appeal that the following portion of this charge was unconstitutionally burden shifting: “It is the duty of the jury to take any evidence of general good character, along with the other evidence in the case, and if in doing so, the jury should entertain reasonable doubt as to the guilt of the defendant, they should acquit.” Being unable to understand how, in the context of the appellant’s request for a charge on the issue of good character, this language could possibly be considered burden shifting, we find this enumeration of error also to be without merit.

4. The appellant contends that the trial court erred in refusing to charge on false imprisonment as a lesser offense included in kidnapping. However, an examination of the transcript reveals that the court in fact gave such a charge. Therefore, this enumeration of error presents nothing for review.

Judgment affirmed with direction.

Birdsong and Cooper, JJ., concur.


text:
    A90A0823.
    WEB, INC. et al. v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
    (399 SE2d 513)
   McMurray, Presiding Judge.

In December 1984, WEB, INC. d/b/a The William E. Becker Organization (“plaintiff”) opened a corporate credit card account with defendant American Express Travel Related Services Company, Inc., a New York Corporation. Under the application for this corporate account, William E. Becker, individually, as the “individual applicant,” accepted joint and several liability with plaintiff for all charges made to the account. “Additional applicants” accepted joint and several liability with plaintiff for all charges they made to the account. When the application was accepted, credit cards were issued to the individual and additional applicants.

One of the additional applicants was Madelyn Lazich, who worked for plaintiff. Ms. Lazich was issued a credit card on which was embossed her name, followed by that of plaintiff, the corporation on whose behalf the account was opened.

Several months after receipt of the credit card, Ms. Lazich left her work with plaintiff and went on an apparent spending spree using credit cards issued under various accounts of plaintiff to make personal purchases. Although plaintiff allegedly communicated with defendant in attempts to cancel the authority of Ms. Lazich to make charges on the account, she continued to make purchases which were charged to the account. Plaintiff alleged that it was not responsible for personal purchases made by Ms. Lazich on the account at issue and billed to plaintiff. Plaintiff filed this action seeking a declaratory judgment that it was not responsible for Ms. Lazich’s personal purchases and also seeking damages for fraud, breach of contract and an unspecified wilful tort.

Defendant counterclaimed, seeking to recover $27,149.05 allegedly owed on the account, plus delinquency assessments, prejudgment interest, and attorney fees. Pursuant to defendant’s request, William E. Becker was added as party to the action as a defendant in counterclaim, and he in turn filed his counterclaim against defendant seeking relief under the same theories as stated in plaintiff’s, complaint.

This appeal is taken by plaintiff and William E. Becker (“appellants”) from the grant of summary judgment against them and in favor of defendant, and from, the denial of plaintiff’s cross-motion for summary judgment. Held:

1. Appellants (plaintiff and William E. Becker) contend that William E. Becker, a resident of New Jersey, was improperly added as a defendant in counterclaim since he is not subject to personal jurisdiction in Georgia. Defendant contends that William E. Becker was properly subject to the trial court’s long arm jurisdiction under OCGA § 9-10-91. We find that the minimum contacts necessary to afford the trial court jurisdiction over William E. Becker are not shown.

Shellenberger v. Tanner, 138 Ga. App. 399, 401 (1), 404 (227 SE2d 266) sets forth three rules “by which to judge the power of a forum state to exercise jurisdiction over a nonresident defendant. They are (1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum . . .; (2) The plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant within the forum; and (3) If (and only if . . .) the requirements of Rules 1 and 2 are established, a ‘minimum contact’ between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of ‘fair play’ and ‘substantial justice.’ ... In other words, the exercise of jurisdiction based upon the ‘minimum contact’ must be ‘reasonable.’ ”

At least the second point of this three-prong test is not satisfied as to defendant’s counterclaim against Mr. Becker. This claim arises out of and results from the contract by which Mr. Becker assumes liability for all purchases made under plaintiff’s corporate account with defendant. While Mr. Becker may have transacted business in Georgia, defendant’s claim is not based on Mr. Becker’s business activities in Georgia. The account contract between a New York corporation and a New Jersey resident has no connection with Georgia. Ms. Lazich’s use of one of the cards issued under the account in Georgia does not change this.

2. Plaintiff’s liability is not limited by 15 USC § 1643. This statute limits a cardholder’s liability for the unauthorized use of a credit card under specified circumstances. “[Unauthorized use,” as used in this statute “means a use of a credit card by a person other than the cardholder. . . .” 15 USC § 1602 (o). Ms. Lazich’s use of the credit card was not unauthorized since she was the cardholder, that is, the person to whom the card was issued. 15 USC § 1602 (m). Since Ms. Lazich’s use of the credit card was not unauthorized, 15 USC § 1643 is inapplicable.

3. The contract between the parties includes the following provision: “Accepting The Agreement

“If you agree to be bound by this Agreement, you should sign the Card as soon as you receive it. If you do not wish to be bound by this Agreement, cut the Card in half and return the pieces to us. Unless you do so, we will assume that you have accepted this Agreement. If you do sign the Card, you should not use it before the valid date or after the expiration date printed on the face of the Card.” The trial court embraced defendant’s contention that, under this provision, account closure is conditional upon return of the credit cards to defendant. While the trial court’s conclusion in this regard is the subject of one of appellants’ enumerations of error, this enumeration is not argued or supported by citation of authority in appellants’ brief so must be deemed abandoned. See Rule 15 (c) (1) (2) of the Rules of the Court of Appeals of the State of Georgia.

Therefore, we assume that the credit card account remained open and that plaintiff remained liable for Ms. Lazich’s use of the credit card even after appellants communicated with defendant regarding Ms. Lazich’s misuse of the card and of their desire to cancel the account at least as to Ms. Lazich. Nonetheless, such communications would put defendant on notice that plaintiff might refuse to pay further charges made on the account by Ms. Lazich and impose upon defendant a duty, pursuant to OCGA § 13-6-5, to act in a reasonable manner to reduce any losses that might occur by reason of the misuse of the credit card. Standard Oil Co. v. State Neon Co., 120 Ga. App. 660, 661 (3), 662 (171 SE2d 777). There is no indication that defendant took any steps to regain possession of the credit card or to notify merchants to dishonor the card. A genuine issue of material fact remains regarding the mitigation of losses arising from misuse of the card after defendant received notice of such misuse. Standard Oil Co., supra.

Additional issues remain as to plaintiff’s liability for purchases made by Ms. Lazich and charged to the account after appellants’ recovery of the Lazich credit card. These purchases were not made with the credit card but by use of the account number in the absence of the card.

We further note in regard to our holding in Standard Oil Co., supra, that that case was decided prior to the 1970 amendment to the Truth in Lending Act, 15 USC § 1601 et seq. which added the provisions regarding credit cards. Thus, the term “unauthorized use” in that opinion does not refer to the term of art defined in 15 USC § 1602 (o), but is the use of the common and ordinary meaning of the words. In this opinion in the case sub judice, we have generally avoided use of this phrase except as a term of art and have referred to Ms. Lazich’s use of the credit card following the termination of her authority from appellants as “misuse” and which should be recognized as being synonymous with the term “unauthorized use” in Standard Oil Co., supra.

Additionally, we reject the suggestion that Standard Oil Co., supra, is inapplicable due to federal preemption of this area of the law through enactment of the credit card provisions of the Truth in Lending Act. While we recognize that this federal legislation may supersede inconsistent state law, we are dealing in the case sub judice with questions not addressed in the federal statute. Consequently, we view Standard Oil Co., supra, as continuing to be viable authority and controlling as to some of the issues in the case sub judice.

4. Appellants’ contention that defendant has failed to comply with the provisions of 15 USC § 1666 concerning the correction of billing errors is without merit. This statute is limited to consumer credit transactions while plaintiff’s account with defendant was primarily for business purposes. American Express Co. v. Koerner, 452 U. S. 233 (101 SC 2281, 68 LE2d 803).

5. We affirm the trial court’s denial of plaintiff’s motion for summary judgment. We reverse the trial court’s grant of summary judgment to defendant and grant of defendant’s motion to add William E. Becker as a defendant in counterclaim.

Decided November 8, 1990

Rehearing denied November 26, 1990

Joel Y. Moss, for appellants.

Alston & Bird, John I. Spangler III, Dennis J. Connolly, for appellee.

Judgment affirmed in part and reversed in part.

Carley, C. J., concurs. Sognier, J., concurs in the judgment only.