text:
    A90A0959.
    A90A1213.
    FOREHAND v. PERLIS REALTY COMPANY et al. BELK-HAGINS COMPANY OF AMERICUS, GEORGIA, INC. v. FOREHAND.
    (400 SE2d 644)
   Cooper, Judge.

W. F. Forehand, Jr. (“Forehand”) is the successor in title to a shopping center in which Belk-Hagins Company (“Belk-Hagins”) is the principal tenant under a 20-year lease signed in 1975. Under the lease, Belk-Hagins was to pay annual rent in the amount of $40,000 plus 2.5 percent of all annual gross sales over 1.6 million dollars.

The record reflects that during the summer of 1986, Larry Perlis, owner of Perlis Realty Company (“Perlis”), approached representatives of Belk-Hagins about the possibility of Belk-Hagins moving its location from Forehand’s shopping center to a shopping center owned by Perlis. The representatives of Belk-Hagins were interested in moving into a better shopping center and felt that the Perlis shopping center was a better location for their business than the one owned by Forehand. Belk-Hagins together with Belk Stores Services, Inc. (“BSS”), an independent corporation existing to provide advice to individual Belk stores, began negotiating with Perlis about changing locations. Belk-Hagins and BSS informed Perlis about the 1975 lease, and Perlis agreed to assume all of Belk-Hagins’ obligations under that lease if Belk-Hagins moved its store to Perlis’ shopping center. In May 1987, Belk-Hagins executed a lease with Perlis Realty Company (“Perlis”) and subsequently moved from Forehand’s shopping center to the shopping center owned by Perlis. Belk-Hagins continued to pay Forehand the minimum annual rent of $40,000 and deducted that amount from its rental payment made under the Perlis lease; however, no percentage rentals were paid to Forehand. In February 1989, Forehand filed a ten-count complaint alleging breach of contract by Belk-Hagins in abandoning Forehand’s shopping center and in assigning the lease to Perlis in violation of the 1975 lease, and tortious interference with contrhctual relations by Perlis and BSS. Subsequently, Belk-Hagins terminated the 1975 lease and ceased making the minimum annual payments to Forehand. Belk-Hagins answered the complaint, denying that it breached the lease, and filed a counterclaim contending that Forehand committed several breaches of the lease. Forehand then amended his complaint, seeking damages for monthly rental payments and ad valorem taxes due through the end of the lease, and also attorney fees and expenses of litigation. Belk-Hagins, Perlis, and BSS moved for partial summary judgment on Forehand’s original complaint. The trial court denied the motion on the breach of contract counts of the complaint but granted it on the tortious interference counts. Subsequently, Belk-Hagins filed a motion for summary judgment on Forehand’s amended complaint and a motion for partial summary judgment on its counterclaim against Forehand. Forehand also filed a motion for summary judgment on Belk-Hagins’ counterclaim. The trial court denied both of Belk-Hagins’ motions and granted Forehand’s motion.

In Case No. A90A0959 Forehand appeals the trial court’s grant of summary judgment to Perlis and BSS on the tortious interference of contract claim. In Case No. A90A1213 Belk-Hagins appeals (1) the trial court’s denial of both of its motions for summary judgment on Forehand’s complaint, (2) the denial of Belk-Hagins’ motion for summary judgment on its counterclaim against Forehand, and (3) the grant of summary judgment to Forehand on Belk-Hagins’ counterclaim.

Case No. A90A0959

Forehand contends that because the trial court found that questions of fact existed for a jury’s determination on the breach of contract claim, the trial court’s grant of summary judgment on the tortious interference with contract claim was erroneous. Forehand erroneously argues that in order for the trial court to grant summary judgment on the tortious interference with contract claim, it was necessary for the court to determine that there had been no breach of the lease.

“The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. [Cits.] Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards performance of the duties under the contract or makes the performance more difficult or expensive. [Cits.]” (Emphasis supplied.) McDaniel v. Green, 156 Ga. App. 549 (1) (275 SE2d 124) (1980). Furthermore, to recover for wrongful interference with contract, a “ ‘malicious intent to cause the result must be shown.’ [Cit.]” Singleton v. Itson, 192 Ga. App. 78, 79 (383 SE2d 598) (1989). “The terms ‘malicious’ and ‘maliciously’ mean ‘ “any unauthorized interference or any interference without legal justification or excuse. . . .” ’ [Cit.]” (Emphasis in original.) Id. “ ‘The exercise of an absolute right or privilege is recognized as being closely akin to the question of justification, but it is inherently different therefrom in that such a right can be exercised without incurring liability regardless of the motive for so doing. It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right — that is, an act which a man has a definite legal right to do without any qualification.’ [Cits.]” Campbell v. Carroll, 121 Ga. App. 497 (1) (174 SE2d 375) (1970). Our review of the record shows that Perlis and BSS’ actions were neither “non-privileged” nor “malicious.” Perlis and Forehand were both in the business of leasing space to commercial businesses such as Belk-Hagins. Perlis’ actions consisted of nothing more than making a sales pitch for Belk-Hagins to relocate their business and providing an alternative which was more attractive to Belk-Hagins than the situation they were currently operating under. There is no evidence that Perlis, by pursuing Belk-Hagins, was creating or continuing an illegal restraint of trade or that Perlis was motivated by a desire to injure Forehand. Rather, it appears that Perlis was interested only in fair competition. See Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 666 (242 SE2d 135) (1978); Nationwide Advertising Svc. v. Thompson Recruitment Advertising, 183 Ga. App. 678 (1) (359 SE2d 737) (1987); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245 (1) (166 SE2d 744) (1969). Therefore, we conclude that the trial court properly granted summary judgment on Forehand’s claim of tortious interference with contract. Although the trial court did not indicate in its order its reasons for granting summary judgment, “a judgment of the trial court will be affirmed if it is right for any reason.” Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 699 (2) (377 SE2d 210) (1988).

Case No. A90A1213

1. In the cross-appeal, Belk-Hagins enumerates as error the trial court’s denial of summary judgment on the breach of contract counts of Forehand’s complaint. Belk-Hagins contends that no breach occurred because there was no assignment of the lease to Perlis and because the 1975 lease did not require that Belk-Hagins continue to operate at Forehand’s shopping center.

Forehand argues that upon entering into the Perlis lease which provided that “as additional consideration for tenant’s leasing of the demised premises from landlord as herein provided, landlord agrees (1) to assume, and does hereby assume ... all of tenant’s obligations, duties, responsibilities and rights in, to and under [the 1975 lease],” Belk-Hagins breached paragraph 36 of the 1975 lease, which provided: “Tenant shall not assign or sublet these premises in whole or in part without first obtaining the consent of Landlord.” Belk-Hagins argues that no prohibited assignment took place because Perlis only assumed Belk-Hagins’ obligations under the lease. “Black’s Law Dictionary . . . defines assignment as ‘(a) transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. It includes transfers of all kinds of property. . . . The transfer by a party of all its rights to some kind of property, usually intangible property. . . .’ [Cit.]” Bank of Cave Spring v. Gold Kist, 173 Ga. App. 679 (1) (327 SE2d 800) (1985). “ ‘Assumption’ is defined in Black’s Law Dictionary as ‘[t]he act or agreement of assuming or taking upon one’s self; the undertaking or adoption of a debt or obligation primarily resting upon another.. . . .’” Manget Foundation v. White, 101 Ga. App. 239, 241 (113 SE2d 235) (1960). We cannot accept Belk-Hagins’ argument that there was no assignment merely because the word “assume” was used in the Perlis lease. Perlis not only assumed Belk-Hagins’ duty and obligation to pay rent under the 1975 lease, but also agreed to assume any rights Belk-Hagins had under the lease. The evidence in the record reflects that Perlis was working with Forehand in trying to find a new tenant for the premises and that Perlis and Belk-Hagins were under the impression that Perlis acquired whatever rights Belk-Hagins had under the lease. We find sufficient evidence in the record to raise a question of fact as to whether Belk-Hagins in substance assigned the 1975 lease to Perlis.

Although the 1975 lease does not expressly require Belk-Hagins to continue operations at Forehand’s shopping center, Forehand contends that there is implied in the lease a covenant of continued operation. Belk-Hagins submitted the affidavit of two persons who participated in the negotiation of the 1975 lease, and both stated that it was their understanding that the 1975 lease contained neither an affirmative obligation to continue operations at the leased premises nor a prohibition against abandoning operations at the location. In Kroger Co. v. Bonny Corp., 134 Ga. App. 834 (216 SE2d 341) (1975), this court considered the question of whether a lease which included among its provisions a percentage rental implied a duty on the part of the tenant to continue operations during the term of the leasehold. We began our analysis by noting the absence of evidence of the intention of the parties, but attempted to arrive at the intention of the parties by taking into consideration “the composition of the shopping center as a whole, the content of the leases entered into with other tenants, and the rental payments made over the years.” Kroger, supra at 837. We held that the lease did not place an obligation on the tenant to continue the operation of a shopping center on the premises for the full term of the lease, and we reversed the trial court’s denial of summary judgment to the tenant. In Fifth Ave. Shopping Center v. Grand Union Co., 491 FSupp. 77 (N.D. Ga. 1980), the court stated that the question of whether a lease contains an implied covenant of continuous occupancy concerns the intention of the parties as disclosed by the circumstances surrounding the execution of the lease agreement. The court considered relevant such factors as “the history of the relationship between the parties, their reasonable expectations, and all other factors bearing upon their intention in entering into the lease.” Id. at 81. The court stated: “These are matters which present a factual question which cannot be decided as a matter of law, since in the instant case the lease makes no provision covering such circumstances and the intent of the parties is uncertain. [Cit.]” Fifth Ave., supra at Division 3. In both Kroger and Fifth Ave. the record was devoid of any evidence of the intentions of the parties. In the case sub judice, there is uncontroverted affidavit testimony from persons who participated in the negotiation of the lease that neither party understood the lease to require the tenant to occupy the premises for the duration of the lease. However, the affidavit testimony notwithstanding, we conclude that questions of fact remain regarding whether the minimum rental was so substantial as to negate any implication of an implied covenant of operation (see Kroger, supra at Division 2; Fifth Ave., supra at Division 2), and whether an implied covenant is necessary to effectuate the agreement between the parties (see Kroger, supra). Accordingly, we find no error in the trial court’s denial of summary judgment to Belk-Hagins on the breach of contract counts of Forehand’s complaint.

2. Belk-Hagins’ second, third, and fourth enumerations of error require determining whether Forehand breached the 1975 lease such that Belk-Hagins was authorized to terminate the lease without any further liability. Belk-Hagins contends in its counterclaim that Forehand’s predecessor breached the 1975 lease by failing to include certain required covenants in the deed conveying the shopping center to Forehand in 1982; that Forehand breached the lease by also failing to include the covenant when it conveyed portions of the shopping center in 1983 and 1985; and that Forehand failed to maintain the premises in the manner required by the 1975 lease, failed to comply with provisions of the 1975 lease regarding unlawful or offensive use of the shopping center and failed to comply with provisions of the lease regarding a minimum number of parking spaces.

The 1975 lease included a covenant which required the landlord to obtain Belk-Hagins’ consent before entering into any lease for occupancy of more than 25,000 square feet in the shopping center. Paragraph 19 of the lease provided: “In the event Landlord should sell the above mentioned shopping center or any additions thereto or in any other way divest itself of the control thereof, then the covenant herein contained shall also be contained in the deed of sale or covenant or disposition.” Belk-Hagins does not contend that the covenant was not complied with, only that it was not recorded in subsequent deeds. The record reflects that Belk-Hagins knew that the shopping center had been sold to Forehand and that Forehand had sold portions of the shopping center to other persons; that Belk-Hagins never examined the deeds to determine whether the covenant had been included in the deeds; and that Belk-Hagins knew about what it considered to be breaches of the lease as early as 1985 or 1986; that no action was taken on any of the alleged breaches until after Forehand filed the lawsuit, at which time Belk-Hagins scrutinized the lease and decided to cancel the lease and cease making any further payments under the lease. “ ‘Forfeitures of rights under valid legal contracts are not favored under the law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture cannot be recalled.’ ” Precision Label Indus, v. Jones, 185 Ga. App. 161 (1) (363 SE2d 605) (1987). The evidence does not show unequivocally that Forehand breached the 1975 lease; however, assuming arguendo that a breach did occur, Belk-Hagins did not assert the breach in a timely manner and such breach is deemed to have been waived. See Pearson v. George, 209 Ga. 938 (2) (77 SE2d 1) (1953); Redmond v. Merrill Lynch &c. Mgmt., 163 Ga. App. 346 (2) (294 SE2d 575) (1982). Because of Belk-Hagins’ acquiescence to any breach which occurred, neither an action to cancel the contract nor an action for damages as a result of the breach can be maintained. Precision Label Indus, v. Jones, supra. Accordingly, we find no error in the trial court’s denial of summary judgment to Belk-Hagins on Forehand’s complaint and the counterclaim and the grant of summary judgment to Forehand on the counterclaim.

Decided November 21, 1990

Rehearing denied December 20, 1990

Benjamin F. Easterlin IV, for Forehand.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Walters, Davis, Smith, Meeks & Pittman, W. Emory Walters, C. David Smith, for Perlis.

Crisp, Oxford, McKelvey & Jones, Howard S. McKelvey, Jr., for Belk-Hagins.

Judgments affirmed.

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


source: Caselaw Access Project

author: Carley, Chief Judge. Banke, Presiding Judge, Sognier, Judge,

license: Public Domain

text:
    A90A1077.
    THE STATE v. HARBER.
    (401 SE2d 57)
   Carley, Chief Judge.

Appellee was indicted for two counts of violating the Georgia Controlled Substances Act and he filed a pre-trial motion to suppress. The trial court, relying upon Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989), granted appellee’s motion and the State appeals from that order.

1. The issue as presented in Hill v. State, supra at 280, was whether “campus police lacked the authority to obtain and execute a search warrant for a residence located more than 500 yards off campus.” Relying upon OCGA § 20-3-72 and Op. Atty. Gen. 70-69, it was held “that the legislature [had not] intended to give to University of Georgia campus police and security personnel carte blanche authority to obtain and execute search warrants directed to residences or businesses located outside the immediate vicinity of university property.” Hill v. State, supra at 281. It is this holding that must be followed, distinguished or overruled in the instant case.

By its terms, OCGA § 20-3-72 relates only to the territorial authority of campus police officers to make an arrest. In this regard, campus police officers are essentially no different from county and municipal police officers whose authority to make an arrest may otherwise be subject to similar territorial restrictions. See generally OCGA §§ 36-8-5; 40-13-30. However, it is not the territorial authority of campus police officers to make an arrest that is in question. The issue is the territorial authority of campus police officers to obtain and execute a search warrant. Nothing in OCGA § 20-3-72 purports to address this issue.

Former OCGA § 17-5-20 is the relevant statute with regard to the authority to obtain a search warrant. That statute provided that “[a] search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws.” (Emphasis supplied.) As employed in this former Code section, an “officer of this state” refers to one who has been authorized by the State to enforce its criminal laws and who has received certification pursuant to the Georgia Peace Officer Standards & Training Act. Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). It is clear that such an “officer of this state” does have the authority to obtain a search warrant even though it may be directed at locations which lie outside the boundaries of the particular political subdivision that employs him. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). In the instant case, it is undisputed that those campus officers who obtained the search warrant directed at appellee’s residence were authorized by the State to enforce its laws and that they were also duly certified pursuant to the Georgia Peace Officer Standards & Training Act. Accordingly, pretermitting any territorial limitation on the authority of these duly certified campus police officers to make an arrest of appellee pursuant to OCGA § 20-3-72, it seems clear that there is no comparable territorial limitation on their authority to obtain a search warrant directed at appellee’s residence pursuant to former OCGA § 17-5-20. It would be anomalous to hold that a certified municipal or county police “officer” is authorized to obtain an extra-territorial search warrant notwithstanding any statutory restriction on his authority to make an extra-territorial arrest, but that a certified campus police “officer” is not so authorized be cause of a comparable statutory restriction on his authority to make an extra-territorial arrest.

There is no statutory authority to support a contrary construction of the authority of a duly certified campus police officer to obtain an extra-territorial search warrant. The only authority to the contrary is this court’s decision in Hill v. State, supra. However, Hill relied entirely upon Op. Atty. Gen. 70-69 and that reliance was misplaced. The 1970 opinion of the Attorney General did not specifically address the authority to obtain an extra-territorial search warrant of a duly certified campus police officer. In this regard, it is important to note that the 1970 opinion of the Attorney General was issued before it had been judicially determined that a duly certified county or municipal officer, as an “officer of this state,” does have the authority to obtain an extra-territorial search warrant notwithstanding his lack of authority to make an extra-territorial arrest. Fowler v. State, 128 Ga. App. 501, 503 (c) (197 SE2d 502) (1973); Bruce v. State, supra. Likewise, the 1970 opinion of the Attorney General was issued before the legislature specifically authorized a campus policeman to obtain certification and thereby become an “officer of this state.” See OCGA § 20-8-1 et seq. Although campus policemen of the university system are exempt from any requirement of certification, there is nothing in the statute which prohibits them from seeking and obtaining such certification. See OCGA § 20-8-4.

Accordingly, Hill v. State, supra, erroneously relied upon the 1970 opinion of the Attorney General rather than subsequent judicial and statutory authority and, as the result, OCGA § 20-3-72 was misconstrued as evincing anything other than a mere expression of the legislative intent that the authority of campus police officers, whether certified or not, to make an arrest is to be subject to a territorial limitation comparable to that which is applicable to county and municipal officers. That Hill did in fact err in relying upon the 1970 opinion of the Attorney General rather than subsequent judicial and statutory authority and consequently miscontrued OCGA § 20-3-72 as also evincing the legislative intent to create a territorial limitation on the authority of certified campus police officers to obtain a search warrant is given further support by the General Assembly’s own response to that decision. In 1990, the legislature undertook “to clarify the authority of peace officers employed by universities ... to apply for search warrants” and “to make manifest the intention of the General Assembly that peace officers who have met the standards established by the Georgia Peace Officer Standards and Training Councils . . . shall be authorized to apply for and obtain search warrants. . . .” (Emphasis supplied.) Ga. L. 1990, p. 1980. The General Assembly apparently found it necessary to enact legislation to clarify and make its intent manifest because Hill had misconstrued the legislative intent of the then-existing legislation on the subject. Accordingly, Hill is hereby overruled insofar as it holds that certified campus police officers who obtained an extra-territorial search warrant directed at locations more than 500 yards from campus property were not authorized to do so under former OCGA § 17-5-20.

Insofar as the execution of the search warrant is concerned, Hill v. State, supra, is factually distinguishable. In that case, “an officer from the Athens Police Department accompanied the campus police on the raid, [but] he left shortly after entry was gained into the residence. . . .” Hill v. State, supra at 280. In the instant case, however, the trial court specifically found: “A warrant to search the residence of [appellant] was obtained ... by ... a police officer employed by the University of Georgia Police Department. The search warrant was executed by detectives of the University of Georgia Police Department and three Clarke County detectives. A Clarke County detective actually entered with the warrant in hand, but the search of the premises was completed by only the University of Georgia Police.” (Emphasis supplied.) The mere fact that the actual physical acts entailed in conducting the search of the premises may have been performed by the certified campus police officers does not demonstrate that the search warrant itself was not executed jointly with the certified Clarke County officers. See generally Bradford v. State, 184 Ga. App. 459 (361 SE2d 838) (1987). There is no authority for the proposition that officers who are on the premises pursuant to a search warrant but who do not actually conduct the physical search of the premises are not participants in the joint execution of the warrant. To the contrary, “execution” of a search warrant may encompass more than the mere conduction of the actual search of the premises, and all of those officers who are on the premises are participating in the joint execution of the warrant. See OCGA § 17-5-28. Since Hill is factually distinguishable, we need not decide whether it also erroneously held that there was a requirement for joint execution of a search warrant prior to the effective date of existing OCGA § 17-5-21 (d).

In conclusion, Hill v. State, supra, is overruled as authority for the proposition that the instant search warrant was illegally obtained and it is distinguished as authority for the proposition that the instant search warrant was illegally executed. It follows that the trial court erred in granting appellee’s motion to suppress.

2. Even if the officers were not authorized to obtain and execute an extra-territorial search warrant, this lack of authority would constitute no more than a mere “technical” defect. In State v. Giangregorio, 181 Ga. App. 324, 325 (352 SE2d 193) (1986), we reversed the grant of a motion to suppress and held that an officer’s lack of authority to make an extra-territorial arrest was a mere “ ‘technical irregularity not affecting the substantial rights of the accused.’ ” There would appear to be no reason why that rationale is not equally applicable in the instant case. No “substantial rights” of appellee under the Fourth Amendment have been affected, since the warrant was issued by a neutral and detached judicial officer who was otherwise authorized to find the existence of probable cause based upon the affidavit that the officers presented to him. Compare Reid v. State, 129 Ga. App. 660 (2a) (200 SE2d 456) (1973); Pruitt v. State, 123 Ga. App. 659 (182 SE2d 142) (1971). Likewise, no “substantial rights” of appellee under applicable state statutory provisions are affected, since the warrant was not obtained and executed by private citizens for personal reasons, but by certified officers who were otherwise authorized to obtain and execute search warrants for reasons of law enforcement. Compare Holstein v. State, supra.

The officers’ mere lack of authority to obtain and execute an extra-territorial search warrant would certainly constitute no more of an infringement upon appellee’s “substantial rights” and no less of a “technical” defect than would the lack of probable cause to support issuance of the warrant. However, the lack of probable cause is not considered to be such a “defect” as will, in all cases, necessarily justify the grant of a motion to suppress evidence that has been seized pursuant to a search warrant. See Debey v. State, 192 Ga. App. 512 (385 SE2d 694) (1989).

Even under the appellee’s analysis, the warrant in the instant case was issued on probable cause and in substantial, if not literal, compliance with all statutory requirements and, therefore, there are simply no “substantial rights” of his to be vindicated by granting the motion to suppress. The mere fact that the warrant may have been directed at a location which was beyond the territorial limits of the jurisdiction wherein the officers had law enforcement authority is a defect which should not serve as the “technical” predicate for allowing appellee to evade prosecution for the criminal act that he allegedly committed.

Judgment reversed.

Deen, P. J., McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Banke, P. J., concurs in part and dissents in part. Sognier and Pope, JJ., dissent.

Banke, Presiding Judge,

concurring in part and dissenting in part.

The majority correctly distinguishes the present case from Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) (cert, den.), based on the trial court’s findings that the university police did not act alone in conducting the present search but were joined by three Clarke County detectives, one of whom made the initial entry into the residence with the warrant in hand. However, the court then goes on to overrule Hill, attributing to it a holding that university police are required to obtain local law enforcement assistance in obtaining as well as executing search warrants for premises located more than 500 yards off campus. While Hill may have implied the existence of such a requirement, there was clearly no such holding in that case.

The search at issue in Hill was held to be unlawful not because of the mere failure of the university police to involve the local police in the process of obtaining the warrant but because of their failure to involve the local police in any aspect of the investigation. (Although a local policeman was present on the scene at the time of the commencement of the search in Hill, “he left shortly after entry was gained into the residence, and neither he nor any other local law enforcement officer was involved in obtaining the warrant or in conducting the investigation which led to its issuance.” Id. at 280.) Our holding that the search was unlawful under these circumstances was based upon a conclusion that the General Assembly had not intended through its enactment of OCGA § 20-3-72 to bestow upon university police and security personnel “carte blanche authority to obtain and execute search warrants directed to residences or businesses located outside the immediate vicinity of university property” (emphasis supplied) but rather had expressed “a legislative intention to limit the law enforcement jurisdiction of such personnel to offenses committed upon property under the jurisdiction of the Board of Regents or located within 500 yards of such property.” Id. at 281.

Such a limitation on the powers of campus police is eminently reasonable in view of the fact that, unlike police officers employed by political subdivisions, they are not ultimately responsible to any elected official. Furthermore, contrary to the impression given by the majority opinion, the General Assembly in fact affirmed rather than disavowed the existence of such a limitation through its enactment of Ga. L. 1990, pp. 1980-82, for that legislation expressly limits, in a manner entirely consistent with Hill, the. authority of university police officers to execute search warrants for premises located off campus. Specifically, § 3 of the 1990 Act added a new subsection (d) to OCGA § 17-5-21 providing as follows: “Notwithstanding any provisions of Code section 17-5-20 or other provisions of this Code section to the contrary, with respect to the execution of a search warrant by a certified peace officer employed by a university, college, or school, which search warrant will be executed beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university, college, or school and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” (Emphasis supplied.) Ga. L. 1990, p. 1982.

Under the facts of the present case, I fully agree that the defendant’s motion to suppress should have been denied. However, as I continue to believe that the Legislature never intended to give university police and security personnel carte blanche authority to conduct off-campus searches in cases where no university property is involved, I must dissent to the overruling of Hill.

I am authorized to state that Judge Pope joins in this opinion as to the dissent.

Sognier, Judge,

dissenting.

I respectfully dissent because I believe Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) was correctly decided. The facts in Hill parallel those in the case at bar. In Hill, the defendants, two University of Georgia students, were convicted of drug offenses arising from possession of contraband found during a search of their off-campus apartment by university police. In overruling the denial of the defendants’ motion to suppress, this court held that because OCGA § 20-3-72 authorized university system police to make arrests “for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board,” search warrants likewise “ ‘must be confined to the territorial limits of the campus.’ [Cit.]” Hill, supra at 281. I recognize that the university police officers who conducted the searches at issue were certified peace officers, as were the officers in Hill, and OCGA § 17-5-24 has been construed to authorize the execution of a search warrant by a certified peace officer outside his arrest jurisdiction. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). Nonetheless, a certified peace officer’s authority arises only from express statutory authorization or by virtue of public employment or service. OCGA § 35-8-2 (8) (A). Unlike university system police, other law enforcement officers authorized under Georgia law are given a number of specified duties and powers in addition to the power to arrest. See OCGA § 35-2-33 (state patrol); OCGA § 36-8-5 (county police); OCGA § 35-3-8 (GBI agents); OCGA § 35-3-9 (GBI narcotics agents). In contrast, OCGA § 20-3-72, which was enacted in 1966 (Ga. L. 1966, p. 370), and is codified in the postsecondary education chapter of Title 20, is the only statute that specifically grants any law enforcement power to university system police. Accordingly, any authority of such officers beyond that specified in OCGA § 20-3-72 must arise from the general power of the board of regents to create and regulate universities. See Ga. Const., Art. VIII, Sec. IV, Par. I; OCGA § 20-3-20 et seq. There is no other statute in Title 20, Chapter 3, Article 2 or elsewhere in our Code which grants to the board of regents any police powers beyond the territorial limits of the university system. Since university system police have no express statutory authority beyond university system property, and their employer, the board of regents, does not have the authority to grant such powers, I cannot construe the peace officer certification provisions to authorize university system police to exercise law enforcement powers beyond the territorial limits established by OCGA § 20-3-72.

Contrary to the majority’s assertion, the holding in Hill is consistent with the 1990 amendments to OCGA §§ 17-5-20 and 17-5-21. OCGA § 17-5-20 was rewritten to provide in paragraph (a) that “[a] search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of: (1) [t]he state or a political subdivision of the state; or (2) [a] university, college, or school.” The 1990 revision to OCGA § 17-5-21 included the addition of a new paragraph (d) providing that when a campus police officer executes a search warrant by campus police “beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university . . . and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” These revisions, although including campus police in the search and seizure laws for the first time, indicate that the General Assembly retained an express distinction between certified peace officers employed by a college or university and other certified peace officers, and did not elect to extend to campus police authority equal to that possessed by law enforcement officers of the state or its political subdivisions.

I also cannot agree that the university police officers’ lack of authority to execute the search warrant was a mere “technical irregularity.” This court has held that a search warrant obtained by an officer who is not authorized to exercise such powers is invalid and the fruits of the search must be suppressed. Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). Accord Reid v. State, 129 Ga. App. 660 (2) (a) (200 SE2d 456) (1973). State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986), cited by the majority, is not applicable because it involved the validity of an arrest, and the four-judge plurality concluded the defendant’s constitutional rights were not violated because a felony arrest may be made by a private citizen. In contrast, Georgia law expressly precludes the issuance of a search warrant to a private citizen. OCGA § 17-5-20 (b).

This court has long recognized that “ ‘ “[proceedings for the issuance of search warrants are to be strictly construed, and every constitutional and statutory requirement must be fully met, including all formalities required by statute, before a valid search warrant may issue. Moreover, a statute prescribing the method of issuing search warrants must be read and construed in the light of, and conform in all essential respects to, the provisions of the constitution granting immunity from unreasonable searches and seizures.” [Cit.] It should be borne in mind that here we are dealing with a valuable guaranty, a part of the Bill of Rights, the subject matter of the Fourth Amendment to our national Constitution, and embodied in the Georgia Constitution. We, who have this right, must carefully guard it against infringement.’ ” Pruitt v. State, 123 Ga. App. 659, 664 (182 SE2d 142) (1971). I find the decision in Hill to be consistent with these principles, and accordingly would affirm the decision of the trial court.

Decided December 5, 1990

Rehearing denied December 20, 1990

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellee.

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


author:
Carley, Chief Judge. Banke, Presiding Judge,
      Sognier, Judge,

text:
    A90A1004.
    WILLINGHAM v. THE STATE.
    (401 SE2d 63)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of 13 counts of theft by conversion of documents from the University of Georgia Library. He appeals from the denial of his motion for new trial.

1. The denial of appellant’s motion to suppress is enumerated as error.

Appellant’s reliance upon Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) is misplaced. Insofar as Hill might arguably be relevant to the facts of the instant case, it has been overruled. State v. Harber, 198 Ga. App. 170 (401 SE2d 57) (1990). Appellant’s remaining contentions have been considered and are found to be without merit. The trial court was authorized to find that all searches were conducted in full compliance with applicable constitutional and statutory requirements.

2. We find no error in the trial court’s failure to sustain appellant’s challenge for cause which was directed towards prospective jurors who were employees of the University of Georgia, but who were not otherwise employed in, or assigned to, the University of Georgia Library. See Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224) (1981); Culbertson v. State, 193 Ga. App. 9, 10 (2) (386 SE2d 894) (1989); Hickox v. State, 138 Ga. App. 882 (1) (227 SE2d 829) (1976). See also United States v. Boyd, 446 F2d 1267, 1275 (10) (5th Cir. 1971). This is not a case wherein the prospective jurors were employees of appellant or any other party to the case. Compare Kesler v. State, 249 Ga. 462, 470 (6) (291 SE2d 497) (1982); Daniel v. Bi-Lo, Inc., 178 Ga. App. 849, 850 (1) (344 SE2d 707) (1986). Only appellant and the State were parties in this criminal case. While kinship to the victim may automatically disqualify prospective jurors in a criminal case pursuant to OCGA § 15-12-163 (b) (4), mere employment by the University of Georgia when the actual victim was the University of Georgia Library is not a per se disqualification under the above cited holdings.

3. It was not error to admit, over appellant’s objections, numerous exhibits which were adequately shown to be business records of the University of Georgia Library. See Gray v. Cousins Mtg. &c. Investments, 150 Ga. App. 296 (1) (257 SE2d 365) (1979); Lewis v. United Cal. Bank, 143 Ga. App. 126 (1) (237 SE2d 645) (1977) aff’d 240 Ga. 823 (242 SE2d 581) (1978); Cotton v. John W. Eshelman & Sons, 137 Ga. App. 360, 361 (1) (223 SE2d 757) (1976).

4. The evidence, when construed most favorably for the State, was sufficient to authorize a rational trier of fact to find proof of appellant’s guilt beyond a reasonable doubt and it was not, therefore, error to deny his motion for a directed verdict of acquittal. See Adcock v. State, 170 Ga. App. 753 (1) (318 SE2d 492) (1984) aff’d 253 Ga. 328 (322 SE2d 61) (1984).

5. Having considered appellant’s fatal variance argument, we find that it has no merit. The evidence, when construed most favorably for the State, would authorize a finding that within the applicable statute of limitations, appellant committed the crimes that the multi-count indictment alleged he had committed. See Decker v. State, 139 Ga. App. 707, 709 (5) (229 SE2d 520) (1979).

Judgments affirmed.

Deen, P. J., McMurray, P. J., Birdsong and Cooper, JJ., concur. Banke, P. J., concurs specially. Sognier and Pope, JJ., dissent. Beasley, J., concurs in Divisions 1, 3, 4 and 5, but dissents as to Division 2, and as to the judgment.

Banke, Presiding Judge,

concurring specially.

Pursuant to OCGA § 20-3-72, university police officers “have the power to make arrests for offenses committed upon any property under the jurisdiction of the board of regents. . . .’’As the officers in the present case were investigating thefts of university property which had occurred upon university property, it follows that they were acting entirely within the scope of their law enforcement jurisdiction under § 20-3-72. For this reason, I agree that the trial court acted properly in denying the appellant’s motion to suppress.

Sognier, Judge,

dissenting.

I respectfully dissent.

1. Since this case will be decided en banc on the same day that State v. Harber, 198 Ga. App. 170 (401 SE2d 57) (1990) is issued, I believe the parties in the instant case are entitled to the same thorough treatment of the search and seizure issue as is given in Harber. Hence, for this case Í again state my view that Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) was correctly decided and controls the search and seizure issue raised by appellant. Since the searches at issue were conducted prior to the effective date of the 1990 amendments to OCGA §§ 17-5-20; 17-5-21 (Ga. L. 1990, p. 1980, §§ 1-3), the only authority directly addressing the power of university system police to obtain and execute search warrants beyond the confines of a campus is our decision in Hill. In overruling the denial of the defendants’ motion to suppress, this court held that because OCGA § 20-3-72 authorized university system police to make arrests “for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board,” search warrants likewise “ ‘must be confined to the territorial limits of the campus.’ [Cit.]” Id. at 281.

It is uncontroverted that the searches in the case at bar were not conducted within these territorial limits. Although the thefts did occur “on property under the jurisdiction of the board of regents,” we concluded in Hill that the statutory enactments governing university system police do not contemplate the exercise of their law enforcement powers beyond the territorial boundaries defined in OCGA § 20-3-72. I note that the university police officers who conducted the searches at issue were certified peace officers, and OCGA § 17-5-24 has been construed to authorize the execution of a search warrant by a certified peace officer outside his arrest jurisdiction. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). Nonetheless, a certified peace officer’s authority arises only from express statutory authorization or by virtue of public employment or service. OCGA § 35-8-2 (8) (A). Unlike university system police, other law enforcement officers authorized under Georgia law are given a number of specified duties and powers in addition to the power to arrest. See OCGA § 35-2-33 (state patrol); OCGA § 36-8-5 (county police); OCGA § 35-3-8 (GBI agents); OCGA § 35-3-9 (GBI narcotics agents). In contrast, OCGA § 20-3-72, which was enacted in 1966 (Ga. L. 1966, p. 370), and is codified in the postsecondary education chapter of Title 20, is the only statute that specifically grants any law enforcement power to university system police. Accordingly, any authority of such officers beyond that specified in OCGA § 20-3-72 must arise from the general power of the board of regents to create and regulate universities. See Ga. Const., Art. VIII, Sec. IV, Par. I; OCGA § 20-3-20 et seq. There is no other statute in Title 20, Chapter 3, Article 2 or elsewhere in our Code which grants to the board of regents any police powers beyond the territorial limits of the university system. Since university system police have no express statutory authority beyond university system property, and their employer, the board of regents, does not have the authority to grant such powers, I cannot construe the peace officer certification provisions to authorize university system police to exercise law enforcement powers beyond the territorial limits established by OCGA § 20-3-72.

This conclusion is consistent with the 1990 amendments to OCGA §§ 17-5-20 and 17-5-21, which were enacted after our decision in Hill, supra. OCGA § 17-5-20 was rewritten to provide in paragraph (a) that “[a] search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of: (1) [t]he state or a political subdivision of the state; or (2) [a] university, college, or school.” The 1990 revision to OCGA § 17-5-21 included the addition of a new paragraph (d) providing that when a campus police officer executes a search warrant by campus police “beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university . . . and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” These revisions, although including campus police in the search and seizure laws for the first time, indicate that the General Assembly retained an express distinction between certified peace officers employed by a college or university and other certified peace officers, and did not elect to extend to campus police authority equal to that possessed by law enforcement officers of the State or its political subdivisions.

This court has long recognized that “ ‘ “[proceedings for the issuance of search warrants are to be strictly construed, and every constitutional and statutory requirement must be fully met, including all formalities required by statute, before a valid search warrant may issue. Moreover, a statute prescribing the method of issuing search warrants must be read and construed in the light of, and conform in all essential respects to, the provisions of the constitution granting immunity from unreasonable searches and seizures.” [Cit.] It should be borne in mind that here we are dealing with a valuable guaranty, a part of the Bill of Rights, the subject matter of the Fourth Amendment to our national Constitution, and embodied in the Georgia Constitution. We, who have this right, must carefully guard it against infringement.’ ” Pruitt v. State, 123 Ga. App. 659, 664 (182 SE2d 142) (1971). As a result, I find that the searches on February 2 and 17 and March 30 were not authorized under the law applicable at the time, and consequently find the trial court erred by denying appellant’s motion to suppress the evidence seized. See Hill, supra at 281.

I further agree with appellant that the one consensual search conducted on February 3 was invalid because the officers sought and gained entry to appellant’s home for the express purpose of obtaining an item they had seen during prior searches, and thus, despite appellant’s apparent consent, the evidence seized in this search was tainted as fruit of the poisonous tree of the prior illegal searches under the standard set forth in Wong Sun v. United States, 371 U. S. 471, 488 (83 SC 407, 9 LE2d 441, 455) (1963). Even assuming, without deciding, that appellant’s consent to search was voluntary and not coerced, evidence seized during the search on February 3 could not be used against appellant at trial unless the search was sufficiently attenuated from the prior illegal searches. United States v. Robinson, 625 F2d 1211, 1219 (5th Cir. 1980); Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). The factors to be considered are the temporal proximity of the illegal activity and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Robinson, supra at 1220; Brown, supra. Here, there were no intervening circumstances or breaks in the chain of illegality, and Officer Jones testified the university police returned to appellant’s home for the express purpose of retrieving a map they had seen on prior entries. Nor was there a significant lapse of time between this search and the one conducted a day earlier. Accordingly, I would reverse the denial of appellant’s motions to suppress.

2. I also agree with appellant that the trial court erred by not excusing for cause all prospective jurors who were employed by the University of Georgia. Our Supreme Court has adopted in criminal cases the rule initially applied in civil cases of disqualifying for cause potential jurors who are employed by the same entity as the defendant when the defendant has the power to discharge the employees. Kesler v. State, 249 Ga. 462, 470-471 (6) (291 SE2d 497) (1982). I believe we also should adopt for criminal cases the rule that a prospective juror should be disqualified for cause “ ‘when there exists any business relation between himself and one of the parties which may tend to influence the verdict.’ [Cit.]” Daniel v. Bi-Lo, Inc., 178 Ga. App. 849, 850 (344 SE2d 707) (1986). “ ‘The wisdom of such [a] rule is substantiated when one considers the plight of any employee during voir dire. “The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.” (Cit.) An individual subpoenaed to jury service in the performance of his public duty should not be called upon to answer affirmatively or negatively with its resultant impact either way upon him personally the question: “Would your employment prevent you from fulfillment of your sworn duty as a juror to act fairly and impartially and without any bias as between the parties in this case?” In order to [e]nsure that each party obtains a panel of impartial jurors it is essential to rule that regardless of any presumption employees should be held incompetent to serve as a juror in a case in which the employer is a party.’ [Cit.] This rule is applicable to parties who, although not named in the suit, have a financial or other interest in the outcome of the litigation to be tried. [Cits.] . . . ‘ “An employee . . . may be, in rare instances, an impartial juror in passing upon the rights of his employers. It is possible for a judge or juror to be so absolutely fair that he could try his own cause. But there must be a rule upon the subject, and the only rule that can be adopted with safety is one which recognizes the interest to which humanity is generally susceptible and not a rule based upon rare exceptions.’” [Cit.]” Id. at 850-851. Surely the Sixth Amendment entitles a criminal defendant to the same protection. Where, as here, seven of the prospective jurors were employed by the victim of the theft and were dependent upon that employer for their income, they should have been disqualified for cause, and the failure to do so constitutes reversible error. See id. at 852 (1); see also Crumpton v. Kelly, 185 Ga. App. 245-246 (1) (363 SE2d 799) (1987).

Decided December 5, 1990

Rehearing denied December 20, 1990

Fortson, Bentley & Griffin, Ernest De Pascale, Jr., James A. Dunlap, Jr., for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

I am authorized to state that Judge Pope concurs in the dissent and Judge Beasley concurs in Division 2 only of the dissent.


author: Cooper, Judge.

text:
    A90A1085.
    THE STATE v. AUERSWALD.
    (401 SE2d 27)
   Cooper, Judge.

On March 2, 1989, an arrest warrant was issued by a magistrate accusing appellee of the offense of child molestation. The following day he was arrested and released on bond. On November 21, 1989, the grand jury considered an indictment against appellee; however, it made no presentment and tabled the indictment. On December 2, 1989, appellee filed a pro se motion to dismiss all charges contending that the victim was incompetent to testify, the tabling of the indictment was the legal equivalent of a no bill, and appellee had been prejudiced by the delay in resolving the case. After a hearing, the trial court granted the motion and dismissed the arrest warrant on January 26, 1990. On appeal, appellant enumerates as error the dismissal of the arrest warrant.

Appellant contends the trial court lacked the authority to dismiss the warrant under the facts of this case. In support of its contention, appellant cites a case involving a district attorney’s grant of transactional immunity, in which the Supreme Court concluded that “the prosecutor, as part of the authority of his office, has the sole discretion to dismiss cases prior to indictment.” (Emphasis supplied.) State v. Hanson, 249 Ga. 739, 744 (2) (295 SE2d 297) (1982). The Supreme Court has also held that the superior court acquires jurisdiction over a case upon the return of a true bill on the indictment and the entry of the return on the minutes of the court. Gibson v. State, 162 Ga. 504 (2) (134 SE 326) (1926). Nevertheless, despite these citations, in the instant case, appellee “ha[d] a sixth amendment right to a speedy trial which attached at arrest. . . .” Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979). “ ‘In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: .... (a) (t)he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.’ [Cit.] As to the prejudice factor there are ‘three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.’ [Cits.]” Heinen v. State, 186 Ga. App. 373, 374 (367 SE2d 275) (1988).

1. Length of delay. Ten months passed between appellee’s arrest and the dismissal of the charges, which was “much less than in numerous cases where no constitutional violation was found.” Ould v. State, 186 Ga. App. 55, 57 (2) (a) (366 SE2d 392) (1988). “ ‘[M]ere passage of time is not enough, without more, to constitute a denial of due process.’ [Cits.]” Heinen, supra.

2. Reason for delay. Our review of the record and the appellate briefs does not reveal the State’s reason for tabling the indictment or for not taking further action on the case before its dismissal. Appellee contends the State’s purpose was to gain the necessary time to allow the four-year-old victim to attain competency; however, the appellee failed to show “there was a deliberate delay for the purpose of hampering the defense.” Ould, supra at 57. In Heinen, supra, this court sustained a seven-year delay between indictment and trial despite the fact that during five of the years the victim, who was a minor, was simply unable to deal with and testify about the alleged molestation. Id. at 374.

3. Assertion of right. Appellee contends he adequately asserted his rights to a speedy indictment and trial through his motion to dismiss; however, in the eight months between his arrest and the grand jury’s consideration of his case, he filed no demand for a speedy indictment. The motion to dismiss was filed two weeks after the grand jury tabled the indictment. A defendant’s pre-indictment silence can weigh heavily against him. Haisman, supra at 899; Roundtree v. State, 192 Ga. App. 803 (1) (386 SE2d 548) (1989).

4. Prejudice to defendant. Appellee maintained that he was severely prejudiced by the delay in resolving the case because he was passed over twice for consideration for promotion to the rank of Lieutenant Colonel in the Air Force; he lost the top secret security clearance assigned to him by the Air Force; he lost the right of visitation with his daughter authorized by a final judgment of divorce; and he suffered severe mental and emotional distress. While the minimization of a defendant’s anxiety and concern is a factor to be considered in determining prejudice, the broader concern is “actual prejudice to the conduct of the defense.” United States v. Marion, 404 U. S. 307, 325-326 (92 SC 455, 30 LE2d 468) (1971); Roundtree, supra at 804. Appellee complained of “considerable personal and professional prejudice” but did not claim or demonstrate that his defense was impaired by the delay. Appellee was also released on bond on the day of his arrest and remained at liberty until the warrant was dismissed; therefore, there can be no claim of oppressive pre-trial incarceration. Id.

The trial court granted appellee’s motion to dismiss without explaining the basis for its ruling; hence, we do not know whether the court employed the Barker v. Wingo test, and determined that appellee’s sixth amendment right to a speedy trial had been denied in arriving at its decision. However, our review of the record leads us to the conclusion that appellee’s rights were not abridged by the State’s actions and therefore, appellee was not entitled to a dismissal of the charges on this basis.

In addition, contrary to appellee’s contention that the tabling of the indictment was the legal equivalent of a no bill, the “mere failure of the grand jury to indict does not constitute the return of a no bill. [Cit.]” Nelson v. State, 247 Ga. 172,174 (3) (274 SE2d 317) (1981). In Nelson, the Georgia Supreme Court recognized that there are instances in which the grand jury, in the exercise of its responsibilities pursuant to OCGA § 15-12-74, might defer action in a particular case, and the court considered the reason for the delay as a factor under Barker v. Wingo. Id. at 175. In a child molestation case, prosecution must be commenced within seven years of the commission of the crime. OCGA § 17-3-1 (c). “ ‘ “[T]he applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges” ’ and so guards against prejudicial pre-accusation delays. [Cit.]” Andrews v. State, 175 Ga. App. 22, 24 (332 SE2d 299) (1985). In the instant case, the grand jury was operating well within the statute of limitation.

Decided November 19, 1990

Rehearing denied December 20, 1990.

Edward D. Lukemire, District Attorney, George R. Christian, Assistant District Attorney, for appellant.

Erion & Exum, Charles T. Erion, for appellee.

Judgment reversed.

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


author: Pope, Judge. Beasley, Judge,

text:
    A90A1146.
    TAYLOR v. BLOODWORTH.
    (400 SE2d 691)
   Pope, Judge.

Appellant/plaintiff Fairow Taylor, Jr., appeals the grant of summary judgment to appellee/defendant Stewart I. Bloodworth, individually and d/b/a Bloodworth Farms in this action for negligence. Taylor was seriously injured when he came in contact with a grain auger on the Bloodworth farm.

In January 1986 Bloodworth arranged with Dooly Farm Services, which employed Taylor as a truck driver, to deliver 6,000 bushels of feed corn to his farm. Taylor delivered approximately nine loads of corn to the farm. On Taylor’s first delivery, Bloodworth met him and showed where to back his truck. He then warned Taylor that the augers used to unload the truck were dangerous and he told Taylor that he would keep a man there at all times to operate the machinery and Taylor’s job was to dump the truck. Bloodworth told him that he had a friend killed by a similar piece of machinery and specifically told Taylor to stay away from the equipment.

Each unloading would take between 45 minutes and one hour. One man, a farm employee or Bloodworth, would set the gate on the back of the truck regulating the rate of flow of grain from the truck to the auger. Taylor would sit in the cab of the truck and raise or lower the body of the truck as needed to keep the flow constant. If the flow became too fast, the auger would bind. The day before the accident, a shear pin bolt on the auger had broken, apparently because of an overload. Bloodworth installed a new shear pin bolt and secured it with a double nut. Taylor was present when the repair was made.

On the day of the accident, Bloodworth’s employee, Jeff King, started the unloading and, as was customary, went to work grinding feed in a nearby building that was in sight of the auger. Taylor has no recollection of the accident; however, somehow his clothing became entangled with the auger and Taylor was pulled in and severely injured. Held:

We affirm. “Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication . . . where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.” (Punctuation and citations omitted.) Fagan v. Atnalta, Inc., 189 Ga. App. 460 (376 SE2d 204) (1988). “The business invitee on private premises assumes the risk of danger of which he knows . . . and fully comprehends, or which is sufficiently obvious. . . .” (Punctuation omitted.) Id. at 461.

At his deposition, Taylor testified that he was present the day before the accident when the shear pin bolt on the auger had broken. He watched as Bloodworth or one of his employees accomplished the repair of the broken shear pin bolt by replacing it with another bolt. Thus, it is uncontroverted that he had actual knowledge of the repair. Further, the record shows that Taylor was aware that he was hurt by something on the auger shaft, and that he was aware of the danger inherent in the machine.

The record also shows that it was not Taylor’s job to be around the auger. Both Bloodworth and King testified that Bloodworth warned Taylor of the danger inherent in the operation of the auger and instructed Taylor that Bloodworth or one of his men would set the gate on the truck to regulate the flow of grain to the auger. If the grain was unloaded too quickly, the auger would overload and bind causing the shear pin bolt to break, as had happened the day before the accident. It was not Taylor’s job or responsibility to regulate the gate controlling the flow of grain unloading. Bloodworth had an employee, King, on the site. After seeing that the unloading was begun properly, King went to work grinding feed in a building some 75 to 100 feet away, but within sight of the auger. He told Taylor to call him if the flow slowed down. King also testified that Taylor indicated to him that this was his last load of the day and that he was in a hurry to get finished. Bloodworth was aware that operation of the auger was a two-man job and had provided an employee to do the dangerous job. Taylor simply ignored Bloodworth’s and King’s instructions and attempted to do the operation alone, with disastrous personal consequences.

From these facts, we cannot help but conclude, as did the trial court, that Taylor assumed the risk of injury and that Bloodworth is entitled to summary judgment.

Judgment affirmed.

Deen, P. J., Birdsong, Sognier and Cooper, JJ., concur. Carley, C. J., McMurray, P. J., Banke, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

When Taylor made the first delivery, Bloodworth told Taylor to be careful and watch out for the auger, as was routine. Taylor knew the machine was inherently dangerous. He understood the term auger to refer only to the screw-like part of the machine that carried the corn up to the grain bin from the pit into which he unloaded it. There was no evidence showing he was aware that, when Bloodworth repaired the machine the day before, the bolt put in to replace one that had sheared off while in operation was extra long. Bloodworth did not warn him about the danger of the longer exposed bolt on the unshielded rotating shaft powering the auger. Taylor swore that while he knew it would be dangerous to fall in the pit and get “chewed up” by the auger, he “had no idea of the danger from the rotating shaft that runs up the side of the auger.”

Taylor testified that he was positive he did not come into contact with the shaft which supplied power from a tractor to the auger itself. Other testimony corroborated that Taylor’s contact was with the top, rotating shaft of the auger above the gearbox, where bits of clothing and flesh were found after the accident.

Two men were required to perform the unloading operation safely, one to watch the corn and set the gate that regulates the flow of the corn, and another to raise and lower the truck bed. Taylor was supposed to raise and lower the truck bed while Bloodworth’s employee King supervised the unloading of the corn into the auger pit. Bloodworth assured Taylor that King would be working with him “at all times,” but when Taylor arrived with the last load King left the auger pit to grind feed in an adjacent building about 75 to 100 feet away. While King was gone, Taylor had to walk around the auger to the back of the truck to regulate the flow of the corn, at which time he came into contact with the machine. Taylor testified that he “hollered and hollered” before King “finally” heard him and summoned help.

The parties agree that Taylor was an invitee of Bloodworth Farms and that, as such, appellee owed him the legal duty of exercising ordinary care to keep the premises safe. OCGA § 51-3-1. Appellee insists that Taylor did not show a causal relationship between any breach of this statutory duty and his injuries, and that to presume that because he was injured by the machine Bloodworth had somehow been negligent would make him the insurer of Taylor’s safety. See Brown v. RFC Mgmt., 189 Ga. App. 603 (376 SE2d 691) (1988). Appellee further points out that if the invitee has knowledge of the danger co-equal with the landowner, there is no breach of the legal duty and there can be no recovery against the landowner. Dyer v. Joe Rigatoni’s of Atlanta, 191 Ga. App. 473 (382 SE2d 193) (1989); Miolen v. Edd Kirby Chevrolet, 189 Ga. App. 282 (375 SE2d 266) (1988). He reasons that under the undisputed facts, since Taylor had been warned about working around the auger and was already aware of the dangers posed by such machines, he voluntarily acted so as to assume the risks and dangers incident to the known condition. Williams v. City Ice Co., 190 Ga. App. 744 (2) (380 SE2d 341) (1989); Glass v. Bell, 190 Ga. App. 159 (378 SE2d 385) (1989).

These principles are not dispositive because there are genuine issues of material fact regarding whether the extended replacement bolt installed by Bloodworth on the unshielded rotating shaft was the proximate cause of Taylor’s entanglement on the auger, and whether Taylor comprehended the danger it posed. A further unresolved question of fact involves the necessity of having a two-man crew to work the auger, and if the failure to have another employee present as announced was also a proximate cause of the injury. Taylor claimed he had no knowlédge that the machine had been modified such that it posed the hazard now complained of. Nor did he know the dangers incident to fulfilling the other person’s function, which required presence near the rotating shaft with the raised bolt. Nor did he know that he would be left to perform the two-person job.

“[A]n analysis of the parties’ relative degrees of knowledge and the [landowner’s] corresponding duty to warn the plaintiff is meaningless where it is clear that whatever the invitee may have ‘known’ about the dangerous situation, he was unaware of its dangerous consequences or could not exercise any control over those consequences . . . . [I]t would be illogical to excuse the [landowner’s] negligence merely because the plaintiff invitee was aware of a potential peril he could not escape. The true basis of liability in such a case is the foreseeability of the consequences by the [landowner], which consequences the plaintiff could not avoid with use of ordinary care. [Cit.]” (Indention omitted.) Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 160 (342 SE2d 468) (1986). “ ‘ “As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. [Cits.] . . .” ’ [Considering the reasonable inferences that may be drawn [from the evidence, it] presents matters which should be resolved by the jury. [Cit.]” Waits v. Makowski, 191 Ga. App. 794, 796 (383 SE2d 175) (1989). Accord Brandvain v. Ridgeview Institute, 188 Ga. App. 106 (4) (372 SE2d 265) (1988).

Decided December 5, 1990

Rehearing denied December 20, 1990

Chambless, Higdon & Carson, Marc T. Treadwell, Gregory J. Spicer, for appellant.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Carl A. Veline, Jr., for appellee.

I am authorized to state that Chief Judge Carley, Presiding Judge McMurray, and Presiding Judge Banke join in this dissent.


author: Carley, Chief Judge. McMurray, Presiding Judge,

text:
    A90A1180.
    ALLSTATE INSURANCE COMPANY v. TALBOT et al.
    (400 SE2d 694)
   Carley, Chief Judge.

Appellant-plaintiff issued a policy of insurance covering appelleedefendants’ home. After a fire, appellees submitted claims to recover under the policy. Appellant’s investigator determined that the fire had been intentionally set and that an accelerant had been used. Thereafter, appellant initiated the instant action by filing a petition seeking a declaratory judgment that, under the arson clause in its policy, it owed no contractual duty to pay appellees’ claims. Appellees answered and counterclaimed, seeking to recover under the policy and, in addition, bad faith penalties and attorney’s fees. Subsequently, appellees moved for summary judgment on the issue of appellant’s liability. The trial court granted summary judgment in favor of appellees as to appellant’s liability under the policy but denied summary judgment as to appellant’s liability for bad faith penalties and attorney’s fees. Appellant appeals from this partial grant of summary judgment in favor of appellees.

1. There is authority for the proposition that a defendant can obtain affirmative relief by way of counterclaim in an otherwise viable declaratory judgment action. Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357 (203 SE2d 304) (1973). However, no authority has been cited by appellees for the proposition that a defendant can obtain affirmative relief by way of counterclaim in an otherwise non-viable declaratory judgment action. Compare Holcomb v. Ellis, 259 Ga. 625 (2) (385 SE2d 670) (1989), wherein the plaintiff amended his complaint for declaratory relief so as to add a count for affirmative relief. It is clear that a viable declaratory judgment action was not initiated by appellant’s petition (see State Farm Fire & Cas. Co. v. Fuller, 150 Ga. App. 387 (258 SE2d 13) (1979)), and that appellant’s petition did not serve to invoke the trial court’s initial subject matter jurisdiction over resolution of the contractual dispute. See Kaylor v. Kaylor, 236 Ga. 777 (225 SE2d 320) (1976); Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42 (395 SE2d 287) (1990); Royal Lepage &c. of Atlanta v. Spalding Partners, 192 Ga. App. 284 (1) (384 SE2d 424) (1989); Oxford Fin. Co. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987). Thus, there is some doubt as to whether the trial court had jurisdiction to enter any order in this case. For purposes of this appeal, however, we will assume without deciding that the trial court did have jurisdiction to address the merits of appellees’ motion for summary judgment on their counterclaim notwithstanding the lack of any subject matter jurisdiction whatsoever over appellant’s non-viable claim for declaratory relief.

2. Summary judgment would be proper only if the evidence, when construed most strongly against appellees and most favorably for appellant, showed that no genuine issue of material fact remained as to appellant’s arson defense and that appellees were entitléd to judgment as a matter of law. “ ‘(I)t has been held that to establish a prima facie case of incendiarism for the purpose of denying coverage under a fire policy it is sufficient to show: arson by someone; motive by the suspect; and unexplained surrounding circumstantial evidence implicating the suspect.’ [Cit.]” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1) (314 SE2d 241) (1984). In the instant case, there is evidence as to the first two of these three elements and, in granting appellees’ motion for summary judgment, the trial court apparently concluded that appellees met their burden by showing that no genuine issue of material fact remains as to the third.

It is clear, however, that evidence of opportunity on the part of an insured who has a motive to commit an arson can satisfy the third element and will, if believed by a jury, authorize a finding in favor of the insurer. In Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (1) (308 SE2d 382) (1983), it was explicitly recognized that the insurer’s arson defense was “not frivolous or unfounded” because “[a]n insurance company can prevail in an arson defense based solely on circumstantial evidence if it shows that the fire was of incendiary origin and that the [insured] had both the opportunity and motive to have the fire set. [Cits.]” (Emphasis supplied.) This has also been implicitly recognized in other cases. See generally Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1) (349 SE2d 527) (1986); Smith v. Federated Mut. &c. Ins. Co., 124 Ga. App. 693 (185 SE2d 588) (1971). The holdings in these cases are in no way inconsistent with that of Southern Trust Ins. Co. v. Braner, supra. To the contrary, they are entirely consistent applications of the Braner tripartite test, with evidence of the insured’s opportunity to commit the arson satisfying the third element thereof.

Insofar as Mrs. Talbot is concerned, she was actually present when the fire started and, thus, she clearly had the opportunity to have set it. See Pennsylvania Millers Mut. Ins. Co. v. Baker, supra at 505 (1), wherein Braner was distinguished on the basis of the existence of “circumstantial evidence from which it may be inferred that the insured was present at the house for several minutes s'" the fire started. Such evidence creates more than the ‘shadowy semblance’ of a fact issue. . . . [Cits.]” (Emphasis supplied.) See also Smith v. Federated Mut. &c. Ins. Co., supra at 693, wherein there was evidence “that placed [the insured] at the scene in the early hours of the morning and shortly before the fire broke out.” (Emphasis supplied.) It is true that, “[wjithout more, the fact that [the insured] had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on his part.” (Emphasis supplied.) Southern Trust Ins. Co. v. Braner, supra at 569. However, the evidence of Mrs. Talbot’s actual presence at the scene constitutes a showing of “more” than her “exclusive access to the property.” Compare Southern Trust Ins. Co. v. Braner, supra, wherein there was no evidence of the insured’s presence when a fire occurred at his second home which had been left locked by him the day before the fire.

Mrs. Talbot was not alone in the home when the fire started and she was, therefore, not the only occupant who had an opportunity to have set it. However, the insured in Pennsylvania Millers Mut. Ins. Co. v. Baker, supra, was likewise not the sole occupant of the house when the fire started and here, as there, Mrs. Talbot is the only occupant who did have a motive to commit the arson. The inculpatory circumstantial evidence certainly does not demand a finding that Mrs. Talbot had committed the arson and there is certainly exculpatory evidence that she did not. However, the weight of the evidence and the credibility of the witnesses are matters for jury resolution. The issue to be decided is whether a jury, disbelieving the exculpatory evidence and believing the inculpatory evidence, would be authorized to find that Mrs. Talbot had set the fire. We hold that a jury would be authorized so to find and the trial court usurped the jury’s function as the finder of fact.

With regard to Mr. Talbot, the evidence shows only that he was miles away at the time the fire was discovered. This evidence does not, therefore, demonstrate, as a matter of law, that Mr. Talbot had no opportunity whatsoever to have set the fire and, therefore, he did not meet his burden of proving that no genuine issue of material fact remained as to his defense of alibi. Moreover, opportunity is not the only inculpatory circumstance which will satisfy the third element of the Braner tripartite test. “The facts which [can be] presented to show the responsibility of the defendant .... are the motive and opportunity of the accused, his prior threats, subsequent admissions of fact, and suspicious conduct on his part.” Grimes v. State, 79 Ga. App. 489, 495 (1) (54 SE2d 302) (1949). There was evidence that Mr. Talbot had previously threatened to kill his wife if she should ever leave him. On the night of the fire, a divorce action was pending and Mrs. Talbot was occupying the house with another man. There was also evidence that, prior to the fire, Mr. Talbot had been “kicked out” of the house and that he had ordered the shut-off of the utilities. As is the case with Mrs. Talbot, the inculpatory evidence does not necessarily demand a finding that he had committed the arson and there is certainly exculpatory evidence to the contrary. However, it is for the jury and not the trial court to resolve fact and credibility issues.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

In my view, the superior court did not err in granting the Talbots’ motion for summary judgment on the issue of plaintiff’s liability under the insurance policy. Since I would affirm the judgment of the superior court, I respectfully dissent.

Plaintiff Allstate Insurance Company issued a Deluxe Homeowners Policy covering a house owned by defendants Christopher E. Talbot and Beverly H. Talbot and located in Hahira, Georgia. The coverage provided under the policy included both dwelling and property damage in the event of fire.

On the morning of April 23, 1988, the house was damaged by fire. At that time the Talbots were having marital and financial difficulties, neither was living in the house, and all utilities to the house had been disconnected. Nonetheless, Mrs. Talbot, along with some friends, elected to spend the night of April 22-23, 1988, in the house. The other persons present were Kenneth Inman, whom Mrs. Talbot was dating at the time, defendant Carrie L. Garay, Harold G. Miller, whom Mrs. Carrie L. Garay was dating at the time, and two minor children of Carrie L. Garay.

At approximately 7:10 a.m., Mrs. Talbot was awakened by Mr. Inman and told that the house was on fire. They attempted to warn the others but were unable to reach them through the house, so they went outside and knocked on the windows of the room in which Mr. Miller and Mrs. Garay were staying, then assisted them in getting out of the house via the window. The four then proceeded to the window of the room in which the children were sleeping, but were unable to save the children.

An investigation into the cause and origin of the fire was initiated by plaintiff. Plaintiff’s investigator opined that the fire was intentionally set, using an accelerant.

The Talbots filed their claim to recover under the insurance policy. Plaintiff initiated the case sub judice as a declaratory judgment action seeking an adjudication of its rights, duties, and obligations in regard to the defendants, that is, the Talbots, Carrie L. Garay, and John J. Garay, father of the children killed in the fire. The Talbots answered and counterclaimed seeking to recover the proceeds of the policy, and also seeking bad faith penalties and attorney fees. Subsequently, the Talbots moved for summary judgment on the issue of liability. The Talbots’ motion for summary judgment was granted on the issue of plaintiff’s liability under the insurance policy and denied as to liability for bad faith penalties and attorney fees. Plaintiff appeals contending that a jury issue remains as to its defense of arson.

1. The Declaratory Judgment Act is governed by the practice rules contained in the Civil Practice Act. Town of Thunderbolt v. River Crossing Apts., 189 Ga. App. 607, 608 (2), 609 (377 SE2d 12). “Since provisions of the Civil Practice Act have been held to be applicable in declaratory judgment actions, Southeastern Fidelity Fire Ins. Co. v. State Farm &c. Co., 118 Ga. App. 861 (165 SE2d 887) (1968), it would appear that the defendant in a declaratory judgment action could interpose a counterclaim against the plaintiff under CPA § 13 [OCGA § 9-11-13].” Harrison v. Speidel, 244 Ga. 643, 644, fn. 1 (261 SE2d 577).

It follows that where an insured whose rights have accrued under a policy of insurance is named as a defendant in a declaratory judgment action by an insurer whose obligations have already attached, the insured may, as an alternative to moving for a dismissal of the insurer’s declaratory judgment action (which seeks a merely advisory opinion), file a counterclaim to enforce its accrued rights. This occurred in the case sub judice. The filing of the counterclaim for damages serves to change the nature of the action. See Holcomb v. Ellis, 259 Ga. 625 (1) (385 SE2d 670).

In my view, the superior court’s grant of defendants’ motion for summary judgment as to liability under the insurance policy was not an advisory opinion. Therefore, the superior court’s judgment should be held to be a determination of the parties’ accrued rights and obligations.

2. Under the three-part test enunciated in Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1) (314 SE2d 241), in order to establish a prima facie case of incendiarism for the purpose of denying coverage under a fire insurance policy the insurer must show arson by someone; motive by the suspect; and unexplained surrounding circumstantial evidence implicating the suspect. There is some evidence as to the first two parts of this test. However, in my view the third prong of this test, which requires some evidence linking the insured to the arson, that is, evidence that the insured either personally or through agents, has caused or procured the fire to be set, is not satisfied. “Without more, the fact that [the insured] had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on his part.” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569, supra.

When this third test is applied to the facts of the case sub judice, attention is addressed primarily to Mrs. Talbot. Uncontroverted evidence shows that at the time of the fire, Mr. Talbot was miles away at Moody Air Force Base and there is no evidence that he, either personally or through agents, caused or procured the fire to be set.

Mrs. Talbot was in the house when the fire started, but, as previously stated, this alone does not create an inference of incendiarism on her part. There is no evidence linking her to the arson. Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1), 569, supra. Compare Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1) (349 SE2d 527) (insured driving away from house several minutes after fire started) and Rollins v. Great Southwest &c. Ins. Co., 162 Ga. App. 139 (1) (290 SE2d 353) (insured had only key to padlock securing house and padlock found unlocked after fire, items claimed to have been destroyed in fire shown to have been removed prior to fire).

The evidence in the case sub judice creates mere suspicions and any conclusion attributing the arson to Mrs. Talbot rather than her companions or an unknown third party discloses speculation and conjecture. “[B]efore there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed. . . . [Radcliffe v. Maddox, 45 Ga. App. 676, 681-682 (2) (165 SE 841)].” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232, 233 (367 SE2d 539). “Where a civil case rests on circumstantial evidence, the circumstances proved must tend in some proximate and reasonable degree to establish the conclusion claimed, and render less probable all inconsistent conclusions. So, where evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict. [Cits.]” Ladson Motor Co. v. Croft, 212 Ga. 275, 277 (92 SE2d 103).

Additionally, I cannot agree with the position of the majority that the third element of the test from Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 568 (1), 569, supra, may be proven by evidence of opportunity on the part of the insured to commit an arson. Such a rule removes the insurer’s burden to prove the insured’s connection with the arson and invites speculation by the jury. I cannot agree that any such opportunity test is implicit in Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504 (1), supra, or Smith v. Federated Mut. &c. Ins. Co., 124 Ga. App. 693 (185 SE2d 588), since in both of these cases there is circumstantial evidence implicating the insureds.

Decided December 5, 1990

Rehearing denied December 20, 1990

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William J. Rawls II, for appellant.

Coleman, Kitchens, Wolf son & Smith, James R. Smith, Jr., B. Miles Hannan, for appellees.

In my view, any reliance upon the “opportunity” test from Fortson v. Cotton States &c. Ins. Co., 168 Ga. App. 155, 156 (1), 158 (308 SE2d 382), is misplaced since this decision should be distinguished on the facts. As noted in Division 2 of Fortson, Division 1 of that decision, “goes only to the [issues of] bad faith penalties and attorney fees . . . .’’In the case sub judice, the Talbots’ claims for damages for bad faith and attorney fees remain pending following the denial of their motion for summary judgment in this regard, but these claims are not at issue on this appeal. Instead, this appeal, as in the controlling case of Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, supra, is concerned with the insureds’ claim to recover fire loss benefits under an insurance policy. The legal test to be applied to claims for bad faith penalties and attorney fees is distinguishable from the test governing claims for loss benefits under insurance policies. The insured must prove more to support a claim for bad faith penalties and attorney fees than to support a claim for benefits under the policy. Thus, a decision concerned solely with claims for bad faith penalties and attorney fees, such as Fortson, is not controlling where, as in the case sub judice, the issues presented involve only claims for loss benefits under insurance policies. Any language in Fortson, which purports to relate to claims for loss benefits under insurance policies which are not at issue in that case, should be recognized as obiter dictum, therefore not binding precedent, and disregarded in the face of binding precedent which is supplied in the case sub judice by our decision in Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, supra.

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