author: McMurray, Presiding Judge.

text:
    A92A1931, A92A1932.
    BROOKS v. THE STATE; and vice versa.
    (425 SE2d 911)
   McMurray, Presiding Judge.

In Case No. A92A1931, defendant Brooks appeals his conviction of the offenses of violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute) and of obstruction of a law enforcement officer. The State appeals from the trial court’s ruling concerning the admissibility of certain evidence in Case No. A92A1932. Held:

1. Defendant’s first enumeration of error questions the sufficiency of the evidence to authorize his conviction of possession of cocaine with intent to distribute. The evidence at trial, stated in the light most favorable to upholding the conviction shows that police were dispatched in response to a telephone report that Lucious Boswell was attempting to sell drugs at a certain location. Boswell was approached by officers and consented to a search of his person. When nothing was found on his person, Boswell was permitted to leave. Nonetheless, Boswell was subsequently prosecuted and pleaded, guilty to possession of cocaine with intent to distribute.

While the police had been searching Boswell, defendant was standing nearby and engaged in conduct which the police characterized as “fat-mouthing” or “sticking your mouth in someone else’s conversation,” and described as defendant saying to Boswell “ ‘They don’t have a warrant. You don’t have to do this.’ Just constantly like a heckler does a comedian on stage.” After Boswell was permitted to leave, the police officers turned their attention to defendant who began to walk away. Police officers requested and then ordered defendant to remain but he continued to walk away. Finally, one of the officers blocked defendant’s path and was cursed by the defendant. When defendant attempted to walk over the officer, several additional officers joined in restraining defendant. There were no drugs found on defendant, but he did have $346.38 on his person.

A cousin of one of the officers pointed out cocaine hidden in a cactus bush. The uncontroverted evidence was that Boswell had placed the cocaine there. No evidence was introduced suggesting that defendant had ever been in actual physical possession of the cocaine. The State’s theory was that Boswell and defendant were working together to market the cocaine, with Boswell holding the cocaine and defendant holding the money. Testimony was presented that such a team approach to selling cocaine is common.

The State also presented evidence that defendant was wearing two pairs of pants, that most of the money in his possession was in the pocket of the inside pants while only a few dollars were in the outside pair, and that this practice is not uncommon among people selling drugs on the street. Similar transaction evidence was also admitted which showed defendant’s bent of mind towards making street sales of cocaine. The State’s evidence also established that defendant stood near the cactus bush containing the cocaine during the time that police were searching Boswell and until he attempted to leave the scene.

“Possession sufficient to sustain a conviction for possession with the intent to distribute can be actual or constructive. Walton v. State, 194 Ga. App. 490 (390 SE2d 896) (1990). ‘ “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recogpizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.” ’ Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989).” Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339).

The issue is whether the circumstantial evidence presented at trial was sufficient to establish beyond a reasonable doubt that defendant had at least joint constructive possession of the cocaine found in the bush. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The burden to present evidence excluding every other reasonable hypothesis save that of guilt is upon the State. Cornish v. State, 187 Ga. App. 140, 142 (369 SE2d 515).

“ ‘When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.’ [Cit.]” Kreager v. State, 148 Ga. App. 548 (252 SE2d 1). While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must review the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law. Solomon v. State, 195 Ga. App. 684 (1), 688 (394 SE2d 570); Atchison v. State, 181 Ga. App. 351, 352 (352 SE2d 201); Muckle v. State, 165 Ga. App. 873 (1), 875 (303 SE2d 54); Smith v. State, 56 Ga. App. 384, 387 (192 SE 647).

In the case sub judice, the evidence fails to exclude several reasonable alternative hypotheses consistent with defendant’s innocence of the charge of possession of cocaine with intent to distribute. The State’s evidence while showing defendant’s predisposition towards selling cocaine and even that he was dressed in a fashion common to street vendors of illicit substances, nonetheless failed to establish anything more than speculation as to a possible conspiracy with Boswell. While Boswell and' defendant knew each other, had been seen together in the past, and both may have been drug dealers, the supposition that the two were acting in concert to sell cocaine is little more than speculation. The evidence is equally consistent with the hypothesis that any such activities by defendant were entirely independent of those of Boswell. Thus, the State failed to prove that defendant was in joint constructive possession of the cocaine which Boswell hid in or near the cactus bush. It follows that the jury was not authorized by the evidence to return a verdict finding defendant guilty of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216); Cornish v. State, 187 Ga. App. 140, supra.

2. Defendant also questions the sufficiency of the evidence to authorize his conviction of the offense of obstruction of a law enforcement officer. The indictment alleges that defendant obstructed Officer Pusateri by resisting arrest. Officer Pusateri testified that Sergeant Jones asked him to stop defendant. Defendant turned and walked away, and continued walking after the first time Officer Pusateri asked him to stop, pausing only to curse at the officer. Officer Pusateri ran around defendant so as to place himself in defendant’s path and raised his arm and asked defendant to stop. Defendant continued walking into Officer Pusateri and tried to push through him. Defendant was then overpowered by several police officers.

Since it is clear that Officer Pusateri’s actions in stopping defendant were predicated entirely on the instructions from his superior, we must look to the knowledge of Sergeant Jones at the time he issued those instructions to determine whether the police had authority to seize defendant. We also note that a seizure undoubtedly occurred when Officer Pusateri placed himself in defendant’s path and instructed him to stop since by this point it is clear that defendant was not free to disregard the police and walk away. Compare State v. Akinsonwon, 200 Ga. App. 287, 288 (407 SE2d 434).

On cross-examination, Sergeant Jones was questioned concerning his reasons for ordering his men to stop defendant. The following colloquy occurred: “Q. Now, when you instructed your police officers to stop the defendant, what articulable suspicion did you have that he’d committed a crime? Á. I didn’t think he had committed a crime. The reason I had those thoughts of [defendant] were for a couple of reasons. One was the nature of the call. And, the second was my prior knowledge of [defendant’s] past history. . . . Q. Did you say that the only reason you stopped the defendant was because you knew this man? A. That, and the nature of the call. Q. Did the call, as you were informed, did it ever mention the defendant’s name? A. No, sir. I don’t remember it. Q. Sir? A. No. Q. Had you driven up out there without this call, would you have arrested this man? A. No, sir. Q. When you told the officers to stop the defendant, was he under arrest? A. No, sir. . . . Q. What reason did you have to arrest him that night when you told him to stop? A. He was not under arrest. No. I just wanted to talk to him. Q. Did he have an obligation in your understanding of the Law, to stop and talk to you? A. What do you mean obligation — was he obligated to come back and talk to me? Q. Yes. A. I expected him to. . . . Q. In your understanding of police work, did he have a legal obligation to come back and talk to you? A. I’m not sure if he had a legal obligation, but I expected him to as a citizen in the City of Madison conduct himself as a law-abiding citizen, to come back.”

The charge of obstructing a law enforcement officer was predicated upon defendant’s resistance to being seized by Officer Pusateri. Any attempted arrest was clearly unauthorized since at the moment police decided to seize defendant, the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information were not sufficient to warrant a prudent man to believe that defendant had committed an offense. Whitener v. State, 201 Ga. App. 309, 310 (1) (410 SE2d 796). “Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Smith v. State, 165 Ga. App. 333 (1) (299 SE2d 891) (1983); Reese v. State, 145 Ga. App. 453 (1) (243 SE2d 650) (1978). Tt is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.’ Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294) (1974).” Lee v. State, 201 Ga. App. 827, 828 (2), 829 (412 SE2d 563).

Decided November 25, 1992.

George, Trammell & Bartles, William P. Bartles, for appellant.

Joseph H. Briley, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

The testimony of Sergeant Jones admits that police had no articulable grounds to suspect that defendant had committed any offense. There is no evidence that Sergeant Jones had any knowledge which, under the objective standard announced in State v. Sparks, 205 Ga. App. 438 (422 SE2d 293), would authorize a police officer to seize defendant. As the police lacked probable cause or articulable suspicion such as would have authorized the seizure, defendant was entitled to resist the unlawful arrest. Mullis v. State, 196 Ga. 569, 579 (7) (27 SE2d 91); Walker v. State, 46 Ga. App. 824, 827 (169 SE 315). This, the defendant did by attempting to “push through” Officer Pusateri so as to effect his escape. Since an essential element of the offense of obstruction of an officer is that the officer be engaged in the lawful discharge of his official duties (Dixon v. State, 154 Ga. App. 828 (1) (269 SE2d 909)) and Officer Pusateri by attempting the illegal seizure was not so occupied, the conviction of defendant for the offense of obstruction of a law enforcement officer was not authorized by the evidence. Jackson v. Virginia, 443 U. S. 307, supra.

3. In Case No. A92A1932, the State’s notice of appeal purports to initiate a cross-appeal. However, our statutes do not provide for cross-appeals in criminal cases and any attempted cross-appeal must comply with the requirements of a direct appeal or be dismissed. State v. Crapse, 173 Ga. App. 100, 103 (325 SE2d 620) (overruled on other grounds, Hubbard v. State, 176 Ga. App. 622 (1), 623 (337 SE2d 60)); State v. Cook, 172 Ga. App. 433, 435 (1), 436 (323 SE2d 634). Since the State’s notice of appeal was filed within the time permitted for direct appeal, we also note that the sole issue raised by the State, an evidentiary question which arose at trial, is not among those enumerated in OCGA § 5-7-1. Therefore, even when this case is viewed as a direct appeal, we lack jurisdiction to consider the issue argued by the State. State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278).

Judgment reversed in Case No. A92A1931 and appeal dismissed in Case No. A92A1932.

Sognier, C. J., and Cooper, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A92A2416.
    GENTRY v. THE STATE.
    (426 SE2d 52)
   McMurray, Presiding Judge.

This case first appeared in Gentry v. State, 202 Ga. App. 465 (414 SE2d 696), where defendant’s conviction for theft by deception was reversed because the State failed to prove that defendant committed theft by deception as alleged in the indictment, i.e., “that ‘on or about (the) 18th day of July, 1986,’ defendant ‘did unlawfully . . . obtain United States currency in the amount of $30,010.00, the property of the Peoples Bank of Bartow County, with the intent to deprive the owner of said currency by deceitful means and artful practice, to wit: the accused did intentionally create and confirm the impression to Ronnie Austin, an authorized loan officer for said currency owner, that the accused was the present and only existing owner of a 1983 model Caterpillar crawler and loader, which the accused knew to be a false fact, and by said false representation to said loan officer, was able to obtain the aforestated currency from said owner by means of a commercial loan, using the Caterpillar crawler and loader as collateral for and in order to obtain said loan and currency. . . .’” Id. More specifically, the State presented no evidence showing that defendant fraudulently induced the bank to loan him $30,010 on July 18, 1986. Instead, the State presented evidence that the bank entered into four separate loan transactions with defendant between May 28, 1986, and August 22, 1986, a properly secured $30,010 loan on May 28, 1986, a properly secured $30,010 loan on July 18, 1986, an unsecured $25,000 loan on May 28, 1986, and a $25,010 loan which was purportedly secured by a Caterpillar crawler and loader. The State also presented evidence that defendant duped a loan officer into believing that the front end loader belonged to defendant when, in fact, it did not.

Upon remand, the State indicted defendant for theft by deception and alleged that “on or about the 22nd day of August, 1986, [defendant] did unlawfully . . . obtain United States currency in the amount of $25,010.00, the property of the Peoples Bank of Bartow County, with the intent to deprive the owner of said currency by deceitful means and artful practice, to wit: the accused did intentionally create and confirm the impression to Ronnie Austin, an authorized loan officer for said currency owner, that the accused was the present owner of a 1983 model Caterpillar crawler and loader, which the accused knew to be a false fact, and by said false representation to said loan officer, was able to obtain the aforestated currency from said owner by means of a commercial loan, using the Caterpillar crawler and loader as collateral for and in order to obtain said loan and currency. . . .” Defendant filed a plea in bar, arguing that his prosecution for theft by deception is barred by state and federal double jeopardy provisions. This appeal followed the denial of defendant’s plea in bar. Held:

1. Once it is determined that the State’s evidence is legally insufficient, retrial for the same crime based upon the same material facts is barred. OCGA § 16-1-8 (a) (1), (d) (2). Further, if “several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .” OCGA § 16-1-7 (b). Failure to prosecute a crime of which the accused should have been charged in a former prosecution bars subsequent prosecution if the accused could have earlier been convicted of the crime. OCGA § 16-1-8 (b) (1).

In the case sub judice, it is apparent that the charge of theft by deception, which defendant is now defending, is either based on the same conduct which forms the basis of defendant’s earlier prosecution for theft by deception or is based on conduct stemming from the same transaction which formed the basis of defendant’s earlier prosecution. In either case, defendant’s current prosecution for theft by deception is barred.

In Gentry v. State, 202 Ga. App. 465, supra, this Court held that the State failed to prove the crime of theft by deception as alleged in the first indictment. Consequently, if the crime charged in the case sub judice is based on the same conduct which forms the basis of the crime charged in. Gentry v. State, 202 Ga. App. 465, supra, then defendant’s retrial for theft by deception is barred by OCGA § 16-1-8 (a) (1), (d) (2). On the other hand, if the charge of theft by deception, which defendant is now defending, arose out of the conduct which forms the basis of defendant’s earlier prosecution for theft by deception, then the State’s attorney was then required to prosecute defendant for the crime which he is now defending. OCGA § 16-1-7 (b). The State’s failure to do so bars further prosecution of defendant for any crime stemming from the commercial loan transactions between defendant and the Peoples Bank of Bartow County between May 28, 1986, and August 22, 1986. OCGA § 16-1-8 (b) (1); Marchman v. State, 234 Ga. 40 (215 SE2d 467). Consequently, the trial court erred in denying defendant’s plea in bar.

2. It is unnecessary to address defendant’s remaining enumeration in light of the holding in Division 1 of this opinion.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

Decided November 25, 1992.

Awtrey & Parker, J. Lynn Rainey, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Sharon M. Fox, Assistant District Attorneys, for appellee.

       The trial transcript in Gentry v. State, 202 Ga. App. 465, supra, reveals that the State’s attorney knew or should have known before trial that either the earlier indictment was defectively drawn or that the crime charged in the case sub judice stemmed from the same conduct as the crime charged in the earlier indictment.


text:
    A92A2418.
    COOK et al. v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY.
    (426 SE2d 222)
   McMurray, Presiding Judge.

Prudential Property & Casualty Insurance Company brought suit against Frances Rebecca Wyche, its insured, Spencer Edward Wyche, Billy Cook and Regina Cook, seeking a declaration that it need not provide automobile insurance coverage to Spencer Edward Wyche with regard to an underlying personal injury action brought by Billy Cook and Regina Cook against Spencer Edward Wyche. Frances Rebecca Wyche and Spencer Edward Wyche failed to answer the complaint. The Cooks answered the complaint, asserting that Spencer Edward Wyche is insured under a policy which plaintiff issued to his mother, Frances Rebecca Wyche.

In pertinent part, the policy provides: “You and a resident relative are insured while using your car or a substitute car . . . But a resident relative is only insured while using the car with your permission.” Frances Rebecca Wyche deposed that she did not give Spencer Edward Wyche, her 46-year-old son, permission to drive her automobile on the day of the collision. Spencer Edward Wyche deposed that on the day in question, he “borrowed” his mother’s car without her permission. Based on the language of the policy and the Wyches’ testimony, plaintiff moved for summary judgment. It also sought default judgment against the Wyches inasmuch as they failed to answer the complaint.

The trial court granted plaintiff’s motion for summary judgment against the Cooks and entered default judgment against the Wyches. The Cooks appeal. Held:

1. The Cooks do not have standing to complain about the entry of a default judgment against the Wyches “because the default judgment does not adversely affect [the Cooks] as [co-defendants]. Avis Rent a Car System v. Rice, 132 Ga. App. 857, 858 (209 SE2d 270) (1974). The default operates as an admission by [the Wyches] of the truth of the factual allegations in [plaintiff’s] complaint, and bars [them] from litigating the merits of the claim. [Cits.] However, the declaratory judgment entered by default against [the Wyches] is not binding against [the Cooks], nor is it evidence that can be used by [plaintiff] to obtain a judgment against [the Cooks]. Peek v. Southern Guaranty Ins. Co., 240 Ga. 498, 499 (241 SE2d 210) (1978).” Stonica v. State Farm Fire &c. Co., 198 Ga. App. 717 (402 SE2d 553).

Decided November 25, 1992.

Howe & Dettmering, Donald B. Howe, Jr., for appellants.

McLain & Merritt, Howard M. Lessinger, for appellee.

2. We agree with the trial court that Spencer Edward Wyche was not insured under the policy issued to Frances Rebecca Wyche. The policy plainly provides that a resident relative is not covered unless he receives permission to drive the insured’s automobile. The undisputed facts show that Spencer Edward Wyche did not have permission to drive his mother’s car.

The Cooks contend the “permission” provision violates the public policy of this State. We disagree. “ ‘Public policy may justify enlarging an insurer’s risk where acts of the undisputed insured driver are concerned, but not necessarily so where an unauthorized driver who is not an insured under the policy is involved. This court has previously affirmed declaratory judgment for the insurer where such an unauthorized and thus uncovered use of the vehicle occurred. (Cits.)’ Johnson v. Blue Ridge Ins. Co., [189 Ga. App. 616 (376 SE2d 703)].” Rogers v. Travelers Indem. Co., 202 Ga. App. 77, 79 (2) (413 SE2d 254). See also Omni Ins. Co. v. Harps, 196 Ga. App. 340 (396 SE2d 66).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A93A0061.
    TELEPHONE ADVERTISING CORPORATION OF AMERICA v. AARON RENTS, INC.
    (426 SE2d 54)
   Pope, Judge.

Appellant/defendant appeals from the trial court’s order granting summary judgment to appellee/plaintiff. The record shows the order granting plaintiff summary judgment was entered on February 28, 1992, and that defendant filed its motion for reconsideration on March 11, 1992. The trial court denied plaintiff’s motion on April 23, 1992, and plaintiff filed its notice of appeal to this court on May 4, 1992.

“ ‘(T)he only appealable order of record is the order of [February 28, 1992] granting . . . summary judgment to the plaintiff. (Cits.) The appeal was not filed within 30 days from this order, however, but was filed subsequent to the denial of a motion for reconsideration of this order several months later. It has repeatedly been held that, unlike a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict, a motion for reconsideration does not extend the time for filing a notice of appeal. (Cits.) . . . Thus we lack jurisdiction to entertain the appeal.’ Becker v. Fairman, 167 Ga. App. 708, 709 (1) (307 SE2d 520) (1983). See also Hargrove v. Phillips, 186 Ga. App. 525 (368 SE2d 123) (1988); Guthrie v. D. L. Claborn Buick, 180 Ga. App. 128 (348 SE2d 523) (1986). ‘(E)ven if we were to construe [defendant’s] (motion for reconsideration) as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and [defendant] did not follow the applicable procedure to secure appellate review of the denial of (its) motion. (Cits.)’ Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987).” Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989).

Decided November 25, 1992.

Herbert H. Hamlett, pro se.

Bradford & Preis, Dorine E. Preis, for appellee.

Appeal dismissed.

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


author: Andrews, Judge.

text:
    A92A1209.
    PARKS et al. v. NORRED & ASSOCIATES, INC.
    (426 SE2d 12)
   Andrews, Judge.

This appeal is from the trial court’s grant of partial summary judgment to Norred & Associates, Inc. (Norred) on appellants’ claim for malicious prosecution. This procedurally complex case has appeared before this court in Peek v. State, 189 Ga. App. 584 (377 SE2d 8) (1988) and in Jordan v. State, 194 Ga. App. 415 (390 SE2d 614) (1990).

The facts relevant to the appearance of this case are as follows: Appellants, Joe Johnson, Brenda Echols, Dolly Jordan, Sherri Kazeem, Mary Peek and Musie Haregewoyn were employees of United Parking, working in various job capacities at parking lots operated by United Parking in October and November 1985. United Parking suspected that various employees were stealing and hired Norred, a security and investigative firm, to investigate. After varying periods of interrogation, each appellant signed a statement admitting to theft; these statements are included in the record before us. The complaint alleges that the statements were untrue and were coerced from the appellants. After signing the statements, the appellants were terminated from employment at United Parking.

Criminal warrants for theft by taking were taken out against the appellants in November 1985. A hearing was held (the lengthy transcript is in the record before us) and the cases were bound over for prosecution in State court. On March 17, 1987, accusations against the appellants were drawn for theft by taking. Appellants filed a motion to dismiss the accusations based on their contention that their statements had been obtained fraudulently. On June 16, 1989, the trial court denied the motion, and stated that “subsequent to [a] full blown pretrial hearing and evidence presented by both State and Defendants, said Motion is denied as the Court found there was probable cause for bringing the accusations.” On July 12, 1990, the solicitor placed each criminal accusation on the dead docket due to insufficient evidence due to the age of the matter.

Appellants originally filed this civil action on October 29, 1987, and dismissed the case without prejudice on May 11, 1990. On October 17, 1990, appellants refiled this complaint. In pertinent part, the complaint alleges that the actions against appellants were instituted maliciously and without probable cause and that the criminal prosecutions against each of them terminated in their favor.

On September 10, 1991, Norred filed a motion for partial summary judgment. The trial court granted the motion, finding that two necessary elements were missing from this case. First, the trial court determined that the dead docketing of the criminal actions was not a “favorable termination,” as required in a malicious prosecution suit. Secondly, the trial court determined that there was no absence of probable cause.

First, although appellants originally claimed that summary judgment was improperly granted with respect to appellant John C. Parks, who died in December 1985, they now concede that a claim for malicious prosecution cannot be brought on his behalf and accordingly, we affirm the trial court’s order with regard to John Parks.

In their three enumerations of error, appellants contend that the trial court erred in determining that there had been no termination of the criminal prosecutions, in determining that the prosecutions were based upon probable cause, and in dismissing the malicious prosecution claim with prejudice. We find that the case can be resolved by addressing the issue of probable cause. “The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. . . . This burden is not carried in any reasonable sense unless the plaintiff . . . shows that under the facts as they appeared to the prosecutor at the time. of the prosecution, that the defendant . . . could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought. Fisher v. Kentucky Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985). Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. OCGA § 51-7-43.” (Punctuation omitted.) Monroe v. Sigler, 256 Ga. 759 (1), 760 (353 SE2d 23) (1987).

In Monroe, supra, the Supreme Court defined the issue before it as “whether a judicial determination of probable cause made in the course of a criminal prosecution can establish, as a matter of law and for purposes of summary judgment, the existence of probable cause in a civil action for malicious prosecution.” The court reversed the denial of defendant’s motion for summary judgment based on the fact that probable cause was established by the denial of the defendant’s motion for a directed verdict of acquittal. Contrary to appellants’ assertions, we do not interpret Monroe as holding that only in cases in which a directed verdict of acquittal has been denied can there be a finding of probable cause in a subsequent malicious prosecution case. Monroe simply held that there is a conclusive showing of probable cause established by the denial of a motion for a verdict of acquittal. Monroe does not preclude a finding of probable cause in other factual contexts. See, e.g., Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663) (1981); see generally OCGA § 51-7-43.

In fact, the Monroe court stated: “[a]t an ex-parte hearing . . . [t]he magistrate issued a warrant for Sigler’s arrest, finding that probable cause existed to charge Sigler with the crime of simple battery. A second magistrate held a preliminary hearing six days later, at which Sigler appeared and gave testimony. This magistrate bound Sigler over for trial, also finding that probable cause existed for the issuance of the arrest warrant. The judicial determinations of the magistrates were based on probable cause. Each found the existence of that factum, the absence of which is an essential element of an action for malicious prosecution. ‘The action of a magistrate in binding over the accused on a criminal warrant is prima facie, but not conclusive, evidence of probable cause for such prosecution.’ (Emphasis supplied.) Darnell v. Shirley, 31 Ga. App. 764 (7) (122 SE 252) (1924). See also Coxon v. Lady Jane Shop, 169 Ga. App. 959 (1) (315 SE2d 681) (1984).” Monroe, supra at 760.

Here, Norred presented prima facie evidence that probable cause existed based on the magistrate’s and trial court’s determination. Unlike Monroe, this was not conclusive evidence that probable cause existed. Nevertheless, once this prima facie evidence of probable cause was presented, an essential element of appellants’ case was pierced and it was incumbent upon appellants to present evidence to rebut it. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided November 9, 1992 —

Reconsideration denied November 30, 1992

Louis K. Polonsky, Jane E. Strell, for appellants.

Fortson & White, Williston C. White, Matthew G. Moffett, for appellee.

In the analogous context of indictments, this court stated: “ ‘[t]he grand jury’s return of the indictment against the plaintiff is prima facie but not conclusive evidence that probable cause existed for the prosecution.’ [Cit.] Thus, the burden shifted to the appellee to come forward with specific facts tending to show that probable cause did not exist for his arrest and that the charges against him were instead motivated by malice.” Sears Co. v. Weddington, 197 Ga. App. 52, 53 (397 SE2d 471) (1990). In this case, as in Weddington, appellants have failed to present evidence to support their claims that the prosecution was motivated by malice. Accordingly, the trial court properly granted Norred’s motion for partial summary judgment. Because of our conclusion with respect to this contention we need not address appellants’ additional arguments.

Our conclusion that summary judgment was proper also applies to Mary Peek, since her acquittal by this court was not based on the absence of probable cause, but on the trial court’s violation of the two-term rule. That Peeks was acquitted because of this procedural aspect of the case is not inconsistent with a finding of probable cause. See generally J. C. Penney Co. v. Miller, 182 Ga. App. 64, 65 (1) (354 SE2d 682) (1987).

Judgment affirmed.

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

       In Peek, this court reversed the trial court’s denial of Peek’s motion to dismiss with regard to appellant Mary Peek and determined that her motion for acquittal should have been granted because the State had not heard her criminal case within two terms. After Peek, the remaining appellants then filed a renewed motion for acquittal, which was denied and which appellants appealed in Jordan v. State, supra.


text:
    A92A1385.
    BRADY v. THE STATE.
    (426 SE2d 15)
   Andrews, Judge.

Brady was indicted and tried for rape, statutory rape and child molestation. The jury returned a guilty verdict on all three counts. The trial court determined that the conviction for statutory rape merged with that for rape and sentenced Brady to life imprisonment for the rape conviction and ten years probation consecutively for the child molestation conviction. Brady appeals.

Evidence at trial was that the 12-year-old victim was Brady’s stepdaughter and that on February 24, 1990, Brady fondled the victim and forced her to engage in intercourse. There was testimony that ten months after the February incident, while Brady was out of jail on bond, he molested another 12-year-old and told that victim that because he was already going to jail, it “won’t matter if I do it again.” The second victim testified that Brady raped her and kidnapped her for two days. Although the statement was never read to the jury in its entirety, Brady’s statement in which he admitted having had intercourse with the victim was introduced into evidence. In the statement Brady claimed that the victim initiated the sexual contact and consented to the intercourse. The defense presented evidence which attempted to impeach both the testimony of the victim and of the subsequent victim. Brady did not testify at the trial.

1. In his first enumeration of error, Brady claims that the trial court erred in permitting into evidence his signed Miranda rights waiver form, in that such form was not provided to the defense pursuant to its written request under OCGA § 17-7-210. Brady did not contend that the statement he gave was not voluntary, he simply claims that he should have received a copy of the waiver form.

We find this enumeration without merit. “Statements that are not incriminating or inculpatory do not fall within the ambit of OCGA § 17-7-210, and therefore need not be furnished to a defendant.” Williamson v. State, 188 Ga. App. 307, 308 (1) (372 SE2d 685) (1988); see also Dean v. State, 168 Ga. App. 172, 173 (2) (308 SE2d 434) (1983). In the instant situation, the waiver form cannot be construed as inculpatory and there was no error in allowing it into evidence. See Reeves v. State, 169 Ga. App. 665, 666 (2) (314 SE2d 682) (1984); see generally Courson v. State, 184 Ga. App. 793 (3) (363 SE2d 41) (1987); compare Gilbert v. State, 193 Ga. App. 283, 284 (1) (388 SE2d 18) (1989).

2. Secondly, Brady contends that the trial court erred in permitting the State to call a rebuttal witness whose name was not disclosed to the defense pursuant to his request under OCGA § 17-7-110, in that the testimony of the witness was not in direct rebuttal to the evidence presented by the defense. The witness to whom Brady objects, his ex-wife and the mother of the victim, testified after the defense rested regarding her knowledge of the incident.

Pretermitting the issue of whether defense counsel received adequate notice that the witness would be called, and pretermitting the question of whether he properly preserved the error, we find this enumeration without merit. “After the defense has rested, it is within the discretion of the trial judge whether to allow the State to introduce additional evidence. The trial judge may allow introduction of additional evidence even though it is not strictly in rebuttal of presented defense evidence. We find the trial court did not err in allowing the rebuttal witness to be called as a witness after the defense rested.” (Citations and punctuation omitted.) Horne v. State, 192 Ga. App. 528, 529 (3) (385 SE2d 704) (1989); see also Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991).

3. In his third enumeration, Brady claims that the trial court erred in failing to instruct the jury that he could not be convicted of both rape and child molestation for the same conduct. The indictment against Brady charged in the first count that on February 24, 1990, he had committed the offense of rape (OCGA § 16-6-1) in that he had carnal knowledge of the victim forcibly and against her will. Count 3 of the indictment charged that Brady was guilty of child molestation (OCGA § 16-6-4) in that on the same date he fondled the victim with the intent to arouse and satisfy his sexual desires. The trial court instructed the jury regarding the crimes of rape and child molestation and the record contains ample evidence of the separate acts which underlie the two separate convictions.

Brady’s argument that the trial court erred by failing to charge that child molestation is a lesser included offense of rape is without merit. The record reveals that although Brady originally submitted a written charge on this point to the court, he subsequently withdrew the request. This withdrawal is indicated both by the notation “withdrew” on the instruction and is conceded to by Brady in his argument regarding ineffective assistance of counsel in which he states that no charge on this point was requested. Further, although Brady reserved all exceptions to the court’s charge, he did not raise this issue as an error in his motion for new trial.

“A trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge.” Comer v. State, 247 Ga. 167 (275 SE2d 309) (1981); see also Phillips v. State, 260 Ga. 742, 746 (5) (399 SE2d 202) (1991). Accordingly, we find no error here.

4. Finally, Brady claims that he was denied the right to effective assistance of counsel at trial. He argues that defense counsel was unprepared for trial and did not adequately investigate the case and that trial counsel made several legal errors.

At the hearing on the motion for new trial, Brady testified that his attorney met with him several times in jail. Brady testified that he told his attorney of several witnesses, but that the attorney failed to call those witnesses. Nevertheless, Brady conceded that the attorney interviewed those witnesses. Brady’s trial counsel also testified at the hearing and explained the rationale for some of his trial strategies.

A trial court’s finding that counsel was effective must be upheld unless that finding is clearly erroneous. Snyder v. State, 201 Ga. App. 66, 70 (8) (410 SE2d 173) (1991). “In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citations and punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 752 (5) (412 SE2d 859) (1991).

(a) Brady first argues that his counsel was unprepared for trial and did not adequately investigate the case. His arguments are: (1) that Brady’s counsel did not adequately investigate Brady’s psychiatric background before filing a motion for psychiatric evaluation; (2) that his counsel was not aware that Brady’s statement was voluntary and argued that it was involuntary; and (3) that he failed to call certain witnesses.

Brady has not shown how these examples of his counsel’s ineffectiveness caused harm and his general arguments in this regard are without merit. First, the motion for psychiatric evaluation was denied by the court and Brady does not suggest how any harm from this denied motion resulted. With regard to the second argument, Brady does not claim that his statement was inadmissible, he simply states that his counsel’s argument that the statement was involuntary was incorrect. Regarding the third point raised, “[t]his court has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Jacobson, supra at 752.

(b) Brady also alleges that his trial counsel committed several legal errors. He claims that trial counsel was ineffective in that he failed to object to the victim’s out-of-court statements; he failed to have Brady testify or protect him from the failure to do so; and he failed to submit a jury instruction as discussed in Division 3. Again, Brady does not delineate in more than a general manner the way in which trial counsel’s alleged deficiencies prejudiced him.

“A defendant is entitled not to perfect representation but to reasonably effective assistance. The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citations and punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

Decided November 9, 1992 —

Reconsideration denied November 30, 1992

Cathey & Strain, J. Edward Staples, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       In Brady’s motion for new trial, this issue was raised as one of the arguments regarding ineffective assistance of counsel, but was not argued as a separate reason for granting a new trial.


text:
    A92A1449.
    HAND v. THE STATE.
    (426 SE2d 18)
   Andrews, Judge.

Hand was tried and convicted of possession of marijuana with intent to distribute, possession of LSD and possession of drug-related objects and appeals.

Viewing the trial evidence in the light most favorable to the verdict, the contraband was found in the residence of Hand and his wife on August 7, 1990, after a search pursuant to a warrant. During the search of their residence, marijuana was found on a living room table, a cookie box containing what appeared to be liquid LSD was found in the refrigerator, and sugar cubes containing suspected LSD were located in a kitchen cabinet. Triple beams scales used for weighing the amount of various substances were also found in the home. Hand admitted that a small quantity of the marijuana found was his, but claimed that the other drugs were left in his house by an acquaintance.

1. In his first enumeration of error, Hand contends that the trial court erred in denying his motion for judgment nov, or for a new trial. This enumeration is unsupported by argument and to the extent that it is separate from Hand’s other enumerations, is deemed abandoned. See Henderson v. State, 200 Ga. App. 200, 202 (5) (407 SE2d 448) (1991).

2. In his second enumeration, Hand argues that the trial court erred when it refused to permit him to cross-examine government witnesses with regard to the identity and conduct of the confidential informant. Hand contended at trial, and argues here, that he and his wife were not in their home at the time the confidential informant was present and that the drugs were planted in their home. Nevertheless, although Hand’s written motion to suppress sought the identity of the informant, Hand never specifically raised the issue of the informant’s identity before the trial court. Hand does not cite any specific questions he asked which the trial court prohibited. In fact, during the hearing on his motion to suppress, Hand specifically informed the court that he was not seeking to discover the identity of the informant. Thus, there is no properly preserved error to review and the enumeration is without merit. See generally Dobbs v. State, 200 Ga. App. 300 (407 SE2d 782) (1991). “It is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record.” (Punctuation omitted.) Millis v. State, 196 Ga. App. 799, 800 (4) (397 SE2d 71) (1990).

3. Thirdly, Hand contends that the trial court erred when it denied his motion to suppress because the affidavit in support of the warrant was fatally defective in that the facts given to support the issuance of the warrant were insufficient, and the reliability of the confidential informant was not sufficiently established.

The search warrant at hand was issued on August 7, 1990. In the document, the affiant, Officer Ken Jones, stated: “within the last 96 hours Commander Bill Whitener was contacted by a reliable source. Source has provided information in the past that led to the arrest of Joe Cash for violation of Georgia Controlled Substances Act on 7/20/ 89. Source also provided information that led to the arrest of a juvenile for violation of Georgia Controlled Substances Act on 7/11/90. Within the past 96 hours source has been at #27 Arrowhead Drive and observed a quantity of marijuana in the control and possession of Ellis Hale Hand. The information was given to affiant by Cmdr. Whitener.” Jones states that he and another officer conducted an independent investigation in which they confirmed that #27 Arrowhead Drive matched the description given, that it was the Hands’ residence, that the power bill was registered in the name of appellant’s wife and that the vehicle in the driveway belonged to appellant.

“In making a determination as to probable cause pursuant to the totality of the circumstances test enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at a particular place. Mize v. State, 173 Ga. App. 327, 328 (326 SE2d 782) (1985); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). The task of a reviewing court is to determine if there is substantial evidence in the record to support the magistrate’s issuance of the warrant. State v. White, 196 Ga. App. 685, 686 (396 SE2d 601) (1990). Although in a particular case it may not be easy to determine when an affidavit demonstrates, the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Mincey v. State, 180 Ga. App. 898, 900 (350 SE2d 852) (1986). Under these standards, the information in the affidavit obtained from the informant was sufficient to establish probable cause for the warrant, and the trial court correctly denied the motions to suppress.” (Punctuation omitted.) Adams v. State, 201 Ga. App. 12, 13 (2) (410 SE2d 139) (1991); see also State v. Smith, 201 Ga. App. 650, 651 (411 SE2d 877) (1991).

4. In his fourth enumeration, Hand claims that under the mandates of OCGA § 17-7-211, the trial court erred in permitting the State to introduce evidence regarding a report which was not provided to him until after the trial began. The scientific report to which Hand objects identified the substance in eight bags which were seized from Hand’s residence as marijuana. The analysis on the contraband was not undertaken until the day before trial, and there was no written report regarding the marijuana prior to that date. The trial court’s allowance of testimony regarding the report was based on Wellborn v. State, 258 Ga. 570 (372 SE2d 220) (1988).

“OCGA § 17-7-211 attaches only when there is a writing. There was no writing in existence at the time the state furnished copies of other reports as required by OCGA § 17-7-211. The statute does not prohibit the prosecution from introducing evidence of scientific tests performed immediately prior to or during the trial absent a showing that the prosecution attempted to circumvent the discovery process.” (Citations and punctuation omitted.) Wellborn, supra at 571 (1).

It is undisputed that although an analysis of the LSD which had been seized was performed prior to trial, and the result furnished to defendant, there was no written report analyzing the marijuana until the date of trial. There was no evidence that the prosecution attempted to circumvent the discovery process. Furthermore, the record reveals that the prosecution furnished the test results as soon as they became available, and the report itself was not introduced into evidence. See generally Iona v. State, 260 Ga. 83, 84 (3) (389 SE2d 754) (1990). Moreover, Hand did not request a continuance or recess and the record reveals that there was an opportunity for him to speak with the witness. Under these circumstances, we find no error. See generally Carey v. State, 257 Ga. 134, 135 (3) (356 SE2d 507) (1987).

5. In his fifth enumeration, Hand argues that the trial court erred by permitting the State to present to the jury and allow the jury to consider an item of purported contraband that was never introduced into evidence. The only instance under this enumeration which Hand specifically references, allegedly occurred during closing argument. Because there is no transcript of the closing arguments, there is no record of the State’s allegedly improper argument, and there is no record of any objection by Hand. Hand’s effort to preserve this alleged error through the affidavits of three witnesses, including appellant Hand, who claim to have seen the State’s argument and witnessed Hand’s objection are unavailing. The error was not properly preserved and the enumeration is without merit. See generally Williams v. State, 200 Ga. App. 84, 85 (1) (406 SE2d 498) (1991). “Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.” (Citations and punctuation omitted.) Collins v. State, 200 Ga. App. 71, 72 (2) (406 SE2d 520) (1991).

Decided November 9, 1992 —

Reconsideration denied November 30, 1992.

Karen S. Wilkes, James A. Robbins, Jr., for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

6. Finally, Hand contends that the trial court erred when it refused in some instances, and severely restricted in other instances, the defendant’s examination of government witnesses during the hearing on his motion for new trial. With neither citations to the record, nor citations of authority, Hand generally asserts that the trial court erred in restricting his efforts to examine government witnesses regarding the confidential informant and the issuance of the search warrant. Here, as in Division 2 above, Hand has failed to show error affirmatively by the record and this enumeration is without merit. Millis, supra.

Judgment affirmed.

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


text:
    A92A0799.
    SCOTT et al. v. HAMILTON DORSEY ALSTON COMPANY.
    (426 SE2d 55)
   Andrews, Judge.

Dr. Scott and his professional corporation appeal the grant of summary judgment to Hamilton Dorsey Alston Company (Hamilton) in this action seeking recovery of premiums due for malpractice insurance.

Hamilton is an insurance agency representing, among others, St. Paul Fire & Marine Insurance Company (St. Paul). In 1983, it took over the business of Curtis Bryant Insurance Agency which had been providing malpractice insurance for Dr. Scott and his professional corporation. Premiums were paid as due until May 1986. In November 1986, Hamilton filed its complaint for the past due premiums in two counts, breach of contract and an open account.

On June 11, 1991, Hamilton filed its motion for summary judgment on both theories, attaching the affidavit of Hamrick, its chief operating officer and executive vice president. That affidavit stated insurance was provided through St. Paul at defendants’ request from 1983 until September 1986, and that an account in their names for the premiums, credits, late charges, etc. was kept in the regular course of Hamilton’s business. A compilation of that account reflected principal due of $6,288.34 and interest accruing at one-and-one-half percent per month. That compilation included crediting the account for credits provided by St. Paul, which set the rates, and “$11,512.00 returned when the Defendants cancelled the insurance coverage, and $8,057.00 in payments made by the Defendants.”

Defendants’ response was filed on July 18, 1991, and included Dr. Scott’s affidavit as well as one of counsel, apparently to explain that the late filing was due to his having moved his office. Dr. Scott stated that “Plaintiff agency placed Defendant’s malpractice insurance with the St. Paul Insurance Company. Defendant’s rates were approximately $20,000 per year.” Dr. Scott also states the premiums were doubled after a malpractice claim against him was settled, and that “Defendant protested the raise and while he paid several premiums because he needed coverage . . .” he later cancelled the coverage.

In pertinent part, the order granting summary judgment provides that “the Court having perused the record, including Defendants’ response to Plaintiff’s Motion for Summary Judgment and the affidavits of Dr. Scott and Mr. Henritze, . . . the Court notes that Plaintiff’s Motion for Summary Judgment and its supporting affidavit stand unopposed as no proper response in opposition thereto has been filed. Although Defendants have filed a response, the same is not in compliance with USCR 6.5 and the Court considers the same insufficient to constitute a viable response in opposition to Plaintiff’s Motion for Summary Judgment.”

1. Pretermitting the question of whether the court’s order can only be read as indicating that the summary judgment was granted without considering Dr. Scott’s and the attorney’s affidavits, to do so would have been erroneous because they should have been considered. O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608, 609 (1) (380 SE2d 487) (1989); Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64 (1) (374 SE2d 785) (1988).

2. Nonetheless, even if the order is so read, it does not mandate a reversal of the judgment entered.

“An appellate court in reviewing a lower court decision will affirm a judgment which is right for any reason.” Smith v. Fleming, 183 Ga. App. 342, 343 (358 SE2d 900) (1987), quoted in Wyse, supra at 66.

Decided November 30, 1992.

Walter M. Henritze, Jr., for appellants.

Alston & Bird, Susan B. Devitt, for appellee.

Here, we have examined all the affidavits on file below, Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 808 (2) (415 SE2d 705) (1992), and it is apparent that Dr. Scott does not dispute that Hamilton served as the agent of St. Paul and obtained insurance for him, for which he paid premiums until he decided to cancel that insurance and obtain other coverage. This does not, however, create a material issue of fact which would require reversal. The compilation of premium amount due, contained in Hamrick’s affidavit, stands undisputed. Therefore, summary judgment was appropriate. OCGA § 9-11-56 (c); Concept-Nat. v. DiMattina Supply Co., 147 Ga. App. 865 (250 SE2d 552) (1978); see Shea v. State Farm &c. Co., 198 Ga. App. 790, 791 (2) (403 SE2d 81) (1991).

Judgment affirmed.

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


text:
    A92A1088.
    TRI-CITY CONSTRUCTION COMPANY, INC. v. SANDY PLAINS PARTNERSHIP.
    (426 SE2d 57)
   Andrews, Judge.

Tri-City Construction Company, Inc. (Tri-City) appeals the grant of summary judgment in favor of Sandy Plains Partnership (Sandy Plains) on Tri-City’s action to enforce its lien.

Tri-City was the general contractor on a project in Cobb County owned by Sandy Plains. A dispute arose and Tri-City filed its claim of lien on November 27, 1989. It stated that it was for a “claim which became due on July 31, 1989 for the material and services rendered by Tri-City” on the project.

Although Sandy Plains denied the allegations of paragraph six of Tri-City’s complaint seeking enforcement of the lien, which paragraph stated that the construction “was completed on or about November 8, 1989,” Sandy Plains alleged in its counterclaim that “TriCity did not complete the project in a timely fashion and the project was not completed until November 21, 1989.”

On August 16, 1990, Tri-City filed its complaint, seeking to enforce its lien. Attached to that complaint and filed that same day was a document labelled “Claim of Lien (Amended),” which stated that “The claim . . . became due on November 8, 1989.”

On January 10, 1991, Sandy Plains filed its motion for summary judgment. On February 8, 1991, Sandy Plains filed its motion to stay pending arbitration. The court granted Sandy Plains’ motion, finding that the claim of lien stated it was due July 31, but the claim was not filed until November 27, 1989, making it untimely pursuant to OCGA § 44-14-361.1 (a) (2) and that the purported amendment was ineffective to resurrect the claim, relying on Shirah Contracting Co. v. Waite, 143 Ga. App. 355 (238 SE2d 728) (1977).

1. While, as held in Coe & Payne Co. v. Foster & Kleiser, 258 Ga. 161 (366 SE2d 292) (1988), the complaint seeking to enforce a lien is subject to amendment pursuant to OCGA § 9-11-15 (c), there is no comparable provision regarding amendment of the actual claim of lien after the expiration of the three-month period. Shirah, supra. Therefore, Tri-City is bound by the original lien which either is, or is not, valid standing alone.

2. While the lien of a contractor attaches from the time the work is commenced, “[i]n order to become effective as a claim two requirements must be met by the lienor. 1) There must be a substantial compliance with the contract for building ... by the party claiming the lien. 2) The claim must be filed for record within three months after the completion of the work. . . .” (Emphasis supplied.) Troup Enterprises v. Mitchell, Carrington &c., 199 Ga. App. 173, 175 (1) (404 SE2d 337) (1991). Therefore, a premature lien is not effective. Id.

This is not a situation where no calendar date was included but the requisite statutory language was, as in Georgia North Contracting v. Haney & Haney Constr. &c., 204 Ga. App. 366, 367 (1a) (419 SE2d 348) (1992), or where the correct date was included in lieu of the statutory language, as in L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680 (399 SE2d 272) (1990). Instead, here there is an acknowledged incorrect date which is not within three months after completion of the work.

The court properly ruled that the lien was ineffective. See Consolidated Systems v. Amisub &c., 261 Ga. 590, 591 (1) (408 SE2d 109) (1991).

3. The second enumeration alleges error in the court’s refusal to stay the litigation pending arbitration pursuant to the Federal Arbitration Act.

In order for that act to be applicable, however, there must be a showing that the contract involves “commerce among the several states.” 9 USCA § 1 et seq. Here, the only evidence put forward by Tri-City of such interstate commerce is the Loeffler affidavit which states in this regard that “Tri-City entered into contracts for the purchase of labor and materials from a number of vendors, subcontractors and materialmen located in states other than the State of Georgia. Many of the products incorporated in such construction were manufactured in states other than the State of Georgia.” While the affidavit states it is based upon a review of the records of Tri-City, those records are neither attached to the affidavit nor contained in the record and the affidavit is insufficient under OCGA § 9-11-56 (e). Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 (388 SE2d 69) (1989).

Decided November 30, 1992.

Caldwell, Heggie & Helton, Clifton G. Caudle, Jeffrey A. Billings, for appellant.

Summers & Jones, W. Dennis Summers, Robert H. Stansfield, for appellee.

Judgment affirmed.

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


text:
    A92A1515.
    In the Interest of J. M., a child.
    (426 SE2d 59)
   Andrews, Judge.

Kathy Foust, the mother of J. M., appeals the termination of her parental rights by the juvenile court.

Termination of parental rights is done based only on clear and convincing evidence. Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982). In reviewing such a decision, this court determines whether, after viewing the evidence in the light most favorable to the appellee-Georgia Department of Human Resources, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. Id.; In the Interest of J. L. Y., 184 Ga. App. 254, 255 (1) (361 SE2d 246) (1987).

So viewed, the evidence was that the mother, age 22 at the time of the hearing in 1992, had been molested by her father from 1979 until 1982. He pled guilty to the molestation and was sent to prison. She then married McCloud, the father of J. M., in July 1986 when she was 16. She bore C. M., fathered by McCloud on July 19, 1986. She and McCloud separated in February 1987 and she began living with Robertson. A. M., fathered by Robertson while she was still married to McCloud, was born in October 1988.

A. M. died at age six months from asphyxiation. According to the mother, she put the child on a bed asleep where she left her for three hours while she talked on the telephone. When she went to check on her, she found the child on the floor with a plastic bag on her face. During this same period of time, C. M. was taken into custody by the Department of Family & Children Services (DFACS), where she has remained for four of her five years.

McCloud was imprisoned and released on November 25, 1989. Kathy and he went out on the night of his release, got drunk, and slept together, conceiving J. M. who was born on August 2, 1990.

In December 1989, Kathy was raped while living with an uncle who was also severely beaten by the assailant. Although she was supposed to testify against the assailant, she disappeared for a period of time and did not, even though such testimony was one of the goals established by DFACS in their September 1990 plan for reuniting Kathy and C. M. She also failed to accomplish the remaining goals, including supporting and visiting C. M. In February 1992, Kathy voluntarily surrendered her rights to C. M., although she revoked the consent one week later. DFACS has begun proceedings to terminate both parents’ rights to C. M.

While she was hospitalized after giving birth to J. M., she was reported by the hospital staff to DFACS due to her lack of nurturing of the newborn. She had no place to live when he was born and had moved in with her abusive father. Four weeks after J. M. was born, Kathy was diagnosed with gonorrhea.

In October 1990, J. M. was taken into custody by DFACS and in November 1990, at the age of two months, J. M. was adjudicated deprived pursuant to OCGA § 15-11-2 (8) (A) and placed by DFACS with a maternal aunt and uncle with whom he has remained and who are interested in adopting him. Kathy and McCloud reconciled until Thanksgiving 1990 when they again separated. Although she told a caseworker in June 1991 she intended to marry Deavers, in October 1991 she married Foust, then 18 years old.

From April 1991, when a panel review was conducted on J. M.’s case and the mother was present, until November 1991, Kathy made no contact with J. M., even on his birthday in August. During the April review, the mother was very angry, attacking, and smelled of alcohol. Neither parent attended the panel review in October 1991, and the father stated during the hearing that he voluntarily relinquished his rights to the child. Only after receiving notice of the termination proceedings did Kathy visit with J. M. During the February 12, 1992 visit, the caseworker left J. M., then one-and-a-half years old, with Kathy and left the room. Within minutes, J. M. was screaming and obviously frightened.

The goals established by Whitfield County DFACS for reunification of Kathy and J. M. were that she and McCloud, with whom she was living in Cobb County at the time of the establishment of the goals, establish and maintain adequate and appropriate housing for the family and notify DFACS of any change in residence; that Kathy obtain mental health counseling; and that both Mr. and Mrs. McCloud secure employment sufficient to support the family.

During this entire period, the mother had only two menial jobs of very short duration. She refused to participate in counseling. She did not notify DFACS of her changes of residence and in fact lost contact with them for long periods of time. Foust, her new husband, was employed as a cook at $5.20 per hour and the mobile home in which they live was given to them by his father shortly before the hearing to “help them out.”

Decided November 30, 1992.

McDonald, Kinnamon & Thames, Connie M. Blaylock, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Jack O. Partain III, District Attorney, David T. Blackburn, for appellee.

In light of this history, and the 1990 court determination of deprivation by which she is bound, the mother’s plea for more time to get her life in order and establish a meaningful relationship with this child cannot overcome the irresistible conclusion that the court’s finding must be affirmed. In the Interest of J. M. H., 203 Ga. App. 856 (418 SE2d 128) (1992); In the Interest of A. W., 198 Ga. App. 391 (401 SE2d 560) (1991); In the Interest of A. L. T., 198 Ga. App. 477 (402 SE2d 97) (1991); In the Interest of J. L. Y., supra; In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987).

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A92A1624.
    POOLE v. ESTFAN et al.
    (426 SE2d 61)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of summary judgment to appellees in this second appearance of these parties before this court. See Estfan v. Poole, 193 Ga. App. 507 (388 SE2d 373) (1989) (“Estfan J”). In the first appearance, we affirmed the judgment entered on a jury verdict in favor of appellant for unpaid real estate commissions against appellee Regent Realty, Inc., appellant’s former employer, pursuant to a written employment contract and against appellees Fred J. Estfan and Investors Services, Inc. pursuant to an oral contract. Following satisfaction of the judgment, appellant brought this action against appellees to recover his purported share of a judgment obtained in a separate action by Investors Services for consulting and management services rendered by Investors Services to the entities involved in the sale of the property which generated the bulk of commissions. See Dyer v. Investors Services, 200 Ga. App. 634 (409 SE2d 249) (1991). Appellant’s demand is based on the same written and oral contracts upon which his recovery was based in Estfan I. Appellant’s written contract with Regent Realty provided that appellant receive “65% of gross income received by Regent Realty in any transaction he initiates,” and at trial, appellant contended that its oral contract with Investors Services was the same. Appellees moved for summary judgment on appellant’s complaint on the grounds that the judgment obtained by Investors Services satisfied a debt owed to Investors Services only and that the judgment obtained by appellant in Estfan I collaterally estops him from further recovery against appellees. In its order granting summary judgment to appellees, the trial court found that throughout Estfan I, appellant maintained his entitlement only to real estate commissions; that appellant denied that the recovery sought was a management fee; that the jury determined that appellant was entitled to real estate commissions; that the parties and the subject matter of Estfan I and the instant case are identical; and, therefore, that appellant was barred by collateral estoppel and res judicata from asserting his claim against Investors Services. The trial court also held that although the grant of summary judgment applied to all three appellees, the record demonstrated that there was no possibility of a claim against Fred J. Estfan and Regent Realty and that they were entitled to discharge from liability in any event.

1. At the outset, we are compelled to remind counsel that among the rules establishing the structure and content of appellate briefs is the requirement that appellants and appellees provide citations to material parts of the record or transcript. Court of Appeals Rule 15 (a) (1) and (b) (1). Both sides in this appeal make references to various portions of the rather voluminous record without citation. “ Tt is not the function of this court to cull the record on behalf of a party in search of instances of error.’ [Cit.] ‘This court can not read every line of the record and transcript to hunt for error.’ [Cit.]” West v. Nodvin, 196 Ga. App. 825, 827 (2b) (397 SE2d 567) (1990). As noted above, these principles apply equally to both sides in an appeal. We are particularly concerned about this violation of our court rules because counsel was similarly reminded in Estfan I. Estfan, supra at 508. However, as we previously concluded in Estfan I, even though there is a substantial question as to whether the parties have compiled with Rule 15, we will nevertheless consider the enumerations of error asserted by appellant on their merits.

2. Appellant contends the trial court erred in finding as a matter of law that the complaint is barred by res judicata and/or collateral estoppel.

“On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, [movants are the defendants], [they have] the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]” Demarest v. Moore, 201 Ga. App. 90, 91-92 (1) (410 SE2d 191) (1991).

“ ‘ “For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. (Cit.)” (Cit.)’ [Cit.]” McGuire v. Witcher, 201 Ga. App. 685, 686 (411 SE2d 875) (1991). Although the parties in Estfan I and the instant case are identical, the causes of action are neither identical nor was the issue in the instant case adjudicated in Estfan I. The record demonstrates that $400,000 was received by appellees from the sale of certain property in Michigan. Upon appellees’ receipt of $300,000, appellant filed the first action against appellees (Estfan I) based on the written employment contract with Regent Realty and an oral contract with Investors Services, which provided that appellant receive 65 percent of gross income received by appellees in any transaction he initiated. Upon Investors Services receipt of the additional $100,000 in consulting and management services, which Investors Services obtained in litigation after Estfan I, appellant filed the instant action to recover his purported share of the remaining proceeds. After reviewing the transcript of Estfan I, we do not agree with the trial court and appellees that by attempting to recover only his share of the initial $300,000, appellant relinquished his claim to the remaining $100,000 which had not been received by Investors Services until after Estfan I. It appears that our conclusion is consistent with this court’s earlier position in Estfan I wherein appellees contended that appellant abandoned his share of a monthly management fee in favor of pursuing his share of the $300,000. Estfan, supra at 510. It is not significant that appellant described the recovery he sought in Estfan I as real estate commissions and not management fees or that the recovery sought in the instant case might be described as management fees because the broad language of the written contract and presumably the oral contract provide that appellant receive “gross income.” Thus, neither res judicata nor collateral estoppel bars appellant’s claim. The causes of action are different, and appellant’s entitlement to a share of the $100,000 was not litigated in Estfan I. Appellees have the burden of piercing appellant’s pleadings and proving that appellant is not entitled to recover a portion of the $100,000 as a matter of law. Demarest, supra at 91-92. This burden has not been met. However, we do agree with the trial court that any recovery appellant receives should be satisfied by Investors Services inasmuch as the judgment for $100,000 was won by Investors Services and appellant does not contend that either Regent Realty or Fred J. Estfan improperly diverted the funds to Investors Services as he maintained in Estfan I. Accordingly, we find no error in the grant of summary judgment to appellees Regent Realty and Fred J. Estfan; however, the trial court erred in granting summary judgment to appellee Investors Services.

Decided November 30, 1992.

Paul D. Horton, for appellant.

Evans & Flournoy, Charles A. Evans, for appellees.

3. Based on the foregoing, we need not address appellant’s remaining enumerations of error.

Judgment affirmed in part and reversed in part.

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


text:
    A92A1634.
    WELLS v. THE STATE.
    (426 SE2d 231)
   Andrews, Judge.

Defendant appeals his convictions of rape, incest, and false imprisonment.

Viewed in favor of the verdict, the evidence was that, around 7:00 a.m., on March 26, 1991, K. B., defendant’s 16-year-old niece, arrived at her grandfather’s home where she generally took a nap before returning to her home after working the night shift at a restaurant. Defendant was residing with the grandfather at the time. Because of the death of K. B.’s great-grandmother, two other uncles, her stepfather and mother, and a girl friend of one of the uncles had come to comfort her grandfather and go to Athens for the funeral later that day. Various family members were in and out of the house until about 5:30 p.m. when all but the victim, defendant, and one uncle remained. That uncle then left, leaving the victim and defendant alone in the house.

The victim was watching television and fell asleep on the couch in the living room around 7:00 p.m. Earlier in the day, she had cleaned up the house, including making up the bed in the room where defendant slept. She was awakened after dark by defendant dragging her by her arm towards his bedroom while stating that “I’m going to f— you and you’re going to like it.” He tried to pick her up as she struggled. Then, the victim felt the point of a knife at her throat and saw a glint of silver.

Defendant cut her belt with his knife and tore the button off her pants, forcing her onto the bed. He struck her in the face at least twice and she lost consciousness. When she came to after the first time, he was penetrating her, saying if he went to jail, she was going to have his baby.

The next morning, she awoke to find defendant dressed, awake, and lying beside her. He told her she was not going anywhere. She told him she would tell people she had been jumped by somebody else. He attempted to get her to put ice on her black eye. He did let her call her boss who came and picked her up. She was taken to the restaurant where the rescue team and police were called.

Hair samples were taken from defendant and a rape kit, including a pubic combing, was prepared by emergency room personnel. The microanalyst concluded that one of defendant’s pubic hairs and one of the hairs obtained from the pubic combing of K. B. could have had a common origin. The nurse who attended K. B. noticed numerous abrasions and contusions, including a badly bruised and swollen eye and neck abrasions.

Defendant testified that, after all the others left, he borrowed $20 from K. B., went to a local store and returned with a 12-pack of beer and a bottle of wine. He later left the house again, leaving K. B. there alone for a period of time. When he returned, he found her inebriated in the driveway and in attempting to get her inside, she fought him and he did hit her. He also slipped at the door to the house and fell, fully clothed, on top of K. B.

A search warrant for the house was obtained and the clothing worn by K. B., including the cut belt pieces, was found in defendant’s bedroom, either hidden under an air mattress on the floor or up under the bed. The house was tidy, except for defendant’s bedroom, which was in shambles, with the bed covers strewn about, soiled and stained. A plastic ziplock bag containing water and a hand towel was found on the floor in the living room. No containers of alcoholic beverages, either empty or full, were found.

1. Defendant’s first two enumerations deal with the denial of his motion to suppress and will be considered together.

The motion to suppress filed below was based on the allegedly illegal arrest of defendant without a warrant or probable cause by a Clayton County officer while in Spalding County, without authority. To the extent that the first and second enumerations attempt to raise arguments here that were not made below, they will not be considered. Miller v. State, 201 Ga. App. 374, 375 (2) (411 SE2d 112) (1991).

Initially, it is noted that the standard for review of evidence presented and ruled upon by a judge on a motion to suppress is not that of Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979), as contended by defendant. “On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. [Cit.]” State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974).

So viewed, the evidence at the hearing on the motion was that Deputy Hitchcock, a Clayton County Deputy Sheriff, was a friend of Dan Wells, defendant’s brother. On March 27, 1991, having just gotten off duty but while still in uniform, Deputy Hitchcock accompanied Dan Wells to Griffin at Dan’s request. Deputy Hitchcock did not know the purpose of the trip at the time they left for Griffin.

Upon arrival in Griffin, they went to the home of defendant’s girl friend, where Dan spoke with defendant while Deputy Hitchcock waited near the truck. Hitchcock did not hear most of the exchange, but did hear defendant say he was not going to return to jail. Defendant then pushed Dan, after which Dan grabbed him and the two fell to the ground. At that point, Hitchcock placed defendant under arrest for the battery on Dan committed in his presence. Because defendant would not stop fighting, Hitchcock did put handcuffs on him. He then took defendant to a phone in a nearby restaurant where he called the Spalding County authorities who transported defendant to their jail. He also contacted Clayton County and was informed that the felony warrants for the rape and assault had been issued.

A law enforcement officer may make an arrest without a warrant for an offense committed in his presence. OCGA § 17-4-20. This is true even if the arrest is outside his jurisdiction. State v. Giangregorio, 181 Ga. App. 324, 325 (352 SE2d 193) (1986); see Hope v. State, 193 Ga. App. 202, 204 (1) (387 SE2d 414) (1989). Even treating Hitchcock as a private citizen, he was authorized to make a citizen’s arrest for the simple battery committed in his presence. OCGA § 17-4-60.

2. The third enumeration alleges error in the trial court’s “not allowing Dorothy Cooper or Virginia Wells to testify at trial as to the false accusations” of K. B. against another uncle.

Decided November 30, 1992.

Faye W. Hays, for appellant.

Prior to trial, the court held a hearing pursuant to the State’s motion in limine under OCGA § 24-2-3, regarding the prior sexual history of the victim. During this hearing, the court also heard evidence of defendant’s allegedly false accusations by K. B. of sexual assault by another uncle, which he contended were admissible under Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989). The court found that defendant had failed to carry his burden of showing a “reasonable probability of falsehood” as required by Smith.

During the trial, the court sounded for witnesses Cooper and Wells, but neither responded. Defendant acknowledged that he had not issued subpoenas for these witnesses. The court’s witness, Ms. Reynolds, testified that Ms. Wells was upset by the events and had decided not to testify.

Pretermitting the fact that the showing required by Smith before such evidence is admissible was not made, the witnesses were not present when called upon at trial and there was no error as enumerated.

3. Pursuant to USCR 31.3, the State gave notice of its intention to introduce evidence relating to defendant’s plea of guilty to a 1983 rape. The State showed that the victim was a babysitter. She was sitting for defendant’s brother’s children, age one and three years, at the apartment where defendant lived with his brother and sister-in-law and the two children. Although the victim was 20 years old chronologically, she was described as a “little bit slow.”

Defendant was alone at the apartment with the children and babysitter when he struck her, brandished a knife, and dragged her into his bedroom where she was raped. Additionally, she suffered bruises and a knot on the back of her head. Although defendant initially denied having intercourse with her, he later said he had, but that it had been consensual. Defendant pled guilty to the rape charge.

Defendant contends the evidence was inadmissible because the time lapse was too great and there were insufficient similarities.

The similarities were sufficient. Defendant victimized two young women whom he knew by use of a knife and physical force. He dragged both into his bedroom in a relative’s house where he was residing at a time when he was with them without other adults around. Hill v. State, 183 Ga. App. 404 (1) (359 SE2d 190) (1987). The time lapse did not itself render the evidence inadmissible. Id. at 406.

4. The objection voiced in the final enumeration was not presented below and will not be considered here for the first time. Miller, supra.

Judgment affirmed.

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

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

       This opinion is the strongest given by a microanalyst when examining hair samples.

       While the motion contained other grounds, these were abandoned at the hearing when defendant, through counsel, stipulated that he had been properly given his Miranda warnings; had waived his rights voluntarily; and had consented to the taking of blood and hair samples.


text:
    A92A1657.
    ASHBURN BANK v. FARR.
    (426 SE2d 63)
   Andrews, Judge.

In September 1989, Ashburn Bank loaned Lumpkin approximately $62,000 to buy cattle. The Bank took a note from Lumpkin and perfected a security interest in the cattle. Thereafter, Lumpkin sold the cattle to Farr for cash, and defaulted on the note owed to the Bank. In addition to suing Lumpkin on the note, the Bank also sued Farr for the cattle in his possession, based on its prior perfected security interest. The trial court granted summary judgment in favor of Farr, ruling that under the provisions of the Food Security Act (7 USCA § 1631) (effective December 1986) Farr took the cattle free from the Bank’s perfected security interest. The Bank appeals claiming that factual issues preclude the grant of summary judgment.

The trial court correctly ruled that the Food Security Act (7 USCA § 1631) controls this transaction, and preempts the farm products exception contained in OCGA § 11-9-307 (1) of the Uniform Commercial Code as enacted in Georgia. See OCGA § 11-9-104 (a). Under OCGA § 11-9-307 (1), “[a] buyer in ordinary course of business (subsection (9) of Code Section 11-1-201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” (Emphasis supplied.) In enacting 7 USCA § 1631 as part of the Food Security Act, Congress concluded that the buyer’s exposure to double payment created by the farm products exception constitutes an obstruction to free commerce in those products. Accordingly, in the absence of certain exceptions created under the Act, 7 USCA § 1631 (d) provides that “notwithstanding any other provision of Federal, State, or local law, a buyer who in the ordinary course of business buys a farm product from a seller engaged in farming operations shall take free of a security interest created by the seller, even though the security interest is perfected; and the buyer knows of the existence of such.” The Act contains two exceptions dependent upon enactment of a federally approved centralized system of filing financing statements with each state’s Secretary of State, and a third exception which requires that the buyer receive notice of the creditor’s interest in a form specified by the Act. White & Summers, Uniform Commercial Code, § 26-14 at 540 (3rd ed. 1988); 7 USCA § 1631 (c) (2), (d), (e). Georgia has not elected to enact a centralized filing system, and it is undisputed that Farr was not given the specified notice.

Nevertheless, the Bank contends that 7 USCA § 1631 does not apply to the present transaction because Farr did not act in good faith as a buyer in the ordinary course of business, and the cattle were not farm products produced by Lumpkin in a farming operation. We find no merit in these contentions.

The federal Act contains its own definition of “buyer in the ordinary course of business,” and provides that “[t]he term ‘buyer in the ordinary course of business’ means a person who, in the ordinary course of business, buys farm products from a person engaged in farming operations who is in the business of selling farm products.” 7 USCA § 1631 (c) (1). Thus, the federal Act does not contain the “good faith and without knowledge” language of OCGA § 11-1-201 (9), which provides: “ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind. . . .” We find no evidence on the present record that Farr failed to act in good faith, or had knowledge of the Bank’s security interest. Moreover, under the Food Security Act, the test is not whether Farr had actual notice that the sale violated a security interest, but whether Farr takes subject to the Bank’s security interest because there was compliance with one of the exceptions defined in the Act.

We find no error in the trial court’s determination that the sale of the cattle was a purchase by Farr, in the ordinary course of business, of farm products produced by Lumpkin in a farming operation. The term “farm product” is defined under 7 USCA § 1631 (c) (5) to include “species of livestock such as cattle, hogs, sheep, horses, or poultry used or produced in farming operations . . . that is in the possession of a person engaged in farming operations.” See OCGA § 11-9-109 (3) (livestock defined as farm products if used or produced in farming operations, “and if they are in the possession of a debtor engaged in raising, fattening, grazing, or other farming operations”). Farr bought the cattle for his cattle ranching operations. Lumpkin ran a feedlot operation in which he entered into agreements with cattle owners to take possession of their cattle, feed and fatten them. He also periodically purchased cattle to raise, fatten and resell. Lumpkin was not a cattle dealer or broker who bought cattle to hold for immediate resale. In the present transaction, Lumpkin bought the cattle at issue to fatten and resell, and agreed to sell the cattle to Farr after fattening. It is clear under these circumstances that Lumpkin was engaged in farming operations, and that the cattle were farm products. See Baker Prod. Credit Assn. v. Long Creek Meat Co., 513 P2d 1129, 1132 (Or. 1973).

Decided November 30, 1992.

Stephen L. Ivie, for appellant.

Michael T. Nations, for appellee.

Under 7 USCA § 1631, Farr purchased the cattle free of the Bank’s security interest, and the trial court correctly granted summary judgment.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A92A1170.
    BERNARD et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (426 SE2d 29)
   Beasley, Judge.

In this summary judgment action decided in favor of the insurer, the issue is whether appellants’ decedent, although not a named insured, was covered under the uninsured motorist provisions of a policy of automobile liability insurance issued to a corporation.

At the time of his death, the decedent was an officer in a corporation known as Louis Isaacson’s, Inc. His wife serves as the president and chairperson of the board of directors. The corporation owned two vehicles, both of which were insured under an automobile policy issued by appellee. The Bernards owned no vehicles personally; they used only the two belonging to the corporation. On the afternoon in question the decedent left the business location driving in a corporate-owned vehicle to perform certain business errands, including corporate banking and stopping at his home to collect any business-related mail. While he was standing in the vicinity of the front yard of his home, he was struck and killed by a vehicle being operated by Bobette Cooper. The corporate car was parked about 50 feet from the site of impact.

Appellants filed suit against Ms. Cooper, whose vehicle was insured under a motor vehicle liability policy providing limits of $100,000 to cover appellants’ claims. Asserting that the decedent was also covered under the policy insuring the corporate vehicle, appellants joined appellee as the uninsured/underinsured motorist carrier under OCGA § 33-7-11 (d). That policy carried uninsured motorist benefits of $500,000.

The declarations page of the policy named only the corporation as insured; no individuals were specified. The section providing uninsured motorist coverage specifies: “Under this coverage we will pay amounts for bodily injury and property damage that you or your legal representative are legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle. Damages must result from an accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle. . . . Anyone else is protected while occupying: (1) your auto. . . .” The words “you” and “your” are defined in the policy to “mean or refer to the policyholder first named in the attached Declarations, and include that policyholder’s spouse if living in the same household.”

Thus, the policy distinguishes between two classes of insureds: (1) those who are covered by virtue of their status as policyholder or legal representative of the policyholder, whether or not the insured vehicle was involved in the accident, and (2) those who are covered as an occupier of a covered vehicle.

1. Coverage was not afforded appellants’ decedent by virtue of his status as a corporate officer. Fowler v. U. S. Fidelity &c. Co., 133 Ga. App. 842 (212 SE2d 486) (1975), held that an officer of a corporation who had been furnished a corporate car but had not been named as an insured under its policy, could not recover under OCGA § 33-7-11 for injuries sustained when struck by an uninsured motorist while retrieving a newspaper from her front yard. Likewise, Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 672 (1) (320 SE2d 555) (1984), held that an officer of a corporation who was not a named insured under a policy insuring the corporate vehicle and was not occupying the vehicle at the time of his injury was not entitled to underinsured motorist benefits. Accord Chastain v. U. S. Fidelity &c. Co., 199 Ga. App. 86 (403 SE2d 889) (1991); Pa. Lumbermens Mut. Ins. Co. v. Haney, 189 Ga. App. 216 (1) (375 SE2d 293) (1988); Fowler v. U. S. Fidelity &c. Co., 133 Ga. App. 842 (212 SE2d 486) (1975). In Purcell v. Allstate Ins. Co., 168 Ga. App. 863 (310 SE2d 530) (1983), on the other hand, a sole proprietor was considered a named insured under a policy issued in the trade name. A sole proprietorship was distinguished from a corporation on the basis that the former is not a distinct entity.

2. Appellants nonetheless contend that the decedent was “using” the car and was therefore afforded coverage by virtue of OCGA § 33-7-11 (b) (1) (B). We have held that use of the vehicle within the contemplation of a liability policy or statute “ ‘would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being “utilized.” ’ ” Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976). This was not the situation here. The decedent had parked, exited, and relinquished control of the vehicle. Accord Anderson v. Ford, 168 Ga. App. 684 (309 SE2d 854) (1983). Compare Hartford Accident, supra, where plaintiff was found to be using an insured vehicle (a garbage truck) within the statutory definition after he alighted from the vehicle carrying a refuse collection container, as such was “ ‘an essential transaction in connection with the use’ of the garbage truck. . . .” Id. at 5.

3. We next consider whether appellants’ decedent was entitled to the protections afforded a named insured under the policy, as “legal representative” of the named policyholder.

Appellants assert that the term “legal representative,” as it appears in the policy should be construed to include corporate officers. The term “legal representative” means, “in its broadest sense, . . . one who stands in place of, and represents the interests of, another. A person who oversees the legal affairs of another.” Black’s Law Dictionary 896 (6th ed. 1990). The “provision is inserted in policies of insurance to meet any change in the title caused by the death of the insured. . . .” Queen Ins. Co. v. Peters, 10 Ga. App. 289, 293 (73 SE 536) (1911).

Mandatory uninsured motorist protection must be provided under OCGA § 33-7-11 (a) (1) to a category of “insureds” as defined by OCGA § 33-7-11 (b) (1) (B) to include: “the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise; any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies ... or the personal representative of any of the above.” The policy language deviated from the statutory language by its use of the term “legal representative” as opposed to “personal representative” in the first category of insureds, i.e., those who are covered while in a motor vehicle or otherwise. “Personal representative” is defined in Black’s Law Dictionary, supra at 1302, as one “who manages affairs of another because of incapacity or death. Includes executor, administrator, successor, personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.”

No Georgia case has included corporate officers within the definition of legal or personal representative as used in a policy of automobile insurance. On the contrary, we have held that the term “personal representative” under OCGA § 33-7-11 (b) (1) (B), “is intended to refer to the parties who hold a fiduciary relationship to an insured who has sustained bodily injuries.” Hogan, supra at 674. In the present policy, the term conveyed a right of recovery to appellants as executor and heirs of the decedent’s estate only to the extent that the decedent was protected by the policy. It did not place decedent in the category of named insured pursuant to his status as an officer of the corporation.

Judgment affirmed.

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

Decided November 18, 1992 —

Reconsideration denied December 1, 1992

Curtis A. Thurston, Jr., for appellants.

Regina N. Kane, Freeman & Hawkins, William H. Major III, for appellee.