author: Pope, Presiding Judge.

text:
    A98A1771.
    BROWN et al. v. BREWER et al.
    (513 SE2d 10)
   Pope, Presiding Judge.

Mary and Douglas Brown, individually and as guardians of their minor children Jason and Nicholas, appeal the trial court’s order granting summary judgment to defendants Paul Brewer and Pamela Freebum. Because no material issue of fact remains for jury resolution, summary judgment was proper. We therefore affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

The relevant undisputed facts of this case are as follows: On February 18,1996, a car driven by Paul Brewer crashed into the Browns’ home. Brewer claims the car rolled into the house after he got out of the car to check on a dog that darted into the street and hit him. The Browns point to physical evidence that suggests that Brewer was behind the wheel when the car hit the house. Brewer, an alcoholic, was admittedly very intoxicated at the time. Brewer’s car struck the front of the Brown residence and plowed into an unoccupied room. Neither the car nor any of the flying debris made physical contact with any member of the Brown family. The Browns were neither directly nor indirectly physically injured as a result of the accident. Nothing in the record suggests that Brewer had any personal animosity toward the Browns or that he intended to drive the car into their home.

The Browns sued Brewer and Freeburn to recover for their “psychic trauma, freight [sic], grave mental suffering, emotional distress and harm to their peace, happiness, and emotional stability.” The Browns claimed a right to recover for mental suffering under several theories, including negligent and intentional infliction of emotional distress. The property damage claim to the home was resolved separately and was not an issue in the suit. The Browns alleged that Freeburn, Brewer’s daughter and the owner of the car he was driving, was vicariously liable under the family purpose doctrine.

1. In their first and second enumerations of error, the Browns contend the grant of summary judgment to Paul Brewer was error because a jury could characterize Brewer’s conduct as wilful and wanton, and not merely negligent. Thus, they argue, his conduct could give rise to a claim for intentional infliction of emotional distress even though the Browns experienced no physical impact or injury.

In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury. OB-GYN Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989). On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975).

Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). However, “[e]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Id. at 829. Pretermitting whether Brewer’s conduct could be characterized as malicious, wilful, or wanton, there was no evidence in this case suggesting that his conduct was directed at the Browns. Absent evidence to support such a finding, the trial court was correct in granting summary judgment on the intentional infliction of emotional distress claim. Id. at 829-830.

2. In their third enumeration of error, the Browns argue that' summary judgment was inappropriate because Brewer failed to refute their claim for special damages. Of course, in this case, it was not necessary to refute the damages claim to prevail at summary judgment. A moving party may demonstrate an entitlement to summary judgment by showing the court that the evidence in the record reveals

that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Emphasis supplied.) Lau’s Corp. v. Haskins, supra. For the reasons set forth in Division 1 above, the Browns’ claim for intentional infliction of emotional distress fails. Further, the Browns did not challenge the court’s grant of summary judgment as to their remaining claims. Thus, any remaining disputed issues of fact with regard to these claims are immaterial.

3. In their final enumeration of error, the Browns claim the trial court erred in denying their motion to compel discovery. Specifically, the Browns contend the trial court (a) should have compelled discovery of the identity of Brewer’s Alcoholics Anonymous sponsor, a person with whom Brewer discussed the accident shortly after it occurred, and (2) should have compelled discovery of any written or oral statements Pamela Freeburn gave her insurer. The Browns argued in their motion to compel that the information they sought would establish that Brewer drove into the Browns’ house while drunk, rather than simply allowing the car to get away from him and roll into the Browns’ home.

Decided February 11,1999

Reconsideration denied March 19,1999

Stephen W. Irving, for appellants.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Edwin L. Hamilton, Stephanie V. Kandzierski, for appellees.

In its March 13, 1997 order, the trial court directed Brewer to provide for an in camera inspection the name of his AA sponsor, along with a statement from him, to be held “in the event of any material contradiction between the content of the statement and the testimony at trial of defendant Paul Brewer.” The court also directed Freeburn’s insurer to provide the court her statements and ordered that they be held until trial and published in the event Freeburn’s testimony differed from that given her insurer. In their appellate brief, the Browns argue that the information they sought was important to establish that Brewer passed out at the wheel “and, indeed, actually drove the vehicle through the property and into the home of the appellants.”

“A trial court’s decision on a discovery matter will not be disturbed unless a clear abuse of discretion is shown.” Gazelah v. Rome Gen. Practice, P.C., 232 Ga. App. 343, 345 (4) (502 SE2d 201) (1998). Also, to prevail on appeal, the Browns must show that the alleged error was harmful. Gantt v. Bennett, 231 Ga. App. 238, 242 (3) (499 SE2d 75) (1998).

In this case, the trial court agreed to make the requested discovery available if it contradicted Brewer’s account of how the accident occurred. Moreover, even if the requested discovery showed that the accident occurred the way the Browns claimed, it would not have raised a material issue of fact for purposes of summary judgment. See Ryckeley v. Callaway, 261 Ga. at 829-830. Because the Browns have not shown how they were harmed by the trial court’s decision, we find this enumeration of error to be without merit.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

       The Browns do not contest the grant of summary judgment to Pamela Freeburn.

       The Browns do not challenge the grant of summary judgment as to their claims of negligent infliction of emotional distress, invasion of privacy, or trespass. Although the court did not specifically address these claims in its final order, the Browns acknowledged in their brief that the court’s order was final and that summary judgment was granted as to the entire complaint.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A1961.
    REDWINE v. WINDHAM.
    (513 SE2d 13)
   Judge Harold R. Banke.

The underlying case arose after William W. Redwine sold the Beaver Lake Golf and Country Club in Meriwether County to J. C. Patel for $800,000. Before the sale, Redwine had operated the golf course as a business from May 1987 to February 1990. According to Redwine, when he sold the business to Patel, he had an established client base and a profitable business. Redwine provided seller financing for $785,000 while Patel paid $15,000 down. The sales transaction included the land for the 183 acre golf course, and, inter alia, maintenance equipment, golf carts, restaurant equipment, walk-in coolers, kitchen equipment, display cases, underground gas storage containers, as well as a maintenance building. The closing attorney, James D. Windham, properly recorded the deed to secure debt on the realty but failed to properly file a UCC-1 financing statement on the personalty.

Just over a year later, after Patel defaulted on the mortgage payments and Redwine pursued non-judicial foreclosure proceedings, Patel filed a petition for Chapter 11 bankruptcy. Redwine filed an aggregate proof of claim for $768,242.34. But due to the UCC-1 filing error, Redwine was a secured creditor as to the land valued at $400,000 but an unsecured creditor as to all the personalty. On several schedules, Patel listed the value of the golf course personalty as $25,000, which Redwine testified here was “very low.” While the bankruptcy action was pending, Redwine and Patel entered into a covenant not to sue. In exchange for withdrawing his objection to Patel’s “Motion for Final Decree,” in the bankruptcy case, Redwine accepted a cash payment of $32,000 from Patel. Patel and Redwine expressly covenanted that any claims against other persons not a party to their agreement would not be affected. As a result of the bankruptcy, Patel’s indebtedness was restructured. Patel had to pay only $368,242.34 of the $768,242.34 claim of Redwine, most of which went to the holder of the first mortgage, not to Redwine. In the end, Patel retained possession of the golf course and continued to operate the business situated thereon.

After the conclusion of Patel’s Chapter 11 bankruptcy, Redwine brought the underlying legal malpractice action against Windham. It is undisputed that because of the UCC filing error, Redwine was treated as an unsecured creditor in the bankruptcy proceeding without any rights to his collateral. As to his interest in all the personalty, Redwine was a Class 9 creditor, below all other creditors, with a claim in that category for $209,653.

An experienced bankruptcy attorney and a former bankruptcy trustee, George Rosenweig, testified at trial. Rosenweig explained that some debtors would be deterred from filing for bankruptcy where the creditor was in a secured position. Rosenweig testified that unlike an unsecured creditor, a secured creditor has leverage in the event a debtor files bankruptcy because he can threaten to take the collateral back. Here, Redwine could not do so. According to Rosenweig, the amount of Patel’s indebtedness to Redwine was “reduced very substantially” by Redwine’s unsecured status. Rosenweig noted that, “the golf course wasn’t being treated as a package anymore under the plan. It had been separated into components. And in a going business, of course, generally, the whole is worth more than the sum of its parts.”

Redwine testified that had his collateral been fully secured he would have recovered the golf course because the business could not function without the equipment. According to Redwine, because Windham failed to file the UCC documents he had no leverage and could not obtain his equipment back which enabled Patel to continue to operate the business. Redwine testified that due to the filing error, “I got beaten out of $375,000.”

Although Windham conceded liability for the UCC-1 filing error, he contested damages, contending that Redwine would have recovered the same amount of money through the bankruptcy process regardless of his relegation to an unsecured creditor position. Windham argued that the measure of damages was not the amount of the unpaid notes but the value of the unsecured collateral, set by Patel at $25,000. Windham’s expert claimed that because Redwine obtained a $32,000 settlement from the covenant not to sue, Redwine actually received a windfall of $7,000. Windham also contended that having been bound by the bankruptcy plan, Redwine was estopped from claiming the value of the collateral was anything other than $25,000.

The trial court found that Redwine was “bound by the doctrine of res judicata” to the value of the unsecured property as set in the bankruptcy reorganization plan. Noting that Redwine received $32,000 which exceeded the $25,000 valuation, the court held that Redwine “suffered no damage.” Finding that Redwine failed to prove that the attorney fees that he incurred in the bankruptcy case were attributable to Windham’s negligence, and that Redwine failed to prove damages in the legal malpractice action, the trial court directed verdicts for Windham on both those claims. Redwine appeals. Held:

A directed verdict cannot stand unless there is no conflict in the evidence as to any material issue and the evidence when considered in the light most favorable to the non-movant demands such a verdiet. OCGA § 9-11-50 (a). A directed verdict must be reversed if there is “any evidence” to support a contrary verdict. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (1992); Dept. of Human Resources v. Thomas, 217 Ga. App. 174,175 (1) (a) (456 SE2d 724) (1995).

Redwine contends that it was error to direct a verdict against his claim to attorney fees incurred in the bankruptcy action. However, an award of attorney fees is not authorized unless the party proves the actual costs incurred and the reasonableness of those costs. Mitcham v. Blaylock, 214 Ga. App. 29, 31 (2) (447 SE2d 83) (1994). A determination of the amount of attorney fees cannot be based on guesswork or speculation. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). Here, to recover the attorney fees at issue, Redwine had to prove both the amount of damages and that the filing error proximately caused those damages. Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994). This he failed to do.

Although Redwine asserts in his brief that “at least some of these attorney fees resulted from problems created by James D. Windham’s negligence,” he failed to offer evidence as to what portion of the attorney fees, if any, was attributable to Windham’s negligence. Moreover, Redwine offered no evidence that his estimate of “about $20,000” in legal expenses was a reasonable value of the professional services rendered. Hercules Automotive v. Hayes, 194 Ga. App. 135, 136-137 (4) (389 SE2d 571) (1989). Consequently, the trial court properly directed a verdict on this issue.

Next, Redwine asserts that the trial court erred by denying the jury the opportunity to determine his damages in the legal malpractice case. He contends that in light of the conflicting evidence on proximate cause and damages, those issues remained for jury resolution. Holt, 262 Ga. at 268 (1).

The record shows that Redwine offered evidence that due to the filing error, he was left without a security interest in the golf course business as a whole and lacked the leverage to reclaim or recover his personal property. Redwine, with firsthand knowledge about the business and its value as a whole, provided testimony about the diminished value of the property when viewed in its components rather than as an integrated business entity. See Loggins v. Mitchell, 201 Ga. App. 358, 359 (1) (411 SE2d 98) (1991) (witness with knowledge, experience, or familiarity of item can testify as to value). Redwine submitted evidence which valued the personalty at $239,783. See Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 287 (3) (431 SE2d 115) (1993). Stephen Block, Patel’s bankruptcy lawyer, testified that Patel had an unsecured debt of approximately $368,000 to Redwine. According to Block, Redwine received about 15 cents on the dollar on his unsecured claim.

Decided February 15,1999

Reconsideration denied March 19,1999

Millard C. Farmer, Jr., Joseph M. Nursey, for appellant.

Hawkins & Parnell, Howell Hollis III, Christine L. Mast, H. Lane Young II, for appellee.

Notwithstanding Windham’s argument to the contrary, the bankruptcy action was not res judicata as to the legal malpractice case. Crowe v. Congress Financial Corp., 196 Ga. App. 36, 39 (3) (395 SE2d 321) (1990). Windham was not a party to that proceeding. Nor did the bankruptcy court address the impact of the filing error on Redwine’s recovery as an unsecured creditor rather than as a secured creditor. See id.

Although the terms of a confirmed bankruptcy plan bind the debtor and all his creditors, it does not follow that Redwine was collaterally estopped from claiming a different value of the personalty in a different case not involving the debtor. 11 USC § 1141 (a). Moreover, Redwine contends that had he been a secured creditor and had Patel retained the golf course personalty as part of a reorganization plan under the “cram down” procedure, then he would have been entitled to the replacement value of the personalty. Assoc. Commercial Corp. v. Rash, 520 U. S. 953 (117 SC 1879, 138 LE2d 148, 157) (1997) (value of property of secured claim under 11 USC § 506 (a) is its replacement cost); 11 USC § 1129 (b) (2) (A). Windham offered no law showing otherwise. Were we to embrace Windham’s argument that Redwine suffered no damage by being relegated to an unsecured status, we would have to overlook Redwine’s loss of leverage, his inability to reclaim his collateral, the indivisibility of the golf club business, and his entitlement to the replacement value of his property under Rash, supra. Because the record shows that Redwine offered some evidence of the damages caused by the filing mistake, it was error to direct a verdict on this claim. State Farm Mut. Auto. Ins. v. Hudson, 215 Ga. App. 218, 220 (4) (450 SE2d 286) (1994).

Judgment affirmed in part and reversed in part.

Johnson, C. J., and Barnes, J., concur.

       Redwine contends that because he was essentially the only unsecured creditor, he could not have significantly improved his recovery by contesting the value of the personalty.


text:
    A98A2240.
    A98A2241.
    BARLOW v. THE STATE. In re HARVEY et al.
    (513 SE2d 273)
   Pope, Presiding Judge.

Byron Barlow appeals from the trial court’s order denying his plea in bar on double jeopardy grounds. Barlow’s attorneys, Bruce Harvey and W. Sander Callahan, appeal from the trial court’s order holding them in criminal contempt of court when they both refused to comply with the court’s order to try Barlow’s case. We consolidate these cases for purposes of this appeal and, for the reasons below, affirm.

On August 4, 1995, Byron Barlow was indicted in Fulton County on the charge of rape. Two months later, Bruce Harvey, Pete Whit-lock, and David West made an entry of appearance as Barlow’s counsel of record. Harvey filed several discovery and pre-trial motions, including a preliminary motion to suppress. On May 15, 1997, the state served Harvey with its responses to Barlow’s discovery requests. On May 21, 1997, Harvey filed a conflict letter in the case, stating that he was lead counsel in the case and that the case “could not be handled, nor [his] client’s best interests protected by other attorneys in [his] firm.” On the following day, May 22, 1997, Callahan made his first appearance as an attorney of record for Harvey’s firm by filing, among other pleadings, a demand for production of evidence and a motion to continue the case from the May 27,1997 calendar. Harvey was also listed as counsel on these pleadings. In a letter to the assistant district attorney handling the case, Callahan referred to Harvey as “lead counsel.”

On June 3, 1997, Barlow appeared for arraignment, entered a plea of not guilty, and proceeded to trial. He was represented at this first trial by Harvey and Callahan. And, although we have not been provided a copy of that trial transcript, it appears from the record before us that Harvey took the lead in that trial. On June 10, 1997, the trial court entered an order declaring a mistrial. Following the grant of mistrial, Barlow filed a plea in bar on former jeopardy grounds which was apparently denied.

When the case appeared on the September 1997 trial calender, both Harvey and Callahan filed conflict letters. The case was rescheduled and called for re-trial on January 6, 1998. The state presented the testimony of three witnesses and rested on January 9, 1998. The defense did not present any evidence, nor did Barlow testify. Although Callahan represented the defendant through most of the trial, West assisted briefly on the last day of the trial.

The jury then deliberated for one and one-half hours before announcing they were deadlocked “at two to ten.” The court gave the jury an “Allen charge.” Shortly after the court sent the jury back out to deliberate, Callahan made a motion for a mistrial. In response to that motion, the court retrieved the jury and asked the foreman if the jury was making progress; the foreman responded “yes.” Because the hour was late, the judge said he wanted to release the jury for the weekend. The foreman asked for ten more minutes of deliberation, which the judge granted. When the foreman reported back, he said: “I think it’s been a lot of soul-searching in the last hour taken, and I think its probably deadlocked. I don’t know if I sat there for another several days it would mean anything.” The judge, however, directed that they resume their deliberations the following Monday morning at 9:30 a.m. After about 30 minutes of deliberation that Monday morning, the foreman announced that the jury was hopelessly deadlocked. The court, therefore, granted a mistrial. That evening, the court called Callahan and told him to report back the following morning. On the morning of the third retrial, Callahan filed in open court a motion for a continuance, stating that he was ill and referencing several medical appointments that he had apparently mentioned to the court in the prior week’s trial. The judge gave Callahan time to get a letter from his doctor that said, specifically, that he was not able to try the case. The judge also told Callahan to call Harvey and have him report to court. Before carrying out the judge’s instructions, Callahan told the court that he had filed a plea in bar on former jeopardy grounds claiming the court abused its discretion in granting a mistrial. The judge denied the plea summarily.

After a recess, Callahan and Harvey returned to court. Callahan presented a letter from his doctor that referenced Callahan’s medical condition, but did not state that his condition prevented him from trying the case. The judge indicated that this letter was insufficient and ordered the case to trial. After a brief discussion of pending motions, the court recessed the case until the following morning.

On January 14, 1998, the court again called the case for trial. In the interim, Callahan furnished the court with another letter from his doctor, but this letter, too, failed to specifically state that Callahan was physically unable to try the case. The court also found this letter to be insufficient and directed the parties to proceed to trial. During jury selection, Callahan insisted that he could not go on due to his medical condition and then turned his back on the jurors — conduct the court believed was a tactic to taint the jury.

When Callahan refused to try the case, the judge allowed Barlow to call Harvey back to court. The court advised both Callahan and Harvey on the record that Callahan had not gotten an excuse from his doctor, that he had refused to proceed, and that he had turned his back on the jury. The court instructed Harvey to take over Barlow’s defense. Harvey refused, saying that he had been in court and preparing for other matters and that he was not prepared to proceed to trial. He added: “With all due respect to your honor, it would be my position if your honor forces me to trial I would at every stage stand up and announce that I am unprepared to go forward, unwilling to go forward and not being able to represent Barlow.”

The judge then warned Harvey that if he persisted with such conduct he would be held in contempt. The judge made it clear that counsel were required to go forward with the trial, but gave them an opportunity to state their position and make a record. Harvey introduced over 400 pages of documents in support of his position that he was unprepared for trial and said: “So, whatever action you feel is appropriate I understand that you feel is appropriate.” In response, the court found that Callahan and Harvey were engaging in delaying tactics, that Callahan had not obtained a doctor’s excuse from trial, and that Harvey was lead counsel and had tried the case before and thus should be able to proceed.

The judge then gave both attorneys one more chance to proceed to trial. Again, both attorneys refused to proceed. The court concluded:

[A]fter having heard from both counsel, having gone through these proceedings, finds that neither counsel is unable to go forward with this case. Those are the facts as I find them based on the record and available here for you to review, and the court has ordered you to go to trial. Both of you have refused to go forward and continue to cause disturbance, and the court hereby finds you in contempt of court. I sentence you to ten days in jail and five hundred dollar fine.

The attorneys, who were immediately taken into custody, filed an emergency motion for supersedeas with this Court. We granted supersedeas in the case and ordered that Harvey and Callahan be released instanter and issued a further finding that Judge Jenrette had abused his discretion by incarcerating the attorneys without a written order. The following day the judge entered a detailed written order setting forth his factual findings and conclusions of law.

Case No. A98A2240

1. Barlow contends that the judge lacked manifest necessity to declare his second trial a mistrial, and therefore, he argues that a third re-trial in his case would violate the bar against double jeopardy.

We find, however, that the trial court did not err in denying Barlow’s plea in bar on former jeopardy grounds. The second mistrial was declared following Barlow’s own motion and after the trial court had determined that the jury was hopelessly deadlocked. As we have repeatedly held, “a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which the defendant was subjected.” (Citation and punctuation omitted.) Rower v. State, 267 Ga. 46 (472 SE2d 297) (1996). See also Bierria v. State, 232 Ga. App. 622, 625 (2) (502 SE2d 542) (1998); State v. LeMay, 186 Ga. App. 146 (1) (367 SE2d 61) (1988). Moreover, Callahan had moved for a mistrial on behalf of Barlow, and thus Barlow cannot now complain that a mistrial was granted. “It is well settled that on appeal a party cannot complain of a judgment, ruling, or order that his own trial procedure, legal strategy, or conduct procured or aided in causing. [Cit.]” Ellerbee v. State, 215 Ga. App. 312, 313 (2) (450 SE2d 443) (1994). Accordingly, we find this appeal to be without merit.

Case No. A98A2241

2. In their first enumeration of error, Harvey and Callahan contend the trial court erred in not allowing them a hearing, counsel, and the opportunity to present evidence in mitigation of their sentence.

During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.

Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (b) (304 SE2d 52) (1983); In re Brant, 230 Ga. App. 283, 285 (2) (496 SE2d 321) (1998). Further, direct summary criminal contempt that occurs

“in the presence of the court and tends to scandalize it and hinder or obstruct the orderly processes of the administration of justice, the preservation of order and decorum in the court, etc. is exempt from the due process requirements of notice and hearing. [Cits.]”

(Emphasis in original.) In re Hasty, 215 Ga. App. 349, 350 (450 SE2d 848) (1994).

Callahan and Harvey moved for a continuance, but failed to substantiate the grounds for it. Consequently the motion was denied, and they were directed to proceed to trial. Instead of proceeding to trial and then pursuing their appellate remedies, they chose to disobey a direct, lawful order of the court. The court warned counsel their behavior was contumacious and gave them an opportunity to be heard and to make a record. The court even gave counsel one last chance to redeem themselves and go forward to trial. They refused. Under these circumstances, we find that the trial court was entitled to enter a summary order of direct contempt without a further hearing.

3. In their second enumeration of error, Callahan and Harvey contend the trial court should have recused himself sua sponte and allowed another judge to determine if their conduct was contumacious and, if so, decide what sentence to impose. However, neither Harvey nor Callahan moved for recusal, and it is well settled that if an “appellant fails to make a motion to recuse, there is no error. [Cits.]” In re Brant, 230 Ga. App. at 285 (2). See Dowdy v. Palmour, 251 Ga. at 142 (2) (b). Moreover, although recusal may be required in some contempt proceedings, this requirement generally does not apply in cases of direct contempt. Cf. In re Crane, 253 Ga. 667, 668 (1) (324 SE2d 443) (1985).

Decided March 2,1999

Reconsideration denied March 19,1999

Bruce S. Harvey, Michael R. Hauptman, W. Sander Callahan, for appellant (case no. A98A2240).

Michael R. Hauptman, Robert H. Citronberg, for appellants (case no. A98A2241).

Paul L. Howard, Jr., District Attorney, Angela M. Dannelly, Cari K. Johanson, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

4. Finally, Callahan and Harvey argue that the evidence is insufficient to support their convictions for criminal contempt beyond a reasonable doubt.

On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court.

(Citations and punctuation omitted; emphasis in original.) In re Gouge, 206 Ga. App. 462, 463 (1) (425 SE2d 882) (1992). “Implicit within the definition of direct, summary contempt is a finding that the conduct is in the presence of the trial court and results in an interference with the court’s ability to administer justice.” In re Adams, 215 Ga. App. 372, 375 (450 SE2d 851) (1994). See also In re Brant, 230 Ga. App. at 284-285 (1).

Both Callahan and Harvey wilfully disobeyed the court’s direct, lawful order to proceed to trial. Their refusal to go forward is amply supported by the record. Whether they believed their disobedience was justified is irrelevant. “Because [counsel] disregarded the court’s command, [they] disrupted court proceedings and interfered with the orderly administration of justice. See OCGA § 15-1-4 (a); In re Shafer, 216 Ga. App. 725, 726 (455 SE2d 421) (1995).” In re Brant, 230 Ga. App. at 284 (1).

Judgments affirmed.

Beasley, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge. Ruffin, Judge,

text:
    A98A1831.
    PERIPETY GROUP, INC. v. SMITH.
    (514 SE2d 262)
   Pope, Presiding Judge.

The Peripety Group, Inc., agreed to lease space in a shopping center to the Ladies Workout Express of Covington, Georgia, Inc., for use as a women’s fitness center. Eighteen days after the parties entered into the lease, Ladies Workout President William Smith sent a letter to Peripety stating that he wanted to withdraw from the lease and would notify Peripety if the situation changed. Approximately two and one-half months later, on March 9, 1995, Peripety and Ladies Workout executed a memorandum that provides:

This letter serves as permission to erect a banner for Ladies Workout Express at Suites 2, 3, 4 at Covington Crossings Shopping Center for a period of thirty (30) days commencing on March 12, 1995 for the purpose of reserving membership for the opening of Ladies Workout Express. A total of 300 reservations will constitute the agreed upon number needed to proceed construction as per the Terms and Conditions of the Lease Agreement dated December 4, 1994 between The Peripety Group, Inc. and Ladies Workout Express of Covington, Georgia. Tenant will give written notice as to the number of reservations received and start construction immediately thereafter.

On July 18, 1995, Smith’s agent, Frank Mullins, notified Peripety by letter that Ladies Workout would not proceed under the lease because it had been unable to obtain 300 membership reservations for the proposed fitness center, receiving only 168 reservations over a time period longer than the 30 days proposed in the parties’ memorandum.

Thereafter, Peripety sued Smith d/b/a Ladies Workout Express for money allegedly due under the lease agreement. The lawsuit was tried before a judge sitting without a jury. Following the bench trial, the court entered judgment in favor of Smith. In its final order, the court made the findings of fact that the memorandum executed by the parties confirmed their agreement that Ladies Workout was not obligated to lease the premises absent 300 reservations and that Ladies Workout had only received 168 reservations. The court set forth two separate conclusions of law in the order: (1) the lease does not sufficiently identify the premises to be leased, and (2) Smith is not obligated to pay rent because the rental commencement date, defined by the lease as the earlier of either 90 days after the premises were turned over to Ladies Workout or the date when Ladies Workout opened to the public, never occurred.

Peripety appeals from the judgment, challenging the trial court’s conclusion that the lease does not sufficiently identify the premises and the court’s finding that the memorandum modified the lease. We agree with Peripety that the court erred in ruling that the property description in the lease is deficient, but its challenge concerning the court’s interpretation of the memorandum is without merit. Furthermore, Peripety has failed to contest the court’s legal conclusion that the rental commencement date never occurred. Thus, in spite of the court’s error regarding the property description in the lease, its final judgment is supported by two other grounds and must be affirmed.

1. Peripety correctly asserts the trial court erred in concluding that the lease does not sufficiently describe the leased premises. “Where the description of property in a lease agreement is indefinite, and contains no descriptive terms by the use of which the lands intended to be conveyed can be definitely located and identified, such instrument is fatally defective and void. [Cits.]” Davis v. Ford, 112 Ga. App. 175 (2) (144 SE2d 456) (1965). However, “[a] description [of leased premises] will not be declared void for uncertainty if it furnishes the key to identification of the property conveyed.” Roe v. Doe, 246 Ga. 138, 142 (4) (268 SE2d 901) (1980).

In the instant case, section 1.1 (b) of the lease describes the leased premises as consisting of

[t]hat portion of Shopping Center which is outlined in red on the floor plan, or plans, marked Exhibit ‘B,’ hereto attached. The premises are deemed to contain approximately 3,600 square feet of Gross Rentable Area, being approximately 60 feet of frontage and approximately 60 feet of depth extending to the center line of the party walls and to the exterior faces of all other walls. . . .

The term “Shopping Center” is defined in lease section 1.1 (a) as including,

(i) The real estate depicted or described on Exhibit “A,” hereto attached; (ii) such contiguous real estate as Landlord may from time to time designate in writing as being included in Shopping Center; (iii) the buildings and improvements constructed on such real estate substantially in accordance with Exhibits “B” and “C,” attached hereto, together with all alterations and additions thereto; and (iv) such improvements as may be constructed on such real estate after the Rental Commencement Date.

Although Smith did not testify at trial and presented no evidence that he was unclear as to what premises were being leased, the trial court held that the lease is fatally defective because it does not provide a key to identification of the leased premises. The court relied in particular upon the fact that neither the main body of the lease nor Exhibits A and B identify the address, city, county, or state in which the shopping center is located. But contrary to the court’s holding, the guaranty executed by Smith, which is attached to the lease as Exhibit F and expressly incorporated into the lease, identifies the leased premises as “Covington Crossings Shopping Center, Highway 278, N.W., Suite 2, 3, 4, Covington, Georgia 30209.” This description in the guaranty, which is to be construed as a part of the lease, clearly provides a key to identification of the leased premises. See Roe, supra at 141-142 (upholding description identifying leased premises as a penthouse apartment located in the southwest corner of the building and facing Houston Street); Davis, supra (upholding description identifying leased premises as 2.71 acres of land on the Bob Ford old home place in the sixth land district of Tift County, Georgia, to be planted with tobacco and having been pointed out by landlord).

In finding the property description to be deficient, the trial court also relied upon the fact that section 1.1 (b) of the lease uses the word “approximately” to describe the dimensions of the leased premises. However, this provision is merely descriptive of the size of the leased premises, which are more particularly identified as “[t]hat portion of Shopping Center which is outlined in red on the floor plan, or plans, marked Exhibit ‘B,’ hereto attached.” In addition, while not giving exact measurements, section 1.1 (b) notes that the leased premises extend to “the center line of the party walls and to the exterior faces of all other walls.” Finally, Exhibit F identifies the leased premises as suites 2, 3, and 4 of the shopping center. Taken together, and particularly considering that there is no dispute about which suites were to be leased to Ladies Workout, these items clearly furnish keys for the identification of the premises intended to be embraced within the lease. See Roe, supra; Davis, supra. Accordingly, the trial court erred in holding that the lease did not adequately identify the premises.

2. Peripety claims the court erred in finding the memorandum executed by the parties on March 9, 1995, modified the lease. This claim is without merit. Contrary to the claims of Peripety and the dissent, the trial court properly interpreted the meaning and effect of the memorandum.

The lease provides in Article 22.5: “This lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this lease in whole or in part unless in writing and signed by the parties” (Emphasis supplied.) The memorandum in question was written from Peripety to Ladies Workout and was signed by both parties. Thus, the court was authorized to find that the memorandum is a valid written modification of the lease.

That written modification expressly provides that over a 30-day period “[a] total of 300 reservations will constitute the agreed upon number needed to proceed construction as per the Terms and Conditions of the Lease Agreement. . . .” The trial court correctly found that this plain and unambiguous language memorializes the parties’ agreement that they would not proceed with construction under the lease terms without 300 membership reservations. See generally Archer v. Carson, 213 Ga. App. 161,163-164 (2) (444 SE2d 82) (1994).

The lease terms regarding construction are set forth in Article II of the contract and expressly provide that both the landlord and the tenant have construction obligations on the property that affect the tenant’s obligations to accept possession of the property and open for business. Thus, both parties, not just Ladies Workout, had an interest in proceeding with their construction obligations under the lease terms only if the Ladies Workout fitness center would be a viable business, as evidenced by at least 300 membership reservations.

Because the undisputed testimony at trial showed that there were fewer than the agreed upon 300 reservations, it was to the parties’ mutual benefit not to proceed with the lease agreement. The memorandum amending the lease did not, as contended by the dissent, give the tenant a unilateral right to terminate the lease; instead, it amounted to a mutual agreement to terminate the lease if there were not enough reservations. The trial court’s interpretation of the amendment to that effect was not erroneous and provides a correct legal and factual basis for its final judgment in favor of Smith.

3. Peripety has not, in its enumerations of error or brief, challenged the propriety of the trial court’s legal conclusion that the rental commencement date defined by the lease did not occur. Even though Peripety has not raised this issue on appeal, the dissent attempts to address it.

The dissent justifies its consideration of an issue not raised by the appellant by claiming it is apparent that the trial court’s legal conclusion that the rental commencement date did not occur is based on its finding that Smith validly terminated the lease pursuant to the parties’ memorandum agreement. Contrary to the dissent’s claim, it is not apparent that the court’s conclusion regarding the rental commencement date is premised on its finding that the lease was terminated pursuant to the memorandum agreement. First, the trial court makes no such statement in its written judgment; the court never proclaims that the rental commencement date did not occur because the contract had been terminated under the terms of the memorandum agreement. In addition, regardless of the memorandum, there is ample evidence in the record from which the court could have found that the plain terms of the rental commencement date were never met; that is, the premises were never turned over to Smith and the premises were never opened to the public.

Despite the dissent’s position, the matter of the trial court’s legal conclusion regarding the rental commencement date is not properly before us. “[0]ur review is limited to those matters enumerated and argued by an appellant[.]” Sullivan v. State, 235 Ga. App. 768, 771 (510 SE2d 136) (1998). Because the matter of the rental commencement date addressed by the dissent is not enumerated or argued by Peripety, it should not be considered by this Court as a basis for reversing the trial court’s judgment. See Harwell v. State, 231 Ga. App. 154, 158 (4) (497 SE2d 672) (1998); Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). Consequently, even though the trial court erred in its first legal conclusion concerning the property description in the lease, the second legal basis for the court’s judgment has not been challenged and thus still provides support for the judgment.

Judgment affirmed.

Beasley, P. J., Blackburn and Eldridge, JJ., concur. McMurray, P. J., Andrews and Ruffin, JJ., dissent.

Ruffin, Judge,

dissenting.

Because I believe the trial court based its ruling on erroneous legal theories, I respectfully dissent.

I fully agree with the majority that the trial court erred in holding that the lease was void for failing to adequately describe the leased premises. The second reason given by the trial court for its ruling was that “[t]he conditions precedent to the obligation of the Defendant to pay rent to the Plaintiff were not satisfied because the Rental Commencement Date did not occur. Accordingly, no recovery can he had by [Peripety].” The Rental Commencement Date was defined as the earlier of (1) 90 days after turnover of the premises to Ladies Workout Express (LWE) or (2) the date when LWE opened the premises to the public. According to the trial court, because neither of these events occurred before the lease was terminated, defendants’ obligation to pay rent never accrued.

It is apparent that, in ruling for defendants on these grounds, the trial court based its decision on its finding that defendants validly terminated the lease pursuant to the March 9, 1995 memorandum before the occurrence of the Rental Commencement Date, and hence before any sums were due under the lease. On appeal, Peripety contends that the trial court erred in holding that the memorandum authorized termination by the tenant.

As an initial matter, the court’s interpretation of the memorandum as creating an additional condition precedent to defendants’ liability under the lease — in effect giving defendants an option to terminate the lease — appears improper. The lease itself provided that defendants agreed to accept the premises “as is.” Although defendants agreed to perform certain additional construction and Peripety agreed to provide a construction allowance for such work, these construction obligations clearly did not constitute conditions precedent to the parties’ liability under the lease. The mere fact that the March 9 memorandum may have placed an additional condition on the parties’ construction obligations thus does not necessarily indicate that the parties intended to give defendants the unilateral right to terminate the lease if such condition was not met.

In concluding that the memorandum created an additional condition precedent to defendants’ liability under the lease (as opposed simply to their obligation to perform additional construction), the trial court must have relied on parol evidence as to the parties’ intent rather than on the language of the memorandum. However, while “parol evidence is admissible to explain an ambiguity in a written contract, . . . such evidence is inadmissible to add to, take from, or vary the writing itself.” (Emphasis supplied.) Thomas v. American Global Ins. Co., 229 Ga. App. 107, 109 (2) (a) (493 SE2d 12) (1997). Although parol evidence might have been admissible to explain an ambiguity relating to the parties’ construction obligations, the trial court in essence added an additional term to the memorandum by holding that it effectively gave defendants the right to terminate the lease under certain conditions. Furthermore, because the original lease was for a period of more than one year, the lease and any modification thereof were required to be in writing. B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870-871 (1) (234 SE2d 702) (1977). “[A] contract which the statute of frauds declares must be in writing can not rest partly in writing and partly in parol.” (Punctuation omitted.) Id. at 871.

Moreover, the only parol evidence supporting the trial court’s conclusion as to the parties’ intent came from the testimony of Mullins, defendants’ real estate agent. Although Mullins testified that he was “involved in the negotiations of the banner,” he did not claim to have first-hand knowledge of any agreement that the tenant could terminate the lease if a certain number of reservations were not received. Rather, he testified that

my understanding was that Bill Smith met with Donna Woods at the site and they — [hearsay objection raised by Peripety]. Well, what I was going to say is, this was generated from a meeting that I understood took place. If there were more than 300 people that actually reserved memberships with [the] club, then [LWE] would go forward. If there were anything less in a 30 day period, then they would not, and that was the agreement.

(Emphasis supplied.) It thus seems clear that Mullins’ characterization of the alleged agreement is based on nothing more than hearsay. The defendant, Smith, who was the one supposedly at the meeting, did not testify at trial. Accordingly, to the extent the trial court relied on parol evidence to conclude that the parties agreed to an additional condition precedent, it erred in doing so, as neither the original lease nor the March 9 memorandum suggests the existence of such a condition.

In any event, even if the memorandum can be construed as creating an additional condition precedent, no consideration has been shown for such an agreement. “A written contract may be modified by a subsequent agreement, but such must be founded upon new consideration.” Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 681 (1) (305 SE2d 361) (1983). The trial court did not find that the parties simply mutually agreed to terminate the lease, thereby involving the mutual surrender of rights and obligations by both parties. Rather, it found that the March 9 memorandum imposed an additional condition precedent to defendants’ obligations under the lease — in essence, it found that the memorandum modified the lease to give defendants the unilateral right to terminate if they did not receive sufficient health club reservations. The memorandum imposed no additional obligations on defendants, as Mullins admitted, and gave no additional rights to Peripety. Accordingly, even if the memorandum can be construed in the manner the trial court selected, there is no evidence of any consideration to support the purported modification.

The trial court clearly based its holding that no amounts were due under the lease upon its erroneous conclusion that defendants validly terminated the lease before the Rental Commencement Date occurred. Since the lease was not validly terminated, defendants’ unilateral repudiation of the lease does not relieve them of liability simply because the Rental Commencement Date had not yet occurred. A party to a contract cannot avoid liability by simply repudiating the contract before the time has expired for the other party to perform its obligations. “[W]hen one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part.” (Punctuation omitted.) Jones v. Solomon, 207 Ga. App. 592, 593-594 (1) (428 SE2d 637) (1993). See also Moore v. Deal, 75 Ga. App. 823, 827 (2) (44 SE2d 571) (1947) (tender of performance unnecessary when under facts alleged it would have been futile). Accordingly, judgment was not required in favor of defendants simply because they unilaterally repudiated the lease before the occurrence of the Rental Commencement Date.

Decided March 19,1999.

John B. Degonia, Jr., for appellant.

William A. Trotter III, for appellee.

Because it is apparent that the trial court’s decision was based on erroneous legal theories, I would reverse the trial court’s judgment and remand the case for further consideration.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.


author: Judge Harold R. Banke. Beasley, Presiding Judge,

text:
    A98A2137.
    THE STATE v. DILLS.
    (514 SE2d 917)
   Judge Harold R. Banke.

Charles Jeffrey Dills was charged with possession of methamphetamine with intent to distribute and possession of marijuana. In its sole enumeration, the State seeks reversal of the trial court’s order suppressing evidence seized during a search of his person.

This case arose after members of the Appalachian Drug Task Force obtained a warrant to search the person and premises of Jeff and Angela Dills for “methamphetamine, scales, drug packaging, recorders of transaction, and U. S. currency.” In the requisite description of the persons and premises to be searched, the warrant referred to “Attachment A” which stated,

[t]he persons, premises, and vehicles of Jeff and Angela Dills in Fannin County, Georgia. From the intersection of Highway 5 and Highway 515 travel north on Highway 5 for a distance of 3.9 miles to County Road 115 (also known as Old Highway 5), which is a paved road to the right. Travel County Road 115 for a distance of .6 mile [sic] to a dirt road known as Dills Road ... [to a] driveway on the left, which leads to and ends at a single family wood frame dwelling with cedar siding and an attached front porch. The residence is located on a hill which is visible from Dills Road at the end of the driveway which is approximately .1 mile in distance.

See Conrad v. State, 217 Ga. App. 388, 389-390 (2) (457 SE2d 592) (1995) (search warrants which fail to satisfy the particularity requirement are invalid). The warrant did not describe Dills beyond giving his name.

In executing this warrant six days later, the Task Force members did not go to the house described in the warrant. Instead, they went to a location where Dills, a carpenter, was working construction. After asking Dills to identify himself, the members explained that they had a search warrant to execute on his residence and wanted him to accompany them. When Dills asked if he could secure the building site, one of the officers joined him inside and asked if he was armed. Dills answered in the negative. The officer then requested that he empty his pockets. Dills complied, but the officer noticed a small bulge remaining in Dills’ right front pants pocket. The officer then patted Dills down and determined that the bulge felt like a pill bottle. Upon retrieving it, at this point the officer asked Dills, “[w]hat is this?” Dills replied, “speed.” Although the officer “knew that drugs are kept in bottles,” however, he did not know what was in this bottle. Dills then accompanied the officer to his home where the search warrant was executed and police seized scales, a rifle, a cigarette pack containing marijuana residue, and a rolled up dollar bill sitting on a marble square.

Dills moved to suppress, arguing that the warrant was insufficient to authorize the search of his person while not on the premises described in the warrant. At the suppression hearing, the trial court demanded that the State justify its search of Dills when he was not under arrest and was not at the address specified in the warrant. This the State failed to do. Officer Calvin Wilson who searched Dills believed that he could search Dills under the authority of the warrant. In the AFFIDAVIT FOR ARREST, Officer Wilson testified, “the accused [Dills] did possess methamphetamine on his person by having two clear plastic bags in pants pocket at the time of a search warrant execution on the accused.” (Emphasis supplied.) Similarly, the REPORT OF SEIZURE TO DISTRICT ATTORNEY summarizes the circumstances of the seizure as follows: “[u]pon execution of search warrant, Dills was found to be in possession of methamphetamine and U. S. Currency. These items were located in his pants pocket.” Wilson testified that when he searched Dills at a place not provided for in the warrant that “[I] knowed [sic] that the bulge felt like a — some type of bottle. From my experience, I know that drugs are kept in bottles. I retrieved the bottle myself.” Finding the State failed to sustain its burden of showing that the search of Dills’ person was legal, the court suppressed the evidence relating to that search. Held:

The State argues that the warrant satisfied the particularity requirement because it named Dills and described his home. In the circumstances of this case, we disagree.

Our constitution guarantees that no warrant shall issue without a particularized description of the place to be searched and the persons or things to be seized. Conrad, 217 Ga. App. at 390 (2). Searches unsupported by independent probable cause that extend beyond the descriptions contained in the warrant are illegal. See Landers v. State, 250 Ga. 808, 809-810 (301 SE2d 633) (1983).

The warrant at issue here did not authorize the search at the construction site, Dills’ place of employment. It covered only searches at Dills’ residence. See Scott v. State, 213 Ga. App. 84, 86 (1) (444 SE2d 96) (1994) (“ ‘ “Search warrants are not directed at persons; they authorize the search of‘places’ and the seizure of‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” ’ ”).

This case is controlled by State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994), which illuminates the weakness of the State’s position. In Crank, officers executing a “no knock” search warrant of the defendant’s home and person set up surveillance near his home, but stopped and searched him several miles away on a public highway. Crank, 212 Ga. App. at 249. This court suppressed all evidence found on the defendant and in his car. Id. As in Crank, the officers here acted beyond the warrant’s scope. Because the search of Dills at his place of employment lacked independent probable cause, extended far beyond the warrant’s scope, and was solely a product of the Task Force members’ discretion, it was illegal. See Landers, 250 Ga. at 809.

The record belies the dissent’s contention that the validity of the search and seizure did not rise or fall on its authorization by the search warrant. On the contrary, the State’s sole justification for its conduct was this search warrant. The dissent’s argument that the search at the construction site was proper because the officer recognized Dills misses the point. Nothing prevented the Task Force members from seeking a search warrant of Dills at his place of business.

The dissent’s discussion of the purported factual basis underlying the search warrant seeks to inject a red herring. At issue here is whether the police improperly executed the search warrant, not whether the search warrant was improperly obtained. Instead of awaiting Dills’ return from work to the residence for which they had a warrant, the police opted to begin their search at Dills’ place of employment. This was plainly improper.

Although the dissent gratuitously inserts the “plain feel” doctrine and Terry pat-down law into this case, those concepts have no application here. The officer’s affidavit reveals that he deemed his search of Dills’ person at his place of employment as being executed under the authority of the search warrant, not under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Absent a valid Terry search, the “plain feel” doctrine cannot come into play. See Boatright v. State, 225 Ga. App. 181, 182 (1) (483 SE2d 659) (1997). Even assuming solely for the sake of argument that the “plain feel” doctrine had been applicable, the officer never testified he knew what the object was before he invaded Dills’ pocket to retrieve it. While it may be true that illegal drugs may occasionally be kept in pill bottles, so, too, may perfectly legal ones. The object at issue did not immediately manifest itself as being contraband. See id.

This search was not a lawful execution of the warrant. No evidence showed otherwise. To embrace the dissent’s position that the police had sufficient information to conduct a search of Dills at his place of employment would eviscerate the Fourth Amendment’s safeguard against general warrants. This we refuse to do.

In reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the court’s decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Here, there was. Where a trial court sits as the trier of fact, as here, its findings are analogous to a jury verdict and will not be disturbed where there is any evidence to support them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). The record supplies ample evidence to support the court’s findings. Morgan, 195 Ga. App. at 735 (3). In the absence of any authority permitting the search at Dills’ place of employment, we cannot find that the trial court abused its discretion in granting the motion to suppress the evidence unlawfully seized from Dills’ person. Wells v. State, 196 Ga. App. 133 (1) (395 SE2d 296) (1990) (standard of review).

Judgment affirmed.

McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Beasley, P. J., and Andrews, J., dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent.

The trial court granted the motion to suppress the items found on the person of Dills because it found that the search warrant did not sufficiently describe Jeff Dills so as to allow search of him at a place other than on the named premises, his residence. But a warrant satisfies the particularity requirement of the Fourth Amendment if it identifies a person by name. See Thrall v. State, 122 Ga. App. 427, 429 (1) (177 SE2d 192) (1970) (“a . . . warrant [naming a person] does particularly describe the person to be searched where that person is using the name [given]. A physical description is [unnecessary].”

Nevertheless, the validity of the search and seizure in this case does not rise or fall on its authorization by the search warrant. Assuming for the sake of argument that the warrant did not authorize a search of Dills outside of his premises, but not conceding so, the officer was constitutionally authorized to search the pocket and seize the bottle independent of the search warrant.

The search warrant was for “[t]he person and premises of Jeff Dills and Angela Dills.” The residence was described in the search warrant and directions were given to its location. The warrant stated that the magistrate found probable cause to believe that the personal property which was to be sought and seized “is presently located on the person, premises, or property described above.” The contraband and evidence of crime that were specifically to be found and seized were drugs, scales, packaging, “recorders” [sic] of transactions, and currency. Obviously, at least the drugs, records, and currency could very well be on the person rather than separate from the person and located only somewhere on the premises.

As shown in the officer’s affidavit upon which the search warrant was based, the police had information on at least eight different occasions, from seven individuals, that Dills possessed and distributed methamphetamine and marijuana over a several-year period of time up to the incident for which he was arrested. In addition, a confidential informant obtained marijuana from Dills at his residence in a controlled purchase. Another confidential informant saw methamphetamine obtained by a companion from Dills at his residence, and yet a third twice saw methamphetamine obtained from Dills at his residence and Dills told this informant that he would sell methamphetamine to him. A fourth informant had purchased methamphetamine from Dills and had seen it at his residence on numerous occasions. A fifth source also divulged information regarding drug sales at Dills’ home. A sixth source saw Dills distribute methamphetamine to third persons at least three times. At least one of the sales was outside the residence, when Dills was in his vehicle.

Armed with this information and the warrant, the officers went to the Dill residence, but Dills was not at home. He was working on the construction of a home (not owned by him) about one and one-half miles away. The police went there to get him to come home while they searched his residence. He agreed to do so and asked first to secure the premises he was working on and to drive his truck home. Permission was granted, but the officers wanted to be sure he had no weapons because, for one thing, an officer would be accompanying him in Dills’ vehicle. So Dills was asked if he had any weapons. He said no but an officer asked him to empty his pockets. He emptied one, which revealed $1,999. He took off his carpentry belt and began to walk off.

The officer noticed a bulge in one pocket and told him he had to empty all his pockets. Dills pretended to do so but the bulge was still there. So the officer patted him down, felt the bulge, knew that it felt like some type of bottle and from experience knew that illegal drugs were kept in bottles. The officer reached in and seized the bottle. In response to inquiry, Dills said it was “speed,” which it was and which in part he is charged with.

A related concept to analyzing this search is the “plain feel” doctrine.

Under the “plain feel” doctrine, an officer can seize contraband which is plainly identified through the officer’s sense of touch during a valid Terry pat-down. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

(Citations and punctuation omitted.) Boatright v. State, 225 Ga. App. 181, 182 (1) (483 SE2d 659) (1997). The officer plainly felt that what Dills refused to reveal was a pill bottle which is commonly used to carry drugs. This fact was in harmony with the other information the officer had about Dills, insofar as methamphetamine possession and distribution were concerned.

Howard v. State, 220 Ga. App. 579, 582 (1) (469 SE2d 746) (1996), held admissible drugs found in a “hard object” discovered in defendant’s groin area, which the officer did not testify felt like a weapon, where the defendant acted suspiciously about the object and there was a sense of urgency to the circumstances.

Drug container evidence was held admissible in Seaman v. State, 214 Ga. App. 878, 879 (2) (449 SE2d 526) (1994). During a pat-down an officer felt and then saw a corner of a clear plastic baggie in defendant’s pocket. The officer, who had no information this person was a drug possessor, testified that drugs are usually kept in clear plastic baggies. Inapposite is Brown v. State, 269 Ga. 830, 832 (2) (504 SE2d 443) (1998), where “[t]here was no testimony by the officer that due to prior experience he knew contraband could be carried in or attached to the type of paper Brown dropped [cits.].”

Decided March 19,1999.

Roger Queen, District Attorney, Abernathy & Ballinger, Joe W. Hendricks, Jr., for appellant.

Weaver & Weaver, George W. Weaver, Jeffrey L. Floyd, for appellee.

The combination of the information received from the informants, Dills’ furtive conduct in not emptying the pocket with the bulge, and the feel of the bottle contour during a pat-down (which pat-down has not been challenged) makes the probable cause in the instant case even more substantial and compelling. What transpired, plus the nature of the items to be seized, plus the information which the officers had as set out in the affidavit, presented a probable cause basis for searching the pocket and seizing the bottle. Exigent circumstances necessitated the search at that point, as the item which Dills tried to hide would most undoubtedly disappear during the trip back to Dills’ residence, if the officers waited to search him until he was at home. The officer was authorized to assure that Dills had no weapon, as they were about to let him drive his truck home, with an accompanying officer, to assist in the house search. The officer suspected that the bulge in Dills’ pocket, which item he resisted removing and retained undisclosed when asked to empty his pockets, contained drugs, as experience told the officer that drugs are kept in bottles.

The order suppressing the evidence was in error.

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

       To be valid, a search warrant must describe the person and premises with such particularity “that a reasonably prudent officer would be able to locate the person, premises, and property and know that he had authority to search those places without depending on his discretion.” Minter v. State, 206 Ga. App. 692, 693 (2) (426 SE2d 169) (1992); Cooper v. State, 212 Ga. App. 34-35 (1) (441 SE2d 448) (1994). The descriptions contained in the warrant, taken as a whole, must be sufficiently particularized to exclude all others. Minter,. 206 Ga. App. at 693 (1).