text:
    A92A0508.
    MARETT PROPERTIES, L. P. et al. v. CENTERBANK MORTGAGE COMPANY.
    (419 SE2d 113)
   Johnson, Judge.

In December 1988 Marett Properties, L. P. et al. (Marett) executed a security deed in favor of Centerbank Mortgage Company (Centerbank) conveying an interest in 26 residential lots as security for a loan of $777,000. Marett defaulted on the note. Centerbank then gave notice of default and intent to foreclose and properly advertised the pending sale of the property. Pursuant to the power contained in the security deed, Centerbank conducted the foreclosure sale of real property on March 6, 1990. Centerbank submitted the only bid, of $700,000. Centerbank sought confirmation of the sale pursuant to OCGA § 44-14-161. Following a hearing, the superior court confirmed the sale. Marett appeals from that order of confirmation.

At the confirmation hearing, Centerbank’s expert applied a bulk sale analysis in determining the fair market value of the property in which the property would be sold to a developer similarly situated to Marett. He acknowledged that in calculating the true market válue of the property at $650,000 he considered those costs which a bulk purchaser would factor into determining market value of the property, such as carrying costs, reasonable profit and expenses.

Marett articulates three separate enumerations of error, but concedes that they all assert that the trial court erred in accepting as the fair market value of the property a figure which had been reached by considering various factors including, but not limited to, carrying costs and profit. All three enumerations having been argued together by Marett, they will be similarly treated here.

In Government Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661 (411 SE2d 894) (1991), this court affirmed the trial court’s order declining confirmation when the bank’s expert reduced the fair market value of the property by the amount paid in discount points and closing costs. Relying in part on Wheeler v. Coastal Bank, 182 Ga. App. 112 (354 SE2d 694) (1987), the trial court in Belue held that market value is to be determined “without consideration of such collateral issues as the financial responsibility for or the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling [the property].” Wheeler, 182 Ga. App. at 114.

In First Nat. Bank &c. v. Childress-Ross Properties, 189 Ga. App. 765 (377 SE2d 533) (1989), this court acknowledged that the true market values of properties held by multiple security instruments could not be wholesaled in order to compensate for additional expenses incurred in selling the properties individually. Because the properties “ ‘were handled by separate security instruments, separate loans, separate legal descriptions and separate appraisals,’ the properties involved in each of the seven foreclosure sales would have to be considered separately.” Id. at 766. The Childress-Ross case distinguished Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216) (1986) by stating that: “In that case, there was only one security deed, pertaining to an entire, partially constructed condominium complex. Noting that the security deed contained no language requiring the lender to sell the property in individual units, the court simply held that the superior court was not required to add together the true market values of each of the separate units but was permitted to treat the property as a ‘single investment opportunity’ in determining its true market value.” Childress-Ross at 766-767.

Since there was no requirement in the security deed in the case presently before us that the property be sold as individual lots, a bulk sale was permissible. The true market value of such property would be analyzed as “a single investment opportunity” rather than by adding together the true market values of each of the lots. See Harwell v. First Fed. Sav. &c., 245 Ga. 757 (267 SE2d 229) (1980); Classic Enterprises v. Continental Mtg. Investors, 135 Ga. App. 105 (217 SE2d 411) (1975).

Decided May 18, 1992.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Mark A. Johnson, for appellants.

Powell, Goldstein, Frazer & Murphy, Celia P. Quillian, Jeffrey W. Kelley, Robert F. Dallas, for appellee.

In establishing the true market value of such a single investment opportunity, an expert must apply his own knowledge and ideas in order to reach an opinion as to the market value of a project. “On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. . . . Although the evidence was in conflict as to the market value of the property, the findings of the trial court are supported by the evidence and are not clearly erroneous.” Tarleton v. Griffin Fed. Savings Bank, 202 Ga. App. 454 (415 SE2d 4) (1992). There was ample evidence, from both Centerbank’s and Marett’s experts, calculated by various means based on various factors which would authorize the trial court’s conclusion that the foreclosure sale brought the true market value of the property. BPI Constr. Co. v. Collective Fed. S. & L. Assn., 186 Ga. App. 324, 325 (367 SE2d 269) (1988). “In confirmation proceedings, the superior court sits as a trier of fact, and its findings and conclusions have the effect of a jury verdict. It hears the evidence and its findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. What value is or may have been is a question of fact to be resolved as others are. In [reviewing such issues], the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. Although appellants present a serious challenge to the means by which the creditor’s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. As it appears that his opinion was not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. The superior court. . . had sufficient data in evidence upon which it could apply its own knowledge and ideas so as to derive its own opinion as to the market value of the (property) at the time of the sale.” (Punctuation and citations omitted.) HSL/La Jolla Belvedere Enterprises v. Fed Sav. &c. Corp., 201 Ga. App. 447, 448 (411 SE2d 329) (1991).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0676.
    JIRLES v. THE STATE. THOMASON v. THE STATE.
    A92A0677.
    (419 SE2d 117)
   Johnson, Judge.

George Travis Thomason and co-defendant Wilma Jirles were convicted by a jury of cruelty to children. They appeal from their convictions and the denial of their motions for new trial.

1. Both Thomason and Jirles argue that there was insufficient evidence at trial to support the jury’s verdict. We disagree.

The evidence showed that the victim, Jirles’ nine-year-old son, has Down’s Syndrome and lived with Jirles and Thomason. The State introduced photographs, x-rays, medical records and testimony of a pediatrician regarding the injuries suffered by the victim. The evidence showed that the victim suffered a broken right arm, a broken left wrist, three fractured vertebrae and numerous bruises, some of which indicated that he had been bound and gagged. The pediatrician testified that in his opinion the victim’s injuries resulted from child abuse.

Both Jirles and Thomason initially told police that the child was injured when he slipped on the icy front porch of their home. Jirles later recanted and admitted to the police that she had fabricated the story. At trial, both Jirles and Thomason admitted that they had lied and that the child was not injured by slipping on ice. They further claimed that they did not know how he sustained the injuries. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found both Thomason and Jirles guilty beyond a reasonable doubt of cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Thomason also enumerates as error the trial court’s refusal to give his requested charge on accident. This argument is without merit. “ ‘A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.’ [Cit.]” Grant v. State, 197 Ga. App. 878, 880 (2) (399 SE2d 743) (1990). Thomason testified that he did not know how the victim was injured and that he had never accidentally injured the victim. There is no evidence in the record to support a charge on accident. Thus, the trial court did not err in refusing to charge on accident.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.

Decided May 18, 1992.

James E. Greene, for appellant (case no. A92A0676).

Culuerhouse & Deems, T. Neal Brunt, for appellant (case no. A92A0677).

Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.


text:
    A92A0724.
    WALKER v. THE STATE.
    (419 SE2d 542)
   Johnson, Judge.

A jury found Anthony G. Walker (Walker) guilty of armed robbery of the executive director of the Valley Rescue Mission. Walker was indicted as a recidivist based on a burglary conviction in 1987. At the pre-sentencing hearing, the District Attorney stated that Walker had previously been convicted of burglary. He did not tender a certified copy of the prior conviction. No objection was made. Walker’s counsel was heard concerning sentencing and did not object when the court imposed a life sentence. A motion for new trial was denied. Walker appeals his sentence.

Walker’s sole enumeration of error is that the trial court erred in sentencing Walker as a recidivist, pursuant to OCGA § 17-10-7, based on the unsubstantiated statement by the prosecutor that Walker had previously been convicted of a felony. “No requirement exists under Georgia law which would limit the state to a single means of proving prior convictions of a criminal defendant in order to have the recidivism statute applied to the sentencing of the defendant.” Tankersley v. State, 155 Ga. App. 917, 922 (14) (273 SE2d 862) (1980). In Adams v. State, 142 Ga. App. 252 (7) (235.SE2d 667) (1977), it was contended that the trial court erred in considering prior convictions in the absence of certified copies of those convictions. As in the Adams case, Walker was given the opportunity to respond to the evidence of the prior conviction and object to the form of the evidence. Defense counsel made a statement asking the court to consider imposing less than the maximum sentence. No objection to the form of the evidence of the prior conviction was made. “[I]f no objection is made at the presentence hearing, a subsequent review by this court of that phase is eliminated. [Cit.] ” Id. at 255. The issue not having been properly preserved for review, we find no merit in Walker’s argument.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided May 18, 1992.

David L. Roberts, for appellant.

Douglas C. Pullen, District Attorney, Kim B. Hoffman, Assistant District Attorney, for appellee.


author: Sognier, Chief Judge.

text:
    A92A0745, A92A0746.
    GRIFFIN v. THE STATE (two cases).
    (419 SE2d 115)
   Sognier, Chief Judge.

David Griffin was convicted in a bench trial of intimidating a witness and theft by snatching. He appeals from the trial court’s denial of his motion for a new trial.

1. In Case No. A92A0746, appellant contends in his sole enumeration that the trial court erred by denying his motion for a new trial as to the theft by snatching charge. The basis of his motion was that the evidence adduced by the State was insufficient to rebut his defense that because of his voluntary intoxication he was unable to know or understand what he was doing when he committed the crime. At trial, the victim testified that appellant approached her in her yard and demanded she give her pocketbook to him. When the victim refused, appellant grabbed the purse, dragged the victim behind him a few steps after she fell while still holding on to the handbag, then ran around a corner after the victim released the bag. A neighbor heard the victim’s cries and chased appellant across the yard, over a street, and into a lane where appellant had stashed a bicycle. The neighbor testified appellant was getting on the bicycle when the neighbor physically removed him from the bike and held him until the police arrived. The neighbor testified that appellant asked him to let him go because he had to go to work and make some money. The victim’s son, who was acquainted with appellant, testified that when he spoke to appellant a few minutes after the snatching, appellant apologized to him for hurting his mother. The investigating officer testified that appellant claimed he had no memory of the incident because the medication he was taking had caused him to black out.

The victim testified she did not smell any alcohol about appellant’s person and that he did not appear to have lost control of his actions when he was taking her purse from her. The victim’s son testified that while standing three feet from appellant, he could tell that appellant’s eyes were not bloodshot, that he did not smell alcohol on appellant’s breath, and that appellant’s speech was not unusually slurred. The neighbor who chased appellant testified that appellant was drunk and seemed “out of it.” Appellant testified that he had voluntarily consumed such a large amount of alcohol that he could not remember the events surrounding the snatching.

“[I]n the case of voluntary intoxication, the issue is whether the actor was so intoxicated ‘as to render whatever acts he may have committed . . . “unintentional.” “(I)f the intention to commit the act in controversy is present, intoxication is no excuse . . . [.]” [Cit.] Thus unless the actor was so intoxicated as to be unable to know, understand and intend to do the act, it cannot be said that his act was not intentional.’ [Cit.]” Wayne v. State, 184 Ga. App. 160, 161 (1) (361 SE2d 39) (1987). “Whether or not one has the requisite intent to commit a crime is a question for the jury. We have previously held that ‘(m)ere presence, where one is in a comatose condition or otherwise completely unaware of what was going on, is what is meant by being so intoxicated at the time that (a defendant) could not form the requisite intent. . . .’ [Cit.]” Carsner v. State, 190 Ga. App. 141-142 (378 SE2d 181) (1989). Given the evidence above regarding appellant’s physical exertions, the lucid statements he made, and his contriteness over the injuries he inflicted on the victim, we find that the State presented sufficient evidence from which the trial court, sitting as the finder of fact, could have determined that appellant intentionally committed the theft by taking. See Mills v. State, 198 Ga. App. 527, 529 (2) (402 SE2d 123) (1991). Thus, we find the evidence sufficient to authorize the factfinder to conclude beyond a reasonable doubt that appellant was guilty of the charged crime under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Tolbert v. State, 180 Ga. App. 703-704 (1) (350 SE2d 51) (1986).

2. In Case No. A92A0745, appellant failed to file a brief and enumeration of error after having been so ordered by this Court. While failure to comply may be cause for dismissal of the appeal (see Court of Appeals Rule 14 (a)), out of an abundance of caution, see McIntosh v. State, 188 Ga. App. 387, 388 (373 SE2d 858) (1988), we have reviewed the record on appeal and have determined that it appears to duplicate his appeal in Case No. A92A0746. However, since the other appeal addressed solely appellant’s conviction for theft by taking, for purposes of the instant appeal we have reviewed the transcript of appellant’s trial as to the intimidation of a witness charge, OCGA § 16-10-93, and have reviewed the testimony of that witness (the neighbor who chased appellant) regarding the threats made to him by appellant to discourage the witness from testifying at appellant’s theft by taking trial. We conclude that there was sufficient evidence presented by the State on the intimidation of a witness charge to authorize the factfinder to find appellant guilty beyond a reasonable doubt of that charge under the standard set forth in Jackson v. Virginia, supra. See Watson v. State, 176 Ga. App. 610 (1) (337 SE2d 54) (1985).

Decided May 18, 1992.

William S. Lewis, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0282.
    REED v. THE STATE.
    (419 SE2d 45)
   Johnson, Judge.

Fred Reed (Reed) was charged as a recidivist with six counts of armed robbery, six counts of possession of a firearm during commission of a crime and possession of a firearm by a convicted felon. After a jury trial, Reed was found guilty of three counts of armed robbery and three counts of possession of a firearm during the commission of a felony. The trial court denied Reed’s motion for a new trial. Reed appeals his conviction.

1. In his first enumeration of error, Reed claims the trial court erred by refusing to grant his motion for mistrial when a police officer’s testimony improperly placed his character in issue. Detective McLaughlin testified that he heard over his radio that a car had been found parked behind Robert’s Lounge, the scene of the robberies, with the engine running. After hearing the tag number, he travelled to the scene because he recognized the number and stated that he “had been looking for it and the driver.” At this point in the trial, Reed’s counsel made a motion for mistrial. A curative instruction was given to the jury.

We find that the officer’s remark, which did not identify the driver, is not sufficient to place the defendant’s character in evidence. The cornerstone of Reed’s alibi defense is that he had loaned someone his car and had been with his girl friend on the night of the robbery. A cousin of Reed testified that he had borrowed the car and parked it outside the lounge just before he entered the bar and found the robberies in progress. No inference can be drawn from the officer’s remark that Reed was the driver of the car that night or that he was being sought in connection with another crime. Even if it could be said to have somehow put Reed’s character in issue, it was both incidental and harmless. “ ‘It is well-established that if evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. (Cits.)’ [Cit.]” Calloway v. State, 199 Ga. App. 272, 273 (1) (404 SE2d 811) (1991). There is no suggestion by Reed, that, if in fact there was an improper introduction of character evidence, that it was prejudicial to Reed, or that the result of the trial would have differed in any way. Therefore, we do not find that the trial court abused its discretion in refusing to grant a mistrial. See Tyler v. State, 198 Ga. App. 685 (402 SE2d 780) (1991).

2. Reed also argues the trial court erred in admitting hearsay testimony of a police officer. The assistant district attorney asked the detective in charge of the investigation of the case: “What was found in the car that made you think that it might be linked to the robbery?” Reed’s counsel objected, asserting that the testimony was hearsay in that the officer was not present at the search of the car. The items found in the car had already been admitted into evidence. The trial court properly allowed the testimony to explain her conduct in the course of the investigation, not to offer substantive proof concerning the items found in the car. Goodman v. State, 167 Ga. App. 378 (306 SE2d 417) (1983).

3. Reed next challenges the court’s jury instruction on reasonable doubt. We find that the instruction regarding “reasonable doubt” and “moral and reasonable certainty” is a correct statement of the law and is part of the pattern jury charges for criminal trials. Mathis v. State, 184 Ga. App. 455, 457 (3) (361 SE2d 856) (1987); Moore v. State, 170 Ga. App. 698 (318 SE2d 172) (1984). Further, there was no assertion that the charge was harmful and therefore there was no error. Binns v. State, 258 Ga. 23, 25 (3) (364 SE2d 871) (1988).

4. In his fourth enumeration of error, Reed asserts that the court gave an erroneous jury charge on the issue of presumption of innocence. The argument contained in the brief, however, focuses on the charge regarding intent. In reviewing the charges given, we find that the court charged the jury regarding intent directly from OCGA § 16-2-6, and accordingly find no error. Reed relied exclusively on an alibi defense. Defenses such as self-defense, or accident, which would have called into question the issue of intent were not present in the case. Since any charge on intent was so far removed from the theory upon which the case was tried, even if incorrect, it would have been harmless. United States v. Winter, 663 F2d 1120, 1145 (1981), cert. den., 460 U. S. 1011 (103 SC 1249, 1250, 75 LE2d 479) (1983).

5. As his fifth enumeration of error, Reed asserts that the court erred in refusing to give his request to charge on identification. The court used the pattern charges on identification. We find Reed’s charge to be cumulative. “It is not required that the trial court include the exact language of written requests to charge when the same principles are given in the general charge. . . .” Williams v. State, 199 Ga. App. 566, 571 (5) (405 SE2d 716) (1991).

6. Finally, Reed asserts that the trial court erred by failing to sustain an objection to improper argument made by the prosecution. A review of the transcript of closing argument indicates that an objection was made to the district attorney’s characterization of reasonable doubt. The trial court neither sustained nor overruled the objection, but merely indicated that it would charge the jury on the law. Defense counsel thanked the court, but did not insist upon a ruling on the objection. As the court made no ruling, there is nothing for us to review and we therefore find no error. Hardeman v. State, 252 Ga. 286 (313 SE2d 95) (1984); Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

Decided April 29, 1992

Reconsideration denied May 19, 1992

Jackson & Schiavone, G. Terry Jackson, for appellant.

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Cooper, Judge.

text:
    A92A0032.
    SULLIVAN v. THE STATE. RUTLEDGE v. THE STATE.
    A92A0033.
    (418 SE2d 807)
   Cooper, Judge.

Appellants were tried jointly before a jury and convicted of the sale of cocaine and cocaine trafficking. They appeal from the trial court’s denial of their motion for new trial and raise three enumerations of error.

1. Appellants enumerate as error the trial court’s charge on trafficking in cocaine which included the alternative methods by which the offense may be committed under OCGA § 16-13-31 (a) (1). The court charged that the offense may be committed by “any person who knowingly sells, manufactures, delivers or brings into this state or who is knowingly in possession of [cocaine]. . . .” In Count Two, the indictment charged appellants with possession of cocaine in the requisite statutory amount and purity to constitute the offense of trafficking. “Reversible error occurs when the court instructs that ‘an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.’ [Cits.]” Ancrum v. State, 197 Ga. App. 819 (1) (399 SE2d 574) (1990). Appellants contend that the trial court’s failure to read the indictment to the jury or to give any other limiting instructions requires a reversal. The record demonstrates that the court charged the jury as follows: “Now you heard the indictment read to you on the day that you were selected to try this case. And I’m not going to take up your time now and reread the indictment again but when you retire in just a few moments to begin your deliberations in the case the indictment will be in the jury room with you and if you need to be more specifically informed as to the contents of the indictment, then it would be your privilege as well as your duty to read the indictment for yourselves.”

The court charged further that “[t]he burden of proof is on the State to prove every material allegation in [the] indictment” beyond a reasonable doubt. “While it certainly would have been preferable for the trial court to ‘return to the allegation contained in the indictment’ following the giving of the general Code section in its entirety, the failure to do so in the instant case was not likely to mislead the jury into believing it could convict appellants] should they find the evidence supported a form of [trafficking] not specified in the indictment.” Slack v. State, 159 Ga. App. 185, 188 (2) (283 SE2d 64) (1981). There was evidence of the actual sale of the statutory amount of cocaine which would have supported a conviction of trafficking under OCGA § 16-13-31 (a) (1); however, we conclude the charge was nonetheless not harmful because illegal possession is included in the crime illegal sale. State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974). Thus, a finding by the jury of the sale of cocaine would have implicitly been a finding of possession as charged in the indictment. See Merritt v. State, 201 Ga. App. 150 (2) (410 SE2d 349) (1991). We conclude, therefore, that the inclusion of certain language of the applicable Code section which was not pertinent to Count Two of the indictment was not reversible error. See Slack, supra at 188-189; Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621) (1983). “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as . . . precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. [Cit.]” (Citations and punctuation omitted.) Griffin v. State, 199 Ga. App. 646 (3b) (405 SE2d 877) (1991).

2. Appellants contend the trial court erred in not giving a jury charge on constructive possession and joint possession as elements of the offense of trafficking in cocaine. The record shows the following facts relevant to this enumeration: One week after a GBI agent was sold cocaine by appellants, the agent arranged another purchase from appellants which took place in appellant Sullivan’s home. The agent testified that he told appellants that he wanted to purchase $2,000 worth of cocaine; that he then sat down at a coffee table with appellant Rutledge and counted out 13 pieces of rock cocaine which he combined with 87 pieces given to him by Sullivan; and that he gave appellants $2,000 which they counted and divided equally between themselves. When combined, the 100 pieces cocaine had a weight of 28.1 grams and a purity of 84.6 percent and comprised the evidence supporting the trafficking charge.

As we discussed in Division 1, the trial court charged the jury that each element of the offenses charged in the indictment must be proven beyond a reasonable doubt. “We need not determine whether the court should have charged on [joint] and constructive possession because appellants] made no request for such a charge. ‘Absent a written request to charge more fully on (possession), the charge as given was sufficient. Upright and intelligent jurors would have no difficulty in understanding the meaning of a simple word like (“possession”), and no detailed definition need be given.’ [Cit.]” Donaldson v. State, 180 Ga. App. 879 (1) (350 SE2d 849) (1986). Moreover, unlike the scenario in Ancrum, supra, cited by appellants, where the cocaine was discovered under a seat in a van which was accessible to all the defendants, in the instant case the cocaine was in appellants’ actual possession (see Ancrum, supra at 822, actual possession defined as “ ‘ “direct physical control over a thing at a given time” ’ ”), and the sale comprised one transaction to which both appellants contributed and shared in its proceeds equally. Hence, there was no error in the court’s failure to charge on constructive and joint possession.

3. Appellants also contend the trial court erred in failing to require the disclosure of the identity of a confidential informant. The confidential informant was identified at trial as someone with knowledge of suspected drug dealers who was willing to provide the agent with information of the drug activity in McIntosh County. The evidence shows with regard to the first sale of cocaine to the agent, the agent went to appellant Sullivan’s nightclub alone after the informant had communicated to appellants that he was aware of an individual desirous of purchasing cocaine. After the first transaction, Sullivan gave the agent his business card and instructed the agent to call him to obtain more cocaine in the future. Although the informant accompanied the agent to the second purchase in Sullivan’s home, there is no evidence that he had a role in the transaction, other than as an observer. In our view, the evidence establishes that the informant was just that, an informer and not a “decoy” (Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156) (1984)); therefore, the trial court did not err in refusing to require the disclosure of his identity. Disclosure under OCGA § 24-9-27 “ ‘ “rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances.” (Cit.) ... We find no abuse of the court’s discretion under the facts and circumstances of this case.’ [Cit.]” Id.

Judgments affirmed.

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

Decided May 19, 1992.

Lane, Tucker & Crowe, Grayson P. Lane, for appellant (case no. A92A0032).

White & Draffin, Thomas H. Draffin, for appellant (case no. A92A0033).

James Rutledge, pro se.

Dupont K. Cheney, District Attorney, Lisa M. Young, Assistant District Attorney, for appellee.


text:
    A92A0143.
    JOHNSON v. THE STATE.
    (419 SE2d 118)
   Cooper, Judge.

Appellant was convicted of two counts of the sale of cocaine and was sentenced as a recidivist. He appeals from the entry of judgment on the verdict and sentence, raising three enumerations of error.

1. Appellant first enumerates as error the admission of evidence which allegedly placed appellant’s character in issue. Specifically, appellant complains of the testimony of an officer, who assisted in appellant’s arrest, that the officer recognized appellant from “pictures we had on file of him.” Appellant raised no objection to this testimony at trial. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Cit.]” Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

Appellant also complains of the admission of his testimony from a hearing prior to the trial wherein, after receiving Miranda warnings, he testified that at the time of one of the sales of cocaine with which he was charged, he was in a nightclub with friends and that he left the club for a few minutes to go to a store to buy a quart of beer. Appellant was then asked whether it took a long time to make a drug transaction, to which appellant replied that it would depend on the circumstances, and further stated, “if I had the drugs myself, it wouldn’t take that long, but like if I had to go get them from someone else like the agent said it would take a little bit longer.” Appellant contends this testimony also placed his character in issue. In our view, appellant only hypothetically referred to a criminal act. Such testimony was relevant to the alibi defense maintained by appellant at the hearing and was not evidence of general bad character admitted in violation of OCGA § 24-9-20 (b). “Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. . ... [Cit.]” Lewis v. State, 158 Ga. App. 586, 587 (1) (281 SE2d 331) (1981). We find no abuse of the trial court’s discretion in admitting the testimony.

2. Appellant also contends the court erred in allowing demonstrative evidence, previously admitted into evidence, to be written upon by a witness for the State and thereafter go out with the jury during deliberations. Appellant argues that the jury’s consideration of the diagram of the scene of the alleged crimes with the written additions unjustly advantaged the State by speaking to the jury more than once. “ ‘(T)he [trial] transcript demonstrates that (appellant) raised no such specific objection in the trial court. “An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at the trial. (Cits.)” (Cit.) Accordingly, we find this enumeration of error to be without merit. (Cit.)’ [Cits.]” Kitchens v. State, 198 Ga. App. 284, 286 (5) (401 SE2d 552) (1991).

3. Finally, appellant raises the general grounds and argues that the testimony of the GBI agent who made the case against appellant was contradictory and inconsistent. The record shows that the GBI agent was conducting an undercover drug operation and that a confidential informant directed the agent to a location where drugs could be purchased. When the agent and the informant arrived at the location, they observed several men standing around the area, including appellant, who walked over to their car and asked what they were looking for. When the informant answered that they were looking for a “good 20,” appellant instructed them to drive down to the end of the street, turn around and come back. When they returned, appellant handed the agent $20 worth of crack cocaine, and the agent gave appellant $20 in state funds. Fifteen or twenty minutes later, the agent returned to make a second purchase, and after turning around again at the end of the street, the agent bought another $20 piece of crack cocaine from appellant. At the time of the purchases, the informant told the agent that appellant was known by the nickname, “Boo Boo.” Local authorities said that “Boo Boo” was actually Alonzo Thomas, and an arrest warrant was prepared for Alonzo Thomas. Two months later, while the agent was in the process of arresting the subjects of the undercover operation, he received word that Alonzo Thomas was on his way to the police department to turn himself in. Shortly thereafter, the agent encountered appellant on the street. The agent testified that he had not seen appellant for two months and that as a result of seeing appellant again, he was 90-95 percent sure that appellant was the person who previously sold him cocaine. The agent also noticed that appellant was wearing the same shirt he wore two months earlier when the drug purchases were made. The agent then learned from other agents that appellant’s nickname is “Bubba” and that his real name is Ira Joe Johnson. Realizing a mistake had been made in the warrant, the agent went to the police department to secure Alonzo Thomas’ release, and appellant was arrested several hours later. The agent testified that at the time of the arrest, he was 100 percent certain he had the right person.

Decided May 19, 1992.

Benjamin Gratz, Jr., for appellant.

David E. Perry, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

“ ‘The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. We find that a rational trier of fact could find from the evidence adduced at trial proof of [appellant’s] guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [Cits.]” Hudson v. State, 198 Ga. App. 360, 362 (1) (401 SE2d 571) (1991).

Judgment affirmed.

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


author: Carley, Presiding Judge.

text:
    A92A0157.
    JONES v. THE STATE.
    (419 SE2d 542)
   Carley, Presiding Judge.

Appellant was indicted for the commission of an aggravated assault “by cutting and stabbing [the victim] with a knife. . . .” He was tried before a jury and found guilty. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant enumerates as error only the refusal to give his written request to charge on simple battery as a lesser included offense.

“The [S]tate or the accused may . . . request [the trial court] to charge on lesser crimes that are included in those set forth in the indictment or accusation, and [the] failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.” (Emphasis supplied.) State v. Stonaker, 236 Ga. 1, 2 (3) (222 SE2d 354) (1976). “Appellant’s defense was self-defense. He admitted that he had cut [the victim], but only quibbled about the reason he did it. The assault was committed with a deadly weapon, and so could not have amounted to mere simple battery. . . . [Cit.]” Rossell v. State, 195 Ga. App. 327, 328 (2) (393 SE2d 485) (1990). “Examining the trial transcript in its entirety, we find that the offense of simple battery was not reasonably raised by the evidence adduced at trial and was not in issue so as to require instructions. [Cits.]” Diaz v. State, 194 Ga. App. 577, 579 (391 SE2d 140) (1990). “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense. . . . [Cit.]” Burley v. State, 172 Ga. App. 34, 35 (3b) (321 SE2d 783) (1984). “According to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], the evidence was sufficient to enable a rational trier of fact to conclude that if appellant committed any offense, he committed aggravated assault, as charged [in the indictment]. [Cits.]” Givens v. State, 199 Ga. App. 845, 846 (1) (406 SE2d 272) (1991). It follows that the trial court correctly refused to give appellant’s unauthorized request to charge.

Decided May 19, 1992.

Omotayo Alii, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, D. Victor Reynolds, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0207.
    NODVIN v. WEST et al. WEST v. NODVIN.
    A92A0208.
    (419 SE2d 120)
   Pope, Judge.

Plaintiff/appellant Marvin P. Nodvin brought suit against defendants/appellees Thomas B. West and Victoria Corporation alleging breach of contract and fraud arising out of defendants’ failure to pay Nodvin attorney fees owed to him for his representation of defendants in connection with certain legal matters. Victoria failed to answer the complaint and was judged to be in default on both counts. The trial court directed a verdict in favor of West on the fraud claim but found that Nodvin was entitled to judgment on the breach of contract claim for the amount sought in his complaint, plus interest in an amount to be determined by the jury. The trial court further instructed the jury that Victoria’s liability as to both counts had been established by virtue of its failure to appear and that the jury was to determine the amount of damages to be awarded on the fraud claim against Victoria. The question of whether defendants had been stubbornly litigious was also submitted to the jury.

The jury returned a verdict against both defendants, jointly and severally, in the principal amount of $4,730.50 plus interest in the amount of $30,614.53. The jury also awarded Nodvin attorney fees and expenses of litigation in the sum of $10,957.44 and punitive damages in the amount of $37,500 against Victoria on the fraud claim. Nodvin filed a timely notice of appeal from the judgment entered on the verdict, which was docketed in this court as Case No. A92A0207; West then filed a timely cross-appeal which was docketed in the court as Case No. A92A0208.

Case No. A92A0207

1. Nodvin first contends that the trial court erred in directing a verdict in West’s favor on Count II of the complaint (fraud). We find no error. The only evidence presented at trial in support of Nodvin’s claim that West had fraudulently secured his services was Nodvin’s testimony at trial that West never intended.to pay him for his services and that West made that fact known to “everybody [in] town.” However, Nodvin offered no evidence in support of his contention that West secured his services with the intention that he would not pay for those services. A mere failure to pay a contractual obligation does not amount to tortious conduct. Ring v. Williams, 192 Ga. App. 329, 332 (6) (384 SE2d 914) (1989); Long v. Jim Letts Oldsmobile, 135 Ga. App. 293 (2) (217 SE2d 602) (1975). The record also shows that Nodvin had experienced difficulty in collecting legal fees from West in the past and therefore knew of his propensity not to pay his obligations when due. Thus it is questionable whether Nodvin was reasonably justified in accepting West’s assurances concerning payment in connection with any future representation. “ ‘The five elements of fraud and deceit in Georgia are: (1) false representation made by the defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff.’ [Cit.] The evidence failed to prove at least [two] of the above listed elements, i.e., scienter [and] justifiable reliance . . . ; therefore, the direction of the verdict as to the second count, based on [fraud], was not error.” Romedy v. Willett Lincoln-Mercury, 136 Ga. App. 67, 68 (220 SE2d 74) (1975). See also Ring v. Williams, 192 Ga. App. at 332 (6).

2. It follows from our holding in Division 1 that, contrary to Nodvin’s second enumeration of error, the trial court did not err in refusing to submit Nodvin’s claim for punitive damages to the jury. See Johnson v. Waddell, 193 Ga. App. 692 (1) (388 SE2d 723) (1989).

3. Nodvin also contends that the trial court erred in refusing to admit into evidence certain exhibits which consisted of certified copies of pleadings and orders in prior litigation in which allegations of fraud had been asserted against West. First, we find no merit to Nodvin’s assertions on appeal that these exhibits should have been admitted to establish his claim of fraud against West. Our review of the record reveals that to the extent the prior litigation did contain allegations of fraud, there were no allegations of a fraudulent act similar to that alleged in the case at bar (securing services with no intent to pay) and, thus even if admitted, would not have supplied proof of any of the elements necessary to establish the fraud count in this case. Likewise, we find no merit to Nodvin’s argument that the exhibits should have been admitted to show course of conduct, inasmuch as Nodvin failed to establish fraudulent conduct in the case at bar. Consequently, the enumerations relating to the trial court’s refusal to admit the complained of exhibits are without merit.

4. Nodvin also contends the trial court erred in refusing to give certain of his requests to charge.

(a) It follows from our holdings in Divisions 1 and 2 that the trial court did not err in refusing to give Nodvin’s requests to charge relating to fraud and punitive damages.

(b) By supplemental brief Nodvin has abandoned those enumerations of error concerning the court’s charge to the jury as it relates to defendant Victoria Corporation.

(c) We have examined Nodvin’s remaining challenges to the court’s charge to the jury and find them to be without merit.

5. Nodvin also enumerates as error the trial court’s denial of his motion for supersedeas bond. Nodvin sought to appeal this ruling by filing an “amended” notice of appeal on August 23, 1991, over three months after the original notice of appeal was filed on May 10, 1991. Pretermitting the question of whether it is permissible to amend or supplement a notice of appeal so as to bring before the appellate court issues not included within the original notice of appeal (see OCGA § 5-6-48 (d) which provides the notice of appeal may be amended to correct errors), we hold that we are without jurisdiction to entertain the issues raised in the amended notice of appeal. That notice shows on its face that the order appealed from was issued on July 15, 1991. As stated above, the amended notice was not filed until August 23, 1991, more than 30 days after entry of the judgment complained of. See OCGA § 5-6-38 (a). Consequently, we are without jurisdiction to consider Nodvin’s contention that the trial court erred in denying his motion for supersedeas bond.

Case No. A92A0208

6. In light of our holding in Division 1, it is unnecessary for us to address cross-appellant West’s contention that the trial court erred in denying his plea in abatement as to the fraud count.

Judgments affirmed.

Johnson, J., concurs. Carley, P. J., concurs in judgment only.

Decided May 19, 1992.

Richard A. Gordon, Micheline A. Besse, for appellant.

Marvin P. Nodvin, pro se.

Theodore L. Marcus, for appellees.


text:
    A92A0288.
    LEE v. THE STATE.
    (418 SE2d 809)
   Sognier, Chief Judge.

Ensley Lee was convicted of possession of cocaine with intent to distribute and bribery, and he appeals.

1. We find no merit in appellant’s first enumeration in which he asserts the trial court erred by allowing a police officer to testify regarding statements made by Bobby Porter, appellant’s alleged co-conspirator, before the State proved the existence of the conspiracy. “The trial judge may admit testimony by co-conspirators before the conspiracy has been proved, provided that such existence is after-wards shown during the trial. [Cit.]” Denison v. State, 258 Ga. 690, 691 (1) (373 SE2d 503) (1988). “ ‘The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. [Cits.]’ [Cit.]” Harris v. State, 255 Ga. 500, 501 (2) (340 SE2d 4) (1986). Although appellant argues there was no direct evidence of conspiracy, our review of the transcript reveals that the State introduced sufficient circumstantial evidence from which the jury could have found that appellant acted in common purpose with Porter to distribute cocaine in Evans County, and thus the trial court did not err by admitting Porter’s testimony into evidence. Denison, supra.

2. We find no error in the trial court’s denial of appellant’s motion for a mistrial. The transcript reveals that GBI Agent Thomas Davis testified that another officer, who had radioed him to be on the lookout for appellant, had informed Davis that appellant “was a large drug dealer.” The trial court sustained appellant’s objection to the challenged testimony on hearsay grounds and struck the testimony. After Davis was excused and a subsequent witness’s examination completed, appellant moved for a mistrial on the basis that Davis’s statement impermissibly placed appellant’s character in issue. The trial court denied the motion but included in its charge to the jury an instruction not to consider any evidence that had been stricken, and appellant renewed his motion.

Pretermitting the issue whether appellant’s motion for mistrial was timely, we find no abuse of the trial court’s discretion in denying the motion for mistrial since the trial court’s corrective action was sufficient. Bush v. State, 188 Ga. App. 313 (1) (372 SE2d 847) (1988).

3. Assuming, arguendo, that appellant properly raised below his relevancy objection to the admission of the State’s Exhibit Nos. 4 and 5, appellant has failed to show how the admission of candles found on an altar in his bedroom was prejudicial to him, and thus this enumeration presents no ground for reversal. Wireman v. State, 163 Ga. App. 439, 442 (2) (295 SE2d 530) (1982).

4. We find no merit in appellant’s contention that the trial court erred by admitting an audio tape recording of a conversation between GBI Agent John Edwards and appellant because the State failed to lay a complete foundation for the admission of the tape as required by Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955). Edwards testified that he personally made the recording, that he listened to the tape the day before trial, and that the tape fairly and accurately reflected the conversation he had with appellant. Edwards’ testimony “was sufficient to establish the authenticity and correctness of the recordings. [Cits.]” Gambrel v. State, 260 Ga. 197, 200 (2) (391 SE2d 406) (1990).

5. Appellant contends his conviction of bribery must be reversed because the State failed to adduce any evidence that appellant asked Agent Edwards to do anything in exchange for the money. “Bribery is a specific intent crime, requiring proof that the defendant offered money or valuables to a government official ‘with the purpose (or intent) of influencing him in the performance’ of an official act as an essential element of the crime. OCGA § 16-10-2 (a) (1).” Agan v. State, 191 Ga. App. 92, 94 (380 SE2d 757), rev’d in part on other grounds, 259 Ga. 541 (384 SE2d 863) (1989). After reviewing the transcript of the taped conversation between appellant and Edwards, we hold that a jury was authorized to conclude that appellant’s intent in offering to allow Edwards to participate in his drug distribution activities where Edwards could make “six thousand [dollars] a week or more,” was specifically to influence Edwards in the performance of his official duties. Thus, we find that under the standard established by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the crime of bribery. See Agan, supra.

6. Appellant contends the trial court erred by admitting Agent Edwards’ testimony discussing other models of crack cocaine distribution (determined by the GBI to be used by drug dealers) in addition to the one model that approximated the scheme appellant had discussed with Edwards. “ ‘Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion.’ [Cit.]” Ingram v. State, 192 Ga. App. 196, 198-199 (2) (384 SE2d 262) (1989). No such abuse exists in this case.

Decided May 19, 1992.

Jon G. Branan, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0320.
    STATE HEALTH PLANNING AGENCY v. CRIBB INDUSTRIES, INC.
    (419 SE2d 123)
   Carley, Presiding Judge.

Seeking to build a veterans’ nursing home in Pierce County, appellee-applicant originally applied in 1986 for a certificate of need. Appellant-State Health Planning Agency (Agency) denied the application and, on appeal to the State Health Planning Review Board (Review Board), the application was likewise denied. Appellee did not appeal the denial to the superior court, but, in 1987, it merely reapplied to the Agency. The agency denied appellee’s reapplication and the Review Board did likewise. From the denial of its reapplication, appellee did appeal to the superior court. The superior court reversed and ordered issuance of the certificate of need. The Agency applied to this court for a discretionary appeal and the instant appeal results from the grant of the Agency’s application.

1. OCGA § 31-6-43 (c) provides, in relevant part, that “there shall be a time limit of 90 days for review of a project, beginning on the day the . . . [A]gency declares the application complete for review. The . . . [A]gency may adopt rules for determining when it is not practicable to complete a review in 90 days and may extend the review period upon written notice to the applicant but only for an extended period of not longer than an additional 30 days.” Although the Review Board found that appellee’s reapplication had been timely reviewed by the Agency, the superior court found to the contrary. The superior court was authorized to do so only if the Review Board’s finding was “[n]ot supported by substantial evidence. . . .” OCGA § 31-6-44 (i) (5).

It is undisputed that appellee’s reapplication was received by the Agency on July 21, 1987 and that, in compliance with OCGA § 31-6-43 (a), the Agency made the determination that the reapplication was complete on July 31, 1987. Accordingly, the 90-day time limit of OCGA § 31-6-43 (c) began to run on July 31, 1987 and the Review Board properly so found.

The Review Board further found that, in compliance with OCGA § 31-6-43 (f), the Agency had offered, within 60 days of July 31, 1987, to provide appellee with an opportunity to meet and discuss its application and to submit additional evidence, but that appellee had requested a delay. This finding by the Review Board is also supported by the evidence of record.

The evidence also authorized a finding by the Review Board that appellee had requested that this meeting with the Agency be delayed until the 88th day after July 31, 1987 and was told that such a delay would necessitate an extension of time to review the reapplication. Since appellee would otherwise have been required under OCGA § 31-6-43 to submit additional evidence to the Agency by the 75th day, appellee’s request for a delay would certainly authorize the Agency to extend the 90-day time period. The Agency rule, adopted pursuant to OCGA § 31-6-43 (a), provides as follows: “Where the Agency determines that conditions exist which make it impractical to complete a review in 90 days, the Agency may, on notification to the applicant, extend the time limit another 30 days. Conditions such as the following may constitute cause for extending the time: 1. The applicant requests time ... to submit additional relevant information. ...” Rule 272-2-.04 (1) (d). Obviously, an applicant’s request for the Agency to consider additional evidence to be submitted on the 88th day rather than by the 75th day would authorize an extension by the Agency of the 90-day time limit.

On the 81st day, appellee cancelled its request for the delayed meeting with the Agency. On the 89th day, however, the Agency gave appellee written notice that the 90-day time period was nevertheless being extended. The superior court found that the agency erred in extending the 90-day time limit after appellee had cancelled the meeting. However, the mere fact that, within the 90-day time period, appellee had cancelled the meeting would not necessarily serve to re-trigger the original 90-day time period for the Agency’s review. The Agency had been authorized to extend the time period because appellee’s original request for a delay until the 88th day had rendered a complete review within the 90-day time period impracticable. It is true that appellee had not been given written notice of an extension of time before it cancelled the meeting that it had requested be delayed until the 88th day. If, however, the meeting scheduled for the 88th day had been held rather than cancelled, the Agency would presumably have given appellee written notice of the extension of time at that meeting. By cancelling the meeting on the 81st day, appellee could not unilaterally establish that it was nevertheless practicable for the Agency to complete its review by the 90th day. Upon determining that it would not be practicable, the Agency was authorized to give appellee the written notice of an extension of time that presumably would otherwise have been given appellee had the meeting for the 88th day not been cancelled. Appellee’s original request for a delayed meeting had rendered a complete review by the Agency within two days impracticable and an extension of time necessary, but appellee’s subsequent withdrawal of its request did not render a complete review within nine days practicable so that the extension of time became unauthorized.

The substantial evidence of record shows that, before the 90-day time limit had expired, the Agency gave appellee written notice of an extension of time. That extension was authorized pursuant to appellee’s original request for a delayed meeting with the Agency and was not obviated by appellee’s subsequent withdrawal of its request. Appellee was notified of the Agency’s final determination within the authorized extension of time. It follows that the superior court erred in reversing the Review Board’s finding that appellee had been afforded a timely review of its reapplication for a certificate of need.

2. Appellee’s original application for a certificate of need in 1986 had been denied on the basis of the “County Deficit Rule.” When appellee reapplied and instituted the instant proceedings, it did not submit any evidence to show that conditions had changed such that the “County Deficit Rule” would no longer authorize a denial of the application. Under these circumstances, the Review Board relied upon the principles of res judicata to deny appellee’s instant reapplication. Citing OCGA § 9-11-8 (c), the superior court found that the Review Board erred in relying upon res judicata because it had not been raised before the Agency. The superior court’s reliance upon OCGA § 9-11-8 (c) is obviously misplaced. Not only was res judicata not being relied upon as a defense by the Review Board, “[t]he CPA does not apply to the Georgia Administrative Procedure Act.” Georgia State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706, 709 (3) (224 SE2d 820) (1976).

There appears to be no bar to the Review Board’s initial consideration of the applicability of the principles of res judicata to appellee’s reapplication. Notwithstanding the scope of the proceedings before the Agency, “[t]he issue for decision by the [Review Board] shall be whether, and the [Review Board] shall order the issuance of a certificate of need if, in the [Review Board’s] judgment the application is consistent with the considerations as set forth in Code Section 31-6-42 and the . . . [A]gency’s rules, as the [Review Board] deems such considerations and rules applicable to review of the project.” (Emphasis supplied.) OCGA § 31-6-44 (d).

In any event, it is undisputed that, in the context of the instant proceeding, appellee did not introduce evidence which was sufficient to show that its proposed facility would comport with the “County Deficit Rule.” Accordingly, regardless of the applicability of res judicata principles, the Review Board’s denial of appellee’s application was authorized. Even if the “County Deficit Rule was not fashioned with [the] facts [of the instant proceeding] in mind[,] . . . [nonetheless, the rule is the rule.” Dogwood Sq. Nursing Ctr. v. State Health Planning Agency, 255 Ga. 694, 696-697 (2) (341 SE2d 432) (1986).

Decided May 19, 1992.

Michael J. Bowers, Attorney General, Mark H. Cohen, Senior Assistant Attorney General, Dennis R. Dunn, Assistant Attorney General, for appellant.

E. Kontz Bennett, Jr., for appellee.

3. The superior court found that the denial of appellee’s application was violative of equal protection. “The basis for this [finding] ... is that the Review Board granted a certificate of need to another applicant in another place at another time. Though there are similarities between the areas . . . , there are dissimilarities recognized by the Review Board in its [prior] decision [, such as the public nature of the other nursing home and its limited service to Georgia residents only,] which render [appellee’s] equal protection argument meritless: [Appellee] is simply not in the same or similar circumstances as the previous applicant.” Charter Medical-Fayette County v. Health Planning Agency, 181 Ga. App. 184, 185 (3) (351 SE2d 547) (1986).

4. The superior court erred in substituting its judgment for that of the Review Board and in ordering that a certificate of need be issued to appellee.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0341.
    PRICE v. THE STATE.
    (419 SE2d 126)
   Cooper, Judge.

Appellant was convicted of voluntary manslaughter for the death of his wife and appeals from the judgment and sentence entered on his conviction.

1. In his first enumeration of error, appellant contends the trial court erred in allowing the victim’s father and stepmother to testify as to their fears, prior to learning of the victim’s death, that the victim’s safety was at risk because of the appellant. Appellant argues that such testimony placed his character in issue. A review of the record reveals that appellant only objected to one of the statements made by the victim’s father on the ground that the testimony was a self-serving declaration. That objection was sustained, but appellant maintains the jury should have been given curative instructions. “Objections to evidence which are not raised at trial will not be considered on appellate review. [Cit.]” Proveaux v. State, 198 Ga. App. 119 (4) (401 SE2d 12) (1990) We also will not consider appellant’s argument regarding the testimony which was objected to at trial because “[ujnder our appellate procedure, ‘“(a) reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below.” ’ [Cits.]” Brooker v. State, 164 Ga. App. 775, 778 (2) (298 SE2d 48) (1982). Moreover, appellant waived any error due to the court’s failure to give curative instructions by not requesting curative instructions when the objection was sustained. Johnson v. State, 198 Ga. App. 520 (6) (402 SE2d 115) (1991); Evans v. State, 190 Ga. App. 302 (2) (378 SE2d 903) (1989).

Decided May 19, 1992.

Charles M. Taylor II, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Appellant also enumerates as error the admission of certain testimony provided by the medical examiner in which he concluded that the victim’s stab wounds were not sustained accidentally or in self-defense. Appellant argues on appeal that such testimony improperly introduced the issues of self-defense and accident and shifted the burden of proof from the State to the defense. At trial, however, appellant objected to the testimony on the basis that the hypothetical question propounded by the State was vague and therefore failed to properly preserve this issue for appeal. See Brooker, supra. This enumeration is without merit.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A92A0058.
    CRIM et al. v. JONES.
    (419 SE2d 130)
   Beasley, Judge.

Appellants Crim and Pruitt (collectively “Crim”) appeal the grant of summary judgment to Jones in this action for damages for breach of a commercial lease agreement.

Crim leased space in a shopping center to Beaumont, who assigned the lease to Jones. Crim signed the assignment and expressly agreed to its terms with the proviso that Beaumont remain obligated “for the full performance of the provisions of the lease.”

Crim sued Beaumont and .Jones for breach of contract, alleging that “despite repeated demands . . . defendants stopped making the monthly rental payments provided for in the lease, and thereafter abandoned the premises.” About a week prior to the scheduled trial date, Crim and Beaumont entered into a “Consent Judgment,” which provided in pertinent part that “Beaumont is liable and indebted, as a joint obligor with Jones, to Crim, in the amount of . . . $30,000, said amount representing the amount of principal and interest presently due and owing to Crim under the lease.” Simultaneously, Crim and Beaumont executed a “Consent Agreement,” pursuant to which Beaumont would pay Crim $6,000, which “shall extinguish any obligations between Crim and Beaumont relative to the subject matter of the judgment . . . [of] $30,000. . . . Should Beaumont fail to satisfy any of its requirements under this Agreement, . . . this Agreement becomes null and void and Beaumont shall remain indebted to Crim in the amount of . . . $30,000, in accordance with the Judgment. . . .” The document further specified: “Beaumont makes no representations to represent the co-defendant Jack W. Jones . . . said Agreement being between Crim and Beaumont solely, and is in no way intended to relieve any obligation Jones may have to Crim.” Both the Consent Judgment and Consent Agreement were made an order of the Court.

After the case was called for trial and a jury struck, Jones orally moved for and was granted summary judgment on the ground that the Consent Agreement between Crim and Beaumont had the effect of releasing him, a joint obligor, from any obligation under the lease pursuant to OCGA § 13-4-80.

Appellants contend that the trial court erred because their agreement with Beaumont was not a release and therefore not governed by OCGA § 13-4-80. It provides: “A release may result by operation of law. When a creditor releases another who is bound jointly with or primarily to a debtor or accepts from a debtor a higher security for the same debt, not intended to be collateral thereto, a release results by operation of law.”

Appellants argue that the Consent Agreement is actually a covenant not to sue, applicable only to Beaumont, rather than a release applicable to both defendants. “ ‘The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of (the instrument) together, and to consider this with the surrounding circumstances.’ [Cits.]” Smallwood v. Bickers, 139 Ga. App. 720, 723 (229 SE2d 525) (1976). “[W]hether the plaintiff has received full satisfaction and whether the parties intended the result of their negotiations to be a complete freedom from further liability for all the [defendants], should be paramount in determining the effect of any agreement purported to operate as a release and should be inquired into whenever the problem arises in a case.” Revis v. Forsyth County Hosp. Auth., 170 Ga. App. 366, 369 (317 SE2d 237) (1984). “ ‘ “A covenant not to sue is not a release, but it is to be distinguished from a release, and the distinction, although technical or artificial, is clear. The difference is one of intent and grows out of the construction placed on the terms of the instrument, since a covenant not to sue is not a present abandonment or relinquishment of a right or claim but merely an agreement not to enforce an existing cause of action, and, although it may operate as a release between the parties to the agreements, it will not release a claim agains joint obligors or joint tortfeasors.” [Cit.]’ [Cit.]” Georgia R. Bank &c. Co. v. Griffith, 176 Ga. App. 198, 199 (1) (335 SE2d 417) (1985).

The Consent Agreement at issue was not intended as a release. Crim did not obtain full satisfaction from Beaumont and expressly retained the right to proceed against defendant Jones. Revis, supra at 369. Compare J & S Properties v. Sterling, 192 Ga. App. 181 (384 SE2d 194) (1989) (where plaintiff accepted the settlement as full satisfaction of the debt and the document expressed no intention to pursue the joint obligors, a release resulted by operation of law under OCGA § 13-3-80). Weems v. Freeman, 234 Ga. 575 (216 SE2d 774) (1975), does not compel a contrary conclusion. That case dealt with the common law distinction between a release and a covenant not to sue and their relative effects in the area of tort law, a distinction no longer significant in light of Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987). However, consistent with our ruling here, Weems recognized that a release does not result “[w]here the right to sue has been reserved and the plaintiff has not received full satisfaction. . . .” Id. at 576.

While a covenant not to sue can be made lis pendens, Register v. Andris, 83 Ga. App. 632 (64 SE2d 196) (1951), the instrument under consideration is, in legal effect, an agreement between Crim and Beaumont not to enforce the judgment. “[The] distinction between a release and covenant not to sue also applies to agreements not to enforce a judgment.” Griffith, supra at 199. An agreement on the part of one co-obligor not to enforce a judgment does not necessarily have the effect of releasing all other co-obligors where the parties do not so intend. Griffith, supra; Revis, supra at 369. Clearly, the parties did not intend to release Jones; the agreement expressly entitled Crim to proceed against him for the amount of the judgment unsatisfied by Beaumont’s contribution.

Decided May 20, 1992.

Donald P. Geary, for appellants.

Meadows & Schrade, Richard D. Schrade, Jr., for appellee.

Appellee further submits that a release by agreement was reached pursuant to OCGA § 9-13-74, which provides: “An agreement for a valuable consideration never to enforce a judgment or execution shall release the judgment or execution.” “The use of the word ‘never’ indicates an intent to encompass the entirety of the judgment as applied to everyone against whom it could be enforced. The language of the statute therefore does not address a situation in which a judgment could be enforced jointly or severally against more than one party and the covenant not to enforce involves fewer than all of those parties.” Revis, supra at 368. As in Revis, the instrument under consideration “is not a covenant ‘never’ to enforce the . . . judgment. It specifically provides that the judgment will be enforced as to that amount owed appellants] by appellee. There was no intent to release and discharge appellee by operation of the covenant nor was the amount received from the other defendant] intended to constitute a full satisfaction of the judgment debt so as to release appellee from liability under the judgment.” Id. at 368. The fact that the instrument was not intended as an agreement “never” to enforce the judgment is expressed in the language of the document itself. It contemplates that the full amount of the judgment would be sought from Beaumont in the event she failed to comply with the obligations under the agreement. “[T]he taking of steps by the parties to the covenant before us to avoid the operation of OCGA § 9-13-74, distinguishes] this case from the decision in Weems[, supra].” Revis, supra at 370.

The trial court erred in awarding summary judgment to appellee based on the theories urged.

Judgment reversed.

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

       The distinction between a release and covenant not to sue in the area of torts was obliterated by the decision in Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987). The rule in Posey was recently modified in Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), in which the Court held: “Only those parties named in the release will be discharged by that instrument.” (Emphasis in original.) Id. at 186.


author: Andrews, Judge.

text:
    A92A0129.
    WINN-DIXIE ATLANTA, INC. v. BIANCO.
    (418 SE2d 819)
   Andrews, Judge.

Bianco sued Winn-Dixie Atlanta, Inc. for injuries she sustained when she slipped and fell in a puddle of water as she entered a WinnDixie store. We granted Winn-Dixie’s interlocutory appeal to review the trial court’s denial of Winn-Dixie’s motion for summary judgment.

Decided May 20, 1992.

Fain, Major & Wiley, Gene A. Major, Roger W. Orlando, for appellant.

Kenneth J. Rajotte, for appellee.

It was raining the afternoon Bianco entered the store, and had been raining prior to that time throughout the day. A few feet inside the entrance to the store, Bianco slipped and fell when she stepped in a puddle of water on the floor. She did not see the water until she fell. On rainy days such as the one at issue, the store inspected and mopped dry the entrance way to the store at least every 30 minutes. On the day in question this policy was followed, and the area where Bianco fell had been mopped dry within 20 to 30 minutes prior to the fall.

Bianco knew of the rainy conditions, and it is common knowledge that during rainy weather some water will normally be present where shoppers enter a building. There was no lack of care by Winn-Dixie since the store exercised reasonable care under the conditions to keep the premises safe from any unreasonable risk of harm by frequent periodic inspection and mopping of the floor. On these facts, there is no evidence showing Winn-Dixie had or should have had superior knowledge of a condition or hazard posing an unreasonable risk of harm that was the proximate cause of Bianco’s injury. Accordingly, the trial court erred by denying Winn-Dixie’s motion for summary judgment. Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402) (1988); Hagin v. Winn-Dixie Stores, 180 Ga. App. 303 (348 SE2d 766) (1986); Allen v. Big Star Food Market, 172 Ga. App. 879 (324 SE2d 820) (1984); see also Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986); Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (332 SE2d 304) (1985).

Judgment reversed.

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


text:
    A92A0139.
    CUSTOM LIGHTING & DECORATING, LTD. et al. v. HAMPSHIRE COMPANY.
    (418 SE2d 811)
   Beasley, Judge.

Custom Lighting & Decorating, Ltd., failed to pay for cabinets which it had purchased from The Hampshire Company, resulting in Hampshire’s instituting this suit against Custom Lighting for $12,718.27 on open account.

Custom Lighting, which is without assets, is a closely-held corporation wholly owned by Bill and Linda Edenfield. Through Custom Lighting, Linda Edenfield operated a store which sold housing fixtures but is no longer in business. The trial court granted Hampshire’s motion to add Bill and Linda Edenfield as party defendants, based on allegations that they disregarded the separateness of their personal and business affairs by commingling and confusion of property, and that Custom Lighting had become their alter ego.

The trial court also granted a motion filed by Hampshire to add Custom Homes of North Georgia, Inc., as a party defendant, based on allegations that Custom Homes had disregarded the separateness of its affairs and the affairs of Custom Lighting and the Edenfields, and that Custom Lighting is the alter ego of Custom Homes. It is also a closely-held corporation wholly owned by the Edenfields, through which they engaged in home building.

The Edenfields allege that the cabinets were purchased by Custom Homes from Custom Lighting and installed in a residence in Hall County which, although titled in Linda Edenfield’s name, is a Custom Homes “spec” home. They maintain that Custom Homes paid Custom Lighting for the cabinets by issuance of a $17,268.35 check from Custom Homes to Custom Lighting. The date of this check is prior to the date of Hampshire’s earliest invoice to Custom Lighting for the cabinets, and the payment code in the bottom left-hand corner of the check has been marked through and changed. Hampshire’s invoice shows the amount owed for the cabinets as being $17,249.76, and defendants’ accountant stated that the cabinets were sold by Custom Homes to Custom Lighting for $18,974.74.

The residence was used as the Edenfields’ personal residence. Linda Edenfield testified that the residence was titled in her name because it was acquired before Custom Homes was incorporated. But Custom Homes transferred this residence to Linda Edenfield by deed of gift in 1987, assuming liability on a promissory note with an unpaid balance of $37,730. In 1988, she borrowed $180,000 from First National Bank, securing the indebtedness with a deed to secure debt to this property.

In 1989, four checks totalling $21,046.42 were drawn on Custom Lighting’s checking account in payment of the Edenfields’ personal debts, which included property taxes on the residence, as well as property taxes and mortgage payments on another residence owned by them in DeKalb County. Four checks totalling $3,343.96 were drawn on Custom Homes’ checking account in payment of the Edenfields’ personal debts. Three checks totalling $1,013.94 represented payment by Custom Lighting for Custom Homes’ debts. Defendants’ accountant stated that these were mistaken payments which were reclassified so as to reduce the corporations’ debts to the Edenfields.

Finding no material issue of fact on the question of whether the corporate veil of Custom Lighting should be pierced and the Edenfields held personally liable on the corporate debt, the trial court granted Hampshire’s motion for summary judgment on that issue. The court refused to dismiss Custom Homes as a party defendant, because of defendants’ admission that Custom Homes had an interest in the residence in which the cabinets were installed and because of a material issue of fact as to whether the $17,268.35 check from Custom Lighting to Custom Homes was for payment of the cabinets. The court also discerned material issues of fact as to the amount owed on the account.

1. Defendants argue that in ruling on Hampshire’s motion for summary judgment, the trial court was not authorized to consider the Edenfields’ depositions because they were not “filed with the court” in accordance with OCGA § 9-11-5 (e), and thus they were not “on file” as required by OCGA § 9-11-56 (c).

Section 9-11-5 (e) requires filing of papers with the clerk unless the judge allows filing with him or her, and the judge “shall note thereon the filing date and forthwith transmit them to the office of the clerk.” Section 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing. The supporting evidence must be on file at least 30 days before the hearing also, unless the judge extends the time. Porter Coatings v. Stein Steel & Co., 247 Ga. 631, 632 (278 SE2d 377) (1981). See Barrett v. Wharton, 196 Ga. App. 688 (396 SE2d 603) (1990).

The depositions were filed with the judge, along with a copy of the motion when the motion was filed with the clerk. The judge through oversight failed to transmit them to the clerk’s office. The court has verified that at the hearing on the motion for summary judgment, the parties were aware that the court had considered the depositions, and the court relinquished them to defendants’ attorney with the understanding that they would be filed in the clerk’s office and transmitted to this Court. When counsel failed to do that, the court ordered that the depositions be sent here by supplemental record, as authorized by OCGA § 5-6-41 (f). That was done. There is no reversible error in this regard, and the depositions are considered part of the record.

2. As the trial court ruled, plaintiff was entitled to summary judgment as to whether the Edenfields were personally liable for payment of the debt, as a matter of law. No material issue of fact remained on this issue.

“ ‘Where the courts have disregarded the corporate entity because the corporation is the mere alter ego or business conduit of a person, it has generally been on the idea that the corporate entity has been used as a subterfuge and to observe it would be to work an injustice. “To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” ’ [Cit.]” Sheppard v. Tribble Heating & Air Conditioning, 163 Ga. App. 732, 733 (1) (294 SE2d 572) (1982). See also Hickman v. Hyzer, 261 Ga. 38, 39 (1) (401 SE2d 738) (1991), citing Kaplan.

“ ‘Courts permit “piercing the corporate veil” “in situations where the parties involved have themselves disregarded the separateness of legal entities. . . .” It is obvious that if the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same. “Under such circumstances, the court may disregard the corporate entity.” (Cits.)’ [Cits.]” Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673 (2) (327 SE2d 751) (1985). See Saxton v. Luke, 164 Ga. App. 170 (296 SE2d 751) (1982).

“[E]ach situation must be considered by the court on its own merits and on the factual situations therein involved. In other words, the legal entity of a corporation may be disregarded in a given situation, and, as to that situation may be deemed not to be entitled to corporate privileges and immunities, but as to other activities and transactions, it may retain its identity as a corporation.” Kaplan’s Nadler, Ga. Corps, and Lim. Parts. (1991 ed.), § 3-14, p. 64 (footnote omitted). Accord United States v. Dean Van Lines, 531 F2d 289, 292 (4) (5th Cir. 1976) (recognizing that when a corporation has been liquidated and its assets can be traced into the hands of shareholders, the shareholders may be required to satisfy corporate debts to the extent of the assets they have received).

The undisputed facts show that the cabinets purchased by Custom Lighting were installed in a residence which had been given to the Edenfields by Custom Homes, and that the Edenfields did not devote any of their personally held funds to payment for the cabinets.

Under these facts, the Edenfields have either used Custom Lighting and Custom Homes as mere instrumentalities for their personal acquisition of the cabinets and the residence in which they were installed, or there has become such a unity of interest and ownership that the separate personalities of the corporations and the owners, at least as to the cabinet transactions under review, ceased to exist. In either event, there is no question that the corporate veil has been pierced for this third-party seller who has not been paid. See Hickman v. Hyzer, supra.

3. The court also correctly ruled that there are material issues of fact as to whether Custom Homes paid Custom Lighting for the cabinets.

Decided May 20, 1992.

Hartness, Link & Hardman, William B. Puryear, for appellants.

Burroughs & LeFevre, Catherine T. Crawford, for appellee.

4. Moot are other issues concerning the Edenfields’ incorporation of Custom Homes; their issuance of stock and payment of consideration for it; the holding of shareholders’ and board of directors’ meetings and the keeping of minutes of such meetings; loans by the Edenfields to Custom Homes not authorized by corporate resolutions; payment of monies by Custom Homes to the Edenfields and their daughter; and Custom Homes’ payment of the Edenfields’ personal debts.

Judgment affirmed.

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


text:
    A92A0217.
    ATLANTIC STEEL CREDIT UNION v. SHEPHARD.
    (419 SE2d 132)
   Andrews, Judge.

Atlantic Steel Credit Union (ASCU) sought to foreclose on its security interest in Shephard’s automobile and obtain possession of the vehicle. See OCGA § 44-14-230 et seq. Shephard did not contest the foreclosure. The trial court ruled that ASCU was entitled to the foreclosure and possession of the vehicle, subject to satisfaction of an abandoned motor vehicle lien acquired by Jenkins Towing, Inc. (Jenkins) pursuant to OCGA § 40-11-1 et seq. On appeal, ASCU contends that its right to foreclosure on and possession of the vehicle was not subject to the abandoned motor vehicle lien.

When Shephard was arrested on May 30, 1990, his vehicle was impounded for police inspection and towed and taken into possession by Jenkins under its contract with DeKalb County. OCGA § 40-11-2 (d) required Jenkins “within seven calendar days of the day such motor vehicle was removed, [to] notify the owner and any security interest holder or lienholder, if known, by certified or registered mail of the location of such motor vehicle, the fees connected with removal and storage of such motor vehicle, and the fact that such motor vehicle will be deemed abandoned . . . unless the owner, security interest holder, or lienholder redeems such motor vehicle within 30 days of the day such vehicle was removed.” Having been furnished with Shephard’s name and address on the scene, Jenkins notified Shephard as required, but the identity and interest of ASCU was not disclosed to Jenkins and it received no notice at that time.

After the vehicle remained in Jenkins’ storage facility over 30 days from its impoundment without the owner making a claim to it, it became an abandoned vehicle as defined by OCGA § 40-11-1 (1) (C), and Jenkins was obligated under OCGA § 40-11-2 (e) to give notice of its present location to the Department of Revenue and the Georgia Bureau of Investigation, and request the name and address of all owners, lessors, security interest holders and lienholder of the vehicle. The proper forms were submitted by Jenkins, and on August 10, 1990, Jenkins received the information from the Department of Motor Vehicles that ASCU had a first lien security interest in the vehicle. The same day Jenkins sent certified notice to ASCU pursuant to OCGA § 40-11-2 (f) advising it of the vehicle’s location and that it was deemed to be abandoned and would be disposed of if not redeemed. After ASCU contacted Jenkins to arrange to take possession of the vehicle and learned that towing and storage charges were due, it filed an action to foreclose on its security interest in the vehicle on September 27, 1990, sending a copy of the petition to Jenkins. Shortly thereafter Jenkins filed an affidavit to foreclose its lien for removal and storage costs on the abandoned vehicle pursuant to OCGA § 40-11-5, citing compliance with the notice requirements of OCGA § 40-11-2, and showing that its demand for payment pursuant to OCGA § 40-11-5 (2) had been refused.

ASCU’s application to foreclose was approved by the trial court, but on rehearing Jenkins’ motion for new trial, or to set aside the judgment, was granted on the basis of its lien rights under the Act. The court consolidated both foreclosure petitions for new trial, and ruled that ASCU could obtain possession of the vehicle upon complying with OCGA § 40-11-5 (9) by paying into the registry of the court $1,160 owed to Jenkins for towing and storage. ASCU complied and took possession of the vehicle. Upon retrial, the court reviewed the evidence and also received new evidence of the actions taken by Jenkins in conformity with OCGA § 40-11-1 et seq. On March 12, 1991, the court entered an order ruling that Jenkins was entitled to foreclose its lien under the Act and recover the $1,160 held in the registry of the court, and that, subject to satisfaction of Jenkins’ lien, ASCU was entitled to foreclosure and possession of the vehicle pursuant to its secured interest.

1. ASCU’s contention that the trial court incorrectly found the vehicle to be an abandoned automobile is without merit. The vehicle was lawfully impounded by an arresting police officer who requested that Jenkins tow it, and the vehicle remained on Jenkins’ property in excess of 30 days. OCGA §§ 40-11-1; 40-11-2. Once the requirements of OCGA § 40-11-2 have been complied with, under OCGA § 40-11-4 (a) Jenkins acquired a valid lien for all reasonable fees connected with removal or storage of the abandoned vehicle. See Gearing v. Complete Wrecker Svc., 187 Ga. App. 242 (2) (370 SE2d 9) (1988). There is no evidence that Jenkins failed to take the necessary steps under OCGA § 40-11-1 et seq. to acquire and foreclose on its lien. OCGA § 40-11-5 (9) sets forth the procedure applicable to foreclosure of an abandoned motor vehicle lien where the holder of a security interest in the vehicle asserts its interest. “[T]he holder of a security interest in or a lien on the vehicle, other than the holder of a lien created by Code Section 40-11-4, shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs. If the holder of a security interest or lien does so pay the debt and court costs, he shall have the right to possession of the vehicle, and his security interest in or lien on such vehicle shall be increased by the amount so paid.” OCGA § 40-11-5 (9). The trial court properly ruled that ASCU’s right to possession of the vehicle was subject to payment of Jenkins’ lien.

Decided May 20, 1992.

James B. Drew, Jr., for appellant.

Freed, Lester & Freed, William R. Lester, for appellee.

2. ASCU’s assertion that the trial court erred in consolidating the foreclosure applications because its case was filed first and should have been heard first is not supported by argument or citation of authority and thus must be deemed abandoned under Rule 15 (c) (2) of this court. Roth v. Wu, 199 Ga. App. 665, 666 (405 SE2d 741) (1991).

3. Arguments regarding constitutional issues which were not raised or ruled on below will not be considered on appeal. Grice v. State, 199 Ga. App. 829 (406 SE2d 262) (1991).

Judgment affirmed.

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


text:
    A92A0274.
    CORNELIUS v. FINLEY.
    (418 SE2d 815)
   Andrews, Judge.

This is the second appearance of this landlord/tenant dispute before this court. The first appearance of this case was Cornelius v. Finley, 202 Ga. App. 192 (413 SE2d 491) (1991), in which we affirmed the judgment of $9,100.41 plus court costs in favor of Finley.

This appeal arose after Finley filed a motion for a supersedeas bond, which was granted. No bond was filed and on April 24, 1991, Finley filed post-judgment interrogatories. Cornelius filed no answer to the discovery, but filed a motion for a protective order on June 3, 1991. The trial court denied this motion on June 24, 1991. On August 7, 1991, Finley filed a motion for a citation for contempt against Cornelius, seeking responses to the interrogatories. On August 29, 1991, the trial court entered an order stating that defendant Cornelius had failed to appear for the hearing of the contempt motion and ordering Cornelius to respond to the post-judgment interrogatories within ten days. From this order Cornelius filed a notice of appeal on September 12, 1991 seeking to appeal, among other issues, the decision regarding his interrogatory responses.

At the outset, it is necessary to ascertain whether this case is properly before this court. Pretermitting the issue of whether the fact that the judgment was for less than $10,000 and pretermitting the issue of whether the trial court had jurisdiction to enter the order, we find that the appeal must be dismissed since the direct appeal of this order was improper.

Orders regarding interrogatories which are promulgated during the pendency of a lawsuit generally are not directly appealable; in order to appeal these orders the application procedures outlined in OCGA § 5-6-34 (b) must be followed. Louisville & Nashville R. Co. v. Clark, 114 Ga. App. 755 (152 SE2d 694) (1966); American Express Co. v. Yondorf, 169 Ga. App. 498 (313 SE2d 756) (1984).

In the context of orders under OCGA § 9-11-37 regarding post-judgment discovery pursuant to OCGA § 9-11-69, the law is less clear and we are unable to find any cases which directly address the procedure for appealing these orders. In Barton v. Anthony, 194 Ga. App. 500 (391 SE2d 25) (1990), this court noted “[t]here appears to be a conflict in the decisions of this court regarding whether post-judgment discovery orders are directly appealable pursuant to OCGA § 5-6-34. See Custom Form Mfg. Co. v. Miller, 157 Ga. App. 410 (278 SE2d 69) (1981); Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984); Miller v. U. S. Shelter Corp., 179 Ga. App. 469 (347 SE2d 251) (1986).” See also Chambers v. McDonald, 161 Ga. App. 380 (288 SE2d 641) (1982).

OCGA § 5-6-34 (a) outlines the judgments and rulings from which an appeal may be directly taken and OCGA § 5-6-34 (b) outlines the procedure for matters which are not otherwise subject to direct appeal. We do not read any provision under OCGA § 5-6-34 (a) as authorizing a direct appeal in the instant situation. The order Cornelius seeks to appeal is not directly appealable, because it is not final in the sense of being dispositive of the case, as contemplated by OCGA § 5-6-34 (a) (1). The trial court did not find Cornelius in contempt of court, as requested by Finley’s motion, see, e.g., Ostroff v. Coyner, 187 Ga. App. 109 (6) (369 SE2d 298) (1988); Payne v. Presley, 169 Ga. App. 36, 37 (311 SE2d 849) (1983), but simply ordered him to respond to the discovery within ten days. Depending on Cornelius’ response to the finite period mandated in the order, the order may, or may not, be the last order entered in the case. Compare Mil lholland v. Oglesby, 223 Ga. 230 (154 SE2d 194) (1967). From the record before us, it appears that the disputed discovery remains unanswered, and therefore, matters remain pending in the case. The mere fact of the order’s chronological placement in the case does not convert it into one which may be appealed directly. Compare Robinson v. Robinson, 174 Ga. App. 656 (331 SE2d 8) (1985). Because the trial court’s order is not final, it is therefore appealable only by compliance with OCGA § 5-6-34 (b).

Decided May 20, 1992.

James Cornelius, pro se.

Rich, Bass, Kidd & Witcher, Merck K. Smith, for appellee.

Cornelius appears to argue that the enumerations he sets forth in this appeal should be consolidated with his previous appeal. OCGA § 5-6-34 (d) states that where an appeal is taken, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.” (Emphasis supplied.) The most obvious reason to reject Cornelius’ argument to consolidate is that the matters enumerated as error in this appeal were set forth months after the errors enumerated in Cornelius, 202 Ga. App. 192, supra, and were not raised in any manner in that appeal. In fact, our decision in Cornelius, supra, was decided one month before Cornelius filed his enumerations of error in this case. Cornelius’ contention that this appeal should be combined with his earlier one is erroneous.

Appeal dismissed.

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