author: Pope, Presiding Judge. Blackburn, Judge, Beasley, Chief Judge,

text:
    A94A1945.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. DRAWDY et al.
    (456 SE2d 745)
   Pope, Presiding Judge.

State Farm filed this declaratory judgment action seeking a determination that it is not liable for damages resulting from a January 1, 1990, collision between vehicles driven by Robert Drawdy and Doris Steedley. State Farm, the insurer of the truck driven by Robert Drawdy, moved for summary judgment, but its motion was denied. We granted State Farm’s application for interlocutory review of the denial of summary judgment, and now reverse.

Robert’s grandfather, Grover Drawdy, purchased a truck from McKinna Auto Sales and gave McKinna a check post-dated January 2, 1990. Grover took possession of the truck on December 30, 1989, when he had a State Farm policy of liability insurance on his automobile. A former McKinna employee testified by affidavit that, before allowing Grover to take possession of the truck, he contacted a State Farm agent who orally bound coverage on the truck under Grover’s existing automobile policy. On January 2, 1990, Grover applied for and was issued a new policy on the truck.

The policies on both the old automobile and the new truck required the insured to give State Farm written notice of an “accident or loss” as soon as reasonably practicable as a condition of recovering under the policy. Although Robert told Grover about his accident with Steedley on January 2, 1990, Grover failed to notify State Farm; State Farm did not receive notice of the accident until September 27, 1990, when it was contacted by Steedley’s attorney.

At the time of the collision, Steedley had uninsured motorist coverage in the amount of $15,000 per person under an Allstate automobile liability insurance policy.

1. State Farm first argues that the trial court should have granted its motion for summary judgment because the collision occurred before the effective date of the policy issued on the truck. However, an issue of fact remains regarding whether State Farm orally bound coverage of the truck under Drawdy’s automobile liability insurance policy. State Farm’s argument that the McKinna employee’s testimony as to out-of-court statements made by the State Farm agent constitutes inadmissible hearsay succumbs to the verbal act exception to the hearsay rule. See 2 McCormick on Evidence, p. 101, § 249 (4th ed. 1992). Therefore, the trial court properly denied State Farm’s motion for summary judgment on this ground.

2. State Farm also contends summary judgment should have been granted based on the policy provision excluding coverage for lack of notice by the insured, which was rendered enforceable against Steedley by her access to uninsured motorist coverage. We agree.

“By mandating that all motor vehicle owners have at least $15,000 in liability insurance coverage, the Legislature established the public policy that innocent persons who are injured in accidents involving motor vehicles should be able to recover at least $15,000 of their damages. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (1, 2) (329 SE2d 136) (1985); OCGA § 33-34-1 et seq.” Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614 (1) (440 SE2d 242) (1994). Based on this public policy of ensuring some recovery for injured third parties, we have held that a lack-of-notice exclusion generally is not enforceable against a third party injured by an insured who fails to notify his insurer. Ginn v. State Farm &c. Ins. Co., 196 Ga. App. 640 (396 SE2d 582) (1990); see also Neese, 254 Ga. at 241.

In Neese, the Supreme Court held that a provision in an insurance policy excluding coverage for damages caused while an insured was attempting to avoid arrest was unenforceable against a third party as a matter of public policy. In doing so, it stated that the public’s interests in the case were threefold: “(1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.” Id. at 341. Giving great weight to the public policy that innocent persons injured in vehicle accidents should have access to some insurance funds, the Court invalidated the exclusion at issue. The Supreme Court in Neese nonetheless recognized that the public’s interests in keeping premium costs down and improving safety on the highways would be fostered by enforcing the exclusion, and explicitly stated that the balancing of interests might produce a different conclusion if the innocent third party had access to other insurance: “We leave to a proper case the question of whether the existence of uninsured motorist coverage would affect the outcome in such a case.” Id. at 341, n. 13.

Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989), presented just such a case. In Progressive Preferred, which involved an unlicensed driver exclusion, we considered the competing interests discussed in Neese and held that the exclusion should be enforced as written where the injured third party had access to other insurance funds through uninsured motorist coverage. And in Auto-Owners we followed Progressive Preferred and held that an exclusion for damage intentionally caused by the insured is enforceable against a third party if the third party has access to uninsured motorist coverage. See 211 Ga. App. at 613.

The dissenters suggest that Auto-Owners and Progressive Preferred were implicitly disapproved by language in Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 238 (392 SE2d 3) (1990) stating that “[t]he policy behind uninsured motorist coverage is to protect the insured’s assets, not the public.” Starnes did not even involve the enforceability of a contractual exclusion in an insurance policy, though it did present the analogous question of the continued viability of the “rule of election” in light of OCGA § 33-34-1 et seq. (the Georgia Motor Vehicle Accident Reparations Act): Given the public policy that innocent persons injured in a vehicular accident should be able to recover at least $15,000 of their damages, should an “additional insured” (in Starnes, a vehicle operator who is not a named insured but is driving the named insured’s vehicle with his permission) be able to choose not to rely on the car owner’s insurance? Rejecting the insurer’s argument that the additional insured and the insurer would be forced into a contractual relationship neither desires, the Court con-eluded that the “rule of election” must bow to the public policy of allowing recovery to third persons. However, the Court noted that the “rule of election” could continue if the additional insured has access to an alternative source of liability coverage, as the rule would not conflict with public policy in that circumstance. See 260 Ga. at 237. This holding, of course, is fully consistent with Auto-Owners and Progressive Preferred.

It is further notable that in Starnes there was no evidence that the innocent third party had uninsured motorist coverage. Rather, the insurer had argued that it was never necessary for the additional insured to be covered to protect third parties “because state law requires uninsured motorist coverage.” As the Court noted, however, the basic premise of this argument was simply incorrect, since insureds can choose not to have uninsured motorist coverage. 260 Ga. at 238.

Under the Neese analysis, the relevant question is whether the public policy of ensuring some recovery for the third party is satisfied by the third party’s access to a recovery through uninsured motorist coverage. We answer that question here in the positive. And because the policy of ensuring some recovery is satisfied, the public’s interests in low premiums and safe highways prevail in the Neese balancing process, resulting in a decision to enforce the exclusion. A consideration of the purpose of uninsured motorist coverage and whether the primary purposes of liability and uninsured motorist coverage are the same plays no role in this analysis. Accordingly, the language in Starnes about the purpose of uninsured motorist coverage is irrelevant.

Judgment reversed.

Birdsong, P. J., Andrews, Johnson, and Smith, JJ., concur. Beasley, C. J., Blackburn and Ruffin, JJ., dissent. McMurray, P. J., disqualified.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Division 1 and concur in part with the judgment of the majority. I agree with the majority that Neese and Starnes require that State Farm’s motion for summary judgment be granted, as to the limitation of its liability under the policy, but only as to the amount of coverage required by law, notwithstanding that its insurance contract provides coverage amounts above such limit. To the extent that the insurance contract provides additional coverage, State Farm can properly assert its exclusion and deny coverage beyond that amount. However, I agree with Judge Beasley that, the exclusion based upon the condition precedent of notice of the accident to State Farm by its insured contained in the insurance contract is unenforceable as against public policy to the extent of the liability insurance required by law (presently $15,000).

“Prior to 1963, liability insurance was purchased in Georgia for the benefit and protection of the insured and his or her assets.” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 337 (329 SE2d 136) (1985). In 1963, the Georgia legislature adopted an uninsured motorist act which required uninsured motorist coverage to be offered, but its purchase was not required. See OCGA § 33-7-11. “As with liability insurance, uninsured motorist protection was for the benefit of the insured, not the driver of a vehicle struck by the insured.” Id. However, upon the adoption of the 1974 Motor Vehicle Accident Reparations (no-fault) Act, “liability insurance was required by law not only for the benefit of the insured but to ensure compensation for innocent victims of negligent motorists.” (Emphasis supplied.) Id. at 337.

In Neese, the Supreme Court determined that an exclusion in a policy of automobile insurance, which excluded liability coverage while an insured “attempted] to avoid apprehension or arrest,” was unenforceable as a matter of public policy in view of Georgia’s compulsory insurance law, but only to the extent of insurance coverage required by law. Id. at 341-342. In construing the insurance contract before it, the Supreme Court “noted two aids to construction: (1) An insurance contract is to be construed against the insurer which drafted it, and (2) the advent of compulsory motor vehicle liability insurance in this state established the public policy that ‘innocent persons who are injured should have an adequate recourse for the recovery of their damages.’ [Cit.]” Id. at 338. The Court determined in that case, that the public’s identifiable interests were at least threefold: “(1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.” Id. at 341.

In Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864, 865 (389 SE2d 370), cert. denied, 193 Ga. App. 911 (1989), this court applied the analysis of Neese, supra, and determined that an unlicensed driver exclusion was enforceable against its insured when the victim had access to uninsured motorist coverage, as it provided adequate recourse for the recovery of her damages. The court noted that the public policy interest in enforcement of the unlicensed driver exclusion was very strong. Id. In Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 615 (440 SE2d 242) (1994), cert. not applied for, we followed the analysis of Travelers, supra, and Neese, supra, to determine that an exclusion in an automobile liability policy, which excluded coverage for intentionally caused bodily injury or property damage, was enforceable between the insurer and its insured, “[i]f the injured third party has or had access to a recovery through uninsured motorist coverage under another policy.”

In the year following our holding in Travelers, supra, our Supreme Court was presented with an analogous issue in Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 237 (392 SE2d 3) (1990), in which they held that public policy was “no longer merely concerned with the right of an individual to elect whether to seek the benefits of an insurance policy. Instead, it is also concerned with providing adequate resources with which to compensate victims of automobile accidents, a new class of beneficiaries to automobile liability insurance contracts.” (Emphasis supplied.)

The issue presented was whether an “additional insured” under the automobile owner’s compulsory liability insurance policy had the right to decline coverage under the traditional “rule of election.” The liability insurance company argued that there was no need for, its “additional insured” to have liability insurance because state law required uninsured motorist coverage. Id. at 238. However, the Supreme Court rejected this argument stating “1) State law does not require a motorist to purchase uninsured motorist coverage, OCGA § 33-7-11 (a) (3); and 2) The policy behind uninsured motorist coverage is to protect the insured’s assets, not the public. [Cit.]” Starnes, 260 Ga. at 238.

In the present case, the insurance contract required written notice of an “accident or loss” as soon as practicable as a condition precedent to any action. State Farm argues that it should be allowed to exclude coverage pursuant to Drawdy’s failure to notify it of the loss for some eight months.

In Ginn v. State Farm &c. Ins. Co., 196 Ga. App. 640, 642 (396 SE2d 582) (1990), we determined that “[concerning third parties, lack of notice of accident is not a viable defense available to an insurer, and considerations of excusable delay or prejudice are immaterial.” Pursuant to Ginn, State Farm’s condition precedent to suit is unenforceable. However, State Farm argues that as uninsured motorists benefits are available to the victim, the public policy considerations of providing recourse to victims is no longer present because the victim can obtain relief through its uninsured motorist carrier, and it should be able to rely on its notice requirement as a bar to coverage. I cannot agree.

The public policy behind compulsory liability insurance was for the protection of victims. See 1974 Motor Vehicle Accident Reparations Act. The public policy behind uninsured motorist coverage was for the protection of the insured’s assets. See Starnes, supra at 238. The rationale of Travelers, supra, and Jackson, supra, is inconsistent with public policy as determined by our Supreme Court. To permit the defendant’s liability carrier to benefit from premiums paid by the plaintiff (the uninsured motorist insured) protects the assets of the liability carrier, not those of the insured, in contravention of stated public policy.

The public policy that “liability insurance was required . . . to ensure compensation for innocent victims of negligent motorists,” Neese, supra at 337, does not relate to the presence or absence of uninsured motorist coverage, but rests on its own bottom. The allowance of the subject exclusion where there is uninsured motorist coverage eviscerates the public policy as the innocent victim is not then compensated by liability insurance, but rather by uninsured motorist insurance paid for by said victim. Such an allowance also violates well settled principles of collateral sources.

In Travelers, supra, this court implies that the enforcement of the “unlicensed driver exclusion” improves safety on the highway (presumably because fewer unlicensed persons would be driving because they are not insured). There is no factual basis for this conclusion, and indeed if it were true, then we should permit “driving under the influence exclusions” as a means to reduce drunk driving. If the logic of Travelers, supra, is correct, we could accomplish this by the simple expedient of having victims compensated by their own uninsured motorist carrier rather than by the drunk driver’s liability carrier.

This court also based its opinion in Travelers, supra, on the assumption that the insurer’s risks would be limited and therefor premiums would be kept as low as possible. Where we are simply shifting the risk of loss from the liability carrier to the uninsured motorist carrier, any reduction in liability premiums (paid by the tortfeasor) would be reflected in increases in the uninsured motorist insurance premiums (paid by the victim).

The last reason cited by this court for its ruling in Travelers, supra, related to the access to insurance funds by accident victims to satisfy their judgments. It is true that where there is uninsured motorist coverage available, there should be insurance funds available for accident victims. This is true, however, whether or not there is uninsured motorist insurance involved, and whether or not the exclusion herein involved is enforceable. It ignores the fact that public policy provides that victims should be compensated primarily by liability insurance and that uninsured motorist coverage was intended to be secondary or backup coverage. It also ignores the shift in premium costs from the tortfeasors to the victims.

While this court relied upon the above factors referred to in Neese, supra, it is important to note that said case did not involve the issue of uninsured motorist coverage and our Supreme Court specifically stated therein that it would wait for a proper case to determine whether the existence of uninsured motorist coverage would affect the result in such a case.

To the extent that Travelers, supra, and Jackson, supra, relied solely on the existence of uninsured motorist coverage to find the exclusions therein enforceable, I would overrule them.

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

Beasley, Chief Judge,

dissenting.

The majority holds that State Farm is entitled to a judicial declaration that it is not liable for damages resulting from the January 1, 1990, collision. I concur in Division 1 and dissent to the extent set out herein, with respect to Division 2.

First, as it relates to the facts here involved, it is implied but not stated that Steedley filed an action against Robert Drawdy seeking a recovery for personal injuries and property damage.

State Farm moved for summary judgment on three grounds: the collision occurred before the effective date of the policy issued on the truck, and Steedley’s access to $15,000 in uninsured motorist coverage renders its defense based upon lack of notice by Drawdy under both the auto and truck policies fully effectual. State Farm sought partial summary judgment as an alternative. It urged that, due to the lack of notice, it would not be liable for any amount exceeding $15,000, which represents the single person liability limit under Georgia’s compulsory automobile insurance law.

In resolving the question of whether Steedley’s access to $15,000 in uninsured motorist coverage renders State Farm’s defense based upon lack of notice fully effectual, we must first determine whether the public policy underlying our compulsory automobile liability insurance law renders that defense unenforceable in an action by a third party against the insured.

That question was answered in the affirmative in Ginn v. State Farm &c. Ins. Co., 196 Ga. App. 640 (396 SE2d 582) (1990). The reason is the protection of the interest of accident victims in having access to insurance funds to satisfy their judgments. See Young v. Allstate Ins. Co., 248 Ga. 350, 352 (282 SE2d 115) (1981); see generally Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 340-341 (1) (329 SE2d 136) (1985), which identified three public interests to be balanced: (1) that of insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) that of members of the public in general to improve safety on the highways; and (3) that of accident victims, to have access to insurance funds to satisfy their judgments.

We must next determine whether the victim’s access to uninsured motorist coverage rejuvenates an otherwise unenforceable defense by the defendant’s liability insurer.

Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614 (1) (440 SE2d 242) (1994), and Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989), support State Farm’s argument that public policy does not mandate that the defendant have liability insurance where the victim has access to uninsured motorist coverage. See also Neese, supra at 341. These cases involve the enforceability of exclusionary clauses in automobile liability insurance policies in actions by third parties against the insureds.

In Neese, the victim had no automobile insurance and thus no uninsured motorist coverage. 254 Ga. at 341. The Court noted that even if he had had liability insurance, under our law he could have chosen not to purchase uninsured motorist protection. In footnote 13, the Court then stated, “We leave to a proper case the question of whether the existence of uninsured motorist coverage would affect the outcome in such a case.” Progressive Preferred and Auto-Owners were such cases. There we held that the victims’ access to a recovery through uninsured motorist coverage validates an otherwise unenforceable exclusion in the liability insurance policy of the party who caused the accident. However, in Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 238 (392 SE2d 3) (1990), which postdated Progressive Preferred but predated Auto-Owners, the Supreme Court rejected the argument that uninsured motorist coverage averts the victim’s need for the defendant to have liability insurance, stating that a motorist is not required to purchase such coverage and that the policy behind uninsured motorist coverage is to protect the insured’s assets and not the public.

Under Starnes, the trial court correctly denied State Farm’s motion for summary judgment on its second ground. To the extent that they are inconsistent with Starnes, Progressive Preferred and Auto-Owners should no longer be followed.

Decided March 31, 1995.

Dillard, Bower & East, Bryant H. Bower, Jr., Robert W. Lamb, for appellant.

Robert T. Drawdy, pro se.

Nonetheless, Neese, supra at 341-342 (2), and Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (1) (390 SE2d 419) (1990), aff'd on other grounds, Cotton States Mut. Ins. Co. v. Starnes, supra, continue to support State Farm’s argument that its defense based on lack of notice by its insured is unenforceable as against public policy only to the extent of the $15,000 mandatory liability coverage provided by the policy. This issue was not addressed in Ginn, supra. It was error to deny State Farm’s motion for partial summary judgment.

The judgment of the trial court should be affirmed in part and reversed in part.

       The Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., requires that bodily injury liability insurance be purchased in, at least, the amount of $15,000 per person in any one accident and $30,000 for two or more persons in any one accident, for the operation of any motor vehicle registered in Georgia. See also OCGA § 40-9-37 (a).

       To the extent more coverage than that required by the law was available, the exclusion was enforceable. Id.

       The present case does not implicate OCGA § 33-7-15 as State Farm received notice of the complaint.

       “A motor vehicle is uninsured if there is no liability insurance on it, or if the insurer of such vehicle legally denies coverage.” Neese, 254 Ga. at 337.

       Compare Protective Ins. Co. v. Johnson, 256 Ga. 713 (1) (352 SE2d 760) (1987), and Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1 (354 SE2d 644) (1987), involving the enforceability of notice defenses in actions by the insureds against their insurers.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A2087.
    BROWN v. BROWN.
    (457 SE2d 215)
   Blackburn, Judge.

Upon our grant of her application for discretionary appeal, Alma Shirley Brown appeals the trial court’s denial of her motion to set aside the judgment rendered after a bench trial in the underlying divorce action.

Brown was served with her husband’s complaint for divorce on November 21, 1991. On December 27, 1991, Brown’s letter “responding to the summons from [her husband], civil action no. 91-10503-6” was filed with the clerk of the DeKalb Superior Court. The index to the record on appeal refers to Brown’s writing as the “answer.”

Plaintiff initiated an ex parte communication with the trial judge’s law clerk and they determined that the letter was insufficient as an answer. Brown was not given an opportunity to be heard in this connection, nor was she advised of the determination. Without prior notice to Brown, the trial court then granted plaintiff’s petition for divorce, pursuant to his oral motion for judgment on the pleadings based upon the insufficiency of defendant’s answer. The record does not reflect that the trial was ever published on a calendar, or that Brown otherwise received notice of the proceeding. This appeal followed the trial court’s denial of Brown’s motion to set aside the subject judgment.

Plaintiff contends that as Brown’s letter was insufficient as an answer pursuant to OCGA § 9-11-8 and created no issue, Whitby v. Maloy, 145 Ga. App. 785 (245 SE2d 5) (1978), she was not entitled to notice of the hearing pursuant to OCGA § 9-11-5. Our Supreme Court has held that OCGA § 9-11-5 applies to divorce actions, and where a party fails to file defensive pleadings in a divorce action, such party waives all notices, including notices of the time and place of trial. See Gibson v. Gibson, 234 Ga. 528 (216 SE2d 824) (1975); Wallace v. Wallace, 229 Ga. 607 (1) (193 SE2d 832) (1972). The waiver contemplated by OCGA § 9-11-5, does not, however, include waiver of notice of a challenge to the sufficiency of defendant’s answer where one has been timely filed.

The avenues for relief from an insufficient answer were many: Plaintiff could have filed a motion to dismiss the answer as insufficient. See Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383 (203 SE2d 290) (1973); OCGA § 9-11-41. Plaintiff could have filed an exception or objection to treatment of the letter as an answer. See Snooks v. Factory Square, 129 Ga. App. 772 (201 SE2d 168) (1973). Plaintiff could have filed a motion to strike Brown’s answer as insufficient. See OCGA § 9-11-12 (f). Each of these motions would have been required to have been in writing with a copy thereof served on the opposing party, who would have had an opportunity to respond. OCGA § 9-11-7 (b) (1).

While plaintiff did make an oral motion for judgment on the pleadings, such motion was also required to be in writing, with notice thereof served on defendant. See OCGA § 9-11-7. As this was not done, defendant was denied her opportunity to respond to plaintiffs motion. Once an answer has been timely filed, it cannot be disposed of in an ex parte proceeding without notice thereof to the defendant. Whether or not Brown’s filing was sufficient as an answer is not the issue before us, and nothing herein should be construed as a comment thereon.

The lack of notice to Brown of the oral motion challenging the sufficiency of Brown’s answer or of the scheduling of the final hearing date is of great importance in this divorce action, as an answer, or amendment thereto could have been filed, without payment of costs, at any time prior to judgment or defendant could have appeared and defended the action even if no answer had been filed. Newton v. Newton, 226 Ga. 440, 441 (175 SE2d 543) (1970); Hardwick v. Hardwick, 245 Ga. 570 (266 SE2d 184) (1980); OCGA § 9-11-5 (a). The fact that the subject answer was not filed within 30 days of service of the complaint upon Brown in this divorce action is of no consequence as no judgment was taken prior to the time that the answer was filed. Hill v. Hill, 234 Ga. 836 (218 SE2d 619) (1975).

At the time of the granting of the final decree, Brown’s answer was properly before the court, inasmuch as she had received no notice to the challenge thereto and had been denied an opportunity to be heard thereon or the opportunity to amend her answer to satisfy any legal deficiency prior to the trial court’s determination that it was not sufficient to constitute an answer. The failure to provide Brown with these notices renders invalid the subsequent determination of the insufficiency of the answer. Therefore, Brown was entitled to notice of the time and date of the trial held on plaintiff’s complaint, OCGA § 9-11-40, and failure to receive such notice requires the grant of Brown’s motion to set aside the judgment. Beach’s Constr. Co. v. Moss, 168 Ga. App. 462 (1) (309 SE2d 382) (1983). The court erred in failing to grant Brown’s motion to set aside the judgment under the facts of this case. The issues herein involved could have been avoided by the simple expedient of publishing the trial calendar in the legal organ of the subject county, which publication would have satisfied the notice requirements of OCGA § 9-11-40. Carson v. Morris, 164 Ga. App. 732 (297 SE2d 513) (1982). The case could then have been properly heard and resolved, whether or not defendant filed an answer or appeared.

Decided March 31, 1995.

H & M Johnson & Associates, Mereda D. Johnson, Edward D. Jones, for appellant.

Mason & Associates, Ronald G. Mason, for appellee.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


author: Beasley, Chief Judge.

text:
    A95A0374.
    WATSON v. WATSON.
    (457 SE2d 217)
   Beasley, Chief Judge.

This is the second appearance of this family before us. See In the Interest of W. W. W., 213 Ga. App. 732, 733 (1) (445 SE2d 832) (1994).

The parties in this current case, which involves a girl now age twelve and a boy now age thirteen, are the divorced parents of three minor children. The mother was awarded custody of the children in the parties’ 1985 divorce decree. In 1987, the father filed a custody modification action in superior court. The matter was referred to juvenile court, which continued custody of all three children in the mother. In November 1988, the superior court entered a final order adopting the juvenile court’s decision.

After the father sought and was awarded modification of child support in superior court, the father instituted a deprivation proceeding in juvenile court in February 1992, concerning one of the children; the mother cross-petitioned, alleging that all three children (who were in her custody), were deprived. Extensive investigation was undertaken by the court, including psychological evaluation and supervision by a specially appointed guardian ad litem, and lengthy adjudicatory and dispositional proceedings were held. The juvenile court awarded the father custody of the two subject older children by temporary order in March 1993 and by permanent order in August. The children were physically transferred to him. However, the juvenile court lacked subject matter jurisdiction because the action was in essence a custody dispute between parents. As such, it must first be filed in superior court and then, if the court’s wisdom so dictates, it may be transferred to the juvenile court pursuant to OCGA § 15-11-5 (c). The juvenile court, on the other hand, has exclusive jurisdiction over deprivation proceedings. OCGA § 15-11-5 (a) (1) (C). See Lewis v. Winzenreid, 263 Ga. 459 (435 SE2d 602) (1993). This court vacated the juvenile court’s decision on the jurisdictional ground in an unpublished opinion in April 1994.

The father immediately filed the present modification action in superior court, seeking temporary and permanent custody of the two older children based on change of condition. Following a hearing the next week, requested by the father for an emergency temporary custody order, the court made the juvenile court’s custody award in the deprivation proceeding its temporary custody order, leaving the two children with the father. Later, on May 13, after the parties briefed the issue, it exercised discretion and transferred the custody modification action to juvenile court for hearing and determination of all issues. The court also continued custody in the father, with visitation in the mother until further order of the juvenile court.

Six weeks later, on June 30, this court vacated its order vacating the decision of the juvenile court in the mischaracterized proceeding. The court substituted a published opinion in which it continued to hold that the juvenile court did not have subject matter jurisdiction. In the Interest of W. W. W., supra. In dicta, the court wrote that even if it had jurisdiction, the award was without evidence and constituted an abuse of discretion. Id. at 735 (3).

1. In reliance thereon, the mother moved the superior court to modify or vacate its April order awarding the father temporary custody of the two older children in accordance with the terms of the juvenile court decision, which the superior court refused to do on the ground the case had been transferred to juvenile court. We granted the mother’s application for discretionary appeal. Although the father states in his brief that the boy is now in the custody of the mother by agreement, that is not a matter of record and we cannot consider the issue moot as to him. See Colevins v. Federated Department Stores, 213 Ga. App. 49, 51 (2) (443 SE2d 871) (1994).

The mother contends that the superior court abused its discretion in August in refusing to modify or vacate its May order awarding temporary child custody to the father, because it was based on the juvenile court order which was itself reversed for lack of jurisdiction. At the time the mother moved the superior court to modify or vacate its order, the superior court had properly transferred this custody modification action to juvenile court. The superior court committed no error in declining to modify or vacate its temporary custody order on the ground that jurisdiction of this case is now in juvenile court.

Decided April 3, 1995.

John W. Greer III, for appellant.

Rubin, Winter, Rapoport & Hall, Joseph M. Winter, for appellee.

2. The issue raised in the mother’s second enumeration is moot.

The question of custody has now been pending for too long, no doubt resulting in harm to these two vulnerable children by its very inconclusiveness while their rightful custody remains a matter of suspense. It is their best interests which are at stake, not that of their parents. The juvenile court, to which a copy of this opinion shall be sent, should conclude the matter as expeditiously as practicable.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Pope, Presiding Judge.

text:
    A95A0219.
    CITY OF ATLANTA v. GRIER et al.
    (456 SE2d 751)
   Pope, Presiding Judge.

Rodney Grier, a City policeman accused by his sergeant of intentionally and unnecessarily kicking a suspect, was disciplined by the City for using unreasonable force. After a hearing, the Civil Service Board concluded that Officer Grier had not used unreasonable force and overturned the disciplinary action. The superior court affirmed the Board’s order, explicitly finding that it was supported by substantial evidence. See Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985). We granted the City’s application for discretionary appeal and now affirm.

Three officers testified at the hearing: Officer Grier; his sergeant, Sergeant Dukes; and a third officer at the scene when the incident occurred, Officer Moore. All agreed that the suspect was highly intoxicated and extremely violent. The suspect was also verbally abusive, repeatedly calling Officer Grier “nigger.” Before having his hands and ankles cuffed, the suspect had escaped and been recaptured, and had kicked out the window of one of the patrol cars. Even after being cuffed, the suspect refused to be subdued; when Officer Grier walked within five feet of him, the suspect lunged at Grier, falling into the officer and biting his pants leg.

At this point the stories of Officer Grier and Sergeant Dukes diverge. Officer Grier says that he stumbled, turned and tried to shake his leg loose from the suspect’s teeth, and that he inadvertently kicked the suspect in the process. Sergeant Dukes, on the other hand, says that Grier never lost his balance and that the suspect had already stopped biting Grier’s pants leg when Grier turned around, looked at the suspect for a moment and deliberately kicked him in the face. Officer Moore’s view was somewhat limited (as was Sergeant Dukes’), but he agreed with Officer Grier that Grier lost his balance and stumbled before he made a kicking motion.

Decided April 4, 1995.

Overtis H. Brantley, Elizabeth B. Taylor, for appellant.

Jonathan 0. Oden, for appellees.

Officer Grier’s testimony, corroborated in part by that of Officer Moore, is substantial evidence supporting the Board’s conclusion that Officer Grier did not use unnecessary force. Contrary to the City’s suggestion, Officer Grier’s personal interest in the case does not mean his testimony cannot constitute substantial evidence as a matter of law; his interest is simply a factor to be considered in evaluating the evidence. Cf. OCGA § 24-4-4. Accordingly, the superior court properly affirmed the ruling of the Board. See OCGA § 5-4-12 (b).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0233.
    HENDERSON v. KROGER COMPANY.
    (456 SE2d 752)
   Pope, Presiding Judge.

Plaintiff Henderson brought suit against the Kroger Company for injuries sustained when she was pushed by an unidentified shoplifter exiting defendant’s grocery store. The trial court granted summary judgment to Kroger, and this appeal followed.

Construed in the light most favorable to plaintiff, the evidence shows that plaintiff had completed her shopping and was beginning to leave the store at the same time a shoplifter was in the meat department attempting to steal a package of meat. A Kroger employee observed the theft and called the words “Code Red” over the public intercom. This was a signal to Kroger employees that someone in the store was shoplifting. Apparently the shoplifter knew this security code and began to run toward an exit. In response to the signal, the manager came out of a back room of the store, turned a corner and noticed the shoplifter running toward the exit. The manager and other store employees chased the shoplifter. Plaintiff and the shoplifter reached the exit door simultaneously, and the shoplifter knocked plaintiff into the door-frame, injuring plaintiff’s shoulder.

A property owner “can only be held negligent [for the negligence of another] if the facts are such that it should have foreseen and guarded [plaintiff] against the negligence of another.” Eckerd-Walton, Inc. v. Adams, 126 Ga. App. 210, 213 (190 SE2d 490) (1972). Although plaintiff asserts her injuries were foreseeable due to 47 prior shopliftings at the store, plaintiff failed to demonstrate that any of the prior shoplifting incidents involved customers injured by fleeing shoplifters or store employees attempting to apprehend them. Accordingly, it was not foreseeable that the shoplifter would accidentally run into plaintiff, and Kroger was not negligent in failing to prevent plaintiff’s injuries. See Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994), aff’d 265 Ga. 235 (_SE2d_) (1995).

Decided April 4, 1995.

Harris Lewis, Laura A. Marcantonio, for appellant.

Brannen, Searcy & Smith, Robert L. Jenkins, for appellee.

Moreover, even if Kroger were negligent in failing to prevent the shoplifter from running out of the store, its negligence would not have been the proximate cause of plaintiff’s injuries because of the unforeseeable intervening act of the shoplifter. See McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0735.
    MORRISON v. GEORGIA NORTHEASTERN RAILROAD COMPANY, INC.
    (456 SE2d 731)
   Blackburn, Judge.

Appellant/defendant, John Morrison, appeals the order of the trial court denying his motion for new trial arising out of a suit against him brought by appellee/plaintiff, Georgia Northeastern Railroad Company, Inc. (Northeastern).

1. In his first enumeration of error Morrison claims that the trial court erred in that its verdict was contrary to law, the evidence and principles of justice and equity. “ ‘A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. (Cit.)’ Ricketson v. Fox, 247 Ga. 162, 163 (274 SE2d 556) (1981). The same principle applies for findings made by the court sitting without a jury. See Carter v. State, 77 Ga. App. 60 (3) (47 SE2d 815) (1948).” St. Amour v. Roberts, 170 Ga. App. 717, 718 (318 SE2d 313) (1984).

The record reflects that Northeastern brought the underlying action to end a trespass resulting from a fence line erected by Morrison on its right-of-way. At a bench trial in which Morrison appeared pro se, Northeastern traced its title to the right-of-way to an 1885 deed by which Montgomery Morrison conveyed “the present road bed . . . together with all dirt or earth along said road bed that is necessary to be used in keeping said road bed in repair” across the subject land to the Marietta and North Georgia Rail Road Company, Northeastern’s original predecessor in title. Plaintiff’s evidence at trial also included the testimony of four witnesses, an 80-year-old “rail Eval map,” and documents establishing the chain of title and of the right-of-way of 100 feet, extending 50 feet to the left and right of the railway center line; that Morrison’s fence encroached the same to within 20 feet of the center line; and, that the fence, having been erected in the period from 1979 to 1983, had not existed for more than 20 years.

Further, although Morrison answered Northeastern’s complaint, he failed to respond to Northeastern’s request for admission of the fact that defendant had erected a fence upon the plaintiff’s right-of-way. By operation of law, defendant has admitted encroachment upon plaintiff’s right-of-way. OCGA § 9-11-36 (a) (2). Finally, while Morrison presented some new evidence at the hearing on his motion for new trial, such evidence was readily available but not submitted by defendant at the time of trial. Much of defendant’s evidence duplicated plaintiff’s and there was nothing that refuted plaintiff’s proof. While movant does not show why the evidence introduced by him at the motion for new trial was not introduced at the initial hearing, its admission originally would not have required a different result.

The evidence, when viewed in a light to support the court’s ruling, is sufficient to support the findings and judgment of the trial court.

2. In view of our disposition of Division 1, we do not reach Morrison’s remaining claims of error which challenge the sufficiency of the evidence to support the judgment of the trial court which issue has been determined adversely to appellant.

3. The trial court ruled that appellee had a 50 foot right-of-way on each side of the railroad line, measured from the center of the track. In the permanent injunction issued by the court, however, it enjoined Morrison from erecting a fence any closer “than 100 feet from [the] center line.” It is obviously error for the court to enjoin Morrison from erecting a fence on his own property, other than the preclusion of construction within the right-of-way or 50 feet from the center line of the track. This case is remanded for correction of the original order by the trial court, consistent with this opinion.

Judgment affirmed and remanded with direction.

McMurray, P. J., and Andrews, J., concur.

Decided March 23, 1995

Reconsideration denied April 5, 1995

Weaver & Weaver, George W. Weaver, for appellant.

Sam G. Dickson, for appellee.


author: Smith, Judge.

text:
    A95A0406.
    RAYBURN v. DEMPSEY.
    (457 SE2d 220)
   Smith, Judge.

Debbie L. Rayburn was a passenger in a pickup truck driven by her husband on the afternoon of June 4, 1990, when it collided with Charlie B. Dempsey’s automobile on Highway 53 north of Rome. Rayburn filed suit against Dempsey for damages and personal injuries sustained as a result of Dempsey’s alleged negligence in turning from Highway 53 onto Dempsey Road and failing to avoid the collision. Following the court’s denial of her motion for new trial, Rayburn appeals the judgment entered on a jury verdict in favor of Dempsey.

Viewed in a light to support the verdict, the evidence at trial showed the collision occurred as Dempsey was turning right from Highway 53 onto Dempsey Road approximately 200-400 yards beyond the crest of a hill. An 18-wheel tractor trailer making a U-turn onto Highway 53 northbound was stationary in the intersection at the time of the collision. Rayburn’s husband testified he was traveling 45-50 mph when he crested the hill in the right lane and momentarily became aware the Dempsey vehicle in his lane ahead was traveling slowly. Uncertain of whether the 18-wheeler was moving into the left lane, he did not change lanes but slammed on his brakes and skidded 21 feet into Dempsey’s vehicle, knocking it into a third car driven by Debra Parnell and waiting to turn onto Highway 53 south from Dempsey Road. Debra Parnell’s nine-year-old daughter, a passenger in her mother’s car, testified that Dempsey’s right turn signal was blinking prior to the collision. Dempsey also testified the blinker was operating, although there was some question as to whether Rayburn’s husband saw it.

In two enumerations, Rayburn challenges the court’s jury instruction on ordinary care, contending the court erred by failing to give her requested charge on the principle of avoidance. In its charge, after defining “ordinary negligence,” the court inadvertently omitted defendant’s requested charge on ordinary care. Recalling the jury, the court charged that “[i]n this connection ordinary care does not mean such care as would prevent an accident or injury from occurring[;] therefore [,] if you find under the evidence in this case that the defendant was driving his automobile in the exercise of ordinary care at the time of the incident in question, the plaintiff would not be entitled to recover a verdict against the defendant just because an accident or injury may have occurred.”

(1) Rayburn argues the court’s charge on ordinary care improperly prohibited the jury from considering whether Dempsey negligently failed to avoid the collision, especially in light of the emphasis placed upon the charge when the jury was recalled to hear it. Rayburn maintains that the court’s giving this charge without also giving her requested charge effectually directed a verdict in the defendant’s favor. She contends this precluded the jury from considering her primary theory of recovery, the defendant’s failure to avoid the collision despite his opportunity to do so. We find no error in the challenged charge, nor in the fact that the court, having unintentionally omitted it from the original instruction, recalled the jury to give it. The record shows the court admonished jurors not to draw conclusions about the significance of the principle either from the court’s forgetting to include it originally or recalling the jury to give it. Chastain v. Fuqua Indus., 156 Ga. App. 719, 723 (4) (275 SE2d 679) (1980).

(2) We next consider Rayburn’s contention that the court erred in refusing to give a charge on avoidance. The charge requested by Rayburn was: “If the plaintiff, Debbie Rayburn, was not negligent^] and I so direct you to so find that she was not[,] and the defendant, Mr. C. B. Dempsey, fails to exercise ordinary care to avoid injuring her, even if a third party’s negligence placed her in a position of peril from which she was unable to extricate herself, then the defendant [Dempsey’s] negligence is the proximate cause or concurrent proximate cause of Mrs. Rayburn’s injury.” As crafted, the requested charge is an argumentative and confusing amalgamation of at least three distinct legal principles. “[A] trial court does not err by refusing to give a requested charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges given.” Roswell Properties v. Salle, 208 Ga. App. 202, 208 (10) (430 SE2d 404) (1993). The trial court did not err by refusing to give Rayburn’s request, as crafted, in one convoluted and confusing sentence. See Childers u. Ackerman Constr. Co., 211 Ga. 350, 352-353 (1) (86 SE2d 227) (1955).

At the charge conference, Rayburn objected to the omission of her requested charge on whether Dempsey acted with ordinary care when he failed to avoid the peril. However, counsel did not seek to prepare an amended charge on the principle of avoidance. After the jury was instructed, counsel excepted to the court’s recalling the jury to give the defendant’s requested charge on ordinary care without putting that principle “in the context of several of the other charges that are relevant to that issue.” This statement was not specific enough to alert the trial court to the precise nature of counsel’s objection and thereby preserve the issue for review. OCGA § 5-5-24 (a); Hilliard v. Canton Wholesale Co., 151 Ga. App. 184, 186-187 (3) (259 SE2d 182) (1979).

Decided April 5, 1995.

J. Calloway Holmes, Jr., for appellant.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Clay M. White, for appellee.

Even assuming the objection was sufficient, the jury charge must be considered as a whole. Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (351 SE2d 82) (1986). First, our review indicates the principles of imputable negligence and the marital relationship were otherwise covered in the court’s charge. In addition, the court’s charge as a whole adequately instructed the jury to consider whether Dempsey negligently failed to avoid the collision once the danger was apparent to him. Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884, 885 (3) (360 SE2d 605) (1987), rev’d on other grounds, 258 Ga. 232 (367 SE2d 539) (1988).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0761.
    ARCHER v. THE STATE.
    (456 SE2d 754)
   Blackburn, Judge.

Following a bench trial, the appellant, Stephen Edward Archer, was found guilty of one count of possession of cocaine in violation of the Georgia Controlled Substances Act and sentenced to three years probation. On appeal, Archer asserts that the trial court erroneously denied his motion to suppress and that the evidence was otherwise insufficient to support his conviction.

On December 19, 1993, at about 2:00 a.m., Marietta Police Officer M. J. Caillouet was dispatched to a local bar known as the King’s Head Pub in response to an anonymous tip that a black male wearing a gray sweater was selling drugs at that location. No other information was received from the tipster. There was a total absence of information about the reliability of the tipster and of information which would corroborate the tip or the accuracy thereof. The tipster provided no information from which the future conduct of the black male could be predicted and provided no information concerning Archer.

As he drove his patrol car into the parking lot of the bar, Officer Caillouet observed a black male fitting the description given by the anonymous tipster, walking away from the bar across the parking lot. Although others were in the parking lot as Officer Caillouet arrived, no other person, including Archer, fit the description that he had been given. A white male (Archer) was walking alongside the black male. The officer observed no communication, contact, or exchange of money or material between the two. Officer Caillouet instituted no surveillance or investigation prior to stopping the two men as hereinafter described.

Without using his blue lights, Officer Caillouet stopped his vehicle a few car lengths in front of the two men. They did not flee, avoid contact, or otherwise appear suspicious. Officer Caillouet got out of his vehicle and advised the men that he was there because of the anonymous tip. Officer Caillouet then ordered both men to put their hands on the hood of the police vehicle for a pat-down search for weapons. No weapons were discovered in the search. He then asked both men for identification in order to run an outstanding warrants check on them, which material both promptly provided, and which checks were negative.

Thereafter, Officer Caillouet asked the black male for consent to search his person for drugs. After receiving permission to do so and finding nothing, Officer Caillouet then terminated his investigation of the black male when he “turned him loose,” after determining that there was no evidence that a crime had been committed by such person.

He thereafter turned his attention back to Archer and continued his investigation by asking him for permission to search his person for drugs. Archer did not testify and Officer Caillouet averred that consent to the drug search that followed, was given by Archer. Officer Caillouet found “a clear baggie of white powdery substance believed to be cocaine” in the upper right pocket of Archer’s jacket. Officer Caillouet concluded his investigation of Archer by placing him under arrest for possession of the material which subsequently proved to be cocaine.

1. We must first determine whether or not the anonymous tip was sufficient to authorize the police officer to conduct the drug search of Archer.

“[F]or an anonymous telephone tip to provide a basis for articulable suspicion for police to make an investigatory stop, the tip must provide some basis for predicting the future behavior of the subject of suspicion.” (Citations and punctuation omitted.) Moreland v. State, 204 Ga. App. 218, 219 (418 SE2d 788) (1992). “ ‘What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . .’ ” State v. Holton, 205 Ga. App. 434, 436 (422 SE2d 295) (1992).

We have previously held anonymous telephone tips which were general in nature and lacking in the sort of detail which would permit the prediction of future behavior as a test of reliability insufficient to justify a stop. Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991). In Swanson, an investigatory stop was unlawful where an anonymous caller reported that a dark-skinned black man wearing a white Kangol hat, a sweater, and jeans, was selling drugs at a specific address, because such facts were easily obtainable, existed when the call was made, and contained no information demonstrating the caller’s ability to predict the suspect’s future behavior. The inability to predict the suspect’s future behavior, in turn, foreclosed an ability in the police to gauge the reliability of the anonymous tipster for honesty and knowledge of pertinent information sufficient to justify the stop. Id. at 898.

Where the information provided in an anonymous tip is insufficient to satisfy constitutional requirements, the police are not free to initiate a search of the defendant based thereon until such time as they have corroborated the information received through surveillance or other appropriate investigatory techniques which do not violate the defendant’s rights. An independent right to search the defendant must be based upon his illegal or suspicious conduct as known by the police officer or upon a valid consent thereto.

In the instant circumstances, Officer Caillouet stopped Archer solely on the basis that he was arguably in the company of another person who fit the description provided in an unsupported anonymous tip. The anonymous tip provided no information at all concerning Archer and could not therefore be the basis of any search of him. The individual fitting the anonymous tipster’s description was released without charges. The fact that Officer Caillouet was responding to a police dispatch does not affect the insufficiency of the information received from the tipster or support the validity of the subsequent drug search. “That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network.” State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

While the anonymous tip was specific to the extent that it described a black man at a particular location, such information was nonetheless within the public knowledge of anyone who was present and was not predictive of the future behavior of such individual.

2. We must next determine if Archer’s conduct at the scene or his “consent” to the drug search created an independent authority in the officer to conduct such search.

An examination of Archer’s conduct at the scene did not create an independent right of the officer to conduct a nonconsensual drug search of him. While he was in the presence of the target of the tip, Archer did not flee or otherwise act in a suspicious manner and no money or material was exchanged between them.

The State contends that the search was consensual and that Archer was free to leave without being searched for drugs. When a police officer with a gun orders one to put his hands on the hood of the police car and then proceeds to pat-down such individual, it is fair to conclude that such person is not free to leave. Considering Officer Caillouet’s testimony as to the black man, that he “turned him loose” after the drug search, it is clear that Archer was not free to leave prior to the drug search which ended in his arrest.

Decided April 5, 1995.

Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

As to Archer’s “consent” to the drug search, “in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances and the purpose and flagrancy of the official misconduct.

“In the case sub judice, we find that there was no significant lapse of time between the unlawful detention and the consent, that no intervening circumstances dissipated the effect of the unlawful detention and that the [officer’s] conduct had no arguable legal basis. Therefore, we hold that the consent was the product of the illegal detention, and that the taint of the unreasonable stop was not sufficiently attenuated. The trial court erred in denying defendant’s motion to suppress evidence.” (Citations omitted.) Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). See VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994).

Accordingly, the judgment of the trial court is reversed and the case remanded for a new trial.

Judgment reversed and case remanded.

McMurray, P. J., concurs fully as to Division 2 and in the judgment. Andrews, J., concurs in judgment only.


author: Birdsong, Presiding Judge.

text:
    A95A0187.
    SCHILL v. A. G. SPANOS DEVELOPMENT, INC.
    (457 SE2d 204)
   Birdsong, Presiding Judge.

Appellant Kevin Schill appeals the judgment entered in behalf of appellee A. G. Spanos Development, Inc. d/b/a Harbor Point Apartments. Appellee brought suit in magistrate court for dispossessory against appellant based on averments of non-payment of rent; appellant filed an answer and asserted a $3,800 counterclaim. The magistrate entered judgment in favor of appellee/plaintiff in the amount of $1,333, dismissed the counterclaim without prejudice, and provided that a writ of possession would issue on April 20, 1990. On April 25, 1990, appellant filed notice of appeal to the state court. Writ of possession was obtained on July 6, 1990, after appellant failed to tender rent into court pursuant to order of the magistrate requiring rent be tendered into court upon appeal. On June 7, 1994, appellant’s de novo appeal was heard before a jury in state court and, following presentment of all the evidence, the trial court directed verdict against appellant on his counterclaim and for appellee for accrued rent. Judgment was entered based upon the directed verdict.

Appellant’s sole enumeration is that the trial court erred in granting appellee’s motion for directed verdict and by denying appellant’s motion for directed verdict in view of substantial, relevant, and unrebutted evidence introduced by appellant. Held:

1. The standards for granting a motion for directed verdict and a motion for j.n.o.v. are the same. “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554).

2. “In a de novo appeal of this action from magistrate to state court the issues to be litigated are framed by the claims raised below.” Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225). However, “[w]hen a case is on appeal in the state court from a magistrate court, any amendment whether in matter of form or substance may be made which could have been made while the case was in the primary court.” (Punctuation omitted.) Id. at 752. It is within the state court’s discretion to determine whether issues being therein raised were directly related to issues raised in magistrate court, and are to be properly considered as part of the de novo proceeding. Absent an abuse of discretion we will not reverse the determination of the state court, as a trial judge is vested with discretion in regulating and controlling the business of the court. Cf. Obiozor v. State, 213 Ga. App. 523, 527 (4) (445 SE2d 553). Appellant has failed to show that the trial court abused its discretion in sustaining objections to the admission of evidence of damages arising from an alleged wrongful eviction. At the time of appeal to the state court, appellant was still in possession of the premises and no eviction had occurred; the record does not reflect that the pleadings were duly amended to enlarge the scope of appeal to encompass the claim of wrongful eviction. One cannot complain of a verdict, judgment, ruling, or order that his own trial procedure or conduct aided in causing. Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673).

Also, there was no evidence presented as to the value of any personal property allegedly damaged or destroyed. Although appellant’s counsel referred in argument to certain $400 ceiling fans as being fixtures, no evidence was introduced as to the circumstances attendant the installation of the fans or as to the fans’ cost; accordingly, no jury issue existed as to this matter.

Appellant has failed to show by the record that the trial court abused its discretion in limiting the testimony of appellant as to the issue of diminished value of the apartment. Admission of evidence lies in the sound discretion of the trial court, and we will not reverse in the absence of a showing of abuse of discretion. See Roney v. State, 192 Ga. App. 760, 763 (386 SE2d 412).

It is well settled that “ ‘[t]he question of damages cannot be left to speculation, conjecture and guesswork.’ [Cit.] Where a party sues for damages he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in non-jury cases can calculate the amount of the loss with a reasonable degree of certainty.” Hayes v. Flaum, 138 Ga. App. 787 (227 SE2d 512). We agree with the ruling of the trial court that the record in this case contains insufficient evidence to enable a jury to calculate the amount of the loss with a reasonable degree of certainty within the meaning of Hayes, supra. Further, as appellant has failed to enumerate as error, to assert in argument specifically, or to cite authority for the claim that a directed verdict was inappropriate on the grounds that the tenant had established entitlement to nominal damages arising from the dispossessory (compare Bradley v. Godwin, 152 Ga. App. 782 (3) (264 SE2d 262)), this issue is abandoned on appeal. Court of Appeals Rule 27 (c) (2).

Additionally, after expiration of the original term of the lease, appellant voluntarily elected to remain in possession of the leased premises notwithstanding his knowledge of the construction defect which allowed water seepage into the garage area thereof. The record reveals that on March 16, 1990, appellant wrote a letter to the apartment management stating that his apartment “has severe water leaks and severe water damage,” and that the condition has “been ongoing for 10 months.” We find that appellant’s right of recovery for any damages sustained by water leakage, after midnight of December 31, 1989 (the date of expiration of the original lease term), was waived by his conduct in electing to remain knowingly in possession of the premises beyond said original lease term. See generally Johnson v. Rogers, 214 Ga. App. 557, 560 (5) (448 SE2d 710); cf. Coast Scopitone v. Self, 127 Ga. App. 124, 127 (3) (192 SE2d 513) (plea of failure of consideration cannot be sustained where note is renewed after knowledge of defects; renewal cuts off all defenses of which maker then had knowledge). By remaining in the premises knowingly and voluntarily, beyond the original lease period, appellant contributed to any damages he thereafter sustained; moreover, by remaining in the premises beyond the lease term, appellant thereafter implicitly accepted the premises in an “as is” condition. We further observe that the record fails to establish precisely when the various claims of speculative damages arose; there existed no evidence from which the jury even could discern with any reasonable degree of certainty what damages, albeit speculative, occurred before and after midnight of December 31, 1989. See Hayes, supra.

Decided March 20, 1995

Reconsideration denied April 10, 1995

Kevin Schill, pro se.

Germano, Kimmey & Cheatwood, J. Steven Cheatwood, for appellee.

Appellant’s contentions in support of his enumeration of error are without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0565.
    MIDDLEBROOKS et al. v. FLEET FINANCE, INC.
    (456 SE2d 627)
   Birdsong, Presiding Judge.

Andrew and Yvonne Middlebrooks, pro se, appeal the trial court’s grant of a writ of possession to Fleet Finance, Inc.

After Fleet Finance filed a dispossessory warrant alleging the Middlebrooks were tenants at sufferance, the Middlebrooks answered denying that they were tenants at sufferance, denying that a landlord/ tenant relationship existed, and denying that Fleet Finance had a cognizable claim of possession to the property. After a trial, however, the writ of possession was granted. The Middlebrooks’ appeal contends the trial court erred by failing to include findings of fact and conclusions of law in the final judgment and by granting the writ of possession in light of a stay in bankruptcy. Held:

1. Fleet Finance’s motion to dismiss the appeal is denied.

2. The Middlebrooks’ claim that the trial court erred by failing to enter findings of fact and conclusions of law is without merit. Findings of fact and conclusions of law are not required unless a party requests them prior to the ruling by the trial court. OCGA § 9-11-52 (a); Burks v. First Union Mtg. Corp., 209 Ga. App. 41 (432 SE2d 822). As the record shows no such request was made, findings of fact and conclusions of law were not required in this case.

Decided March 13, 1995

Reconsideration denied April 10, 1995

Dispossessory. DeKalb State Court. Before Judge Galbaugh, pro hac vice.

Andrew Middlebrooks, pro se.

Tomlinson, Dennison & Hasty, Philip A. Hasty, for appellee.

3. The Middlebrooks also contend the trial court erred by granting a writ of possession in light of a stay in bankruptcy. Although the Middlebrooks filed a petition for bankruptcy on July 28, 1994, which entitled them to an automatic stay of proceedings under 11 USC § 362, the writ of possession which they contest was granted on July 18, 1994. As this judgment was entered prior to the automatic stay, the trial court did not err. Further, the execution of the writ of possession, in fact, was stayed until the United States Bankruptcy Court modified the stay by specifically authorizing Fleet Finance to continue this dispossessory proceeding.

4. Considering the issues raised on appeal and the total lack of merit to the Middlebrooks’ arguments, we find no reasonable basis on which they could have anticipated reversal of the trial court’s judgment. Accordingly, we assess a $200 penalty against appellants under Court of Appeals Rule 26 (b) for pursuing a frivolous appeal. The trial court is directed to enter judgment in such amount upon return of the remittitur in this case. See Brayman v. Allstate Ins. Co., 212 Ga. App. 96, 97 (441 SE2d 285); English v. Liberty Mtg. Corp., 205 Ga. App. 141, 143 (421 SE2d 286).

Judgment affirmed with direction. Johnson and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A95A0754.
    CHAPMAN v. THE STATE.
    (457 SE2d 206)
   Johnson, Judge.

Stephen W. Chapman appeals from his convictions of armed robbery and possession of a firearm during commission of a felony and from the denial of his motion for new trial.

1. Chapman asserts that the trial court erred in refusing to grant a mistrial following an impermissible comment on the evidence made by the court. A review of the salient portion of the transcript reveals that the state was attempting to elicit testimony from a police officer regarding the victim’s identification of Chapman in a photographic lineup. When Chapman objected to the testimony asserting no proper foundation had been laid for the admission of the testimony, the court asked: “Well, hasn’t there been positive identification?” The prosecutor immediately responded there had been a positive identification. Chapman then asked that the jury be removed from the courtroom and moved for a mistrial claiming that the judge had improperly commented on the evidence in front of the jury.

It is improper for any judge to express or suggest his opinion regarding what has or has not been established or his opinion as to the guilt or innocence of the accused. OCGA § 17-8-57. The comments of the judge, compounded by the eager response by the state, clearly left the jury with the impression that Chapman had been positively identified as the perpetrator of the crimes charged. Because misidentification and alibi were Chapman’s sole defenses, the comments directly addressed a material issue in the case.

We raise, but do not reach, the issue of whether curative instructions given to the jury by the court can avoid the harsh mandate of a new trial contemplated by OCGA § 17-8-57. See Nance v. State, 204 Ga. App. 653, 654 (420 SE2d 348) (1992) and Black v. State, 199 Ga. App. 819, 821 (406 SE2d 258) (1991) (Judge Beasley concurring specially), which imply but do not hold curative instructions may be sufficient; but also see Allen v. State, 194 Ga. 178, 184 (2) (21 SE2d 73) (1942), in which the Supreme Court suggests any attempt by the trial judge to cure in such a situation would be unavailing. The curative instructions given to the jury in this case simply stated that any comment made by the court regarding the evidence does not mean that such evidence does or does not exist, and to disregard what the court said. This overly general curative instruction was not tailored to the specific events which had just transpired, did not refer to any particular comment made by the court and gave the jury no real guidance as to what it was to disregard. Therefore the instructions were insufficient as a matter of law.

The court’s comment regarding evidence of a positive identification of Chapman, a disputed issue central to his defense, constituted harmful error and deprived Chapman of his constitutional right to have his case considered by a fair and impartial jury. The statute mandates a new trial, and he shall have one. See Allen v. State, supra; Demonia v. State, 69 Ga. App. 862 (27 SE2d 101) (1943).

2. Chapman asserts that the trial court erred in refusing to grant his motion for mistrial when a police officer testified he was assigned to follow-up on a domestic violence in reference to Chapman, impermissibly placing his character into evidence. A passing reference to a defendant’s record does not place his character in evidence. Zellner v. State, 260 Ga. 749, 751 (3) (399 SE2d 206) (1991). Here the police officer commented that he was investigating a claim. He did not say Chapman had been previously arrested or that he had a record of any kind. The trial court’s refusal to grant a mistrial on this ground was not error.

3. There is no merit to Chapman’s contention that the court erred in admitting two photographs into evidence because the witness testified that the photos looked “a bit different” from the scene, thereby failing to establish a proper foundation that the photos were fair and accurate depictions of the scene. “The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused.” (Citations and punctuation omitted.) Skipper v. Dept. of Transp., 197 Ga. App. 634, 638-639 (6) (399 SE2d 538) (1990). The witness’ testimony that the photographs were a bit different implies the converse, that is, that the photographs to a larger degree were the same as the scene as he remembered it. “The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court.” (Citation and punctuation omitted.) McCoy v. State, 190 Ga. App. 258, 262 (6) (a) (378 SE2d 888) (1989). The trial court did not abuse its discretion in finding an adequate foundation had been established.

Chapman also asserts that the photographs should have been excluded because the state failed to establish a chain of custody with respect to the photographs. This argument is without merit. Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316) (1989).

Finally, Chapman argues that the admission into evidence of two articles of his clothing was error because they were not relevant. “[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) Wilson v. Southern R. Co., 208 Ga. App. 598, 604 (4) (431 SE2d 383) (1993). It was suggested that the clothing admitted into evidence was the clothing Chapman had been wearing on the day of the robbery. To the extent the clothing matched or failed to match the descriptions given by the victims in the case, the clothing was relevant. We see no error in the trial court’s decision to admit the clothing.

4. Chapman’s challenges to the sufficiency of the evidence, both with regard to the denial of his motion for a directed verdict and the denial of his motion for new trial, need not be considered in light of our ruling in Division 1.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided March 24, 1995

Reconsideration denied April 10, 1995.

David E. Perry, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.


text:
    A95A0066.
    DIXON v. THE STATE.
    (456 SE2d 758)
   Birdsong, Presiding Judge.

Manalitto Dixon was convicted of kidnapping, interstate interference with child custody, and two counts of aggravated assault. The charges arose out of Dixon’s kidnapping of his biological daughter, Amanda Dixon, from the custody of the child’s mother, Christine Kay Wurtz, by use of a shotgun with which appellant threatened to kill the child’s stepfather, Matthew Wurtz, and a neighbor, Richard Williams. There was evidence appellant struck Matthew Wurtz’s stepfather, who was holding the child. Appellant’s wife Jody Dixon, whom he had married at about the same time that Christine Kay married Matthew Wurtz, was waiting in appellant’s car. She and appellant took the child to Alabama.

Appellant moved for directed verdict of acquittal as to kidnapping and interference with custody, in that Christine Kay had been his common law wife before she married Wurtz and as there was no “dissolution” of appellant’s and Christine Kay’s common law marriage and no court order establishing custody, appellant could not be guilty of a crime by taking the child. The motion was denied and from the verdict of guilty, he appeals. Held:

1. Appellant contends the trial court erred in charging that it was appellant’s burden to prove common law marriage. The trial court charged that it was a question of fact whether a common law marriage existed; that the State must prove beyond a reasonable doubt that appellant without lawful authority interfered with lawful custody of the child; and that the issue as raised by appellant “[is] an affirmative defense [and] the burden of proof is on the party asserting that there was a common law marriage to prove the common law marriage.” Appellant’s counsel complained of the failure to charge that the burden on appellant was to a preponderance of the evidence, not beyond a reasonable doubt.

Assuming for the sake of argument that the existence of common law marriage may be a defense to the charge of kidnapping and interstate interference with custody on grounds of “equal control,” we find no error.

The party asserting a common law marriage must prove its existence to a preponderance of the evidence. Dismuke v. C & S Trust Co., 261 Ga. 525 (1) (407 SE2d 739); Foster v. Foster, 178 Ga. 791 (3) (174 SE 532); Edwards v. Edwards, 136 Ga. App. 668, 669 (222 SE2d 169). Generally in criminal cases the State has the burden to disprove beyond a reasonable doubt the elements of an affirmative defense (Bennett v. State, 265 Ga. 38 (453 SE2d 458); Anderson v. State, 262 Ga. 7, 9-10 (413 SE2d 722), rev’d in part on other grounds, Coleman v. State, 264 Ga. 253, 254, fn. 2 (443 SE2d 626); Bentley v. State, 261 Ga. 229 (2) (404 SE2d 101)), but this rule is not without exception. For example, insanity is an affirmative defense which the defendant must prove to a preponderance of the evidence. Harris v. State, 256 Ga. 350, 354-355 (6) (349 SE2d 374). The State does not have to prove sanity because the law presumes sanity; no new burden of proof is imposed on the State by an affirmative plea of insanity. Id.; Johncox v. State, 189 Ga. App. 188 (2) (375 SE2d 139). The burden of proof comes down to the question of in whose favor certain legal presumptions lie. Because of the presumption of innocence, to prove kidnapping the State must prove that a person who steals or abducts a child did so “without lawful authority.” OCGA § 16-5-40 (a). As with an insanity plea, when the existence of a common law marriage is raised as an affirmative defense to kidnapping of a child, there is no presumption in defendant’s favor that a common law marriage existed. The fact of a common law marriage depends on precise laws of contract status; these laws require proof of simultaneous existence of all the statutory elements. OCGA §§ 19-3-1 and 19-3-2; Gregg v. Barnes, 203 Ga. App. 549 (417 SE2d 206). There is no presumption that two persons who cohabited and produced a child were married at common law; more must be shown. See OCGA § 19-3-2; Addison v. Addison, 186 Ga. 155 (197 SE 232). There being no presumption in appellant’s favor on the issue, it was his burden to prove a common law marriage existed which gave him lawful authority to take the child from her mother.

Appellant’s counsel did not at any time during trial object that the burden was on the State to disprove a common law marriage. At trial appellant conceded the burden of proof was on himself, but only to a preponderance of the evidence. The trial court erred in failing to charge on that point, but that error was harmless inasmuch as no evidence is cited as to at least two of those elements as required by OCGA § 19-3-2 (3) and (4). Moreover, in the absence of such evidence, appellant’s later ceremonial marriage is presumed to be the valid marriage (Carter v. Graves, 206 Ga. 234 (3) (56 SE2d 917)); this negates any defense that he was married at common law to the victim’s mother and thus had equal control of her child.

Decided April 10, 1995.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Darrell E. Wilson, C. Keith Higgins, Assistant District Attorneys, for appellee.

2. The trial court did not err in refusing to charge on simple battery and reckless conduct as lesser offenses of aggravated assault. No such requests were submitted in writing. Hines v. State, 254 Ga. 386 (329 SE2d 479). Moreover, appellant was not entitled to such charges as the evidence showed he either committed aggravated assault or acted in self-defense. See Scott v. State, 208 Ga. App. 561, 562 (430 SE2d 879).

3. Appellant’s third enumeration of error is abandoned for failure to cite legal authority. Court of Appeals Rule 27 (c) (2). Moreover, we find the enumeration to be without merit in fact.

4. We have examined the evidence and find it sufficient to persuade a rational trier of fact of appellant’s guilt beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0164.
    TILLMAN v. THE STATE.
    (457 SE2d 228)
   Johnson, Judge.

A jury found James Tillman guilty of possession of cocaine with intent to distribute. He appeals following his conviction and the denial of his motions for a new trial and re-sentencing.

1. Tillman argues the evidence that he intended to distribute cocaine was only circumstantial and was insufficient to support his conviction. Viewed in the light most favorable to the verdict, the evidence shows undercover officers arranged to purchase cocaine for $1,200 from Charles Hinson in a hotel room. Hinson informed the officers that his supplier, an “older man,” would arrive in a van and deliver the cocaine to him in his room. Hinson would then deliver the cocaine to the officers in their room. While other officers watched, a van entered the hotel parking lot and Tillman, who was 51 years old, got out of the van and immediately walked to Hinson’s room. Approximately one minute after Tillman parked the van, Hinson telephoned the officers and told them he would be right down. Hinson left the room 15 to 30 seconds later, leaving Tillman in the room. Tillman came out a minute later. Hinson then entered the officers’ room and offered them the cocaine, at which time Tillman was arrested. Tillman was searched and found to possess $864 in cash.

Decided April 10, 1995

Robert S. Devins, for appellant.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Possession with intent to distribute can be proven by circumstantial evidence. Robinson v. State, 194 Ga. App. 432 (1) (390 SE2d 652) (1990). “[A] conviction on circumstantial evidence is authorized if the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the jury.” (Citations and punctuation omitted.) Horton v. State, 194 Ga. App. 797, 798 (1) (b) (392 SE2d 259) (1990). This court does not reweigh the evidence and the inferences drawn from it by the jury. Gordon v. State, 206 Ga. App. 450, 452 (2) (a) (425 SE2d 906) (1992). The circumstantial evidence in this case was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Polke v. State, 203 Ga. App. 306, 310 (3) (417 SE2d 22) (1992).

2. Tillman contends the trial court erred in imposing a life sentence when he was not given formal notice prior to trial of the state’s intent to demand recidivist punishment. It is true that “if a life sentence is to be imposed under OCGA § 16-13-30 (d), the state must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2 (a). . . . The purpose of § 17-10-2 is to give defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” (Citations and punctuation omitted.) Armstrong v. State, 264 Ga. 237, 238 (1), (2) (442 SE2d 759) (1994). In this case, however, Tillman did not object when the state introduced his prior drug conviction into evidence during the pre-sentencing phase of the trial. In fact, when the state presented a copy of the conviction and recommended a life sentence, defense counsel responded “there isn’t any argument we can effectively make.” Defense counsel added that he had inspected the drug conviction, that it was entered with an attorney, and that “there is no challenge that we can make on that particular plea.” The error is therefore deemed waived. Id. at 239 (3).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A0270.
    GORDON v. THE STATE.
    (456 SE2d 761)
    Decided April 10, 1995.

      Farless & Newton, William H. Newton III, for appellant.

      Stephen F. Lanier, District Attorney, Tambra P. Colston, Assis

      tant District Attorney, for appellee.
   Birdsong, Presiding Judge.

Jimmy Lee Gordon appeals the revocation of his probation and the ordering in execution of his sentence to confinement for two years, eight months, and fifteen days. Gordon alleges that the evidence presented was insufficient to prove by a preponderance of the evidence that he committed the offense of theft by deception. He also contends that as his probation was revoked because of a new misdemeanor offense, the trial court erred by sentencing him to more than two years of confinement. Held:

1. Based upon our review of the transcript of the evidence at the hearing on whether Gordon’s probation should be revoked, and in particular Gordon’s presentation of a stolen lottery ticket, receipt of a money order, and procuring another to cash the money order under circumstances which show that he knew or should have known the lottery ticket was stolen, we are satisfied that the evidence was sufficient to establish by a preponderance of the evidence that Gordon committed the offense of theft by deception. OCGA § 42-8-34.1 (a); Riggins v. State, 206 Ga. App. 239, 240-241 (424 SE2d 879). Accordingly, the decision to revoke Gordon’s probation is affirmed.

2. Nevertheless, we must reverse Gordon’s sentence to confinement because it exceeded the two-year limitation in OCGA § 42-8-34.1 (b) on the period of confinement which may be ordered executed when probation is revoked because of a new misdemeanor. Cockrell v. Brown, 263 Ga. 345, 346 (433 SE2d 585). We vacate the sentence and remand the case to the trial court for re-sentencing to a term of confinement no greater than that specified in OCGA § 42-8-34.1 (b).

3. Although the State contends that the sentence is valid because OCGA § 42-8-34.1 is an unconstitutional limitation on the inherent powers of the courts, this issue was raised for the first time on appeal and was not properly raised and preserved in the trial court. Therefore, it is not reviewable and does not remove this appeal from our jurisdiction. Harper v. State, 213 Ga. App. 611, 612 (445 SE2d 300); Dye v. State, 205 Ga. App. 781 (423 SE2d 713).

Judgment affirmed in part and vacated in part with direction.

Johnson and Smith, JJ., concur.


text:
    A95A0440.
    STATE OF GEORGIA v. LEDFORD.
    (456 SE2d 757)
   Beasley, Chief Judge.

Pursuant to OCGA § 16-13-49 (d) (2), the State filed a complaint for forfeiture of a 1992 Jeep Cherokee. It alleged that Lewis had sold a quantity of marijuana to a confidential informant, that the sale took place at a certain residence, and that the subject vehicle was used by his sister Ledford to transport Lewis and the marijuana to the residence. Criminal charges against Ledford were not pursued.

The referenced statute declares to be contraband “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom.”

Ledford, who is the legal owner of the vehicle, asserted in an amended answer that her property interest is not subject to forfeiture. In reliance on OCGA § 16-13-49 (e) (1), she stated that she “[i]s not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur.”

At the bench trial, Ledford testified that her brother had asked her to take him to pick up money that someone owed him so he could repay her for money he owed her. She further testified that she did not have any knowledge of, nor was she involved in, her brothér’s illegal drug activities. The State argued that the evidence showed she either knew or reasonably should have known of the drug sale. The court found in favor of Ledford, stating that it was convinced that Lewis had by subterfuge induced Ledford into transporting him to the residence where he sold the marijuana, and that the evidence was not sufficient to impute knowledge of her brother’s drug activities to her.

The State complains that the court cast upon it the burden of establishing that Ledford had knowledge of the drug sale, whereas the burden was upon Ledford to establish that she did not have such knowledge. OCGA §§ 16-13-49 (e) (1) and 16-13-50 (a) set the burdens as to the “innocent owner” claim. Although defense counsel argued at first that “the State must prove that [Ledford] had the mental state coinciding with the act and that she knew and was involved in the transaction,” she corrected this by later reading to the court OCGA § 16-13-49 (e) (1) and (2). This stated precisely what the claimant must establish. See State of Ga. v. Banks, 215 Ga. App. 828, 832 (2) (452 SE2d 533) (1994). The reference to the statute was repeated by the State, although at one point the State agreed that it had “the burden of showing by a preponderance.” It undoubtedly meant this with respect to a prima facie case.

Decided April 10, 1995.

Edward D. Lukemire, District Attorney, Michael J. Moore, Assistant District Attorney, for appellant.

Lucas & Graham, Kenneth E. Lucas, for appellee.

A review of the entire transcript demonstrates that the court found in favor of Ledford because it considered as credible her testimony that she did not have such knowledge, which was her burden to establish, and not because it erroneously placed the burden of proof on this issue. The court did not find that the State’s objective evidence and inferences deducible therefrom preponderated on this largely subjective issue but rather that Ledford’s did. “Upon appellate review, factual findings made after a bench trial ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.’ [Cit.]” Banks, supra at 832. The court’s finding is not clearly erroneous and it appears that the court applied the correct principles regarding the burden of proof.

Judgment affirmed.

Pope, P. J., and Ruffin; J., concur.


author: Andrews, Judge.

text:
    A95A0821.
    COWAN v. WAFFLE HOUSE, INC.
    (456 SE2d 762)
   Andrews, Judge.

In his sole enumeration of error, Robert Cowan contends that the Gwinnett State Court erred in granting summary judgment to the Waffle House in his suit for personal injuries against it.

The following undisputed facts are relevant to this appeal. On January 17, 1994 at about 12:30 p.m., Cowan parked his car in the Waffle House parking lot. The weather conditions on that date were icy and wet. Cowan observed that there were individual curbs, which were painted yellow, at the end of each parking space. He entered the Waffle House through a door on the same side where he parked his car and ate lunch. After eating, he left the Waffle House through the same door. He walked across the Waffle House parking lot, past the individual parking curbs, around additional concrete curbing and down an embankment to the adjacent store’s parking lot. He used the phone at the adjacent business and walked back to his car. On the way back he crossed back over the undivided concrete curb. He stepped over one of the individual curbs and fell.

Cowan claims that his fall was caused when his pants leg caught on a rebar stake attached to the back of an individual curb. He claims that he was exercising caution while he was walking and that despite looking where he was going, he did not see the rebar stakes on the back of the individual curbs.

Cowan filed a complaint against Waffie House alleging that he “slipped and fell on some ice” and was stabbed in the leg by a piece of metal protruding from the curb. He claimed that the maintenance of this condition constituted negligence. Cowan subsequently amended the complaint to allege that the protruding stake caused his fall.

The Waffle House filed a motion for summary judgment alleging that Cowan had equal or superior knowledge of the condition and that the action was barred. With his response to the motion for summary judgment, Cowan filed his affidavit in which he stated that he was being careful in watching where he was walking.

The state court granted the motion, finding that there was no evidence that the metal rebars were not in plain view; that the rebars should have been obvious to Cowan; that Cowan had equal knowledge of the rebars; that the Waffle House did not have superior knowledge of the existence of the rebars; that the Waffle House could prevail by showing an absence of evidence to support Cowan’s case; and that no factual issues remained in the case.

Here, citing several cases including Marlowe v. Cabe, 207 Ga. App. 764 (429 SE2d 151) (1993), Cowan argues that the Waffle House had superior knowledge of the rebar stakes and that summary judgment was improperly granted. He claims the color of the stake blended with the asphalt and that he was unable to see the stake, even though he was being careful.

We find Cowan’s arguments without merit. Black and white photographs of the scene where Cowan fell are included in the record before us and show that the rebars were clearly visible. The rebars are dark and the curb that the rebars supported are light in color. Cowan claims that the rebars were the same color as the asphalt, but this fact is not germane to the visibility of the rebars, since they were perpendicular to the asphalt and contrast sharply with the yellow curb they supported. Compare Hollis v. First Nat. Bank of Atlanta, 117 Ga. App. 145 (159 SE2d 497) (1968). Moreover, not only had Cowan traversed the parking lot without incident several times, but there is no evidence that any prior incidents had occurred involving these rebars.

Decided April 11, 1995.

Snellings & Ferguson, Stanley T. Snellings, for appellant.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Stacey L. Ferris-Smith, Jonathon E. White, for appellee.

“The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.” (Citations and punctuation omitted.) Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 142 (2) (424 SE2d 85) (1992); see generally Sinclair v. Orozco, 205 Ga. App. 498 (423 SE2d 25) (1992); Lonard v. Cooper & Sugrue Prop., 214 Ga. App. 862 (449 SE2d 348) (1994).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The Waffle House has attached color copies of the photographs to its brief, which also show that the rebars were obvious. Because the obvious nature of the rebars is demonstrated in the black and white photographs, we need not address the issue of the admissibility of the color copies.