text:
    A93A1674.
    WACHOVIA BANK OF GEORGIA N.A. v. MOTHERSHED.
    (437 SE2d 852)
   Beasley, Presiding Judge.

This is an interlocutory review of the denial of Wachovia Bank of Georgia’s motion for summary judgment. It sought a deficiency judgment on three promissory notes made as construction loans to Mothershed. Each was secured by a separate deed to secure debt with power of sale to Wachovia. Mothershed counterclaimed for breach of an oral contract by Wachovia to make future construction loans to him, which he alleged resulted in the failure of his residential construction business. Summary judgment was denied on both the main claim and the counterclaim.

The trial court found as a matter of uncontested fact that Mothershed had defaulted on each of the notes, that foreclosure sales were conducted and judicial confirmation obtained, and that the proceeds were applied to the outstanding balances. However, summary judgment was denied altogether on the basis that a factual question remained as to the existence of an oral agreement between Mother-shed and Wachovia’s loan officer concerning the alleged commitment for future loans.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“ ‘The promissory note is an unconditional contract of the defendants to pay the plaintiff according to the tenor of the instrument. (Cit.) Because the note contains an unconditional promise, the contract is complete as it was written; parol evidence may not be used to inject conditions on the obligation which are not apparent from the face of the note. (Cit.) . . . [Appellee] contend [s] that the note was part of a larger contract which the [appellant] breached. However, the note contains no reference to this supplemental agreement nor can we create one. . . . Introduction of the promissory note[s] in evidence established a prima facie case which could not be rebutted by parol evidence. . . . (OCGA § 11-3-307.) A promissory note is an unconditional obligation, sufficient in itself to support a cause of action.’ [Cits.]” Brooks v. McCorkle, 174 Ga. App. 132, 133 (329 SE2d 214) (1985). Accord Hartrampf v. C & S Realty Investors, 157 Ga. App. 879 (1) (278 SE2d 750) (1981).

Mothershed admits having executed the notes, failing to cure the defaults, consummation of the foreclosure sales and the judicial confirmations. Wachovia established by competent evidence the amounts owed. As the trial court properly concluded, Wachovia made out a prima facie case for recovery of the deficiencies on the three promissory notes.

“ ‘A lender’s refusal to make a second loan, or even misrepresentations that it would make a second loan, does not bar the lender from recovery of the amount owed under the first loan.’ [Cits.]” Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401 (1) (422 SE2d 277) (1992). Parol evidence of a purported oral agreement cannot be used to establish a valid defense to Wachovia’s prima facie entitlement to judgment as a matter of law. Brooks, supra at 133.

Appellant was entitled to summary judgment on its claim.

2. Wachovia was also entitled to judgment in its favor as the defendant/movant on the counterclaim for breach of an alleged oral contract to extend additional future loans.

“A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp., supra at 491.

In opposition to summary judgment, Mothershed produced an affidavit of a former Wachovia loan officer to the effect that the bank had verbally committed to make four future loans as follows: “[I]n January of 1988,1 made a commitment with Mr. Mothershed that the bank would maintain an inventory of four construction loans, or spec loans. The agreement provided that as a home was sold, then the Bank would make another spec loan so that his inventory for spec loans would be four. The amount of the loan would be based upon the appraisal of the proposed home by review of his plans, the rate of interest would be the market rate for construction loans by our bank at the time of the request, with interest due in six months, and the Note would be renewable upon payment of the interest. The price of the homes would be in the $160,000 to $180,000 range, and Brian Mothershed would furnish us[ ] with a set of plans. The type of loan would be a construction loan, similar or the same type of loan as the one lot #26 of Prospect Commons.”

Decided November 10, 1993.

Neely & Player, Lewis E. Hassett, Lorre J. Gaudiosi, for appellant.

Bray & Johnson, H. Michael Bray, for appellee.

Wachovia maintains that the oral agreement for future loans was insufficiently definite to constitute a binding contract. “ ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. (Cit.)’ [Cit.]” Hartrampf, supra at 881 (1).

No specific parcels were agreed upon to secure the loans or time limitations specified. The value was indefinite, based only on an appraisal. See Wiley v. Tom Howell & Assoc., 154 Ga. App. 235, 236 (267 SE2d 816) (1980). No maturity date was specified. The loan officer’s affidavit contradicts Mothershed’s deposition testimony with respect to the rate of interest. “A loan agreement which fails to specify an interest rate and a maturity date is unenforceable.” Dolanson Co. v. Citizens &c. Nat. Bank, 242 Ga. 681, 682 (1) (251 SE2d 274) (1978). Even if there is an issue of fact about rate of interest, the evidence establishes that there was no verbal contract “sufficiently clear to be capable of enforcement.” Hartrampf, supra at 881; Bridges, supra at (2). The purported “commitment” for a future loan is no more than an agreement to agree in the future.

Judgment reversed.

Cooper and Smith, JJ., concur.

       OCGA § 13-5-30 was amended effective July 1, 1988, to add paragraph (7) which requires that “[a]ny commitment to lend money” be in writing. Since the oral agreement alleged herein predated that amendment, a writing was not required.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A1810.
    SUMNER v. THE STATE.
    (437 SE2d 855)
   Birdsong, Presiding Judge.

James Sumner appeals his conviction, judgment and sentence for aggravated assault with a deadly weapon, for shooting David Young-blood in the neck. According to the evidence construed most favorably to the jury’s finding of guilt (Williams v. State, 205 Ga. App. 445 (422 SE2d 309)), the victim was moving out of a trailer which he rented from appellant when appellant approached him. The two exchanged words and the victim shoved or struck appellant. Appellant returned to his truck, got his gun, and, according to bystander witnesses who watched from another trailer, approached the victim and said words to the effect of “Do you want me to blow your brains out?” and then shot the victim. The victim was holding a tire and had made no threatening gesture to appellant after appellant approached him with the gun. Appellant contended he acted in self-defense, or that the gun went off accidentally when he slapped the victim.

The indictment alleged two counts of aggravated assault: assault with intent to murder (Count 1), and assault with a deadly weapon (Count 2). The jury returned a verdict of the lesser included offense of simple assault as to Count 1, and aggravated assault with a deadly weapon as alleged in Count 2. The trial court struck the simple assault verdict and sentenced appellant for aggravated assault with a deadly weapon, as alleged in Count 2. Appellant enumerates six errors. Held:

1. Appellant attempted to comply with Court of Appeals Rule 15 (a) (1) by restating the alleged errors. This is not compliance with the rule. If an objection, exception, motion for mistrial, motion in limine or other appropriate action is not taken so that the trial court may correct the error when or before it occurs, it usually cannot be considered on appeal. Appellants must set forth the method, i.e., the objection, exception or motion, by which the error was “preserved by consideration” on appeal.

2. Appellant contends the trial court erred in failing to charge the defense of accident even though no written request was made. Appellant was not entitled to the charge. The defense of accident is available where it “satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2. Appellant went to his truck to get his gun with the intent of using it toward the victim for intimidation, bravado or protection. If he used the gun for intimidation or bravado, the shooting was not an accident, especially since he had the opportunity to leave the scene. See Keye v. State, 136 Ga. App. 707 (222 SE2d 172). On the other hand, if appellant shot the victim in self-defense as he also claims, he is not entitled to a charge on accident, for the defenses of self-defense and accident are inconsistent. Fields v. State, 167 Ga. App. 816 (307 SE2d 712).

3. Appellant contends the trial court erred by giving the “Allen” charge without cautioning the jurors that they should not surrender honest opinions. See Willingham v. State, 134 Ga. App. 603, 607 (215 SE2d 521). This complaint is without merit in fact. The trial court did caution the jury that its verdict had to be unanimous and not a mere acquiescence, and that each juror was bound to examine the issues with candor and fairness.

4. Appellant contends the trial court erred in failing to instruct the jury it could convict the defendant of either assault with intent to murder (Count 1), or assault with a deadly weapon (Count 2), but not both. See Thomas v. State, 261 Ga. 854 (413 SE2d 196). We find no reversible error. The jury convicted appellant of assault with a deadly weapon (Count 2); as to Count 1 (assault with intent to murder), the jury found simple assault. These offenses are not inconsistent within the meaning of Thomas. The jury merely found that appellant did assault with a deadly weapon, but not with the intent to murder.

Moreover, the trial court resolved any error by setting aside the simple assault verdict and sentencing appellant only for assault with a deadly weapon. Appellant says that under Thomas, the trial court should have struck the verdict for assault with a deadly weapon and sentenced him for simple assault. However, Thomas involved convictions for inconsistent crimes, so the appellate court could not speculate which offense the jury would have found if the counts had been merged before consideration. In this case, we need not speculate. There is no doubt the jury found appellant guilty of an assault made with a deadly weapon but not with intent to murder. The jury found an assault, and it is undisputed he used a deadly weapon, so appellant was not entitled to a conviction for simple assault merely because the jury did not find he assaulted with intent to murder.

Appellant’s complaint is that “it may well be that the jury, if given the choice, would have rendered a verdict of guilty of simple assault on Count One alone.” This is obviously not true, for the jury was instructed that it must acquit as to any charge not proved beyond a reasonable doubt.

5. It follows that the trial court did not err in sentencing appellant for assault with a deadly weapon.

6. Appellant contends he was not afforded effective assistance of counsel at the trial. This issue was heard by the trial court in the hearing on motion for new trial and found lacking. A defendant must show not only that counsel’s performance was deficient, but that the deficiency prejudiced the defense. Jowers v. State, 260 Ga. 459 (396 SE2d 891).

The failure to give notice under Chandler v. State, 261 Ga. 402, 407 (405 SE2d 669) of intent to present evidence of acts of violence by the victim known to appellant at the time of the assault, did not cause harm. The evidence shows without dispute that appellant had the opportunity to walk away from a confrontation. Instead, he went to this truck and got his gun and returned for another confrontation. “Other acts” of violence by the victim known to appellant were irrelevant as they had no effect on the course of events, as a matter of fact. Although appellant says such evidence would show his state of mind at the time, the evidence shows his state of mind was such that rather than take his chance to leave, he chose to reconfront the victim with a gun.

Decided November 10, 1993.

Thomas H. Pittman, for appellant.

Donnie Dixon, District Attorney, John A. Rumker, Assistant District Attorney, for appellee.

Although appellant contends trial counsel was deficient in failing to interview witnesses, he does not suggest what, if anything, other witnesses would have added to his defense.

7. Appellant contends the trial court erred in failing to conduct an in-camera inspection of the State’s files prior to trial. Appellant has not complied with the requirements of Tribble v. State, 248 Ga. 274, 275 (280 SE2d 352), and has not suggested to us that there was any exculpatory evidence to be revealed or discovered. The burden to show affirmatively not only error, but harmful error, is on appellant, but has not been sustained. See Johnson v. State, 198 Ga. App. 316 (401 SE2d 331).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A93A1430.
    CITY OF DALTON v. SMITH et al.
    (437 SE2d 827)
   Johnson, Judge.

The City of Dalton filed a petition to condemn land owned by Mark and Terry Smith. The superior court appointed a special master to conduct the condemnation proceeding. The special master awarded the Smiths $182,000 as the fair market value of the condemned property. The Smiths appealed to the superior court, challenging the special master’s finding as to the property’s value. The jury returned a verdict in favor of the Smiths in the amount of $271,126. The court entered final judgment on the verdict. The city appeals from that judgment.

1. The city argues that the court erred in charging the jury on the statute of frauds requirement that a contract concerning an interest in land must be in writing to be binding because the Smiths waived an affirmative defense based on the statute of frauds by failing to raise it in the pleadings. See Brantley Co. v. Simmons, 196 Ga. App. 233, 234 (395 SE2d 656) (1990). We cannot consider this argument because the trial transcript reveals that the city’s objection to the statute of frauds charge was made on other grounds, “and on appeal only issues properly raised before the trial court will be considered.” (Citations and punctuation omitted.) Zappa v. Auto. Precision Machinery, 205 Ga. App. 584, 585 (4) (423 SE2d 286) (1992); Ramey v. Leisure, Ltd., 205 Ga. App. 128, 133 (3) (421 SE2d 555) (1992). “Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.” (Citations and punctuation omitted.) Walls v. State, 204 Ga. App. 348, 349 (2) (419 SE2d 344) (1992).

2. The city contends that the court erred in excluding from evidence a document purporting to grant the Smiths an easement across the condemned property to their remaining property. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1; King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 850 (4) (380 SE2d 481) (1989). The document in question was executed by the city during the trial, over a year after the date the property was actually taken. The trial court properly excluded the document as irrelevant since the only question for decision in this case was the value of the property at the time of its actual taking. DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 418 (219 SE2d 707) (1975); Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750 (1) (371 SE2d 231) (1988); City of Atlanta v. West, 123 Ga. App. 255, 256-257 (1) (180 SE2d 277) (1971).

3. In its third and fourth enumerations of error, the city contends that the court’s jury charge regarding admissions in judicio was insufficient and that the court erred in refusing to give four of its requested charges on such admissions. “It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error.” (Citations and punctuation omitted.) Swint v. Smith, 204 Ga. App. 54, 55 (2) (418 SE2d 375) (1992). Here, the court did not err in refusing to give the requested charges because the charge actually given regarding admissions in judicio was sufficient. These enumerated errors are without merit.

4. The city complains that the court erred in giving four of the Smiths’ requested charges regarding the law of access to a public road. The record reveals that the city waived any objections to these charges by failing, upon inquiry by the court, to object or reserve exceptions to these charges. Rodriquez v. Davis, 202 Ga. App. 550 (1) (415 SE2d 41) (1992); Hunter v. Hardnett, 199 Ga. App. 443, 445 (3) (405 SE2d 286) (1991).

5. The city argues that the court erred in refusing to give its written request to charge the jury that loss of privacy caused by a public project is not a proper element of damages. “[W]here the trial court refused to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge. It is only necessary that the refusal to charge be objected to at some point.” (Citations and punctuation omitted.) Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 856-857 (3) (360 SE2d 415) (1987). The portion of the trial transcript cited by the city in support of its claim that it objected to the court’s refusal to give the requested charge actually shows that the city did not make such an objection. Our review of the entire record fails to reveal that the city, at any point during the trial, excepted to the court’s refusal to give the requested charge. The city therefore has waived appellate review of the court’s ruling. Lewis v. Noonan, 142 Ga. App. 654, 656 (4) (236 SE2d 900) (1977).

Even if the city had not waived the objection, it is without merit because the requested charge is not an entirely correct and accurate statement of the law. Lee v. Bartusek, 205 Ga. App. 551 (422 SE2d 570) (1992). Loss of privacy is “an element to be considered in determining whether there were consequential damages to the remainder.” Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 351 (2) (299 SE2d 594) (1983). The trial court did not err in refusing to give the requested charge.

6. The city contends that the court erred in failing to give its requested charge on the Smiths’ duty to mitigate damages. The only evidence cited by the city in support of such a charge is the fact that the Smiths objected to the admission into evidence of the document discussed in Division 2 of this opinion. The city’s contention is wholly without merit; an objection to inadmissible evidence cannot itself be considered evidence of failure to mitigate damages. As the record is devoid of any evidence that the Smiths failed to mitigate damages or that it was in fact possible to do so, the court correctly refused to give the requested charge. Dept, of Transp. v. Eastern Oil Co., 149 Ga. App. 504, 505-506 (4) (254 SE2d 730) (1979); Fountain v. MARTA, 147 Ga. App. 465, 471 (10) (249 SE2d 296) (1978).

7. The city complains that the court erred in allowing two non-expert witnesses to give opinion testimony as to the fair market value of the property in question. “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” OCGA § 24-9-66. “To give an opinion on value the witness must supply reasons by showing knowledge, experience or familiarity as to value. Testimony that the witness is familiar with the value of the item in question is sufficient.” (Citation and punctuation omitted.) City of Alma v. Morris, 180 Ga. App. 420, 421-422 (3) (349 SE2d 277) (1986). Both of the witnesses in the present case testified that they are familiar with the property in question and, because of their lengthy experience in the construction business, have knowledge of land values in the vicinity of that property. Based on the witnesses’ experience and familiarity with the property in question, the trial court did not abuse its discretion in admitting their opinion testimony as to value and it was for the jury to determine the weight and credit to be given such evidence.

8. The city’s complaint that the court erred in permitting two expert witnesses to give their opinion of the consequential damages to the remainder property presents nothing for review because the city did not object to the testimony at trial. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had.” (Citations and punctuation omitted.) Ramey v. Leisure, Ltd,., supra at 132 (2).

9. The city asserts that the court improperly submitted to the jury the question of whether the Smiths have either temporary or permanent access to their remainder property. This assertion is without merit because the Smiths sought consequential damages based on impaired access to their remaining property and there was conflicting evidence as to whether the city had guaranteed such access at the time the property was taken. “It is up to the trier of fact to decide if there has been substantial impairment and if so, the value. Whether a property owner has reasonable access to the property under the circumstances and whether the existing access was substantially interfered with are questions of fact to be decided by the jury.” (Citations and punctuation omitted.) Taylor v. Dept. of Transp., 207 Ga. App. 707, 709 (1) (429 SE2d 108) (1993).

Judgment affirmed.

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

Decided October 28, 1993

Reconsideration denied November 12, 1993

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, Daniel T. Strain, Jr., for appellant.

Minor, Bell & Neal, John T. Minor III, Steven B. Farrow, for appellees.

Teresa B. Smith, pro se.


author: Cooper, Judge.

text:
    A93A1439.
    BENTLEY v. THE STATE.
    (438 SE2d 110)
   Cooper, Judge.

Lenward Bentley was tried before a jury and found guilty of theft by conversion. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Although the jacket of the indictment was captioned “Theft by Taking,” the body of the indictment alleged theft by conversion, a violation of OCGA § 16-8-4, in that Bentley lawfully obtained funds under a known legal obligation to make a specific disposition thereof and that he knowingly converted that money to his own use by failing to deliver it over to its lawful owner. On the morning of trial, appellant raised an oral demurrer to the form of the indictment. The overruling of his oral motion to dismiss is enumerated as error.

“It is not the name, but the description of the crime, which characterizes the offense charged.” Lipham v. State, 125 Ga. 52 (1) (53 SE 817) (1906). An indictment in which the allegations track the language of the applicable Code section is good as against a general demurrer. OCGA § 17-7-54 (a); Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993); Camp v. State, 3 Ga. 417 (1) (1847). An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment. State v. Eubanks, 239 Ga. 483, 489 (238 SE2d 38) (1977). “Where the accused desires to take exception to the form of an indictment. . ., it is essential that he should do so by a demurrer or motion to quash, made in writing and before [entering a] pleading to the merits.” Gilmore v. State, 118 Ga. 299 (1) (45 SE 226) (1903); Uniform Superior Court Rule 31.1. Appellant “waived all exceptions to the mere form of the indictment, by failing to urge them in a [timely, written,] pretrial special demurrer.” Dunbar v. State, supra. The trial court did not err by overruling appellant’s tardy oral objection to the form of the indictment.

2. Appellant filed a written pretrial demand for a copy of the indictment and a list of witnesses. On the list as originally furnished to appellant, the State named three witnesses. After voir dire, appellant’s counsel was served with an updated witness list by the State, adding a fourth witness to be called by the prosecution. Appellant objected to this newly-named witness and also moved for a continuance. Although the trial court offered a brief postponement, this witness declined to be interviewed by defense counsel prior to testifying. The admission into evidence of the testimony of this witness is enumerated as error.

(a) We wish to register our stern disapproval of tactics which give rise to the appearance that the prosecution, by act or omission, has attempted to subvert or circumvent the right of an accused to have reasonable pretrial “access to evidence,” (see California v. Trombetta, 467 U. S. 479, 485 (II) (104 SC 2528, 81 LE2d 413) (1984)), as that right is protected by the Georgia and U. S. Constitutions, the statutes of this State, and the Uniform Superior Court Rules.

(b) “The Constitution of Georgia, in its declaration of rights, declares that every person charged with an offense against the laws shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation and a list of the witnesses on whose testimony the charge against him is founded. [Ga. Const. 1983, Art. I, Sec. I, Par. XIV.] This constitutional provision overrides all legislative enactments upon the subject; and [OCGA § 17-7-110] must be construed with such constitutional provisions.” Dean v. State, 43 Ga. 218, 220 (1871). Compare Campbell v. State, 149 Ga. App. 299, 300 (3) (254 SE2d 389) (1979) (holding that OCGA § 17-7-110 does not reach the addresses of witnesses) with Uniform Superior Court Rule 30.3 (requiring the prosecutor, as an officer of the court, to furnish upon demand the addresses and telephone numbers of the State’s witness). “Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in [her] place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.” (Emphasis supplied.) OCGA § 17-7-110. This Code section “is mandatory, and it is error to permit a witness whose name was not on the list furnished to testify unless ‘the [prosecutor makes the proper showing that the desired testimony is newly discovered].’ ” Huffaker v. State, 119 Ga. App. 742 (1) (168 SE2d 895) (1969). See also Allison v. State, 256 Ga. 851, 854 (8) (353 SE2d 805) (1987); Hyatt v. State, 134 Ga. App. 703 (3) (215 SE2d 698) (1975). However, the “prosecution may furnish supplemental lists, even though the witnesses’ names contained therein are not ‘newly-discovered,’ provided that the complete list is available to the accused promptly after his demand and at a reasonable time before trial.” (Emphasis supplied.) Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30) (1974). Moreover, the exclusion of unlisted witnesses does not apply to rebuttal witnesses. Nunnally v. State, 235 Ga. 693, 707 (13) (221 SE2d 547) (1975).

“[I]t is obvious that to hand over the [supplemental] list immediately before the call of the case for trial [is] an empty compliance [by the prosecution]. ... A specious and empty compliance with the formalities of law which results in the withholding of that which the spirit of the law seeks to grant cannot be countenanced.” Fishman v. State, 128 Ga. App. 505, 511 (4) (197 SE2d 467) (1973). A fortiori, the State’s deliverance of a supplemental witness list after the completion of voir dire is, in the absence of extenuating circumstances, an empty compliance. The State made no effort to show that this additional witness was newly discovered and that the State had been unaware of his existence when it supplied the original list pursuant to appellant’s written demand. Compare Yeomans v. State, 229 Ga. 488, 490-491 (2) (192 SE2d 362) (1972).

It is true that, upon a proper showing by the State that the evidence is newly discovered and unknown to the State when the list was furnished, the trial court has the legal discretion to consider alternative remedies to excluding the witness or granting a mistrial. Davis v. State, 135 Ga. App. 203, 207 (3) (217 SE2d 343) (1975). A continuance in order to interview the unlisted newly-discovered witness frequently accomplishes the purpose of eliminating unfair surprise. Davis v. State, supra. Had the prosecution made a proper showing that the unlisted witness offered newly-discovered evidence the existence of which the State was previously unaware when it furnished the accused a list of witnesses, the “fact that the witness would not cooperate with the attorney [would] not [mandate] disallowing his testimony.” Hayes v. State, 261 Ga. 439, 442 (4) (405 SE2d 660) (1991) (wherein the Supreme Court imputed a ten-day period as the reasonable measure of the State’s compliance with the pretrial furnishing of a list of witnesses pursuant to OCGA § 17-7-110).

Here, however, the State failed to establish the applicability of the exception to the rule that, “without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant.” Where the exception for newly-discovered evidence does not apply, the accused has an absolute statutory right to exclude the testimony of an unlisted witness from the prosecution’s case-in-chief or to demand a continuance. Rogers v. State, 261 Ga. 649 (1) (409 SE2d 655) (1991); Smith v. State, 130 Ga. App. 390, 392 (4) (203 SE2d 375) (1973) (whole court); Baldwin v. State, 137 Ga. App. 32 (223 SE2d 10) (1975); Parham v. State, 135 Ga. App. 315, 317-318 (2) (217 SE2d 493) (1975). Under such circumstances, appellant was not obliged to accept the trial court’s offer of a brief postponement, and if not accepted by the accused, the mere offer of postponement does not cure the defect. The trial court erred by permitting this virtually unlisted witness to testify over objection, where the State failed to claim that the witness presented “newly-discovered” evidence of which the State had been “unaware” when it furnished the original list pursuant to appellant’s written demand.

Decided October 26, 1993

Reconsideration denied November 12, 1993.

John D. Rasnick, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Mark M. Irvin, Randall K. Coggin, Assistant District Attorneys, for appellee.

(c) This error is subject to the test for harmless error. Workman v. State, 198 Ga. App. 455, 457 (1) (402 SE2d 76) (1991); Caito v. State, 130 Ga. App. 831, 837 (7) (204 SE2d 765) (1974). This new witness was the only State’s witness who testified from personal knowledge that appellant received the cash delivered from a customer to pay for funeral services and the only witness to offer incriminating testimony of appellant’s alleged intent not to turn the money over to appellant’s employer, the complainant funeral home. “Under these circumstances, we cannot say that the testimony of the unlisted witness did not contribute to the verdict of [guilt on the sole charge of theft by conversion]. The error was not harmless beyond a reasonable doubt. [Cit.]” Rogers v. State, supra at 650 (1). “There was [sufficient] evidence to support a conviction without this witness; but the law must be strictly followed in order for the defendant to have a fair and impartial trial in accordance with [the] law.” Smith v. State, supra at 392 (4).

3. Appellant’s objections to certain State’s exhibits on the basis of inadequate foundation are without merit. Remaining enumerations have been considered and are found to present circumstances unlikely to recur upon retrial.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1506.
    RILEY et al. v. BRASUNAS et al.
    (438 SE2d 113)
   Cooper, Judge.

Sean Riley through his parents and next friends, brought his tort action against appellee-defendants, the Brasunases and their 15-year-old son, Tony, seeking to recover for injuries sustained when Sean fell in the basement of the Brasunases’ home. After a period of discovery, appellees moved for summary judgment. This motion was granted by the trial court and appellants bring this direct appeal.

Viewed in the light most favorable to the non-movants, the evidence adduced in support of appellees’ motion would authorize the following facts: Deborah Longo and her seven-year-old son Sean Riley were out-of-town guests in the Brasunases’ residence. The two mothers were planning a joint family vacation to Florida. On the evening of their arrival in Atlanta, Sean Riley and nine-year-old Michael Brasunas were playing in the Brasunases’ basement. Their game consisted of using a mini exercise trampoline to jump up to a chin-up bar placed in a doorway, swinging from the bar, and landing in the next room. Ms. Longo witnessed this activity and, being concerned for his safety, admonished Sean to stop after seeing blisters on his hand. Nevertheless, the boys performed this feat twice more that night without incident. Sean knew that he could hurt himself if he fell from the trampoline or chin-up bar. The next morning, Ms. Longo and Mrs. Brasunas were leaving the house to go shopping. Ms. Longo told Sean he was not to jump from the trampoline to the chin-up bar but that he could use the trampoline. She moved the trampoline to the middle of the room and away from the door. On “implied” instructions from his mother, Tony Brasunas was placed “in charge” while the adults were gone. Ms. Longo never discussed with Tony Brasunas the extent of any responsibilities under this charge and never expected to pay him for watching the younger boys. Rather she “just assumed that Tony would be home and watch both of the boys while we went shopping.” Tony was not watching the boys, who began jumping from the trampoline. Sean slipped from the chin-up bar and fell, hitting his head.

1. Appellants first contend that James and Lynne Brasunas were liable for a dangerous and defective condition on their property. Although premises liability was alleged pursuant to OCGA § 51-3-1, whereby the owner or occupier of land owes a duty of ordinary care to its invitees, the undisputed facts reveal that Ms. Longo and her son were merely social guests in the Brasunas residence. As social guests, appellants were licensees and not invitees. “The law of Georgia and the decisions of this court hold that a social guest in a defendant’s private home is a bare licensee [even though he was expressly invited]. [Cits.]” Bryant v. Rucker, 121 Ga. App. 395 (173 SE2d 875) (1970). See also Laurens v. Rush, 116 Ga. App. 65, 66 (156 SE2d 482) (1967). The fact that a joint family social trip for their mutual personal benefit was being planned while appellants were guests in appellees’ private residence would not elevate their status from that of licensee to an invitee. Appellants’ reliance upon Frankel v. Antman, 157 Ga. App. 26 (276 SE2d 87) (1981) is misplaced, for the visitor there, a member of a charitable committee, was not a social acquaintance of the hostess but was present solely for the purpose of attending an organizational meeting. “The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b).

“However, this duty does not arise with respect to a mere statical condition of the premises. [Cit.] As to such condition, the owner or occupant owes no greater duty to the licensee whose presence is known than to any other licensee, and this is not to wilfully or wantonly injure him. [Cits.] Further, there is no duty to a licensee with respect to keeping the usual condition of the premises up to any particular standard of safety except that they must not contain a pitfall or mantrap. [Cit.]” Bronesky v. Estech, Inc., 170 Ga. App. 724, 725 (318 SE2d 194) (1984). The use of the trampoline in conjunction with the chin-up bar in appellees’ basement was not a mantrap within the meaning of the rule of liability as to a youthful licensee whose presence is actually known to the owner. See Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, 198-201 (3) (150 SE2d 563) (1966). Compare McKinsey v. Wade, 136 Ga. App. 109 (4) (220 SE2d 30) (1975). Liability under “[t]his rule, of course, presupposes that the licensees do not know or have reason to know of the risks involved. [Cits.]” Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67) (1983).

Here, the obvious risk involved in the game invented by the boys was falling and hurting oneself. The dangers associated with fire, fall-' ing from heights, and from water are said to be normally understood by young children absent other factors creating additional risks of harm. See Gregory v. Johnson, 249 Ga. 151, 154 (289 SE2d 232) (1982); McCall v. McCallie, 48 Ga. App. 99, 100 (1) (171 SE 843) (1933). “ ‘No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child [of] nearly [seven] years of age . . . knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt.’ ” Augusta Amusements v. Powell, 93 Ga. App. 752, 757 (92 SE2d 720) (1956). While it is recognized that “ ‘children of tender years and youthful persons generally are entitled a degree of care proportioned to their ability to foresee and avoid the perils that may be . . . encountered,’ [cit.], this rule must be considered in the light of the fact that even young children have a natural fear of water, fire and heights (cit.). . . .” Higginbotham v. Winborn, 135 Ga. App. 753, 757 (2) (218 SE2d 917) (1975). The undisputed evidence of record shows that Sean knew of and appreciated the possible danger of injury to himself if he fell from the trampoline or slipped from the chin-up bar. This evidence demands a finding that the elder Brasunas did not wilfully, wantonly, or recklessly lead Sean into a hidden peril on the premises of their private residence and so did not breach the duty of care owed to their social guest. See Walker v. Reed, 180 Ga. App. 165 (348 SE2d 707) (1986). Accordingly, the trial court correctly granted appellees’ motion for summary judgment.

Decided October 27, 1993

Reconsideration denied November 12, 1993

Curtis A. Thurston, Jr., Maurice J. Bernard III, for appellants.

Sharon W. Ware & Associates, Robin P. Lourie, for appellees.

2. A separate claim against Tony Brasunas was made, alleging that he failed in his duty as the custodian of the two young boys. The evidence in support of the existence of a duty on his part is that he was “impliedly” instructed by his mother that he was “in charge” and was to “watch over” the younger boys.

“ ‘When a person undertakes to control and watch over a young child, even without compensation, he becomes responsible for injury to the child through his negligence, and his duty to use reasonable care to protect the child is not measured by what his duty would have been to a social guest or licensee. [Rather], the measure of duty . . . is to be gauged by the standard of the [ordinary] responsible [guardian]; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.’ [Cit.]” Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972). The undisputed evidence of record reveals that Sean knowingly assumed the risk of possible injury. The obviousness of the very danger which led to Sean’s injuries makes this action one of those cases in which a minor below the age of 14 may be deemed to have assumed the risk as a matter of law. Abee v. Stone Mtn. Memorial Assn., 252 Ga. 465, 466 (314 SE2d 444) (1984). Any failure of Tony to “watch over” the boys cannot be the proximate cause of Sean’s injuries, for the latter’s knowing exposure of himself to danger is a bar to recovery. Laite v. Baxter, supra at 749 (2). See also Fagan v. Atnalta, Inc., 189 Ga. App. 460, 461 (376 SE2d 204) (1988). The trial court correctly granted Tony Brasunas’ motion for summary judgment.

Judgments affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2506.
    MORTON v. THE STATE.
    (437 SE2d 839)
   Johnson, Judge.

This is the second appearance of this case in this court. In the original appeal, Morton v. State, 206 Ga. App. 413 (425 SE2d 336) (1992), Albert W. Morton’s conviction was affirmed, but his sentence was vacated because, as the State conceded, it exceeded the range authorized by law for the offense. The case was remanded for resentencing only. On remand, the trial court imposed a sentence which is well within the range authorized by law for the offense.

Decided November 5, 1993

Reconsideration denied November 12, 1993

Albert W. Morton, pro se.

Paul L. Howard, Jr., Solicitor, Phyllis M. Burgess, Deborah W. Espy, Assistant Solicitors, for appellee.

In this reappearance of the case, Morton seeks to raise again the merits of his underlying conviction. These issues, having previously been decided against him, may not be raised and considered again.

Judgment affirmed.

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

       Morton’s “car collection” has prompted two other opinions rendered by this court, however. See Morton v. McCoy, 204 Ga. App. 595 (420 SE2d 40) (1992); Morton v. State, 193 Ga. App. 119 (387 SE2d 9) (1989).


author: Beasley, Presiding Judge.

text:
    A93A1104.
    BOOKSING et al. v. HOLLEY et al. CORRADO et al. v. HOLLEY et al.
    A93A1105.
    (437 SE2d 857)
   Beasley, Presiding Judge.

Corrado and others, all Ohio residents, were the shareholders of Falcon Leasing Corporation and Regal Transportation, Inc., Ohio corporations engaged in interstate trucking operations.

In March 1990, Corrado, on behalf of himself and other shareholders, engaged in negotiations in Ohio to sell the stock in these corporations and other property (collectively referred to as Regal Enterprises) to Holley, a Florida resident.

On April 10, 1990, Corrado and his accountant, attorney, and sales broker travelled to Georgia to the office of Holley’s attorney to close two agreements under which Holley purchased all the stock. Corrado brought the agreements, which had been signed by the other shareholders in Ohio. Holley signed the agreements in Georgia. Various corporate documents, as well as corporate stock certificates previously signed by the other shareholders, were presented to Holley, and new certificates were prepared and presented to him. Related contracts were delivered, examined by Holley and his attorney, and signed by Holley. Some negotiations took place. In payment for the Falcon stock, $115,000 was paid to Corrado through checks drawn on the attorney’s trust account. In payment for the Regal stock, $320,000 was placed in escrow pending ICC approval of the sale. Checks in the latter sum were delivered to Corrado by Holley on June 12, 1990, at the law office in Ohio of Corrado’s attorney on June 12, 1990.

Following the sale, Holley (according to his affidavit) assigned all of his right, title, and interest in the agreements to his sons, Brenton and Marcus. On August 22 and 23, 1991, Brenton and Marcus (by his father as guardian) filed two suits against Corrado and the prior shareholders of, respectively, Falcon and Regal. The complaints seek a total of $1,444,000 in actual damages and $600,000 in punitive damages, based upon allegations of false representations by Corrado and breach of contract.

Defendants sought a dismissal of both complaints and moved for summary judgment on the ground that the Georgia court lacks personal jurisdiction over them.

In a supporting affidavit, Corrado states that on February 21, 1991, he and the other Regal shareholders filed a complaint in an Ohio state court against Holley, his two sons, his attorney, and various corporations. It seeks rescission of the sale of Regal Enterprises and damages for fraud and breach of contract. Corrado states in his affidavit that the Ohio suit was removed to federal court, where additional necessary parties (Falcon and Regal) were joined, thereby destroying diversity; and that rather than remanding the case back to the Ohio state court, as required by 28 USCA § 1447, the federal court dismissed the action without prejudice on October 18, 1991, which necessitated refiling a new complaint in the Ohio state court.

The record only shows that an amended complaint was filed by the Ohio plaintiffs in federal district court in Ohio on October 4, 1991, and that a complaint containing the same allegations was filed in the Ohio state court on October 23, 1991. There is no documentation concerning the date on which the complaint in the Ohio state court was first filed or when the case in federal court was dismissed.

In response to defendants’ motions for summary judgment, and in a supporting affidavit executed by Holley’s attorney, plaintiffs asserted that no litigation in Ohio was pending when the complaints in this case were filed.

Following a hearing at which no testimony was presented, the court denied defendants’ motions, finding that it has in personam jurisdiction over all defendants. The court stated at the hearing that it so ruled because this case was filed before the one in Ohio. We granted defendants’ applications for interlocutory appeal. Case No. A93A1104 relates to the Falcon complaint; Case No. A93A1105 relates to the Regal complaint.

1. The defendants’ motions were in abatement, not bar, and should have been adjudicated as motions to dismiss for lack of personal jurisdiction pursuant to OCGA §§ 9-11-12 (b) and 9-11-43, rather than as motions for summary judgment pursuant to OCGA § 9-11-56. Behar v. Aero Med Intl. 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988).

“Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.]” Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990). Where, as here, the court decides the motions on the basis of affidavits and documentary evidence but not oral testimony, disputes of fact contained in affidavits are resolved in favor of plaintiff. Id. Consequently, the court was authorized to find that the Georgia litigation was instituted before the Ohio litigation. Moreover, the contrary statement in defendants’ affidavit is not supported by the documentary evidence on which they rely.

2. Notwithstanding other relevant considerations, the constitutional touchstone for determining whether nonresident defendants have submitted themselves to the personal jurisdiction of the courts of another state is whether the defendants purposefully established “minimum contacts.” Behar, supra at 849-850 (2).

Under the traditional three-prong test, “minimum contacts” exist if (1) the nonresident has purposefully done some act or consummated some transaction in this state, thereby purposefully availing himself of the privilege and protection of this state’s laws, (2) the cause of action arises from or is connected with such act or transaction; and (3) the exercise of jurisdiction by the courts of this state is consonant with due process notions of fair play and substantial justice. Klein v. Allstate Ins. Co., 202 Ga. App. 188, 189 (2) (413 SE2d 777) (1991); Ga. R. Bank &c. Co. v. Barton, 169 Ga. App. 821, 822-823 (315 SE2d 17) (1984). “It is critical to this due process analysis that the nonresident defendant’s ‘conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Cit.]” Behar, supra at 850 (2).

Construing the term “transacting any business” in the Long-Arm Statute, OCGA § 9-10-91 (1), most liberally so as to uphold jurisdiction of our courts in actions arising either directly or indirectly out of nonresidents’ transactions of business in this state, it has been held that the execution of a contract by an individual personally present within the territorial limits of the state is sufficient to constitute “transacting business” within the meaning of the statute. Davis Metals v. Allen, 230 Ga. 623, 625-626 (198 SE2d 285) (1973); Tampa Motel Mgmt. Co. v. Stratton of Fla., 186 Ga. App. 135, 137 (1) (366 SE2d 804) (1988); see also Drennen v. First Home Savings Bank, 204 Ga. App. 714, 716 (1) (420 SE2d 376) (1992) (where nonresidents have executed contracts in other states which have had consequences in Georgia, the inquiry is not limited to the execution of the contracts alone; prior negotiations and contemplated future consequences, plus the contract terms and the parties’ actual course of dealing, must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum); Barton, supra at 823 (a single transaction may be a sufficient basis if its effects within the forum are substantial enough whether or not the nonresident is physically present in the state).

There is no question that the acts of Corrado constituted “transacting business.” Davis Metals, supra. That action is ascribed to the other shareholders since Corrado was acting as their agent. OCGA § 9-10-91; Bloise v. Trust Co. Bank of Savannah, 170 Ga. App. 405, 407 (1) (317 SE2d 249) (1984).

The Supreme Court in Burger King Corp. v. Rudzewicz, 471 U. S. 462, 478 (105 SC 2174, 85 LE2d 528) (1985), did state that an individual’s contract with a nonresident cannot alone establish sufficient minimum contacts in the other party’s home forum, noting that the Court had long ago rejected “mechanical” tests and “conceptualistic theories of the place of contracting or performance.” Nevertheless, the Court held that minimum contacts existed, noting that choice-of-law analysis, which focuses on all elements of the transaction and not simply on the defendant’s conduct, is distinct from minimum-contacts analysis, which focuses at the threshold on the defendant’s purposeful connection to the forum. 471 U. S. at 481-482.

Beasley, supra at 421, relied upon by defendants, amplifies Burger King, supra at 475 and 477, instructing that the three prongs or elements of the traditional test “do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts . . . The first two elements are used to determine whether defendant has established the minimum contacts necessary for the exercise of jurisdiction. If a defendant has established minimum contacts, the court may then evaluate other factors that impact on the reasonableness of asserting jurisdiction, such as the burden on defendant, the forum state’s interest in adjudicating the dispute, plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution to controversies, and the shared interest of the states in furthering substantive social policies.”

The defendants, through Corrado, did establish the requisite minimum contacts by executing the agreements in Georgia, thereby submitting themselves to the personal jurisdiction of the Georgia court. Also, as found by the trial court, plaintiffs filed these complaints in Georgia before the Ohio complaints were filed. The Georgia court’s assumption of jurisdiction comports .with due process notions of fair play and substantial justice and is not unreasonable.

Decided November 12, 1993.

E. Kontz Bennett, Jr., for appellants.

Adams & Brooks, John B. Adams, for appellees.

3. Both OCGA § 9-11-13 (a) and Ohio Civ. R. 13 (A) provide that “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action.” (Emphasis supplied.)

When the action in Ohio was commenced, plaintiffs’ claims against Corrado and the other Falcon and Regal shareholders were the subject of this pending action, thereby coming within the above exception to the compulsory counterclaim rule of OCGA § 9-11-13 (a). Defendants were not entitled to a dismissal under the “other factors” listed in Beasley.

Judgments affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A1797.
    PRUITT et al. v. FULTON COUNTY, GEORGIA et al.
    (437 SE2d 861)
   Johnson, Judge.

The Superior Court of Fulton County granted summary judgment to Fulton County, Georgia, and Michael Lomax, Tom Lowe, Lee Roach, Michael Hightower, Gordon Joiner, Nancy Boxer, and Martin Luther King III, members of the Board of Commissioners of Fulton County, holding that this action, challenging the denial of a request for rezoning of a piece of real property, was time-barred. The Pruitts appeal.

The Georgia Supreme Court held in Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123) (1989): “[A]ppeals in zoning cases will henceforth require an application. Where an appeal from a decision of a court reviewing a zoning decision involves a constitutional question, this Court has jurisdiction; where it does not involve a constitutional question, the Court of Appeals has jurisdiction. However, in neither case is the appeal direct because it is an appeal from the decision of a court reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1). . . . [W]e hold that all zoning cases appealed either to the Court of Appeals or the Supreme Court of Georgia must hereafter come by application as of . . . October 26, 1989.” Id. at 425-426 (1). No application having been filed, we are without jurisdiction to consider this case. Accordingly, the appeal must be dismissed.

Decided November 12, 1993.

Richard H. Johnston & Associates, Gregory M. Brown, for appellants.

Kilpatrick & Cody, Michael W. Tyler, Karlise Y. Grier, for appellees.

Appeal dismissed.

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


text:
    A93A1901.
    THE STATE v. GERACE.
    (437 SE2d 862)
   Johnson, Judge.

The police arrived at the scene of a reported traffic accident and found an overturned pickup. The truck was littered with empty beer bottles and blood, but no one was in it. About a mile away, the police found Michael Gerace lying injured by the side of the road. He was taken to the hospital where the police read him his implied consent rights, and obtained consent to take a blood test pursuant to OCGA § 40-5-55.

The blood sample was sent to the State Crime Lab where it was subjected to deoxyribonucleic acid (DNA) testing. This testing resulted in Gerace’s arrest for rape and aggravated sodomy in connection with an incident which had occurred a month before the traffic accident. It is uncontroverted that prior to receiving the DNA test results, the police had no probable cause to arrest Gerace in connection with the rape; the blood sample was taken solely because Gerace was suspected of driving under the influence of alcohol, a charge which, to our knowledge, has not been pursued.

Gerace filed a motion to suppress the DNA test results and the trial court granted the motion, stating that the test exceeded the scope of the consent given for the sample. The State appeals the trial court’s grant of Gerace’s motion to suppress.

1. The State argues that the trial court erred in holding that OCGA § 40-5-55 limits the scope of consent to a test to determine alcohol and/or drug content of a suspect’s blood. The State suggests in its brief that: “The plain language of the statute and cases interpreting it reveal no intent by the legislature or the courts to limit the Implied Consent Statute to the uses prescribed by the trial court.” We disagree. The implied consent card read to Gerace, and as read at the motion to suppress hearing states: “OCGA § 40-5-55 and 40-6-392 require you to submit to a state administered chemical test or tests of your blood, breath, urine or other bodily substances for purposes of determining alcohol or drug content." (Emphasis supplied.) OCGA § 40,-5-55 is in derogation of the common law and must be strictly construed. Steed v. City of Atlanta, 172 Ga. App. 839, 840 (3) (325 SE2d 165) (1984). So construed, the purpose of the statute could not be clearer; the statute’s plain language reveals the legislature’s intent to limit the drawing of blood only to test for alcohol or drugs.

2. The State further argues that the trial court erred in holding that the DNA test administered in this case violated Gerace’s reasonable expectation of privacy in the content of his blood. The analogy drawn by the State to. signatures of people taken into custody later used as evidence in forgery cases or fingerprints obtained during a search is inapt. The State ignores that probable cause and/or a warrant in either of those examples already exists. See State v. Slavny, 195 Ga. App. 818 (395 SE2d 56) (1990). The State’s argument that because the blood sample was obtained with consent it is free to use it for any purpose, paints the notion of consent with far too broad a brush.

Gerace relies on, and we believe that his case is controlled by, Beasley v. State, 204 Ga. App. 214, 216-217 (1) (419 SE2d 92) (1992). In that case this court held that appellant Beasley gave consent for a urine sample for the purpose of determining bond, in connection with a questionably illegal policy of the Dougherty County Superior Court. Once Beasley’s urine tested positive for cocaine he was charged with possession. This court held that consent for one purpose does not mean consent for ANY purpose, and therefore the consent was not the product of an essentially free and unrestrained choice. This is identical to the situation here. “Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given. The voluntariness of a consent to search is determined by looking to the totality of the circumstances, including such factors as the age of the accused, the length of detention, whether the accused was advised of his constitutional rights, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. A consent to search must be the product of an essentially free and unrestrained choice by its maker. Under the totality of the circumstances presented in this case, we agree with [Gerace] that the consent he gave [the police] was not voluntary. His consent was premised on the incomplete and thus deceptively misleading information he received . . . that the test results would be used only for [determining blood alcohol or drug content]. Had [Gerace] been cautioned that the results of the search and seizure of his [blood] would be used to supply evidence against him in an independent criminal prosecution, no consent might have been given.” (Citations and punctuation omitted.) Id. at 216. Under these circumstances, we cannot find that consent was freely given. The trial court did not err in granting Ger-ace’s motion to suppress.

Decided November 12, 1993.

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Jr., Richard L. Dickson, Assistant District Attorneys, for appellant.

Kardos, Warnes & McElwee, Stephen H. McElwee, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A93A1672.
    STATE OF GEORGIA v. WHITE.
    (437 SE2d 826)
   Blackburn, Judge.

On July 17, 1992, Barry White purchased less , than one gram of counterfeit crack cocaine from an undercover officer with the Richmond County Sheriff’s Department during a reverse sting operation. When White attempted to drive away from the scene, he was arrested and charged with criminal attempt to possess cocaine. The sheriff’s department impounded White’s vehicle, a 1979 Ford F-100 pickup truck, and on September 15, 1992, the State of Georgia commenced this forfeiture action pursuant to OCGA § 16-13-49. White eventually pleaded guilty on November 12, 1992.

White answered the complaint for forfeiture, and following a hearing on the matter, the trial court denied the State’s petition on the grounds that the forfeiture provisions of OCGA § 16-13-49 did not apply to transactions involving counterfeit controlled substances. The State appeals from that order.

OCGA § 16-13-49 generally governs forfeitures of contraband associated with violations of the Georgia Controlled Substances Act, and “must be liberally construed to effectuate its remedial purposes.” OCGA § 16-13-49 (z). Subsection (d) (2) of that Code section provides that all property directly or indirectly used, or intended for use, in any manner to facilitate a violation of the Georgia Controlled Substances Act shall be subject to forfeiture.

Under OCGA § 16-13-30 (a), “it is unlawful for any person to purchase, possess, or have under his control any controlled substance.” Crack cocaine is certainly a controlled substance as defined in OCGA § 16-13-21. OCGA § 16-13-33 also provides that “[a]ny person who attempts or conspires to commit any offense defined in this article shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Consequently, the attempt to possess crack cocaine is a violation of the Georgia Controlled Substances Act, and any property used to facilitate such a criminal attempt would be subject to forfeiture under OCGA § 16-13-49 (d) (2).

Prior to the 1991 amendment of OCGA § 16-13-49, before a vehicle was forfeitable, it was necessary to show that the vehicle was used, or was intended for use, to transport or facilitate the transportation of contraband. State of Ga. v. Hamm, 193 Ga. App. 184 (387 SE2d 344) (1989). The current burden is considerably less, with the State only having to show that use of the subject property facilitated, or was intended to facilitate, a violation of the Georgia Controlled Substances Act. In Hamm, where a vehicle was driven to the site of a drug deal, this court observed that the vehicle “was certainly used to facilitate the sale,” although that was insufficient to authorize forfeiture under former OCGA § 16-13-49. However, had the current statute been in effect at the time Hamm was decided, forfeiture of the vehicle would have been in order.

In the instant case, White not only drove his pickup truck to the drug deal site, but he also attempted to drive away in it after purchasing the counterfeit crack cocaine. Under these circumstances, his use of the truck facilitated his attempted violation of OCGA § 16-13-30 (a), thereby rendering the vehicle subject to forfeiture pursuant to OCGA § 16-13-49 (d) (2). Indeed, the element of facilitation would have been satisfied even under the former Code section that required actual or intended transportation of contraband.

Because the instant case involved less than one gram of counterfeit cocaine, the trial court evaluated the forfeiture petition under OCGA § 16-13-49 (e), which provides in part that “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less . . . unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance. . . .” The court concluded that because the counterfeit crack cocaine purchased by White was not a controlled substance as defined in OCGA § 16-13-21, this transaction involving the counterfeit cocaine did not fall within the purview of OCGA § 16-13-49.

However, as discussed above, the forfeiture provision contained in OCGA § 16-13-49 (d) (2) extends to property used to facilitate a violation of the Georgia Controlled Substances Act. White’s attempt to purchase cocaine, which constituted a violation of that Act under OCGA §§ 16-13-30 (a) and 16-13-33, and his use of his pickup truck to facilitate that purchase, would thus invoke that forfeiture provision.

Decided October 26, 1993

Reconsideration denied November 15, 1993

Daniel J. Craig, District Attorney, Daniel W. Hamilton, William C. Davison, Assistant District Attorneys, for appellant.

Peter D. Johnson, for appellee.

Further construing the statute liberally as required by OCGA § 16-13-49 (z), the exception to forfeiture contained in OCGA § 16-13-49 (e), regarding transactions involving less than one gram of cocaine, would also be applicable to transactions involving the attempted purchase or possession of a like amount of cocaine, notwithstanding the fact that the actual substance was counterfeit. Nevertheless, because White used his truck to facilitate his attempted purchase and possession of cocaine, the vehicle was still subject to forfeiture even under the terms of that exception. Accordingly, the trial court erred in denying the State’s complaint for forfeiture.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A2321.
    VIRGINIA PROPERTIES, INC. v. ROSE.
    (437 SE2d 835)
   McMurray, Presiding Judge.

Plaintiff Rose filed this action on an employment contract, seeking to recover certain compensation allegedly due under a bonus provision of the written contract. Defendants are Rentokil Group PLC, a parent corporation, and Virginia Properties, Inc., a descendant of the subsidiary corporation which was a party to the contract with plaintiff. This appeal is taken by Virginia Properties, Inc. from the grant of a summary judgment in favor of plaintiff and from the denial of its opposing motion for summary judgment. Held:

1. Plaintiff contracted to serve as manager of the Sanitact Division of the defendant subsidiary corporation. The Sanitact Division represented an attempt to introduce to the United States a limited waste disposal business which had been successful in other locations. Nonetheless, previous attempts to develop this business in the United States had not been successful and an immediate profit was not anticipated. The predecessor of Virginia Properties, Inc. budgeted for Sanitact a net loss of $250,942 for the October 1, 1986-September 30, 1987 fiscal year. The term of the employment contract was also for this interval of time.

The written contract between the plaintiff and the predecessor of Virginia Properties, Inc. is over five pages in length plus several pages of attached exhibits, and sets forth plaintiff’s duties and compensation, provides for various contingencies related to termination of the agreement, and addresses a number of other matters, including an entirety or merger clause. The portion of the contract at issue in the case sub judice is a subdivision of the portion of the agreement dealing with compensation. Other sub-parts of this division of the contract set forth a base salary, provide for a company car, reimbursement of out-of-pocket expenses, and participation in company insurance and vacation plans.

The relevant language concerning bonuses provided that: “Manager and the Company acknowledge that, prior to the date hereof, they have agreed upon a projected budget for the Business of the Company within the Territory (as hereafter defined) during the term of this agreement. A summary of such budget is set forth on Exhibit ‘A’ attached hereto and made a part hereof. In addition to and separate from the base salary described in Subsection 4(a) hereof, the Company will pay Manager the annual or quarterly bonus or bonuses described on Exhibit A’ if the Company’s net sales and net profits derived from the Business of the Company within the Territory equal or exceed the applicable levels indicated on Exhibit ‘A’ during the term of the agreement. ...”

The projected budget for Sanitact was attached to the employment agreement. That budget reflected the hope to hold the loss for Sanitact to $250,942 for the 1986-1987 fiscal year and anticipated sales of $307,648. Also attached to the contract was a page which under the caption “Exhibit A” set forth a bonus scheme which rewarded achievement of 86 percent or more of a “profit target.”

For the year in question Sanitact had sales of $151,474 and losses of $229,423. These figures reflect a decision by plaintiff’s superiors to terminate a portion of the venture during the course of the year.

The issue presented is whether plaintiff, in order to be entitled to a bonus, was required to achieve only a minimum specified percentage of a profit target (albeit in the case sub judice we are actually concerned with minimizing loss rather than maximizing the profits of the Sanitact Division), or whether plaintiff was also required to achieve a specified level of sales ($307,648).

“ ‘It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. (Cit.) If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.’ Bd. of Regents v. A. B. & E., 182 Ga. App. 671, 673 (357 SE2d 100) (1987).” Brown v. Hitch, 208 Ga. App. 784, 785 (1) (431 SE2d 751). See also Graphic Prep v. Graphcom, 206 Ga. App. 689, 691 (1) (426 SE2d 183).

The superior court found that the contract required plaintiff to reach only the profit target. Such is an incorrect construction of the plain language of the contract. The bonus is contingent on two conditions precedent, “if the Company’s net sales and net profits derived from the Business of the Company . . . equal or exceed the applicable levels indicated on Exhibit ‘A.’ ” Both net sales and net profits must have reached the applicable levels in order for plaintiff to be entitled to a bonus. The “applicable levels indicated on Exhibit ‘A’ ” refers us to the documents contained in this exhibit and includes the budget summary attached to the contract. The first reference to “Exhibit A” refers to the summary of the budget included thereon and the failure to place a caption on the budget pages explicitly identifying them as a portion of that exhibit is not germane in the face of the clear language incorporating them. There are no other budget summaries attached to the contract which might raise an issue as to the identity of the document referenced in the contractual language.

A reference to the budget provides sales and profit goals, as well as providing a context in which the bonus scheme becomes meaningful. The bonus scheme modified the budget figures so as to permit bonuses when only 86 percent of the profit goal has been reached.

As noted by plaintiff, the bonus scheme makes no reference to any requirement of achieving the projected level of sales. However, the bonus scheme, along with the budget also contained in “Exhibit A,” is incorporated into the contractual paragraph, and not the reverse. There is nothing in the bonus scheme which modifies the contractual language requiring sales of an applicable level before plaintiff is entitled to a bonus.

The determinative factor here is that the sales target provided in “Exhibit A” was not met. Therefore, the superior court erred in granting a summary judgment in favor of plaintiff and in denying the motion for summary judgment of defendant Virginia Properties, Inc.

2. Two remaining enumerations of error complain as to rulings adverse to the interest of the second defendant, Rentokil Group PLC. As these issues do no affect the interest of appellant/defendant Virginia Properties, Inc., it has no standing to raise these issues and they may not be considered on this appeal. American Ins. Co. v. Bateman, 125 Ga. App. 189 (1) (186 SE2d 547); Rush v. Southern Property Mgmt., 121 Ga. App. 360, 361 (2) (173 SE2d 744).

Judgment reversed.

Johnson and Blackburn, JJ., concur.

Decided November 4, 1993

Reconsideration denied November 15, 1993.

Branch, Pike & Ganz, Thomas B. Branch III, Keith J. Reisman, Tanya M. Ashley, for appellant.

Nations, Yates & Freeman, Michael T. Nations, Maria W. Hughes, for appellee.


text:
    A93A2501.
    SANDERS v. SAFEWAY INSURANCE COMPANY et al.
    (437 SE2d 831)
   Johnson, Judge.

Alan Dean Sanders was injured in a car accident and incurred medical expenses of $17,000. His insurance policy, issued by Safeway Insurance Company of Georgia, provided the minimum personal injury protection of $2,500 allowed under OCGA § 33-34-4. The policy also contained a $1,500 deductible as provided by OCGA § 33-34-4 (d). Upon Sanders’ application for medical benefits under the policy, Safeway subtracted the $1,500 deductible from the total requested coverage of $2,500 and paid Sanders $1,000. Sanders filed the present lawsuit against Safeway, claiming that the $1,500 deductible should not have been subtracted from the coverage limit, but is simply a threshold amount for which he is responsible, after which the insurer is obligated to pay the full policy coverage of $2,500. The parties filed opposing motions for summary judgment. The trial court granted Safeway’s motion and denied Sanders’ motion. Sanders appeals.

The instant case is controlled by our recent decision in Carreker v. Southern Gen. Ins. Co., 204 Ga. App. 478 (419 SE2d 724) (1992). In that case we held, “As defined under [OCGA § 33-34-4 (d)], the deductible is applied not as a threshold after which the insurer remains potentially responsible for the full limits of coverage, but as a reduction in the limits of coverage applicable under subsections (a) (2) (A) (medical expenses) and (a) (2) (B) (lost wages) as component elements of the $5,000 total benefits limit specified in subsection (c).” Id. at 480-481 (1). Sanders argues that this holding is not applicable to the present case because there was a contract provision in Carreker that is not found in the instant case. The insurance policy in Carreker provided “that for a reduced premium [the insurance company] will reduce by $1,500.00 per accident the amount we will pay to each eligible injured person for any combination of expenses for medical expenses incurred and actually paid, or work loss suffered.” (Punctuation omitted.) Id. at 481 (1). This court found that this language unambiguously implemented the deduction authorized by OCGA § 33-34-4 (d). Id.

Decided November 3, 1993

Reconsideration denied November 15, 1993

Falanga, Barrow & Chalker, Robert A. Falanga, Jesse E. Barrow III, for appellant.

Crim & Bassler, Harry W. Bassler, Terrence D. Williams, for appellees.

While it is true that the policy in the instant case does not contain this exact language, Sanders initialed the portion of the current policy which provides, “I wish my policy issued with the appropriate DEDUCTIBLE applicable to my BASIC PERSONAL INJURY PROTECTION. I understand this deductible may apply to me and each person who is a passenger in my vehicle ... In order to enjoy a lower rate, I request my policy be issued with BASIC PERSONAL INJURY PROTECTION deductible.” (Emphasis in original.) This language plainly and unambiguously implements the deduction authorized in OCGA § 33-34-4 (d). Safeway, therefore, was authorized to reduce the limits of coverage applicable under the insurance policy by the amount of the deductible. The trial court properly granted summary judgment to Safeway and properly denied Sanders’ motion for summary judgment.

Judgment affirmed.

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


text:
    A93A1293.
    WADE et al. v. HARRIS.
    (437 SE2d 863)
   Beasley, Presiding Judge.

This litigation stems from a petition to enforce an award of the State Board of Workers’ Compensation pursuant to OCGA § 34-9-106.

Fowler was killed in an automobile collision as he was returning home from a work assignment for his employer. Fowler’s purported common-law wife, Wade, individually and on behalf of her three children by Fowler, claimed workers’ compensation benefits.

A hearing before the ALJ was held on the issues of whether or not the employer was subject to the Workers’ Compensation Act, whether or not Fowler’s accident arose out of and in the course of his employment, and whether or not his purported common-law wife and children were total or partial dependents as defined by the Act. The ALJ determined the employer was George A. Harris, d/b/a George A. Harris Enterprises, Inc., was properly and sufficiently notified of the hearing, failed to appear, and was subject to the Act; the fatal incident arose out of and in the course of employment; the employee’s weekly disability benefits were a certain amount; Wade was Fowler’s common-law wife and was wholly financially dependent upon Fowler; Wade and Fowler were the natural parents of three children who were wholly dependent upon Fowler’s earnings; Fowler was also the biological father of another boy who was wholly dependent upon Fowler; and the widow Wade and all four children were entitled to benefits from the time of Fowler’s death. The ALJ entered the award against George A. Harris, d/b/a George A. Harris Enterprises, Inc. The employer did not pursue any administrative appeal or appeal to the superior court.

Approximately eight months after the award, on October 14, 1991, Wade individually and as guardian of her three children along with the other son’s maternal grandmother, who was the boy’s guardian, petitioned the superior court to enforce the award against George A. Harris, d/b/a George A. Harris Enterprises, Inc. On October 17, both “George A. Harris” and “George A. Harris, Inc.” were served with the petition. No answer was filed. Plaintiffs moved for “default judgment” on December 6. A hearing was held on the motion on January 17, 1992, at which George A. Harris appeared pro se. He claimed that he never had notice of the underlying workers’ compensation hearing and that he had been financially unable to secure legal counsel. The court urged Harris to obtain counsel and, over plaintiffs’ objection, took the motion under advisement for 30 days.

Harris obtained counsel and on February 17, Harris, d/b/a George A. Harris Enterprises, Inc., moved to open the “default” and file an answer. One of the defenses was that Harris individually was not a proper party to the action. In an order entered on May 1, the court denied plaintiffs’ “motion for default judgment” and granted defendant’s “motion to open default,” permitting defendant’s answer to be deemed timely filed.

The court concluded that defendant Harris had satisfied the requirements of OCGA § 9-11-55 and had “made out a proper case for opening the default.” It further concluded that a proper case had been made out because defendant had a reasonable excuse for not answering, plaintiffs had not shown any harm or prejudice by the three-month delay or that the opening of the default would delay the final trial, and that there was a non-amendable defect on the face of the record inasmuch as the award had erroneously been entered against Harris individually. In a footnote at the end of the order, the court advised the parties to consider whether plaintiffs were entitled to a judgment against the company but not against Harris individually, and if the parties could so agree, they could stipulate to that effect or could request the court to remand the case to the ALJ for such a modification of the notice of award. Interlocutory review of the ruling by this court was denied.

On October 23, both George A. Harris Enterprises, Inc. and defendant Harris moved for summary judgment, claiming that at no time were they ever notified of plaintiffs’ workers’ compensation action. On December 16, the court entered summary judgment in favor of Harris individually on the petition to enforce the workers’ compensation award and denied plaintiffs’ petition for enforcement against Harris for the reasons outlined in its May 1 ruling, namely that the claim was filed and pursued only against the corporate defendant as evidenced by documents filed in the workers’ compensation claim. In doing so, the court rejected plaintiffs’ contention that the court was required to reduce the award to judgment without any inquiry or review.

The court also denied the motion of George A. Harris Enterprises, Inc. for summary judgment, finding that plaintiffs’ claim was filed and pursued against only the corporation, entitling them to judgment against the corporation as a matter of law. It entered final judgment in favor of plaintiffs and against George A. Harris Enterprises, Inc. in accordance with the Workers’ Compensation Act and consistent with the provisions of the award.

Plaintiffs challenge the grant of summary judgmerit to Harris individually on the ground that the court had no discretion but was required to enforce the award as written. This challenge to the “opening of default” is two-fold: one, the concept of default is not applicable in the instant proceeding; two, defendant did not provide reasonable grounds for being in default, so opening it constituted an abuse of the trial court’s discretion.

1. Plaintiffs’ contention that the concept of default is not applicable in this proceeding is correct. Although plaintiffs themselves injected it into the proceeding by filing a motion for a default judgment, the superior court was in error in traveling down that path.

The filing in superior court of a petition to enforce an award or a settlement agreement pursuant to OCGA § 34-9-106 is not a separate suit but rather a continuation of the Board’s proceeding. See Davis v. Aetna Cas. &c. Co., 169 Ga. App. 825 (314 SE2d 913) (1984). The introduction of the matter into the judicial system so that the award can be made a judgment and enforced as such may require that it be governed to some procedural extent by the Civil Practice Act. In some instances the interplay of the Civil Practice Act and the Workers’ Compensation Act is mandated by statute. See, e.g., OCGA § 34-9-102 (d) (1), which provides that in the context of hearings before an ALJ, discovery procedures are to be governed by the Civil Practice Act. In others, common sense and equity require the relationship. See, e.g., Griggs v. All-Steel Bldgs., 201 Ga. App. 111 (410 SE2d 309) (1991), which recognized that the superior court was the proper forum for bringing an OCGA § 9-11-60 motion to set aside an OCGA § 34-9-106 judgment.

However, the concept of default under the Civil Practice Act as provided in OCGA § 9-11-55 is not applicable to OCGA § 34-9-106, for several reasons. Although OCGA § 34-9-106 does not preclude a response by the employer/insurer, it does not require or even contemplate one. Nor, in fact, does the statute provide for either notice to the employer/insurer or a hearing in the proceeding. See Davis, supra. Wade’s attempted service on and notice to the employer was wholly gratuitous. Nevertheless, the inquiry is not whether the employer could or should be found in default, but rather whether the superior court had authority, in the first place, to question the award as it did.

In an OCGA § 34-9-106 proceeding, the superior court’s role is very narrow. It is to render judgment on the award and notify the parties. Of course, it retains its inherent authority to refuse to enter judgment on an award or settlement that, on its face, is legally insufficient. See, e.g., Colbert v. Fireman’s Fund Ins. Co., 112 Ga. App. 187 (144 SE2d 470) (1965), which held it was not error for the superior court to refuse to enter judgment on an award pursuant to Ga. Code Ann. § 114-711 (now OCGA § 34-9-106) when the award on its face lacked a necessary finding or determination.

However, it lacks jurisdiction in a Section 106 proceeding to hear, dispute, or decide issues of fact which were determined in the administrative forum and which provide the basis for the award or settlement. See Davis, supra, in which it was reiterated that the superior court has no authority to hear and determine certain rights of the employee/claimant to receive compensation. The purpose of Section 106 is judicial enforcement of the award.

Thus, the superior court exceeded its authority in reaching behind the award sought to be enforced to make findings contrary to those made by the ALJ regarding the identity of the employer and the adequacy and validity of notice to it of the workers’ compensation proceeding. The factual determination of who or what entity was liable for the payout of the workers’ compensation benefits was for the ALJ to make, and she made it. A challenge to such finding is properly made before the State Board of Workers’ Compensation and, if unsuccessful there, before the superior court as an appellate court pursuant to OCGA § 34-9-105 (b). That is the purpose of administrative review and appeal provided by Section 105.

The superior court erred in refusing to enter judgment on the award, as specified, against George A. Harris, d/b/a George A. Harris Enterprises, Inc. The judgment must be reversed and the case remanded for entry of a new judgment consistent with this opinion.

2. Plaintiffs’ contention that the superior court abused its discretion in opening the default is rendered moot by the decision in Division 1, supra.

Decided November 15, 1993.

Dorough & Sizemore, Kermit S. Dorough, Jr., for appellants.

Gary V. Bowman & Associates, David J. Casey, for appellee.

3. Plaintiffs’ claim that summary judgment in favor of Harris individually was error because the superior court had no authority other than to enforce the award as written has been answered by Division 1, supra.

Judgments reversed and case remanded with direction.

Cooper and Smith, JJ., concur.


author: Johnson, Judge. Blackburn, Judge,

text:
    A93A1845.
    WILSON v. THE STATE.
    (437 SE2d 867)
   Johnson, Judge.

Nancy Wilson pled guilty to possession of cocaine, reserving the right to challenge on appeal the trial court’s denial of her motion to suppress. Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991). The only evidence presented at the motion to suppress hearing was the testimony of police officer Chuck Keadle. He testified that the police received a tip that a male was selling cocaine in an area “[t]hat’s the number one place in the county where drug deals take place.” Keadle and several other officers went to that area, where Keadle saw Wilson standing in a group of eight people. Several people in the group were sharing a pipe to smoke suspected crack cocaine, although Keadle did not see Wilson in possession of the pipe. The group scattered as the police approached; some members of the group ran, while others, including Wilson, walked away from the police. Keadle asked two other officers to stop and search Wilson, which they did. The officers did not find any contraband on Wilson, who then agreed, upon Keadle’s request, to submit to a urine test. After providing a urine sample, Wilson was informed of her rights and stated that she believed her urine would test positive for cocaine because she had smoked crack twice that day. The urine did in fact test positive for cocaine and was the basis for the crime charged.

Wilson argues that the trial court erred in denying her motion to suppress evidence of the urine test because the officers’ initial stop and search of her was illegal and tainted her subsequent consent to submit to the test. “ ‘[A] police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer . . . is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.’ (Citations and punctuation omitted.) [Cit.]” Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993). Here, Officer Keadle had a reasonable suspicion based on specific, articulable facts that Wilson was involved in criminal conduct when he observed her in a group of people apparently smoking cocaine, saw members of the group run from the police and saw Wilson walk away from the police. “Flight at the approach of law officers is a strong indicium of mens rea. [Cit.]” State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). “[T]he flight of a companion under such circumstances may be considered indicative of the guilt of the defendant. [Cits.]” Scott v. State, 193 Ga. App. 74, 75 (1) (387 SE2d 31) (1989). Under the circumstances of the instant case, the officers’ investigatory detention of Wilson was authorized and not arbitrary or harassing.

Not only were the officers authorized to effectuate a brief, investigatory stop of Wilson, they were also authorized to conduct a pat-down search of her to determine whether she was armed. Chaney v. State, 207 Ga. App. 72 (427 SE2d 63) (1993). “In this state, a Terry pat-down search is authorized when the officer reasonably believes I that it is necessary to protect him from attack. [Cit.]” Dowdy v. State, 209 Ga. App. 311, 312 (433 SE2d 293) (1993). “It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” (Citations and punctuation omitted.) State v. Jarrells, 207 Ga. App. 192, 193 (4) (427 SE2d 568) (1993). At the conclusion of the motion to suppress hearing in the present case, the trial court found that the police had conducted a Terry stop and frisk “[t]hat didn’t turn up anything.” Although Officer Keadle did not fully describe the extent of the search of Wilson, we are compelled to uphold the trial court’s finding that the police conducted an appropriate pat-down search of Wilson, rather than a more extensive search, because the most favorable construction of Keadle’s entire testimony provides some evidence of a pat-down search. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

Because the officers’ stop and pat-down search of Wilson was legal, it did not taint her subsequent consent to the urine test. “Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given. A valid consent eliminates the need for either probable cause or a search warrant. The voluntariness of a consent to search is determined by looking to the totality of the circumstances, including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling.” (Citations and punctuation omitted.) Allen v. State, 200 Ga. App. 326, 327 (1) (408 SE2d 127) (1991). In the instant case, although Wilson apparently was not advised of her constitutional rights before consenting to the test, the record reveals that at the time of the incident she was 26 years old and was only briefly detained before giving her consent. Wilson was not physically punished and was not subjected to prolonged questioning; rather, she immediately consented to the test upon Officer Keadle’s initial request. Moreover, it is clear that Wilson understood the request and its purpose when she stated, after being informed of her rights, that she believed her urine would test positive for cocaine. Compare Beasley v. State, 204 Ga. App. 214, 216 (1) (419 SE2d 92) (1992). Under the totality of the circumstances, the trial court did not abuse its discretion in finding Wilson’s consent to be lawful and the court properly denied Wilson’s motion to suppress.

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion’s conclusion that the trial court properly denied the defendant’s motion to suppress, because the evidence sought to be suppressed resulted from Wilson’s voluntary submission to a urine test. As pointed out in the majority opinion, Wilson, after being advised of her implied consent rights, volunteered that the test results would be positive. I disagree, however, with the majority’s statement that under Georgia law, the flight of a defendant’s companion may be considered as evidence of the defendant’s guilt for the purpose of determining probable cause to arrest.

As support for that proposition of vicarious guilt, the majority quotes from Scott v. State, 193 Ga. App. 74, 75 (1) (387 SE2d 31) (1989). However, Scott was a two-judge decision, with one judge concurring in the judgment only, and it constitutes a physical precedent only. Rule 35 of the Rules of the Court of Appeals.

State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990), cited by the majority opinion is inapposite as it relates to flight by the defendant and there was no flight by defendant in the case sub judice.

Further, it does not appear that the cases cited in Scott actually purport to set forth such a proposition. In Muckle v. State, 165 Ga. App. 873, 875 (303 SE2d 54) (1983), the defendant himself attempted to flee the scene, and the flight of his co-defendant was merely one of several factors considered to be consistent with the hypothesis of the defendant’s guilt. In Mendez v. State, 185 Ga. App. 1 (3) (363 SE2d 262) (1987), we rejected the defendant’s contention that the flight of a co-defendant constituted evidence of the defendant’s innocence. In Brown v. State, 190 Ga. App. 38 (378 SE2d 357) (1989), the flight of the defendant’s known traveling companion was but one of several factors considered together with the defendant’s own behaviors in determining probable cause to arrest the defendant.

Decided November 15, 1993.

Lynn W. Wilson, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

Aside from Scott, this court has never formulated the broad proposition that in some circumstances the flight of a defendant’s companion indicates guilt of the defendant. I cannot join in the majority opinion’s present attempt to do so.

The majority opinion also concludes that the most favorable construction of the evidence supports a finding that the police conducted an appropriate pat-down search of the defendant. However, as noted even by the prosecutor during the hearing on the motion to suppress, the police officer described an actual search of the defendant. For that reason, I also disagree with the majority’s conclusion on that point. Nevertheless, even if a full blown search occurred, inasmuch as that search uncovered no evidence, no harm resulted.