text:
    A96A2440.
    JEFFERSON INSURANCE COMPANY OF NEW YORK v. DUNN.
    (482 SE2d 383)
   McMurray, Presiding Judge.

The following chronology is relevant to this appeal from the judgment awarding to plaintiff Charles Adrian Dunn $1.5 million compensatory damages and a total of $3 million punitive damages, based on a jury’s special verdict finding against defendant Overground Atlanta, Inc. (“Overground”), and its insurer, defendant Jefferson Insurance Company of New York (“Jefferson”), for conduct seeking to defeat plaintiff from any likely satisfaction of a prior million dollar judgment against Overground: On November 2, 1982, plaintiff sustained permanent brain damage as a result of being brutally beaten by the manager of the Jolly Fox Lounge, which tavern was owned and operated by Overground. Overground was insured under a liability policy issued by Jefferson, with policy limits of $50,000. This policy promised Overground that Jefferson had “the right and duty to defend any suit against the insured seeking damages on account of. . . bodily injury[, . . .] even if any of the allegations of the suit are groundless, false or fraudulent. . . .”

Plaintiff brought an action against the Jolly Fox (Overground) for his personal injuries and offered to settle before trial for the $50,000 limits of coverage under Jefferson’s policy. The complaint was forwarded to Jefferson with instructions to “[p]lease handle as quickly as possible.” Overground “direct[ed] the insurance company [Jefferson] to settle for the policy limits,” but Jefferson refused to settle and further refused to defend its insured, relying on an “Assault and/or Battery Exclusion Endorsement,” to deny coverage. Overground ultimately retained its own counsel. For aught that appears of record, Jefferson issued no pre-trial reservation of rights; in any event Jefferson never sought a judicial declaration of its rights and duties under the liability policy. As late as February 24, 1987, plaintiff’s counsel offered to settle for the $50,000 policy limits while contending that Jefferson could be liable for any excess judgment based upon its refusal to settle.

The personal injury case proceeded to trial and resulted in a jury verdict and a March 18, 1987 judgment awarding plaintiff $250,000 compensatory damages and $750,000 punitive damages on the bases of “negligence, false imprisonment and malicious prosecution. . . .” Only after judgment against its insured did Jefferson retain separate counsel to pursue an appeal in Overground’s name, after being informed that “Overground Atlanta, Inc. is in fact a defunct corporation [which] does not have the funds or intention of appealing from the judgment.” As early as April 10, 1987, counsel for Jefferson was concerned that plaintiff and Overground would try to “ ‘set up’ ” and “ ‘sand bag’ ” the insurer over the million dollar judgment. In late January 1988, as the notice of appeal was being prepared, the insurer contemplated “negotiating some settlement of any exposure under the policy direct[ly with counsel for Overground]. By June 1988, the insurer expressly contemplated that Overground would “execute a policy release ... by virtue of [Jefferson] paying some nominal amount [. . . such as unpaid] attorney’s fees and/or expenses in connection with this litigation.”

The judgment against Overground was affirmed by a majority of this Court on March 31, 1989. Overground Atlanta v. Dunn, 191 Ga. App. 188 (381 SE2d 137). There, the whole court held that the jury’s verdict that Overground was independently negligent was authorized on the theory of direct liability for negligent supervision of its employee. Id. at 190 (1), 191. Overground’s application for certiorari was denied. Id. at 923.

On July 5, 1989, Overground entered into a “RELEASE AND SETTLEMENT AGREEMENT” with Jefferson. In exchange for $5,500, representing unpaid attorney fees owed to Overground’s retained counsel, Overground released Jefferson from any and all claims of every character “under Policy No. L137830, . . . arising from or in any way relating to an incident which occurred on or about November 2, 1982 at THE JOLLY FOX LOUNGE and any events subsequent thereto involving [plaintiff] CHARLES ADRIAN DUNN, the [tort] case [against Overground . . .], or the judgment entered against OVERGROUND ATLANTA, INC.” This represented a “full and final compromise of doubtful and disputed claims,” including any potential claim against Jefferson for any alleged negligent or bad faith refusal to defend the underlying tort action to the detriment of its insured.

On July 2, 1992, plaintiff Dunn commenced the instant action against Jefferson, Overground, and Overground’s counsel. This complaint alleged that the release and settlement agreement entered into when Overground as a judgment debtor was insolvent amounted to a fraudulent conveyance of Overground’s sole remaining asset, to the detriment of plaintiff as a judgment creditor. The complaint specifically alleged that Jefferson “obtained The Release from Overground, ... its officers, directors and attorney, with the intention to delay or defraud [plaintiff] Mr. Dunn of full satisfaction of his judgment for $1,000,000 plus interest and costs.” It was further alleged that the release was obtained in “bad faith” and in violation of OCGA § 18-2-22. The complaint also alleged a conspiracy, i.e., a “positive or tacit mutual understanding to defraud [plaintiff] Mr. Dunn . . .” out of the proceeds of the policy and the value of Overground’s claim against its insurer.

Overground never answered this second suit and was held in default. Jefferson denied the material allegations, admitting only that it knew of plaintiff’s claim against Overground as of February 9, 1983; that it did not accept plaintiff’s pre-trial offers to settle for the policy limits of $50,000; and that its attorneys drafted the release and settlement agreement. Overground’s own trial counsel, an original party defendant, was released without prejudice before trial.

In support of his claims of conspiracy and fraudulent conveyance, plaintiff introduced post-judgment documents and correspondence written by Jefferson’s attorneys and claims managers, indicating that Jefferson’s agents knew that Overground’s potential claim against Jefferson for bad faith refusal to defend or settle within the policy limits constituted Overground’s only real asset. Consequently, Jefferson undertook to obtain the release and assignment of any such claim from its insured lest Overground assign the bad faith claim to plaintiff, the judgment creditor. Jefferson was advised that counsel was attempting to obtain the release upon payment of a “nominal figure,” and that counsel for Overground was being coached to opine that Jefferson’s policy afforded no coverage or else that any exposure was capped by the $50,000 policy limits. Plaintiff’s Exhibit 82, the handwritten notes of William Everding, reveal Jefferson’s institutional perspective: “A policy release does not protect us from the plaintiff. . . . Our [Jefferson’s] taking a policy release in exchange for $5,500 legal bills’ would not look too good and might buy us too much trouble by reducing our present ‘White Hat’ status to one of a combination member who was attempting to bypass the legal process by disapating [sic] the Insured’s asset (Our Policy) after the judgment.” (Emphasis in original.) Counsel was then instructed to inquire whether the “Insured [would] agree not to sue us in bad faith or not assign his rights to the plaintiff if we pay the attorney’s fees?”

Answering special interrogatories, the jury found that plaintiff was entitled to $1.5 million in compensatory damages and further found, by clear and convincing evidence, that both Overground and Jefferson should be liable for punitive damages. The jury subsequently found that Jefferson and Overground each “acted . . . with specific intent to cause harm,” assessing $2 million punitive damages against Jefferson and $1 million punitive damages against Overground. Jefferson’s motions for judgment notwithstanding the verdict or for a new trial were overruled, and this appeal followed. Held:

1. Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. See Metromedia Steakhouses Co., L.P. v. Ray, 219 Ga. App. 716, 717 (1) (466 SE2d 618); White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383). Jefferson’s first enumeration of error is without merit.

2. In its September 2, 1994 order denying Jefferson’s motion for summary judgment, the trial court determined that there was coverage under the policy issued by Jefferson “for the separate and independent negligence of Overground Atlanta as found by the jury in the underlying litigation and as affirmed by the Court of Appeals in Overground Atlanta v. Dunn, 191 Ga. App. 188 (1989).” Jefferson contends the trial court erred in granting plaintiff’s motion in limine, thereby precluding Jefferson from arguing to the jury that its policy in fact did not cover the personal injuries sustained by plaintiff. Jefferson relies on the recent case of Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260 (466 SE2d 4) to argue that no coverage exists for Overground’s negligent supervision where the root cause of plaintiff’s actual injuries was a battery excluded from coverage by the policy’s express “Assault and/or Battery Exclusion Endorsement.”

In Continental Cas. Co. v. HSI Financial Svcs., supra, the Supreme Court of Georgia answered a certified question from the United States Court of Appeals for the Eleventh Circuit in a declaratory judgment action brought in the United States District Court. The Supreme Court of Georgia interpreted the following exclusion in a professional liability insurance policy: “ ‘EXCLUSIONS . . . (Continental) will not pay, under (the) coverage part, for: Any claim arising out of any dishonest, fraudulent, criminal, or malicious act by (an insured) or any of (an insured’s) partners, officers, stockholders, or employees.’ ” Id. at 261. The Supreme Court of Georgia found “that within the plain meaning of the insurance policy, the claims against [two of the partners] for negligence and malpractice with respect to their alleged failure to supervise and mitigate [the third partner’s] criminal acts arose out of the dishonest, fraudulent, criminal and malicious conduct engaged in by [the third partner], bringing those claims within the scope of the policy’s exclusionary clause.” Id. at 263. Jefferson insists that this holding controls the case sub judice in its favor. But the exclusion in the Jefferson policy reads as follows: “Notwithstanding anything contained herein to the contrary, it is understood and agreed in consideration of the premium charged, bodily injuries or death alleged to have been caused by ASSAULT AND/OR BATTERY shall not be deemed an accident or occurrence under this Policy and no coverage shall apply hereunder.” (Emphasis supplied.)

“Reported cases provide little assistance in interpretation where the language of the documents involved is not the same.” Dunn v. Travelers Indem. Co., 217 Ga. 426, 428 (2) (122 SE2d 518). “ Arising from’ does not mean the same thing as ‘proximately caused by.’ See Abercrombie v. Ga. Farm Bureau &c., 216 Ga. App. 602, 604 (454 SE2d 813) (1995); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (1) (236 SE2d 550) (1977). Instead this [first] contractual term has been held to encompass ‘almost any causal connection or relationship. . . .’ Id.” Interface Group-Nevada v. Freeman Decorating Co., 222 Ga. App. 44, 45 (1) (473 SE2d 573). This is in contrast to a requirement that a specified occurrence (covered or excluded) be “the direct proximate result. . .” of a defined event. Id. The term “caused by” as selected by Jefferson clearly imposes a narrower, more strict causal requirement than merely “arising out of,” but “caused by” does not define its own endpoints. Thus, the question for decision in the case sub judice is the precise meaning to be ascribed this indefinite contractual term.

“In construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured.” (Citations and punctuation omitted.) Atlantic Wood Indus. v. Lumbermen’s Underwriting Alliance, 196 Ga. App. 503, 504 (2), 505 (396 SE2d 541). The construction of “caused by” most favorable to a reasonable person in the position of the insured is that of “direct proximate result,” as opposed to “almost any causal connection or relationship.” In that event, the exclusion relied upon by Jefferson to argue that no coverage is afforded under its assault and/or battery exclusion is unavailing. “There may be more than one proximate cause of an injury. [Cit.]” Dept. of Transp. v. Blair., 220 Ga. App. 342 (1) (469 SE2d 446). Due to this Court’s earlier opinion affirming the judgment against Overground on a theory of direct liability for its independent negligence, the existence of more than one proximate cause of plaintiff’s injuries is the law of the case. Thus, in this civil case, the trial court, as well as this Court, would certainly be bound by the previous ruling in Overground Atlanta v. Dunn, 191 Ga. App. 188, supra, regardless of whether Jefferson now contends that ruling to be erroneous. See Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608, 609 (1) (475 SE2d 660). Moreover, Jefferson is estopped to argue no coverage by its failure to enter a pretrial reservation of rights and pursuing a declaratory judgment action promptly after discovering facts indicating the absence of coverage. “Upon learning of facts reasonably putting it on notice that there may be grounds for noncoverage and where the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take. necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action.” (Emphasis in original.) Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 216 (1), 219 (231 SE2d 245). Compare Standard Guaranty Ins. Co. v. Hulsey, 204 Ga. App. 508, 509 (1), 510 (420 SE2d 54), where that insured did not demand payment until after a void judgment. There, this Court reasoned that “a declaratory judgment action is procedurally available to an insurer seeking resolution of the validity of a claimant’s post-judgment demand for uninsured motorist benefits” (Emphasis supplied.) Id. In the case sub judice, the trial court did not err in granting plaintiff’s motion in limine precluding Jefferson’s argument there is no coverage under this policy.

3. It follows that the trial court committed no error in charging the jury that coverage under the policy was not a contested issue, due to the court’s pre-trial ruling, nor in failing to give Jefferson’s Request to Charge No. 42, to the effect that the negligence of Overground would not negate the effect of the assault and/or battery exclusion relied upon in this case. Jefferson’s third and fourth enumerations are without merit.

4. In its sixteenth enumeration, Jefferson contends the trial court erred in denying its motion in limine to exclude purportedly privileged documents that had been ordered produced for discovery after an in camera inspection by the trial court. See Southern Guaranty Ins. Co. &c. v. Ash, 192 Ga. App. 24, 29 (383 SE2d 579), approving of this very procedure. The documents here are letters and memoranda written by Jefferson’s counsel, who monitored proceedings in the personal injury action and informed William Everding, Jefferson’s claims supervisor.

“There are certain admissions and communications excluded [from evidence] on grounds of public policy. Among these are: . . . Communications between attorney and client.” OCGA § 24-9-21 (2). “Communications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his clients. . . .” OCGA § 24-9-24. Moreover, “No party or witness shall be required to make discovery of the advice of his professional advisors or his consultation with them.” OCGA § 24-9-27 (c). “As to violations of law or commission of fraud, however, the protection extends only to communications after the act or transaction is finished. It does not cover communications respecting proposed infractions of the law in the commission of a crime or the perpetration of a fraud. [Cits.] ‘The privileged communication may be a shield of defense as to crimes already committed, but it can not be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society,’ frauds, or perjuries. [Cit.]” Atlanta Coca-Cola &c. Co. v. Goss, 50 Ga. App. 637, 638 (1), 639 (179 SE 420).

“ ‘[A] prima facie showing that the (communication) was (made) in furtherance of illegal or fraudulent activity is sufficient to secure disclosure. (Cits.) The determination that a prima facie showing has been made lies within the sound discretion of the [trial] court. That determination may not be disturbed on appeal absent an abuse of discretion. (Cits.)’ [Cit.] [In the case sub judice], we have made ‘our own independent . . . review of the disputed documents and (find . . .) no abuse of discretion in the (superior) court’s determination.’ Accordingly, the [denial of Jefferson’s motion in limine] must be affirmed.” In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 351 (3), 352 (333 SE2d 389).

5. Jefferson’s fifth and sixth enumerations complain of the overruling of its motions for directed verdict and j.n.o.v. as to plaintiff’s fraudulent conveyance claim under OCGA § 18-2-22. The insurer argues that, even if some coverage existed under its policy, plaintiff “Dunn failed to present evidence on each of the elements necessary to prove a fraudulent conveyance.” Our review of these enumerations is limited to those specific grounds urged before the trial court in Jefferson’s motion for directed verdict. Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 299 (2) (352 SE2d 185).

OCGA § 18-2-22 (2) provides that the following acts by debtors shall be fraudulent in the law against creditors and others and as to them shall be null and void: “Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with the intention to delay or defraud creditors, where such intention is known to the taking party; [but] a bona fide transaction on a valuable consideration, where the taking party is without notice or ground for reasonable suspicion of said intent of the debtor, shall be valid.” But in order for this Code section to apply, “so that a conveyánce by an insolvent debtor can be attacked by his creditor, it must be made to appear that the insolvent debtor actually parted with some valuable asset which belonged to him, and which, if title had been retained, might have been subjected to his debts.” S. T. & W. A. Dewees Co. v. Paul B. Carter & Co., 190 Ga. 68, 72 (1), 73 (8 SE2d 376). Furthermore, “[t]he legislature obviously did not intend the taking party to be liable for general and punitive damages under OCGA § 18-2-22 based solely upon the fraudulent conveyance without proof of bad faith, actual fraud, or conspiracy on his part.” Kesler v. Veal, 257 Ga. 677, 678 (362 SE2d 214).

(a) “Choses in action are not liable to be seized and sold under execution, unless specially made so by statute.” OCGA § 9-13-57. Compare OCGA § 9-12-80. Nevertheless, such personalty is subject to attachment by a judgment creditor “ ‘by process of garnishment or by some collateral proceeding. . . .’ ” Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 323 (1), 325 (170 SE 294). In the case sub judice, Overground’s potential claim against Jefferson for the insurer’s alleged bad faith refusal to defend the action is a chose in action subject to being applied to the debts of the judgment debtor. The release and settlement agreement drafted by Jefferson recites that part of its inducement was to compromise doubtful and disputed claims, such as this bad faith cause of action. This forbearance to bring a doubtful claim against an insurer is valuable consideration in the eyes of the law. OCGA §§ 13-3-41; 13-3-42 (c) (2). See also Wolfe v. Breman, 69 Ga. App. 813, 816 (1), 817 (26 SE2d 633). Consequently, Jefferson’s contention that, in order to make out a case of delaying or defrauding creditors under OCGA § 18-2-22 (2), plaintiff must also show that Overground had indisputable contract rights under the policy is without merit.

(b) “The question as to whether the [release in the case sub judice] was executed by [Overground] with intention to delay or defraud [plaintiff] in the collection of [his $1 million tort judgment] and such intention was known to the [releasee, Jefferson], or whether the transaction was a bona fide one upon a valuable consideration and wdthout notice or ground for reasonable suspicion, is ordinarily one for determination by a jury. [Cits.]” Lewis v. Lewis, 210 Ga. 330, 332 (2) (80 SE2d 312). “Mere inadequacy of consideration alone will not void a contract. If the inadequacy is great, it is a strong circumstance to evidence fraud. . . .” OCGA § 13-3-46. Even “inadequacy of price alone is not sufficient to set aside a conveyance unless the inadequate price, taken in connection with other circumstances of a suspicious nature, raises ‘such a vehement presumption of fraud.’ . . . [Cits.]” Durrence v. Durrence, 267 Ga. 280, 282 (476 SE2d 741).

Here, Overground’s intent to delay and defraud plaintiff as alleged in the complaint was admitted by its default, but that default is not binding upon Jefferson, who appeared and contested liability. See Kubler v. Goerg, 197 Ga. App. 667, 671 (4) (399 SE2d 229). Nevertheless, the correspondence and memoranda authorized the jury to conclude that Jefferson orchestrated the entire transaction, including coaching Overground’s attorney to opine the policy afforded no coverage, after Jefferson agreed to pay counsel’s unpaid legal fees, $5,500.

This small sum, under the circumstances, represents 11 percent of the $50,000 policy limits; 0.022 (twenty two/one thousandths) of one percent of the $250,000 compensatory portion of the personal injury judgment; and an infinitesimal 0.0055 (fifty five/ten thousandths) of one percent of the $1 million principal sum of the personal injury award. Consequently, this very great disparity between the judgment debt and the consideration received by the debtor in exchange for releasing its insurer “could enter into the question of fraud.” First Nat. Bank &c. v. Kelly, 190 Ga. 603, 607 (7) (10 SE2d 66). Jefferson’s undisputed leading role in formulating the plan to obtain a release from Overground before plaintiff obtained an assignment of Overground’s sole asset, its claim against Jefferson, is additional evidence that the release was intended by Jefferson to delay plaintiff in collecting or otherwise defraud him of any satisfaction of his $1 million personal injury judgment. The execution of the release was but a few short weeks after this Court affirmed the judgment against Overground. “The proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. A refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there are any reasonable grounds for an insurer to contest the claim, there is no bad faith.” (Citations and punctuation omitted.) Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 523-524 (5) (352 SE2d 835). In the case sub judice, we have already determined that Jefferson is estopped to deny coverage because it failed to seek a declaration of its rights and responsibilities promptly upon learning of facts that would indicate no coverage. Moreover, the assault and/or battery exclusion consistently relied upon by Jefferson would not be a valid basis for denying coverage and refusing to defend its insured against allegations of false imprisonment and malicious prosecution. The record supports a determination that Jefferson “failed to establish a reasonable ground for contesting the claim and thus, had acted in bad faith in refusing to make payment [and in refusing to defend its insured].” Id. at 523 (5), 524. The trial court did not err in overruling Jefferson’s motion for directed verdict and in denying its motion for j.n.o.v. on the ground that the evidence failed to make out a case under OCGA § 18-2-22 (2).

6. In a related enumeration, Jefferson contends the trial court erred in submitting the issue of punitive damages to the jury, arguing that the award of punitive damages is based solely on circumstantial evidence which was “directly contradicted by direct evidence. . . .” “It is [however] clear that [since] there is evidence of bad faith . . . [and] conspiracy on the part of [Jefferson as] the taking party or transferee in receiving assets fraudulently conveyed to [it] by [Overground as the judgment] debtor, an award of general and punitive damages against the transferee may be upheld.” Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 611 (2) (409 SE2d 60).

7. The next evidentiary objection is that the trial court erred in allowing plaintiff to argue the merits of any bad faith claim without first requiring a proper foundation.

“The order of presentation of evidence is a matter that rests within the trial court’s discretion which will not be controlled unless abused. [Cits.]” (Punctuation omitted.) McKinney v. State, 218 Ga. App. 633, 636 (4) (463 SE2d 136). Although Jefferson argues that Overground could not effectively assign its bad faith claim against the insurer to a third party (even a judgment creditor), so that plaintiff had no claim to pursue, this position begs the question whether the release of that bad faith claim to Jefferson was intended to delay or defraud the judgment creditor. That is a question of Jefferson’s intent based on its undisputed knowledge of events. Moreover, except where the contract involved is within the purview of Title 11, “all choses in action arising upon contract may be assigned so as to vest the title in the assignee. . . .” OCGA § 44-12-22. And “[e]xcept for those situations governed by Code Sections 11-2-210 and 11-9-402, a right of action is assignable if it involves, directly or indirectly, a right of property. A right of action for personal torts or for injuries arising from fraud to the assignor may not be assigned.” OCGA § 44-12-24. “ After (a) loss, the claim of the insured, like any other chose in action, could be assigned without in any way affecting the insurer’s liability. . . .’ Georgia Co-Op. Fire Assn. v. Borchardt & Co., 123 Ga. 181, 183-184 [(2)] (51 SE 429) (1905).” Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (1) (396 SE2d 506). Compare Owens v. Allstate Ins. Co., 216 Ga. App. 650, 651 (1) (455 SE2d 368) (physical precedent only) with Southern General Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274). This enumeration is without merit.

8. Jefferson’s fifteenth enumeration assigns error to the admission into evidence of opinion testimony regarding the elements of a bad faith claim against an insurer generally and the specifications of bad faith against Jefferson in particular. Jefferson complains that it objected no fewer than 13 times on the basis that James Edward O’Malley, Jr. should not be allowed to give legal conclusions as to whether Jefferson’s actions constituted bad faith.

O’Malley was qualified as an insurance claims-handling expert without objection “other than [defense counsel’s] earlier objection about the opinions.” After initially overruling an objection, in the nature of “best evidence,” as to O’Malley’s testimony about the duties of an insurance company, the trial court eventually sustained this same objection and ordered plaintiff’s counsel to rephrase the question. The trial court then sustained objections as to inadequate foundation, testimony “beyond the scope of [O’Malley’s] qualifications,” and that it amounted to a “legal conclusion.” The trial court next ruled that O’Malley would be permitted to testify “about the standard of care,” but sustained Jefferson’s objection to O’Malley’s opinion that Jefferson “should have done some investigation and taken up the defense ... of their policyholder,” based on the allegations of the amended complaint. The trial court further sustained Jefferson’s objections to the form of a hypothetical question. After another objection on the basis of legal conclusion, the trial court clarified its rulings by agreeing with Jefferson that “ultimately whether or not there is coverage is a legal question . . . and it’s not for [the witness] to answer, but [he may testify as to] how he would or how a person exercising the customs and practices of the industry would react. . . .”

Thereafter, over the same objection, O’Malley testified that he would have first sent a reservation of rights letter to the insured, informing them of the possibility of some defense to coverage but that the insurer would nevertheless “take up the defense in the matter.” Upon receipt of the offer to settle for the policy limits, O’Malley would have “looked into it and probably started some settlement negotiations.” O’Malley was further permitted to opine that it was “not within the custom and practice of the industry, not to do anything.” The failure to negotiate with the plaintiff’s attorney “would fall without — outside of the customs and practices of the industry. . . .” The trial court struck a reference by O’Malley to unnamed duties imposed by “some state statutes. . . .” Over objection, O’Malley was permitted to testify that “it’s in bad faith for them [the insurer] not to investigate it and to enter into some kind of negotiations with the attorney at that time.” Defense counsel was then granted a continuing objection to “the whole line of questioning.” O’Malley then testified that, in his opinion, Jefferson “acted in bad faith” when it chose not to settle within the policy limits and expose its insured, its policyholder, to this excess verdict.

As can be seen from this lengthy recitation from the record, the trial court’s rulings were substantially the grant of relief whenever the questions posed would lead the witness into invading the province of the jury. As to Jefferson’s continuing objection that an expert may not testify that certain circumstances were, in his opinion, indicative of the insurer’s bad faith, we note that a pivotal question posed by this case was “whether the jury was authorized by the evidence to find that the insurer violated any duty to the insured in failing or refusing to accept the offers of settlement.” U. S. Fidelity &c. Co. v. Evans, 116 Ga. App. 93, 94 (2) (156 SE2d 809), aff’d, 223 Ga. 789 (158 SE2d 243). In the case sub judice, expert testimony of the standards, practices and customs of the insurance business was legally relevant, by virtue of Jefferson’s predicating its “good faith” refusal to pay upon the assertion that no investigation or settlement discussions were warranted because of the assault and/or battery exclusion. Thus, Jefferson “itself rendered expert testimony as to the underlying . . . viability of that [assertion] potentially relevant and admissible evidence. See generally Stewart v. State, 246 Ga. 70, 75 (4a) (268 SE2d 906) (1980).” Intl. Indem. Co. v. Coachman, 181 Ga. App. 82, 84 (1), 85 (351 SE2d 224). We find no error in the evidentiary rulings of the trial court.

9. The trial court did not err in charging the jury that an adverse inference may be drawn by a party in a civil case who invokes a testimonial privilege. “[A]lthough a person does have a right to invoke the privilege^] [under OCGA § 24-9-27] in a civil case in order to protect himself, when he does so, an inference against his interest may be drawn by the factfinder.” Simpson v. Simpson, 233 Ga. 17, 21 (209 SE2d 611). Accord Ostroff v. Coyner, 187 Ga. App. 109, 115 (4), 116 (369 SE2d 298). The seventeenth enumeration is without merit.

10. The fourteenth enumeration contends the trial court erred in allowing plaintiff’s counsel to argue repeatedly during the punitive damages phase, over objection, that Jefferson should be punished for its conduct in all 50 states.

When confronted with allegedly improper argument, counsel is “authorized merely to object on stated grounds and thereby implicitly request that the trial court acknowledge the impropriety of the closing argument by sustaining the objection thereto.” (Emphasis supplied.) Garner v. Victory Express, 264 Ga. 171, 172 (2) (442 SE2d 455). In the case sub judice, Jefferson interposed the following objection: ‘Your honor, I don’t think this is proper argument, I’d object.” The next was: “I object to that, Judge.”

“This court has held that a mere objection to an unwarranted and prejudicial argument, without more, is not sufficient to properly invoke a ruling by the [trial] court. See Lenox Drug Co. v. New England Jewelry Co., 16 Ga. App. 476 (5) (85 S.E. 681), and citations .” McCoy v. Scarborough, 73 Ga. App. 519, 524 (6) (37 SE2d 221). In the case sub judice, Jefferson’s bare objections to allegedly improper argument were entirely too vague and general to invoke a proper ruling by the trial court. Consequently, this enumeration presents nothing for review.

Decided February 7, 1997

Reconsideration denied February 20, 1997

Hawkins & Parnell, H. Lane Young II, Kimberly A. Houston Ridley, Thomas G. Tidwell, Edward C. Henderson, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, David D. Cookson, Nickerson & Tuszynski, Thomas H. Nickerson, David E. Tuszynski, for appellee.

11. Remaining enumerations of error have been carefully considered. There is no merit in enumeration of error seven to the exception involving the charge as given. Nor has Jefferson demonstrated any error in the failure of the trial court to give the enumerated requests to charge. Under the law of the case, the requested instruction on the effect of the insurer’s assault and/or battery exclusion on negligence claims is not an accurate statement of the law and so the fourth enumeration is without merit. “ A party is not entitled to have all of his requested charges given merely because he requests them.’ Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3) (384 SE2d 898).” Ploof Truck Lines v. Bennett, 221 Ga. App. 789, 790 (1) (472 SE2d 552). “The jury was otherwise instructed on the [applicable] legal principles contained in [Jefferson’s] refused requests to charge. Accordingly, the failure to give those refused requests was not error. Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3)[, supra].” Daniel v. Parkins, 200 Ga. App. 710, 713 (7) (409 SE2d 233).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       We note that the exclusion relied upon by Jefferson is itself ambiguous. It does not distinguish between the intentional tort of battery, such as is defined at OCGA § 51-1-14 and any of the crimes involving battery as proscribed by OCGA §§. 16-5-23; 16-5-23.1; or 16-5-24. If the bodily injuries sustained by plaintiff were neither expected nor intended from the standpoint of the insured, those injuries constituted an “occurrence” as defined in the policy.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A2461.
    MAZO v. THE STATE.
    (481 SE2d 831)
   Judge Harold R. Banke.

Mark Mack Mazo was indicted on charges of habitual violator and driving under the influence (“DUI”). In his initial trial, the jury could not reach a verdict on the habitual violator charge and acquitted him on the DUI charge. After a second trial he was adjudicated an habitual violator. On appeal, he enumerates two errors.

This case arose after a police officer observed Mazo sitting in the driver’s seat of a running car in front of his home at 3:00 a.m. The officer watched the car “for just a couple of seconds, then . . . pulled in behind it and turned on . . . [his] blue lights” because he was concerned about thefts in the neighborhood. The officer could not recall whether the car’s lights were on. In response to the officer’s inquiry, Mazo explained that he lived there and was just going to the grocery store. The officer then asked Mazo for some identification and permitted Mazo to retrieve it from his house. Mazo entered his home and returned with several pieces of identification, but not a driver’s license. After Mazo could not produce a driver’s license and the officer radioed an inquiry, Mazo admitted that his license was suspended and that he was an habitual violator. Mazo later explained that he was simply warming up the car for his wife. The arresting officer admitted Mazo was not free to leave “from the very beginning.” Held'.

1. The trial court should have granted Mazo’s motion for mistrial or issued curative instructions after the State repeatedly disregarded its order granting Mazo’s motion in limine to exclude all mention of drinking and driving. When counsel improperly injects excluded, prejudicial matters into evidence, “ ‘it is the duty of the court to interpose and prevent the same; and, on objection made, . . . [it] shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in . . . [its] discretion, . . . order a mistrial. . . .’ [Cit.]” Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976).

As the trial commenced, Mazo successfully moved in limine “to ensure that the State makes no mention of driving under the influence or argues DUI or drinking and driving on any point, especially on voir dire.” After the State vigorously opposed the motion, the court clearly explained that just as extraneous questions regarding murder would be inappropriate, so would inquiry into drinking and driving, because Mazo had been acquitted of that charge.

However, during the testimony of the first witness, the arresting officer, the State inquired about Mazo’s condition at the time of the arrest and specifically asked whether the officer had smelled alcohol. The officer responded that Mazo had had a good bit to drink. Shortly thereafter, the officer testified that he had given Mazo the implied consent warnings. The State then inquired, “[a]nd that is something for DUI?”

Mazo immediately moved for a mistrial. During argument, the State essentially denied that it had questioned the witness about DUI and then argued that the court had never excluded such evidence, notwithstanding the lengthy explanation the court previously provided on that issue. Although the court denied the motion for mistrial, it sua sponte volunteered to instruct the jury “in the course of events” that Mazo was not being tried for DUI. The court observed “I think we’ve got reversible error in here three times, but let’s proceed.” The record shows that the jury was not instructed regarding Mazo’s acquittal or told that he was not being tried for DUI. Nor was the portion of the indictment charging Mazo with DUI redacted.

In making the inquiry immediately preceding the motion for mistrial, the State indulged in a covert attempt to present the excluded matter to the jury, a practice inappropriate in any court, particularly by a representative of the State. Moreover, even after the ruling on the motion for mistrial, the State continued to raise the issue of drinking and driving, despite the exclusion of that evidence. “This is significant not only because counsel violated a court order, but also because counsel” injected prejudicial and irrelevant character evidence into the trial. Gonzalez v. Wells, 213 Ga. App. 494, 495 (2) (445 SE2d 332) (1994) (reversal for failure to grant mistrial based on counsel’s injection of excluded evidence). In addition, the State’s brief continues to ignore the significant fact that the State violated a court order excluding the evidence, relying on cases in which the contested evidence had not previously been excluded and arguing that the evidence was admissible as part of the res gestae or as a similar transaction. Such conduct, as a whole, hardly promotes the integrity of the legal profession or advances the most rudimentary goal of our judicial system, fair trials. See Code of Professional Responsibility, Canon 7, Ethical Consideration 7-25.

Nor can we find that the admission of the excluded evidence was harmless. In Johnson, our Supreme Court reversed a conviction on two counts of armed robbery after the State injected prejudicial matters not in evidence into its closing argument. Johnson v. State, 238 Ga. at 60. After reviewing the evidence and observing that Johnson’s first trial had resulted in a mistrial, the Supreme Court rejected the State’s contention that the error was harmless. Id. at 60-61. Notwithstanding eyewitness testimony linking Johnson to the crimes, the Court could not say that it was “highly probable that the error did not contribute to the jury’s verdict.” Id. at 61-62. In light of the first trial’s result and the evidence, which is no more compelling than that in Johnson, we must reach the same conclusion in this case.

2. The issue presented in Mazo’s second enumeration arose in the context of compiling the jury charges. Because it may be relevant should Mazo face a third trial, we reach his contention that he did not “operate a motor vehicle” within the meaning of the habitual violator statute, OCGA § 40-5-58 (c).

Decided January 31, 1997

Reconsideration denied February 20, 1997

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger Barker, Assistant District Attorney, for appellee.

Admittedly, that statute does not define the word “operate.” However, the legislature evinced its intent to broadly construe the word by defining “operator” as “any person who drives or is in actual physical control of a motor vehicle” in OCGA § 40-1-1 (38), the definition section of the motor vehicle code. As further evidence of the legislative intent, we observe that the General Assembly changed the language of the DUI statute in 1974 to make it unlawful to drive or be “in actual physical control of any moving vehicle” while under the influence of alcohol or drugs. (Emphasis supplied.) OCGA § 40-6-391 (a). The legislature included no such requirement in the habitual violator statute. It follows that a conviction under OCGA § 40-5-58 (c) requires no proof that the vehicle was actually moving. Metheny v. State, 197 Ga. App. 882, 887 (1) (d) (400 SE2d 25) (1990) (physical precedent only).

Judgment reversed.

Johnson and Ruffin, JJ., concur.

       Mazo’s counsel did not seek to suppress all evidence subsequent to the stop for lack of a “ ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ [Cit.]” Vansant v. State, 264 Ga. 319, 320-321 (2) (443 SE2d 474) (1994).

       We observe that in arguing that Miller v. State, 202 Ga. App. 414, 415 (414 SE2d 326) (1992), defined the law on this issue, the State failed to inform the trial court that the case was physical precedent only and therefore not binding authority. Court of Appeals Rule 33 (a).


author: Beasley, Judge.

text:
    A96A1857.
    HATCHER v. THE STATE.
    (482 SE2d 443)
   Beasley, Judge.

Hatcher was convicted of violating the Georgia Controlled Substances Act, OCGA § 16-13-30, by possessing less than a gram of methamphetamirie or “crank.”

The evidence is viewed under the standards used in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); and King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

Narcotics agent Hudson was on patrol around 1:00 a.m. when he spotted a vehicle exceeding the speed limit and stopped it. Driver Hatcher immediately jumped out of his car and approached the officer quickly. He appeared nervous, which made Hudson nervous because Hatcher’s behavior cautioned the officer that he might have a weapon or have something surreptitious in mind. Hudson asked Hatcher if he had any prior tickets or had recently been jailed. Hatcher responded he had been locked up for violating the Georgia Controlled Substances Act. Hatcher refused consent to search his vehicle.

Hudson read Hatcher his Miranda rights and told him if he had any misdemeanor amounts of marijuana in the vehicle he would issue only a citation for it. Hatcher admitted there was a small amount of marijuana and offered to get it but again refused consent to search. The officer rejected Hatcher’s offer because of the risk he had a weapon in the car.

Hudson retrieved his drug dog which, in its second pass around Hatcher’s car, alerted to the presence of drugs. Hudson left Hatcher in the custody of another officer and went for a search warrant. When he returned with the warrant, Hatcher admitted both marijuana and “crank” were in a side pouch of the car, and Hudson found the drugs there.

1. The first error enumerated is the dismissal of Hatcher’s motion to suppress without a hearing. Six months after arrest, on December 22, 1994, Hatcher waived arraignment and pled not guilty in the presence of his attorney. At no time on that date or any date thereafter did he request an extension for motions. The reason he gave for the delay in filing the motion was that he was unable to obtain access to the search warrant affidavit, which he indicated he needed to comply with the requirement of specificity for the motion. The court was not persuaded that this was good cause. The motion, filed January 17, 1995, was dismissed as untimely and for lack of specificity, at the outset of the separately scheduled motions hearing in February. The trial was held in May.

A defendant aggrieved by an unlawful search and seizure pursuant to a warrant may make a motion to suppress the evidence, which must be in writing and state facts showing the unlawfulness of the search and seizure. OCGA § 17-5-30. The motion must be made at or before the defendant’s arraignment and if not made at the proper time is waived unless the time for filing is extended by the judge in writing. Uniform Superior Court Rule 31.1; State v. Grandison, 192 Ga. App. 473, 474 (385 SE2d 139) (1989). This rule has evolved over time. See, e.g., Thomas v. State, 118 Ga. App. 359, 360-362 (163 SE2d 850) (1968). The purpose of the time requirement in USCR 31.1 is fundamental fairness to all parties and those who must attend trial. See, e.g., Loggins v. State, 260 Ga. 1, 2 (388 SE2d 675) (1990). Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges. Ellis v. State, 216 Ga. App. 232, 233 (1) (453 SE2d 810) (1995).

Hatcher argues that even if the motion was tardy, it had substantial merit and should have been heard, relying on Collier v. State, 171 Ga. App. 214 (319 SE2d 51) (1984). Whether the motion has merit is not an issue; the rule does not apply only to non-meritorious motions, although facial merit may persuade a court that the motion is not a delaying tactic and, particularly where trial is not imminent, exercise its discretion to extend the time in writing, receive evidence and decide the motion despite defendant’s noncompliance with the time requirement. Collier differs for several reasons. It was decided before the advent of the uniform rules; Collier had not been arraigned before trial; and no attorney appeared for Collier before trial. In contrast, Hatcher was arraigned with counsel, who filed motions and attended hearings on Hatcher’s behalf long before trial.

State v. Schwall, 193 Ga. App. 694, 695 (388 SE2d 705) (1989), also relied on by Hatcher, is likewise distinguishable. Schwall’s counsel attended arraignment but only learned of it through his client. He never received notice himself, although he was appointed counsel and had filed pleadings. The trial court permitted the motion to be filed five days after arraignment. We held, “Since defendant’s attorney had no prior notice of the arraignment, to dismiss the motion to suppress as untimely would have been manifestly unjust.” Id. at 694. Hatcher’s counsel does not contend he had no prior notice of arraignment.

Other cases cited by Hatcher do not advance his cause. Gray v. State, 145 Ga. App. 293 (243 SE2d 687) (1978), does not indicate the motion was filed untimely or was otherwise procedurally deficient. Both Stansifer v. State, 166 Ga. App. 785 (305 SE2d 481) (1983), and Perryman v. State, 149 Ga. App. 54 (253 SE2d 444) (1979), which held that the motion was timely if filed before trial, were decided prior to adoption of the Uniform Superior Court Rules.

Hatcher had several options. He could have timely filed the motion and moved for leave to amend it when the affidavit was obtained. He could have sought an extension of time. He could have moved for leave to file late when he had the affidavit. He was not denied a meaningful opportunity to challenge the search and seizure. Accordingly, it was not an abuse of discretion to dismiss the motion to suppress, even though trial did not transpire for three months. See Burch v. State, 213 Ga. App. 392, 393 (1) (444 SE2d 370) (1994); Watkins v. State, 207 Ga. App. 766, 770 (2) (a) (430 SE2d 105) (1993).

The challenge to the court’s other basis for dismissal of his motion to suppress is moot.

2. The next enumeration of error is the imposition of a 30-year recidivist sentence.

(a) Hatcher’s first ground is that the court failed to determine if he received affirmative and unmistakable advance warning of the State’s intention to use prior offenses for recidivist purposes. He seeks remand for the court to make that determination. If the State intends to introduce evidence that defendant is a recidivist for sentencing purposes, it “must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2 (a). . . . The purpose of § 17-10-2 is to give defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” (Citations and punctuation omitted.) Armstrong v. State, 264 Ga. 237, 238 (1), (2) (442 SE2d 759) (1994).

Hatcher was convicted and sentenced on May 10, 1995. The record contains the State’s notice of its intent to ask for Hatcher to be treated as a recidivist under OCGA § 17-10-7, based on four described prior convictions. The notice is signed and dated May 8, 1995, but is stamped as filed on November 23, 1995. It is unaccompanied by a certificate of service, although all other record documents have certificates indicating Hatcher was served. The record contains no affirmative indication that the State provided Hatcher with the required notice of aggravating circumstances as required by the statute. The State failed to fulfill its duty under OCGA § 17-10-2 (a).

At the presentence hearing, the State introduced four, and the court admitted three, of Hatcher’s prior convictions into evidence. Hatcher’s counsel did not object to the admission of the convictions and affirmatively stated he did not contest their admission, thereby waiving error. Armstrong, supra; Tillman v. State, 217 Ga. App. 269, 270 (2) (457 SE2d 228) (1995).

(b) The second ground is that the court failed to assure that the record affirmatively reflected that the court exercised its discretion in considering whether to probate any portion of Hatcher’s sentence, so that remand is necessary for this purpose as well. OCGA § 17-10-7 (a) mandates the maximum statutory sentence but allows a court to probate some or all of that sentence, even as to a fourth felony offender. State v. Carter, 175 Ga. App. 38, 41 (332 SE2d 349) (1985). Hatcher cites Brooks v. State, 165 Ga. App. 115, 117 (4) (299 SE2d 167) (1983), and Jackson v. State, 158 Ga. App. 530, 532 (3) (281 SE2d 252) (1981), for the proposition that a trial court must exercise the discretion and consider probation.

Jackson is distinguishable, since the trial court had erroneously concluded it did not have authority to probate defendant’s sentence. In Brooks, “[t]he record [did] not indicate that the trial court gave any consideration to probating any portion of appellant’s mandatory sentence,” id. at 117 (4), and the defendant won remand for the court to affirmatively exercise its discretion. Hatcher likens his case to Brooks.

Unlike Brooks, but like Cox v. State, 205 Ga. App. 375 (2) (422 SE2d 68) (1992), the court allowed Hatcher to present evidence in mitigation. The reasoning in Cox applies here: “Knowing that it was required to impose the maximum sentence, the trial court obviously would not have inquired about mitigating evidence unless it was prepared to consider that evidence in connection with probation or suspension of the maximum sentence. It is only ‘where the trial court has a legal discretion to exercise but fails to do (so), instead resting the decision upon an erroneous point of law, (that) reversal must follow. (Cits.)’ . . . [Cit.] In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant’s sentence. Appellant had no viable cause for complaint that, in the exercise of its discretion, the trial court declined to probate or suspend a portion of the recidivist sentence.” Id. at 375-376 (2). See also Knight v. State, 221 Ga. App. 92, 93 (470 SE2d 486) (1996).

3. The court permitted the State to introduce three prior violation of the Georgia Controlled Substances Act transactions, one for possession of methamphetamine and two for selling small amounts of the drug, as evidence of similar transactions. Error is enumerated in the admission of the two prior convictions for drug dealing in the trial for simple possession. Assuming but not deciding that Hatcher’s objection was timely under USCR 31.3 (B), the evidence was properly admitted.

Hatcher concedes on appeal that the court properly admitted evidence of his prior conviction for possession of methamphetamine, since his sole defense at trial was that the drugs had been left in the car by his brother who had recently died of an overdose. His entire defense turned on his credibility as a witness, and he acknowledges the relevancy of his possession of the drug on prior occasions. He argues that his convictions of drug sales were improperly admitted because they raised a character inference that he was a drug dealer and not just a user. He contends that the impact of this evidence, particularly when his sole defense turned on his credibility, was highly and inherently prejudicial.

Under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), the trial court is required to determine if the probative value of the evidence outweighs its prejudicial effect, but the court failed to do so on the record. Nonetheless, “it is clear in this case that based upon defendant’s denial of the commission of the subject crime ([possession of methamphetamine]), a past conviction involving the intent to commercially distribute [methamphetamine] would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant. Any error by the trial court in failing to apply the balancing test was harmless under the facts of this case.” (Emphasis omitted.) Chappell v. State, 215 Ga. App. 596, 597 (1) (451 SE2d 491) (1994).

Decided February 20, 1997

Maloy & Jenkins, James K. Jenkins, for appellant.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.

As to similarity, “[t]here is no requirement that, to come within the ‘other transaction’ exception, the ‘other transaction’ must be identical in every [respect], ‘The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence “may be admitted if it ‘ “is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” ’ ” (Cit.)’ [Cit.] ‘Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ . . . [Cits.]” Faison v. State, 199 Ga. App. 447, 448-449 (1) (405 SE2d 277) (1991). See also Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992).

The State met the criteria established in Williams. It made an affirmative showing that it sought to introduce evidence of the similar transaction for the purpose of showing course of conduct, intent and bent of mind. There was ample evidence that Hatcher committed the independent acts within five months of each other, and there was a sufficient similarity between the transactions and the crime charged so that proof of the former tended to prove the latter. First, all of the transactions occurred in the metropolitan Atlanta area, specifically within 15 miles of Hatcher’s residence. Second, in each situation, Hatcher was in his car. Third, possession, and in some cases sale, each time involved less than a gram of methamphetamine contained in a small clear plastic bag. In its instructions to the jury, the court gave appropriate limiting instructions.

No reversible error is shown.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Hatcher’s conviction of speeding, OCGA § 40-6-181, is not at issue.


author: Andrews, Chief Judge.

text:
    A96A2221.
    THE STATE v. WRIGHT.
    (482 SE2d 441)
   Andrews, Chief Judge.

The State appeals the trial court’s order granting William Frank Wright’s “motion to suppress.” The central issue on appeal is whether the officer’s Terry stop was based on an articulable suspicion that Wright was about to engage in some type of criminal conduct. We find that it was and reverse the judgment of the trial court.

At the hearing on the motion in limine, Officer Daniel testified that he was patrolling in an area of heavy drug activity on the day in question and saw Wright several times throughout the day. At times he saw Wright washing cars in the street, and at other times he saw him standing in the street.

Late in the day, Officer Daniel again drove through the area, and as his car crested the hill, he saw Wright leaning over to talk to some men in a car. Daniel testified that Wright appeared to be handing a plastic baggie through the car window.

As Officer Daniel pulled up behind the car, Wright jerked his hand back and put the baggie in his pocket. The car sped off. Officer Daniel called to Wright to come over, intending to pat him down. Wright refused and began walking away. Officer Daniel then commanded him to halt. Wright ran around in back of a house, and Officer Daniel set off in pursuit. Daniel testified that he lost sight of Wright several times during the chase.

Daniel and Wright eventually ended up back at the starting point of the chase, and Officer Daniel told Wright he was under arrest for obstruction. Wright surrendered, stating he would “take” the arrest for misdemeanor and “I don’t have any rocks on me now.” When Officer Daniel searched Wright, he found a steak knife wrapped in a kitchen towel but did not find any drugs. No drugs were found in the area of the chase, although it appears from the transcript that the chase covered a large area, and as a result, an extensive search was not made.

Wright was charged with misdemeanor obstruction of a law enforcement officer. Wright then filed a motion to suppress the officer’s testimony, contending there was no justifiable basis for the Terry stop.

After a hearing, the trial court granted Wright’s motion to suppress. The trial court’s order granting the motion makes no findings of fact, simply stating that it “finds that the Motion to Suppress is proper.”

“Terry v. Ohio, 392 U. S. 1[, 21] (88 SC 1868, 20 LE2d 889) (1968), recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” (Citations and punctuation omitted.) Brooks v. State, 206 Ga. App. 485, 488 (425 SE2d 911) (1992). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations omitted.) United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).

When reviewing a trial court’s order on a motion to suppress, the appellate court should be guided by three principles with regard to the trial court’s determination on the facts. Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994). First, the trial judge sits as the trier of facts, and his findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Id. Second, the trial court’s decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Id. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgments. Id.

Here, the trial court granted the motion to suppress the officer’s testimony but made no findings of fact and gave no explanation for the holding. A review of the transcript, however, shows the court was concerned about the absence of any physical evidence of drugs. After the officer testified, the court made the following statement: “I can understand this officer working there and I commend him for what he did and he did the right thing. Regardless of how I rule in this case, I think he acted properly himself in saying T’m going to investigate this thing.’ Because I realize that this is a high crime area and I realize he thought that he saw or he had reason to believe that he believes he saw a baggie and saw this Defendant with it. But the facts and the evidence don’t bear out that there was in fact ever a baggie.”

However, the issue is not whether Wright was actually handing a plastic baggie through the window but whether the officer honestly believed Wright was in possession of the baggie. “The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” (Citations and punctuation omitted.) State v. Webb, 193 Ga. App. 2, 3-4 (386 SE2d 891) (1989). “[A] mistaken-but-honest belief may nevertheless demonstrate the existence of ‘at least an articulable suspicion and reasonable grounds for the stop.’ ” Id. at 4 (1). In Webb, the officer stopped the defendant after observing him make a U-turn before reaching a road block. In overruling the trial court’s determination that, since the U-turn was not illegal, the evidence seized from the car must be suppressed, this Court stated that the issue was not whether or not the U-turn was illegal, but whether the officer, acting in good faith, believed that an unlawful act had been committed. Id. at 3.

Decided February 20, 1997.

Gerald N. Blaney, Jr., Solicitor, William Z. Meadows, Richard E. Thomas, Assistant Solicitors, for appellant.

Douglas N. Fox, for appellee.

The question then becomes, assuming the officer believed he saw Wright handing a baggie through the window of the car, was this an objective manifestation of criminal activity sufficient to justify a Terry stop. We conclude that it was.

In a similar case, McGaughey v. State, 222 Ga. App. 477 (474 SE2d 676) (1996), undercover officers were patrolling in a known drug area when they noticed a woman and two men sitting in a car in front of a motel room. After about ten minutes, the occupants got out of the car, and one of the men walked toward the front of the motel while the other two walked around in back. The man and woman then reappeared, with the man stopping every so often and then suddenly walking up to rejoin the woman. They stopped at a pay phone and then began walking toward a cemetery. At that point the police moved in to question them. Id. Although there was no visible evidence of drugs, this Court found there were sufficient specific and articulable facts to justify a Terry stop.

Similarly, in this case, we find that, under the totality of the circumstances, the officer had the necessary basis to form a founded suspicion that Wright was, or was about to be, engaged in some criminal activity such that the trial court should have determined that the detention was not arbitrary or harassing. McGaughey, supra; Webb, supra. Accordingly the trial court erred in granting Wright’s motion to suppress the officer’s testimony.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       We find no indication in the record of any physical evidence Wright was seeking to suppress. It appears that Wright only sought to exclude the officer’s testimony as to events surrounding the Terry stop. Accordingly, the motion should have been styled a motion in limine. State v. Johnston, 249 Ga. 413 (291 SE2d 543) (1982). Whether styled a motion to suppress or a motion in limine, the same appellate rules apply to the trial court’s findings of fact and determinations on witnesses’ credibility. State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994). It is also properly here as the subject of a direct appeal under OCGA § 5-7-1 (a) (4). See State v. Berky, 222 Ga. App. 151 (473 SE2d 590) (1996).


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A96A2300.
    COTTON STATES MUTUAL INSURANCE COMPANY v. HIPPS et al.
    (481 SE2d 876)
   Birdsong, Presiding Judge.

Cotton States Mutual Insurance Company filed this action to have its rights declared under its policy with Michael Hipps.

On April 24, 1994 Hipps’ son Jeffrey was involved in a collision with other persons. Those other individuals maintained liability coverage with Travelers Insurance Company. Hipps contacted the other individuals’ insurer soon after the collision and sued them on April 21, 1995. Cotton States avers that a year after the collision in June 1995, Hipps’ attorney advised Cotton States that he had filed suit on Hipps’ behalf against others who had then filed counterclaims against Hipps for personal injury and property damage. Cotton States avers undisputedly that this was its first notice that its insured, Hipps’ son, had been in a collision.

Cotton States seeks a declaration of non-liability because Hipps failed to comply with the condition precedent to coverage stated in Cotton States’ policy that the insured give notice to Cotton States within 60 days after the covered incident. The trial court denied Cotton States’ motion for summary judgment. On appeal, Michael Hipps contends he should be excused from that requirement because his son Jeffrey was not a named insured and was never in possession of the policy, so Hipps had no duty to comply with the requirements of the contract because Hipps’ son Jeffrey did not know the contract existed, did not know he was insured under it, and did not know its terms. Held:

The trial court erred in denying judgment to Cotton States. The contract at issue provides unequivocally: “IV. DUTIES AFTER AN ACCIDENT OR LOSS. ... We must be notified promptly, but in no event later than 60 days, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Receipt of such notice by the company or any of its authorized agents shall be a condition precedent to the existence of any coverage under this policy and of the company’s obligation to defend any claim under this policy.” (Emphasis supplied.)

Cotton States says this case is controlled by State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236 (456 SE2d 745), where we held that a policy requirement that an insured give notice to the insurer “as soon as reasonably practicable as a condition of recovering under the policy” (id. at 237) is “enforceable” because the opposing party had access to uninsured motorist coverage under her own insurance policy.

The condition precedent in this case requires 60 days notice after the covered event. It is immaterial to enforcement of this condition precedent that Hipps thought those other drivers were the cause of the collision and would be liable for his damages and theirs. If such common misunderstandings — which are the heart of every litigation dispute — or any other wrong idea germinated in the head of one party could alter such plain contract language as exists in this case, insurance law would be turned on its head. Insured persons under an insurance policy are presumed to know its conditions if they intend to rely upon its benefits, or else they must find out those conditions. It is well settled that where no ambiguity in a policy of insurance exists, the courts must adhere to the contract made by the parties even if it is beneficial to the insurer and detrimental to the insured, for we must construe the contract as written and are not authorized to make a new contract different from the contract written and intended by the parties. See Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (457 SE2d 696).

The language of this policy is unambiguous. We therefore have no legal authority to disregard it; “ ‘[i]f the contract does not require disentanglement of the language by a jury . . . 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.’ ” Nat. Union Fire Ins. Co. &c. v. Prestige Helicopters, 217 Ga. App. 375, 377 (457 SE2d 587).

Nor is there any factual question which voids the plain language of the contract in this case. It unambiguously requires that notice of the covered event and its particulars be received by Cotton States within 60 days of the event, as a condition precedent to coverage of the event. This requirement upon the insured is not dependent on the knowledge of other insureds that it exists, or on the existence of any insurance held.by any other parties; and the insured’s beliefs or misunderstandings about who was liable for this collision did not relieve him of the plain duty to which he agreed and induced Cotton States to issue this policy.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, J, concurs and concurs specially.

Blackburn, Judge,

concurring specially.

I concur in the opinion and judgment as rendered due to our previous holding in State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236 (456 SE2d 745) (1995). Although I dissented in Drawdy, the majority’s position therein is presently the law, and therefore, we are compelled to follow it. I specially concur to point out that Cotton States’ reliance on Drawdy is correct as that case controls the outcome herein.

In the present case, it is undisputed that in the action against the Hipps, the counterclaimants maintain liability and uninsured motorist coverage with Travelers Insurance Company. Therefore, the issue before us is identical to the issue in Drawdy. In Drawdy, State Farm appealed the trial court’s denial of its motion for summary judgment contending that its insured’s failure to notify it of the accident as soon as reasonably practicable excluded coverage. Therein, the majority recognized that “[b]ased on [the] public policy of ensuring some recovery for injured third parties, we have held that a lack-of-notice exclusion generally is not enforceable, against a third party injured by an insured who fails to notify his insurer.” Id. at 237. However, the majority held that “the public policy of ensuring some recovery for the third party is satisfied by the third party’s access to a recovery through uninsured motorist coverage.” Id. at 239. Therefore, under the facts of this case Cotton States’ lack-of-notice exclusion is enforceable and the trial court should have granted Cotton States’ motion for summary judgment.

Decided February 20, 1997.

Parkerson, Shelfer & Groff, William S. Shelfer, Jr, for appellant.

Magill & Bondurant, Thomas E. Magill, Webb & Lindsey, Eric K. Maxwell, Swift, Currie, McGhee & Hiers, Bradley S. Wolff, for appellees.

I am compelled to note that I believe my dissent in Drawdy sets forth a better position. My dissent noted that because liability insurance is required to ensure compensation for innocent victims of negligent motorists and uninsured motorist coverage is for the protection of its insured’s assets, the liability insurance carrier should be precluded from enforcing a lack-of-notice exclusion in third-party situations. Id. at 242. As I stated in my dissent, the majority’s position in Drawdy, “ignores the fact that public policy provides that victims should be compensated primarily by liability insurance and that uninsured motorist coverage was intended to be secondary or backup coverage. It also ignores the shift in premium costs from the tortfeasors to the victims.” Id. at 243.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A96A2314, A96A2315.
    U. S. BONDS v. STATE OF GEORGIA (two cases).
    (481 SE2d 887)
   McMurray, Presiding Judge.

U. S. Bonds (“the surety”) entered into recognizance bonds with the State of Georgia on behalf of two principals, defendant Bonilla and defendant Echeverría. The bonds required U. S. Bonds to honor its obligations as surety until the trial court excuses the principals — via leave of court — from having to appear in court “from day to day and from term to term. . . .” When the principals failed to appear in court when they were required to do so, the trial court declared the bonds forfeited and issued writs scire facias notifying the surety that execution hearings would be conducted on dates within the time period prescribed by OCGA § 17-6-71 (a). Jim Kiser, the surety’s manager, appeared in court for the execution hearing on the days designated in the writs scire facias, but on both occasions the trial court failed to call the surety or conduct the hearings. Kiser assumed the surety was relieved of liability under the bonds and, thereafter, stopped looking for the principals and contacting individuals who had executed the bonds as indemnitors.

More than 17 months after Echeverría failed to appear in court and 11 months after Bonilla failed to appear in court, the State of Georgia reinitiated bond forfeiture proceedings and issued writs scire facias ordering the surety and the principals to appear in court to show cause why judgments should not be entered upon the forfeited bonds. The surety responded by filing motions to relieve it of liability, arguing that OCGA § 17-6-71 (a) required the execution hearings to be conducted no later than 150 days after the principals’ initial failure to appear. The trial court denied these motions and, after providing the surety and the principals opportunities to appear in court to show cause why judgments should not be entered upon the forfeited bonds, issued a rule absolute as to each bond and entered judgments in the amount of the surety’s obligations. These appeals followed. Because the facts and the legal issues are identical, the two cases have been consolidated for disposition in this opinion. Held:

A surety must show harm as well as error before it will be relieved of liability based on failure to conduct an execution hearing within the time prescribed by OCGA § 17-6-71 (a). Griffin v. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675). In the cases sub judice, the surety argues that the State of Georgia increased its risk under the bonds by failing to conduct execution hearings within the time prescribed by OCGA § 17-6-71 (a) because — after expiration of the statutory time periods — the individuals who executed the bonds as indemnitors were no longer available to honor their respective obligations. To this end, the surety points to Jim Kiser’s testimony that he was in contact with the indemnitors when the initial execution hearings were set, but that he lost contact with the indemnitors by the time the State of Georgia reinitiated the bond forfeiture proceedings. This testimony does not show that the surety was harmed by the State of Georgia’s bond forfeiture procedures.

Harm resulting from a surety’s own lack of diligence provides no basis for setting aside a rule absolute and final judgment. See Colbert v. Doe, 164 Ga. App. 618, 619 (2) (298 SE2d 592). In the cases sub judice, the surety’s failure to keep track of its indemnitors was not caused by the delayed execution hearings. See Kwik Bond v. State of Ga., 192 Ga. App. 184, 185 (384 SE2d 207). It was the result of Jim Kiser’s erroneous assumption that the surety was relieved of liability under the bonds — by operation of law — 150 days after the principals’ initial failure to appear in court. This interpretation of OCGA § 17-6-71 (a) has not only been rejected by this Court in Griffin v. State of Ga., 194 Ga. App. 624, 625 (2), supra, and AAA Bonding Co. v. State of Ga., 192 Ga. App. 684 (1) (386 SE2d 50), but Jim Kiser’s assumption that the surety was relieved of liability after the initial execution hearings were not conducted ignores the bonds’ express terms providing that U. S. Bonds will not be relieved as surety until the trial court excuses the principals — via leave of court — from having to appear in court “from day to day and from term to term of said courts. . . .” See Kwik Bond v. State of Ga., 192 Ga. App. 184, 185, supra, where the same contractual language barred the surety’s claim that it was relieved of liability because an execution hearing was not conducted within the statutory time frame. The trial court therefore did not err in issuing a rule absolute as to each bond and entering judgments in the amount of the surety’s obligations.

Judgments affirmed.

Birdsong, P. J, concurs. Pope, P. J., Johnson and Blackburn, JJ, concur and also concur specially. Beasley, J., concurs specially. Ruffin, J., concurs in the judgments only.

Beasley, Judge,

concurring specially.

I concur because, in this case of statutory construction, it is apparent that the legislature provided the specific time frame for the execution in order to give the surety a reasonable opportunity to find the principal. This purpose is evident from the statutory right of at least 120 days but no more than 150 days. The specificity is in accordance with the principle that “[a] surety on a criminal bond or recognizance has the right to insist that his liability should be fixed upon him according to law. [Cit.]” Griffin v. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675) (1990). Thus over the years the time period has been made specific rather than open-ended, and it has been lengthened to the benefit of sureties.

The legislature does not state, in either OCGA § 17-6-71 or in OCGA § 17-6-72, the latter of which sets out conditions which will preclude forfeiture, that if the hearing is not held in 150 days, the surety will be relieved. We cannot import such an intention and result. This reasoning, a sound method of statutory construction (see State v. Peters, 213 Ga. App. 352, 355 (444 SE2d 609) (1994)), was similarly used in Griffin, supra at 625, and in AAA Bonding Co. v. State of Ga., 192 Ga. App. 684, 685 (2) (386 SE2d 50) (1989).

Decided February 20, 1997

Brett D. Turner, for appellants.

Lydia J. Sartain, District Attorney, Bernard E. Roberts III, Assistant District Attorney, for appellee.

Where the surety has more time to find the principal before the forfeiture hearing is held and the surety must produce or pay, it has not been deprived of a statutory right but instead has gained the advantage of additional time due to court processing. In fact, it has been granted what Ace Bonding Co. v. State, 180 Ga. App. 261, 262 (1) (349 SE2d 15) (1986), refers to as a “reprieve.” As quoted approvingly in Kwik Bond v. State of Ga., 192 Ga. App. 184, 185 (384 SE2d 207) (1989), “ ‘a delay longer than public policy requires aids, rather than harms, the surety. . . .’ [Cit.]” See also AAA Bonding Co., supra at 684 (1). A delay in the execution hearing delays the time when the surety must face judgment and provides additional opportunity to avoid it. If the appellants were correct, a court could not even grant a continuance to a surety who was hot on the trail of a principal. The authority to grant a continuance was recognized in AAA Bonding Co., supra.

In this instance the surety misinterpreted the law and acted, or failed to act, on that error. In this way it jeopardized its own interest instead of protecting it by taking advantage of what was in effect a grace period for it to perform what it promised in the bonds. The harm it testified was caused by the court’s delay was in fact self-created.

I am authorized to state that Presiding Judge Pope, Judge Johnson, and Judge Blackburn join in this special concurrence.

       This Code subsection pertinently provides that “[t]he judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear.”


author: Ruffin, Judge.

text:
    A96A2325.
    SPRATT v. HENDERSON MILL CONDOMINIUM ASSOCIATION, INC.
    (481 SE2d 879)
   Ruffin, Judge.

Henderson Mill Condominium Association, Inc. (“the Association”) sued Evelyn Spain, formerly known as Evelyn Spratt, for monetary and equitable relief arising from Spain’s alleged violation of the Amended and Restated Declaration of Condominium for Henderson Mill Condominium, Inc. and the Association’s by-laws. The trial court granted summary judgment to the Association, and Spain appeals. For reasons which follow, we affirm.

The record reveals the following. The Henderson Mill Condominiums (“Henderson Mill”) are governed by an Amended and Restated Declaration of Condominium (“the Declaration”), which was adopted by owners in 1986 and filed in the DeKalb County land records. Paragraph 13 of the Declaration places restrictions on leasing units. Under this paragraph, “leasing of a unit or units shall be prohibited, except in the case of undue hardship. . . .” The Declaration further provides that “[t]he Board [of Directors] shall be empowered to allow reasonable leasing of units upon written application to avoid undue hardship on an owner. By way of illustration and not by limitation, examples of circumstances which would constitute ‘undue hardship’ are those in which (i) an owner must relocate his or her residence and cannot, within ninety (90) days from the date the unit was placed on the market, sell the unit from a price at or below its current appraised market value; (ii) the owner dies and the unit is being administered by his or her estate; or (iii) the owner takes a leave of absence or temporarily relocates and intends to return to reside in the unit.”

Spain purchased a unit at Henderson Mill in 1988. She subsequently married and had a child, but continued to live with her family in the condominium unit. According to Spain, as their child grew and began to walk, she and her husband became concerned about the traffic around the condominium unit and the lack of play areas. For health reasons that threatened to restrict her from walking up and down stairs if she ever became pregnant again, Spain also grew dissatisfied with the location of the unit,- which was on an upper level and only accessible by stairs. Consequently, the Spains decided to sell the unit.

Spain initially listed the unit for $85,000, the amount she paid for it in 1988. When it did not sell, Spain lowered the price to $84,000, but still received no purchase offers. Unsuccessful in selling the unit after approximately 15 months, Spain requested permission to lease the unit under the Declaration’s, “undue hardship” exception. Spain and her husband wrote the Association’s Board of Directors, citing as reasons for their request concerns about their child’s safety and the traffic around their unit, as well as a desire to have a house with a yard. The letter does not mention Spain’s health.

The Board denied the Spains’ request for a hardship exception to the lease restriction, finding by a unanimous vote that “under all circumstances known to the Board and with the information provided in your letter, there was no undue hardship as defined by the [condominium] documents.” Despite the Board’s decision, Spain prepared to lease her unit.

Before Spain executed a lease, the Association wrote her several letters indicating that if she leased the unit, she would be in violation of the Declaration and subject to a fine of $25 per day for each day the unit was leased. Shortly thereafter, Spain leased her condominium to three individuals. The Association subsequently filed suit against Spain for violating the lease provision. The trial court granted summary judgment to the Association, denied Spain’s cross-motion for summary judgment, and awarded the Association $25 per day for 515 days, plus costs and attorney fees.

1. In her first enumeration of error, Spain argues that the trial court should not have granted summary judgment to the Association because questions of fact remain as to whether the Board acted reasonably in denying Spain’s hardship application.

The Declaration vests the Board of Directors with the discretion “to allow reasonable leasing of units upon written application to avoid undue hardship on an owner.” Exercising that discretion, the Board rejected Spain’s hardship request. “Where, as here, the declaration delegates decision-making authority to a group and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious. [Cits.]” Saunders v. Thorn Woode Partnership, L.P., 265 Ga. 703, 704 (2) (462 SE2d 135) (1995).

In her brief, Spain does not argue that the leasing restriction itself was improper or unenforceable. Instead, she claims that the Board acted unreasonably because her hardship request was “summarily turned down and was not given a fair and equitable review in good faith.” Spain, however, has pointed to no evidence that her hardship request was treated any differently than other similar requests. Spain has also cited no evidence that her request was “summarily turned down” without due consideration. On the contrary, the record reveals that the Board deliberated for over an hour before voting unanimously to deny the request.

Furthermore, despite her claims, Spain has pointed to no evidence that the Board failed to “use criteria as outlined in the [Declaration]” to evaluate the hardship request. The record reveals that the Board rejected the request because the reasons enumerated in Spain’s hardship letter did not fulfill the requirements of “undue hardship” as set forth in the Declaration. Spain argues that the hardship illustrations in the Declaration are not exclusive and that the Board could have granted her request regardless of whether she fell directly within one of the illustrations. Even if the Board could have decided to grant the exception, however, Spain has presented no evidence that the Board exercised its discretion unreasonably in denying her request.

“[Spain] suggests], in effect, that the [Board’s] vote on the issue of [hardship leasing] is of no consequence and that [she is] entitled to de novo resolution of the issue by the judicial system.” Id. We disagree. Spain has presented no evidence of unfair or unreasonable treatment by the Board. Accordingly, “[s]ince the [Board], vested with the discretion given it by the declaration, resolved the issue of [undue hardship] against [Spain], there is no factual issue concerning [undue hardship] for resolution by a jury, and the trial court did not err in entering summary judgment in favor of the [Association].” Id. at 704-705.

2. In her second enumeration of error, Spain argues that the trial court erred in assessing her with a $25 per day fine because the fine constitutes an unenforceable penalty. We disagree.

Citing contract cases discussing liquidated damages and unenforceable penalties, Spain argues that the $25 fine has no relation to actual damages and thus is an unenforceable penalty. The assessment, however, is neither a liquidated damages award nor an unenforceable penalty. It is a fine specifically allowed by statute. Pursuant to the Georgia Condominium Act, “[e]very unit owner and all those entitled to occupy a unit shall comply with all lawful provisions of the condominium instruments. . . . If and to the extent provided in the condominium instruments, the association shall be empowered to impose and assess fines ... in order to enforce such compliance^] . . .” (Emphasis supplied.) OCGA § 44-3-76.

As allowed by OCGA § 44-3-76, the Declaration’s leasing provision specifically authorizes the Board “to make and enforce reasonable rules and regulations and to fine, in accordance with the Declaration and By-Laws, in order to enforce the [leasing restrictions].” Spain does not argue that she was unaware of the fine amount before she leased her condominium, and the record reveals that the Association informed her about the amount in a letter sent before the lease was signed. Furthermore, Spain has cited no evidence that the fine was unreasonable or unfairly assessed. To the contrary, the Association did not impose the fine until over two months after Spain entered the lease agreement, and the record shows that the Association charged the same fine to another owner impermissibly renting his unit.

The trial court properly found that the Association is entitled to recover the $25 per day fine from Spain. Accordingly, Spain’s second enumeration of error is without merit.

3. In her third and fourth enumerations of error, Spain argues that the trial court erred in awarding the Association attorney fees. We disagree.

Decided February 20, 1997.

Gershon, Olim, Katz & Loeb, Barry L. Katz, for appellant.

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Adam M. Gleklen, for appellee.

(a) Spain first argues that because genuine issues of material fact precluded summary judgment in favor of the Association, attorney fees should not have been awarded. Since we found in Division 1 that summary judgment was proper in this case, this argument has no merit.

(b) Spain also contends that the trial court erred in awarding attorney fees based upon an untimely affidavit filed by the Association. The record reveals that the Association filed one affidavit supporting the amount of attorney fees on February 2, 1996, the day after the summary judgment hearing, and submitted a second affidavit on April 22, 1996, the day before the trial court issued its summary judgment order.

Generally, affidavits supporting summary judgment should be served with the summary judgment motion. Uniform Superior Court Rule 6.1; Hershiser v. Yorkshire Condominium Assn., 201 Ga. App. 185 (1) (410 SE2d 455) (1991). In this case, however, the record reveals no objection to or motion to strike either affidavit as untimely. “This court has consistently reached a finding of waiver where no objection was made to the late filing of an affidavit — whether the affidavit was in support of, or in opposition to, a motion for summary judgment. [Cits.]” Suttle v. Northside Realty Assoc., 171 Ga. App. 928, 932 (2) (c) (321 SE2d 424) (1984). Accordingly, the trial court did not err in considering the affidavits. Id.

Judgment affirmed.

McMurray, R J, and Johnson, J., concur.

       In her brief, Spain states that one of the Board members has been allowed to lease her unit. As Spain recognizes, however, that Board member owned her unit prior to adoption of the Declaration in 1986, and thus is permitted to lease without showing undue hardship pursuant to a grandfather clause in the Declaration.