text:
    76288.
    ROBBINS et al. v. LUMPKIN.
    (370 SE2d 635)
   Carley, Judge.

Appellee Luther David Lumpkin, who is mentally retarded, was placed by the probate court in the custody of the Georgia Retardation Center (GRC) for a six-month period of habilitation. See OCGA § 37-4-40. GRC is an instrumentality of appellant Department of Human Resources (DHR) and appellant Bobby Robbins is GRC’s Superintendent (Superintendent). As the six-month period of appellee’s committal drew to an end, GRC initiated the process of reevaluating him for continued habilitation. See generally OCGA § 37-4-42. As the result of that reevaluation, the Superintendent served DHR and appellee with a petition seeking the entry of an order which would authorize appellee’s continued habilitation for a period not to exceed one year. See OCGA § 37-4-42 (f).

Appellee’s representative, acting pursuant to OCGA § 37-4-42 (h), requested a hearing before a DHR hearing examiner and such a hearing was subsequently conducted. Insofar as it is relevant to this appeal, the DHR hearing examiner made the following findings: “[Appellee] is appropriate for placement in the community. . . . [Appellee] is currently in the emergency treatment unit [of GRC]. This unit is for people who are dangerous to themselves or others. It is a locked, highly restrictive unit. ... A bed appropriate to the specific needs of [appellee] is not available. . . . Services needed by [appellee] could be offered in an extremely less restrictive environment. . . . [Appellee] cannot live independently. ... No alternative program for treatment of [appellee] is available at this time. . . . [Appellee] does not require direct medical services. . . .” Based upon these findings, the DHR hearing examiner further found that appellee’s condition was not such as to warrant his continued involuntary commitment at GRC’s emergency treatment unit, but that there was no alternative program available for a person, like appellee, who was in need of habilitation services offered in a less restrictive environment. Under these circumstances, the DHR hearing examiner’s ultimate conclusion was that the Superintendent’s petition for an order authorizing appellee’s continued habilitation under inappropriate conditions at GRC should be dismissed, but that no alternative form of appropriate treatment could be afforded to appellee.

Because the effect of the DHR hearing examiner’s order would be to afford no form of treatment for appellee whatsoever, his representative appealed to the superior court. See OCGA § 37-4-110. The superior court entered an order wherein it made extensive findings of fact and conclusions of law. For purposes of this appeal, the superior court’s critical finding of fact was that DHR “has sufficient funds appropriated for [an alternative treatment program] and sufficient authority to purchase or provide the community services [appellee] needs.” The superior court’s crucial conclusion of law was that DHR “is responsible for purchasing or otherwise providing an appropriate small group home or developmental training home for [appellee] which can meet the needs listed in the individualized program plans for [appellee].” Based upon these and its other findings and conclusions, the superior court included in the remedial portion of its order the direction that DHR “shall secure an appropriate program of community services, including community residential services to implement the individualized program plan of [appellee] within a period of time not to exceed six months.” Thus, the superior court’s disposition of appellee’s appeal was a holding that, although no source of alternative treatment for appellee was currently available, DHR was nevertheless required to make that source of alternative treatment available to him within a six-month period of time.

The Superintendent and DHR filed an application for a discretionary appeal to this court from the superior court’s order. The application was granted and this appeal results.

1. The Superintendent and DHR enumerate the superior court’s order as erroneous, urging that OCGA § 37-4-40 (e), “upon which the [superior] court relie [d], does not authorize the [superior] court to order [DHR] to establish a habilitation program as an alternative to habilitation in a facility, in the event that no such alternative program is already available.”

In resolving the issue as to the extent of the superior court’s appellate authority in this case, we must delineate at the outset what this appeal does and does not involve. The initial proceeding whereby the probate court was petitioned for the initiation of a court-ordered program of services for appellee is not involved in this appeal. Appellee’s initial commitment for habilitation to GRC by the probate court, acting pursuant to OCGA § 37-4-40, is res judicata. What this appeal does involve is the appellate review of the subsequent proceeding for the continuation of appellee’s habilitation, which proceeding was initiated by the Superintendent pursuant to OCGA § 37-4-42. Under subsection (h) of OCGA § 37-4-42, it was the DHR hearing examiner who was vested with the authority to make the determination as to the need for, and the terms and implementation of appellee’s continued habilitation: “After [conducting a full and fair] hearing, the hearing examiner may issue any order which the court is authorized to issue under subsection (f) of Code Section 37-4-40, provided that the hearing examiner may order the client’s continued habilitation for a period not to exceed one year, subject to the power of the [Superintendent to discharge the client under subsection (b) of Code Section 37-4-44.” Accordingly, the issue to be resolved is the appellate authority of the superior court in the context of an appeal from an order entered by a DHR hearing examiner pursuant to OCGA § 37-4-42 (h).

As the result of his initial committal by the probate court to GRC, appellee was in the custody of DHR. See OCGA § 37-1-21 (a) (5). Therefore, in making any detérmination as to appellee’s continued habilitation, the DHR hearing examiner was, in effect, making an administrative determination as to whether DHR should continue to exercise its custody over appellee and, if so, how that continued custody should be exercised and implemented. Accordingly, the appellate authority of the superior court to review the order of the DHR hearing examiner must ultimately be considered from the perspective of appellate review of an administrative determination reached by a governmental agency which is charged with responsibility for appellee’s custody. “An administrative agency is ‘a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking’ [Cit.] . . . ‘The primary function of administrative agencies is to advance the will and weal of the people as ordained by their representatives — the Legislature. These agencies are created in order to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State. While these agencies at times perform some activities which are legislative in nature and thus have been dubbed as quasi-legislative duties, they in addition take on a judicial coloring in that frequently, within the exercise of their power, they are called upon to make factual determinations and thus adjudicate, and it is in that sense that they are also recurrently considered to be acting in a quasi-judicial capacity. This dual role which administrative agencies play has long been accepted in this State as being constitutionally permissible. [Cits.] However, this authority is not the same and, therefore, is distinguishable from the exercising of the “judicial powers” of this State. . . .’ [Cit.]” (Emphasis in original.) Bentley v. Chastain, 242 Ga. 348, 350 (1) (249 SE2d 38) (1978).

In analyzing the extent of permissible judicial review of administrative decisions, “we not only consider the nonjudicial role of these agencies, but also must recognize the important function that administrative agencies perform at all levels of government. Whether operating in the federal, state, or local sphere, agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches. They are able to use these skills, along with the policy mandate and discretion entrusted to them by the legislature, to make rules and enforce them in fashioning solutions to very complex problems. Thus, their decisions are not to be taken lightly or minimized by the judiciary. Review overbroad in scope would have the effect of substituting the judgment of a judge or jury for that of the agency, thereby nullifying the benefits of legislative delegation to a specialized body. Since the agency is exercising neither judicial nor legislative, but administrative, powers, the separation of powers doctrine along with this policy of respect must play a role in determining the nature of the review of agency decisions by the courts. It is axiomatic that, under the separation of powers, nonjudicial functions may not be imposed on a constitutional court. [Cits.] ‘The duties or functions which the legislature may not transfer to the judiciary have been characterized as either legislative or executive. That many of these may be delegated to administrative agencies has long been acknowledged. Their descriptive classification is not, however, the significant point. The vice lies in the fact that the duties or functions sought to be conferred upon the courts lie beyond the scope of judicial power. If the legislature cannot impose upon the courts the administrative duty or function of making an initial discretionary decision, it cannot do so by the fiction of an appeal which requires the court to adjudicate upon administrative rather than judicial considerations.’ [Cits.] . . . Textwriters in the area of administrative law urge that the focus of the courts in reviewing administrative decisions should be to evaluate the extent of discretion delegated to that agency and to see that the agency acts within the limits of its discretion in order to protect individuals against the unnecessary and uncontrolled use of that power. The focus is controlling discretion through administratively established standards and safeguards. [Cit.] Therefore, the only review authorized is that inherent in the power of the judiciary: Whether the agency acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights.” (Emphasis supplied.) Bentley v. Chastain, supra at 350-352. (Footnotes omitted.)

Thus, our Supreme Court has held that the only constitutionally authorized appellate review of an administrative decision is that “inherent in the power of the judiciary. . . .” Bentley v. Chastain, supra at 352. The issue thus becomes whether the superior court’s order in the case at bar exceeded or was within the scope of that inherent power. OCGA § 37-4-110 provides that the appeal to the superior court from an order of a DHR hearing officer “shall be made in the same manner as appeals from the probate court to the superior court, except that the appeal shall be heard before the court sitting without a jury. ...” OCGA § 5-3-29 further provides: “An appeal to the superior court in any case where not otherwise provided by law is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.” Pursuant to the provisions of OCGA §§ 37-4-110 and 5-3-29, the superior court in the case at bar treated the appeal of appellee from the order of the DHR hearing examiner as a de novo investigation. The superior court proceeded to make its own determination as to the availability, establishment and implementation of an alternative treatment program for appellee’s continued habilitation. In so doing, the superior court made a laudatory determination as to the administrative services which should be made available to appellee. As previously discussed, however, notwithstanding the literal provisions of OCGA §§ 37-4-110 and 5-3-39, the superior court’s exercise of its authority to review the order of DHR’s hearing examiner was constitutionally limited to “that inherent in the power of the judiciary: Whether [DHR] acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to [appellee’s] constitutional rights.” Bentley v. Chastain, supra at 352. See also DeKalb County v. Metro Ambulance Svcs., 253 Ga. 561, 562 (la) (322 SE2d 881) (1984); Strickland v. Douglas County, 246 Ga. 640, 641 (1) (272 SE2d 340) (1980).

Decided May 26, 1988

Rehearing denied June 10, 1988

Jefferson J. Davis, Special Assistant Attorney General, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Patricia Downing, Assistant Attorney General, for appellants.

Chandler R. Bridges, for appellee.

This court has no jurisdiction to declare the judicial review provisions of OCGA § 37-4-110 to be unconstitutional. It is, however, incumbent upon this court to insure that, in any given case, OCGA § 37-4-110 is constitutionally applied. OCGA § 37-4-110 can be constitutionally applied in the context of an appeal from an administrative order of a DHR hearing examiner as to continued habilitation only if the superior court bases its appellate review “on the criteria approved in Strickland v. Douglas County, 246 Ga., supra.” DeKalb County v. Metro Ambulance Svcs., supra at 563 (la), fn. 1. Accordingly, the superior court’s order in the case at bar must be reversed and the case must be remanded with direction that a new order, which comports with applicable constitutional standards, be entered by the superior court on appellee’s appeal.

2. Remaining enumerations of error are moot by virtue of our holding in Division 1 and need not be considered.

Judgment reversed and case remanded with direction.

Deen, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    76564.
    CARMICHAEL et al. v. BARHAM, BENNETT, MILLER & STONE.
    (370 SE2d 639)
   Deen, Presiding Judge.

George W. Carmichael and Marjorie D. Carmichael are the sole stockholders of Carmichael Lanes, Inc. In 1979, the Carmichaels applied for a loan from Valdosta Federal Savings & Loan Association (“Valdosta Savings”) to purchase a building leased by Carmichael Lanes. After making the loan application, George Carmichael contacted several members of the Board of Directors of Valdosta Savings and advised them that he was applying for a loan. After the loan was approved and he was informed by Valdosta Savings that it was necessary for an attorney to handle the closing, George Carmichael stated that he wanted Ed Barham of appellee law firm to handle it and later conferred with Barham about his fee. Carmichael was aware that Bar-ham was a member of the Board of Directors of Valdosta Savings. Some time prior to closing the loan, the Carmichaels were advised that Valdosta Savings required certain items of personal property owned by Carmichael Lanes as additional collateral, and this property was transferred from the corporation to the Carmichaels. All decisions as to the amount of the loan and loan conditions were made by Valdosta Savings and all such information was provided to appellants prior to closing.

At closing, appellants were presented with a document which outlines the services provided by the law firm and it states in part: “This firm does not represent you as your attorney and you are entitled to retain counsel of your choice if you desire to do so.” The document was signed by appellants and a member of the law firm.

On June 30, 1983, appellants filed suit against the law firm alleging that it had been guilty of negligence and that they were damaged as a result of appellee’s negligence in that they incurred increased income taxes and penalties as a result of the transfer of personal property from Carmichael Lanes to the plaintiffs individually. They contended that the law firm was guilty of negligence when it failed to inform them of the adverse income tax consequences of the transfer. After discovery, the appellee filed a motion for summary judgment with an affidavit from the president of Valdosta Savings attached. The Carmichaels appeal from the grant of summary judgment in favor of the law firm. Held:

At trial, the plaintiff has the burden of proving the elements of a legal malpractice action. They are: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, (3) that the attorney’s negligence was the proximate cause of the damage to the plaintiff. Guillebeau v. Jenkins, 182 Ga. App. 225 (1) (355 SE2d 453) (1987). Guillebeau also holds that the mere fact that a party pays attorney fees does not lead to the conclusion that an attorney-client relationship exists.

Here, as in Guillebeau, the plaintiff paid attorney fees, but we do not find that an attorney-client relationship existed. The Carmichaels and a member of the law firm executed a document at closing which states that the firm did not represent them and that they were free to obtain counsel of their choice if they so desired. The affidavit of the president of Valdosta Savings, who was present at closing, establishes that the document was explained to the Carmichaels before they signed it and that each of them signed it freely and voluntarily.

Decided May 26, 1988

Rehearing denied June 10, 1988

Taylor W. Jones, Hugh C. Wood, Kathleen V. Duffield, for appellants.

0. Wayne Ellerbee, for appellee.

Accordingly, we find that there is no issue of fact requiring jury resolution and that the court below properly granted summary judgment in favor of the law firm.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Benham, Judge.

text:
    75965.
    SOUTHERN GENERAL INSURANCE COMPANY v. KENT et al.
    (370 SE2d 663)
   Benham, Judge.

Appellant Southern General Insurance Company appeals from the judgment entered on a jury verdict in favor of its insureds, appellees Kent. Appellant contends the trial court erred in failing to direct verdicts in the various aspects of the case and in failing to give a charge on impeachment.

In their complaint, appellees alleged that appellant had, in bad faith, refused to pay appellees for the insured loss. In an amendment, appellees contended that appellant had breached its contract with them and defrauded them by failing to pay the amount of damages as determined by their appraisers. The jury awarded appellees $5,000 for damages to the house and, under OCGA § 33-4-6, $1,000 attorney fees and $1,000 penalty.

Appellees owned a home covered by a policy of insurance issued by appellant. That policy covered “the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss. . .” The insurance policy also contained an appraisal clause: “In case the insured and this Company shall fail to agree as to the actual cash value or amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected . . . The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss.”

In November 1985, the home suffered damage when roofing shingles were blown off during a windstorm associated with a hurricane. Appellant’s adjustor visited the insured premises in December 1985 and appraised the roof damage and resulting interior water damage at $1,687.20, a figure appellees were unwilling to accept. The adjustor returned to the premises with contractors and after consulting with them, increased the damage appraisal slightly. In February 1986, the contractors, this time at appellees’ request, estimated it would cost $13,900 to replace the entire roof and to replace the interior ceilings, walls, and carpeting. Since appellant refused to pay $13,900 and appellees refused to accept what appellant offered, appellant invoked the appraisal clause of the insurance contract. The umpire made an award of $3,099.72 and appellant tendered $2,999.72 (the award less the $100 deductible), which appellees refused. They subsequently filed this lawsuit.

1. Appellant contends that the appraisal award was binding upon the parties and that the trial court erred in refusing to direct a verdict accordingly.

An appraisement award is the result of a contractual method of ascertaining the amount of loss, and it is binding on the parties as to the amount of loss unless the award is set aside. Jordan v. Gen. Ins. Co., 92 Ga. App. 77 (2) (88 SE2d 198) (1955). There exists a presumption in favor of the regularity and fairness of appraisement awards, and it is difficult to set them aside. Pacific Nat. &c. Ins. Co. v. Beavers, 87 Ga. App. 294 (4) (73 SE2d 765) (1952). While an award may be attacked for any reason that would void a contract, as well as for fraud in the arbitration or in either party in obtaining the award, for a palpable mistake of law or for deciding any matter by chance or lot, “where there is no evidence of fraud, oppression, irregularity, or unfairness, other than on the disputed issue of value, and no other circumstances tending to raise the issue, a verdict in the amount of the award is demanded.” Id. Thus, unless there is fraud sufficient to set the appraisement award aside, the trial court should have directed a verdict of $3,099.72 on the issue of amount of loss.

Appellees maintain that appellant’s refusal to pay the amount of damages as calculated by the contractors used by appellees as an appraiser amounted to fraud on appellant’s part. Appellees contend that since the contractors initially visited the insured premises at the request of appellant’s adjustor, the contractors were appellant’s appraisers and appellant was bound by their repair estimate. We disagree with appellees’ position. The fraud alleged by appellees did not constitute an attack upon the arbitration award or in the method used to obtain it. Compare Colevins v. Nat. Union &c. Ins. Co., 105 Ga. App. 169 (1) (123 SE2d 559) (1961); Jordan v. Gen. Ins. Co., supra; Pacific Nat. &c. Ins. Co. v. Beavers, supra. Therefore, a verdict in the amount of the award was demanded. Id. Even if appellees’ allegations of fraud are taken as true, the allegedly fraudulent action (failing to pay appellees the amount the contractors estimated for repairing the damage by replacing items) took place prior to the demand for arbitration when the parties were unable to agree upon the amount of loss. Once the impartial observer, selected by representatives of both parties, made a determination of the amount of loss, any argument concerning value became moot as long as there was no argument that the appraisement award was reached through fraud or mistake. Since the umpire’s decision was unvilified, appellees’ attack on appellant’s pre-appraisement position on the amount of loss was moot, and the trial court should have directed a verdict on the amount of loss as being that determined by the umpire.

Appellees contend that the appraisement award was not binding because the contract of insurance provided that suit could be filed on the policy after “all the requirements of this policy have been complied with. . .” Appellees maintain that the appraisal process was merely a non-binding prerequisite to filing suit on the policy. We disagree. The appraisal clause determines amount of loss. A suit on the policy is necessary to determine liability. See Yates v. Cotton States &c. Ins. Co., 114 Ga. App. 360, 361 (151 SE2d 523) (1966); Jordan v. Gen. Ins. Co., supra, Division 2. The appraisal process is not merely a prerequisite to filing suit, but the method by which the parties have contractually agreed to settle their differences with regard to the amount of loss.

2. Appellant also sought and was denied a directed verdict on the issue of attorney fees and penalties assessed pursuant to OCGA § 33-4-6.

“ ‘In an action to recover penalties and attorney fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in “bad faith” [cits.], and the burden is on the insured to show that such refusal was made in bad faith. (Cits.) “Bad faith” . . . means “any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy.” (Cits.) The provision for damages and attorney fees, being in the nature of a penalty, must be strictly construed, and in order for a recovery of such items to be had it must appear from the evidence that the company in bad faith refused to pay the claim within 60 days after a demand had been made. (Cit.) “The recovery provided in OCGA § 33-4-6 is a penalty. Penalties and forfeitures are not favored. The right to such recovery must be clearly shown.” [Cits.]’ ” Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (1) (302 SE2d 605) (1983).

Decided June 10, 1988.

Wilson R. Smith, for appellant.

Tom W. Thomas, for appellees.

Appellees, through their attorney, demanded payment of $13,900 in a letter dated February 21, 1986. Eight days earlier, in response to another letter from appellees’ attorney, appellant had invoked, in writing, the appraisal clause of the insurance policy. Appellees acknowledged appellant’s invocation of the appraisal clause in a letter dated March 3, 1986, and named their appraiser in a letter dated March 28. Notification of the umpire selected by the appraisers was given in a letter dated June 9, and the umpire rendered his decision on July 21. On July 30, 1986, appellant sent a check for $2,999.72 to appellees’ counsel, who returned the check on August 7 and filed the lawsuit on August 14, 1986.

Based on the fact that the period of limitation in which one may file suit is tolled during the pendency of appraisal proceedings (Beavers v. Pacific Nat. &c. Ins. Co., 85 Ga. App. 240 (68 SE2d 717) (1952)), we hold that the 60-day period of OCGA § 33-4-6 is likewise tolled during the pendency of appraisal proceedings. Appellees’ demand letter of February 21 was written after the appraisal clause was invoked by appellant. Even if it is deemed that the appraisal proceedings were not “pending” until appellees agreed to the process, that occurred, at the latest, on March 28, 35 days after the demand, and payment pursuant to the appraisal award was tendered by appellánt on July 30, nine days after the award. Thus, 60 days did not elapse between demand and refusal to pay. Therefore, appellees were absolutely barred from recovery of a bad faith penalty and attorney fees under OCGA § 33-4-6. Blue Cross & Blue Shield &c. v. Merrell, 170 Ga. App. 86, 87 (316 SE2d 548) (1984).

Furthermore, appellees’ demand for payment of $13,900 was mooted by the umpire’s uncontested award of $3,099.72. There was no demand made upon appellant to pay $3,099.72, and appellant tendered the amount awarded by the umpire within days of the award.

In summary, we reverse the trial court’s denial of appellant’s motions for directed verdict and remand with direction that judgment in the amount of the umpire’s award be entered in favor of appellees.

3. In light of our disposition of this case in Divisions 1 and 2, we need not consider appellant’s remaining enumerations of error.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    76134.
    LANSDOWN INVESTMENTS OF GEORGIA, INC. v. WILSON.
    (370 SE2d 666)
   McMurray, Presiding Judge.

Johnny Wilson, individually and d/b/a Wilson’s Plumbing and General Repairs (plaintiff), brought an action against The Lansdown Investments of Georgia, Inc., d/b/a The Limelight (defendant), seeking to recover damages stemming from defendant’s alleged refusal to pay for materials and services provided by plaintiff at defendant’s place of business. The evidence at a bench trial showed that plaintiff and defendant entered into an agreement whereby plaintiff was to install plumbing equipment and fixtures at defendant’s restaurant. In return, defendant was to pay plaintiff $45 per hour for installing the materials. No agreement was made with regard to the amount defendant was to pay for the materials provided by plaintiff. However, after plaintiff began performing the contract, defendant paid several receipts wherein plaintiff charged defendant “retail” price for the materials.

Although plaintiff provided the materials and installed them in accordance with the parties’ agreement, defendant removed plaintiff from the project before it was completed, acquired another plumber to complete the plumbing work and refused to pay plaintiff’s final bill, which reflected work completed and materials provided on the project. From this and other evidence adduced at trial, plaintiff was awarded a judgment “in the sum of $4,621.06 plus 12 percent interest from December 2, 1983, in the amount of $2,034.81 plus $28.00 costs of court.” Defendant now appeals. Held:

1. Plaintiff has filed several motions to dismiss this appeal, all of which this court has considered, and the same are hereby denied.

2. In its first enumeration of error, defendant contends the verdict was contrary to law because the evidence showed that the amount defendant was to pay for materials and services was too vague to support an enforceable agreement.

“[W]here . . . the judge sits as the trier of fact his findings shall not be set aside ‘unless clearly erroneous.’ Code Ann. § 81A-152 (CPA § 52; Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171 [now OCGA § 9-11-52]; City of Atlanta v. McLennan, 240 Ga. 407 (2) (240 SE2d 881).” Nodvin v. Krabe, 160 Ga. App. 310, 312 (2) (287 SE2d 236). In the case sub judice, plaintiff testified that defendant agreed to pay him $45 per hour for installing the plumbing equipment and fixtures and, while there was no agreement as to the price defendant was to pay for the materials, plaintiff testified that he charged “retail” price for the materials and that “retail” price is what he normally charges for materials under similar circumstances. This evidence was sufficient to support the trial court’s findings. (See OCGA § 11-2-305, with regard to plaintiffs right to recover the “reasonable price” of the materials absent a specific agreement as to price. Compare Wolfe v. Brown-Wright Hotel &c. Corp., 87 Ga. App. 12 (73 SE2d 82), where evidence as to market value of goods sold was insufficient to sustain action.) Evidence further supporting the trial court’s findings is found in defendant’s acquiescence in paying “retail” price for materials and $45 per hour for services while plaintiff was performing the contract. See Restatement 2d, Contracts, § 34.

Decided June 10, 1988.

Bret L. Block, Paul R. Jordan, for appellant.

J. Eugene Wilson, for appellee.

3. Next, defendant challenges the trial court’s findings with regard to the parties’ agreement as to the hourly rate charged by plaintiff. Defendant argues that inconsistencies in plaintiff’s billing rates demand a verdict for the lesser amount charged by plaintiff for services rendered. We do not agree. This was merely conflicting evidence that was properly resolved by the trier of fact. See Barber v. Wausau &c. Ins. Co., 184 Ga. App. 479 (362 SE2d 109). The evidence adduced at trial was sufficient to support the trial court’s findings. See Division 2 of this opinion.

4. Finally, defendant argues that plaintiff breached the agreement by allowing “two apprentices, rather than a licensed plumber and an apprentice ...” perform the contract.

There was no evidence to indicate that plaintiff breached the contract by failing to use “a licensed plumber and an apprentice” to perform the work. On the contrary, the parties’ agreement provided that plaintiff was to supply materials and install them at defendant’s place of business and the evidence authorized a finding that plaintiff performed the plumbing work in a satisfactory manner and according to the parties’ agreement. This enumeration of error is meritless.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Sognier, Judge.

text:
    76147.
    BLASENGAME v. THE STATE.
    (370 SE2d 797)
   Sognier, Judge.

Appellant was convicted of the sale and possession of marijuana in violation of the Georgia Controlled Substances Act, and he appeals.

1. In his first and third enumerations of error, appellant contends he was denied the effective assistance of counsel because of a conflict of interest created by his trial counsel’s representation of both appellant and his co-defendant, Ray Abernathy, at their joint trial, and thus, it was error to deny his motion for a new trial on that ground. There is nothing in the transcript to indicate a conflict arising from such dual representation, and this issue was raised for the first time in appellant’s motion for a new trial, in which he was represented by an attorney different than his trial defense counsel.

At a hearing on this issue appellant argued that Abernathy had made inconsistent statements to investigators which implicated a third person as the individual who supplied marijuana to Abernathy. Appellant also argued that his trial counsel was unable to explore this inconsistency on cross-examination of certain State witnesses, and that he could not put Abernathy on the stand and impeach him by showing the marijuana belonged to Abernathy, and not appellant.

In Brown v. State, 247 Ga. 298, 299 (2) (275 SE2d 52) (1981), the court held that in order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance, and a mere possibility of conflict is insufficient to impugn a conviction amply supported by competent evidence. Further, single representation of multiple defendants raises no per se presumption of a conflict of interest or prejudice. Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986). In the instant case there was no objection at trial to one counsel representing both defendants, and there is nothing in the record to support appellant’s bare assertion that a conflict existed. Since no timely objection was made by appellant, and no material prejudice has been demonstrated, these enumerations of error are without merit. Brown, Hamilton, supra.

2. Appellant alleges error in denial of his request to charge on the “equal access” doctrine. In regard to appellant’s conviction of the sale of marijuana, the equal access doctrine has no application to the evidence presented. In regard to his conviction for possession of marijuana, appellant argues that because he was not present when marijuana was found in a search of a game room he leased, a charge on equal access was required as to that offense.

The evidence disclosed that appellant and Abernathy were partners in the operation of a game room, which was housed in a small, 18 x 20 foot building leased by appellant. Both appellant and Abernathy were present when an undercover narcotics agent entered the game room about 6:00 p.m., July 23, 1986, and asked Abernathy if he had any “smoke.” Abernathy looked at appellant, who nodded his head, and the agent and Abernathy went behind the counter, where Abernathy sold the agent $50 worth of marijuana. Abernathy then told the agent if he wanted anything else to come back, and the agent said: “Well, how about some ‘Coke’?” Abernathy asked how much the agent wanted and he said he would take a gram. Abernathy told appellant the agent wanted some “coke” too; appellant looked the agent up and down carefully and told Abernathy: “Hell man, I don’t know him.” When Abernathy told appellant it was okay because the agent was “cool,” appellant said he didn’t care, “I’m not selling it to him, I don’t know him.” The agent then departed and based on that sale Donald Weathers, a narcotics investigator with the Bartow County Sheriffs Department, obtained a search warrant for the game room, which was executed at 8:00 p.m. the same evening. Abernathy was present but appellant was not; 58 hand-rolled marijuana cigarettes and three plastic bags of marijuana were seized from a shelf under the counter. Abernathy had two billfolds, one containing his identification and some money, the other containing nothing but money, including some marked $20 bills the undercover agent had used to purchase the marijuana at 6:00 p.m. Several personal papers belonging to appellant, such as rent receipts, were also seized from a basket on the shelf where the marijuana was found. Weathers testified that the game room was very small, with only two to three feet between the pool tables and the counter.

Appellant testified that he spent very little time at the game room; some days he did not go there at all, and when he did go to the game room, he spent a maximum of two hours a day there. Appellant denied any knowledge of the marijuana found on the premises during the search. He also denied being present when Abernathy sold the marijuana to the undercover agent.

Under the equal access rule, the inference of constructive possession by an owner or lessee of premises on which contraband was found is rebuttable by an affirmative showing that persons other than the defendant owner or lessee had equal access to the premises, and when it is affirmatively shown that others had equal access or opportunity to commit the crime, the mere discovery of contraband on the defendant’s premises is insufficient to support a conviction. Ray v. State, 181 Ga. App. 42, 44-45 (4) (351 SE2d 490) (1986). See also Gee v. State, 121 Ga. App. 41, 42-43 (172 SE2d 480) (1970).

Although there is no direct evidence that the marijuana found under the counter was the property of appellant, it is clear from the discussion between the agent, Abernathy and appellant when the undercover agent purchased marijuana two hours before the search that Abernathy and appellant were not only business partners, but were partners in the sale of drugs. Although there was evidence that other persons may have had access to the area behind the counter on earlier occasions, there was no evidence that anyone other than Abernathy was behind the counter in the two-hour interval between the sale and the search. When Weathers entered to conduct the search, only Abernathy and a thirteen-year-old boy were present. Since it is obvious that Abernathy and appellant were working together in their drug enterprise, and there was no evidence that anyone had access to the area behind the counter during the short interval between the sale and the search, a charge on equal access was not warranted by the evidence. A trial court is not obligated to give requested charges which are not adjusted to the evidence. Amerson v. State, 177 Ga. App. 97, 99 (4) (338 SE2d 528) (1985). Hence, there was no error.

Decided June 10, 1988.

Frank G. Smith, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

3. Appellant contends the evidence is not sufficient to support his conviction. There was direct evidence that appellant participated as a party to the crime in the sale of marijuana. As to possession of the marijuana found in the search, although the evidence was circumstantial, it established clearly that appellant was a participant in and had knowledge of the drug selling enterprise. Thus, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant contends the trial court erred by failing to charge the jury on circumstantial evidence, when all evidence supporting his conviction was circumstantial. We do not agree. There was direct evidence that appellant participated in the sale of marijuana, and direct evidence that he was engaged in an ongoing drug enterprise, shown by his response that he would not sell “coke” to the undercover agent because he did not know him. Where there is some direct evidence involved in the case, it is not error to fail to charge on circumstantial evidence. Houston v. State, 180 Ga. App. 267, 269 (4) (349 SE2d 228) (1986).

5. Lastly, appellant asserts error by allowing a prosecution witness to remain in the courtroom after the rule of sequestration had been invoked, and thereafter testify after other State witnesses had testified. Appellant made no objection to the witness testifying, and it is well settled that this court will not consider questions raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Beasley, Judge.

text:
    76257. 1600
    CAPITAL COMPANY v. BANKERS FIRST FEDERAL SAVINGS & LOAN ASSOCIATION.
    (370 SE2d 668)
   Beasley, Judge.

1600 Capital Company, plaintiff, appeals from the grant of summary judgment to Bankers First Federal Savings & Loan Association, defendant.

Capital negotiated with Bankers to obtain financing for the construction and long-term financing of fourteen townhouse units in Arlington, Texas. Bankers agreed to provide the necessary funds and the parties executed a number of related documents, including a construction loan commitment, a loan agreement, fourteen promissory notes (one for each piece of property), and a deed of trust. The construction loan commitment and notes provided that the interest on the total construction loan of $800,000 would be 2 percent over Bankers’ “Base Lending rate” in effect on the first day of each month, and the notes further explained that the rate of interest would increase or decrease as Base increased or decreased.

The notes matured, and after renewal efforts were rejected, Bankers demanded full payment. Capital paid the sum demanded, both principal and interest as calculated by Bankers, and then instituted this action for the interest charged on the notes, contending that it was usurious in violation of OCGA § 7-4-2 and should be forfeited to it under OCGA § 7-4-10.

OCGA § 7-4-2 (a) (1) provides in part: “The legal rate of interest shall be 7 percent per annum simple interest where the rate percent is not established by a written contract. Notwithstanding the provisions of other laws to the contrary, . . . the parties may establish any rate of interest, expressed in simple interest terms as of the date of the evidence of the indebtedness, . . . agreed upon in writing by the parties where the principal amount involved is more than $3,000.00. . . . Nothing contained in this subsection shall be construed to prohibit the computation and collection of interest at a variable rate.”

Capital contends that there was no agreement in writing which expressed the rate of interest in simple interest terms, because the base lending rate was neither defined nor set out as to current percentage, and it was variable monthly not according to a stated standard but within the discretion of a bank committee. Thus, it argues, a borrower could not compute it from the information provided in writing or compare it with other money rate. It is also argued that the term “prime” rate is a commonly used, well-recognized expression and cases construing it are not applicable here where “base” is used instead. Capital does not dispute that this was a simple interest, as opposed to compound interest, rate, nor does it refute the evidence that the rate was set monthly by a committee of three which considered factors such as the cost of money to Bankers.

Bankers contends that the loan documents do meet the statutory requirements. The trial court, relying on Stewart v. Nat. Bank of Ga., 174 Ga. App. 892 (332 SE2d 19) (1985), analogized the base rate provision to the prime rate provision approved in that case and con-eluded that the base rate was not usurious. We agree, as it is definite and ascertainable by the borrower.

Although the future monthly-determined rate could not be known in advance, the parties agreed that it be this particular rate, for which there was an established mechanism for its determination. The borrower as a member of the general public was free at any time, including when it entered into the contracts, to ascertain from Bankers what the then-prevailing base lending rate was. The statute does not require that the formula or factors used in arriving at it by the committee, or the manner or mechanism for arriving at it, be set out in writing. Describing to whom it in general applies, as did the prime rate notes in Stewart, is not required either. So long as it is definite, that is, a particular rate used by the lender in its lending transactions, ascertainable by the borrower, and expressed in writing in simple interest terms, it meets the statute’s mandate. The fact that it is variable in the future and cannot be ascertained in a particular numerical amount for those future months, at the date of the loan, does not invalidate it.

The Fifth Circuit pointed out with respect to a similar provision of Louisiana law, In the Matter of LeBlanc, 622 F2d 872, 878 (5th Cir. 1980): “The requirement that an interest rate be fixed in writing is akin to a parol evidence rule . . . There is no danger of a swearing match over what the parties meant by four points above prime. Thus, holding that such an interest rate is not fixed in writing would' not serve the purposes of the parol evidence rule.” The same holds true for the base lending rate expressly specified by the parties here.

In Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 647 (1) (226 SE2d 812) (1976), a note calling for the payment of interest “At 3 percent above the prime rate in effect from time to time at Wachovia” was examined. Changes in the prime rate resulted in changes in the interest rate of the note on the first day of the following month. That the rate was established and charged by Wachovia as a matter of record which was available to the borrower was the crucial factor sustaining the holding that the interest rate was definite and ascertainable.

The position we take is essentially that taken by the Georgia Department of Banking & Finance in its advisory opinion entitled: “Interpretations of H. B. 128 - Interest.” See OCGA § 7-1-99 (b) (1). According to the Department the requirement that the rate of interest be expressed in simple interest terms does not mandate numerical terminology but is met by the expression of the method of computation of interest by reference to “prime” or other indices such as “base.” See also “Interest & Usury - House Bill No. 128,” 19 Ga. Bar Journal 150 (1983).

The interest provided for in the loan instruments here did not constitute a greater profit than is authorized by law, and thus is enforceable. See Bailey v. Newberry, 52 Ga. App. 693 (184 SE 357) (1935).

Decided June 10, 1988.

Lynn C. Stewart, David H. Flint, for appellant.

James L. Lester, for appellee.

W. Stell Huie, Carol V. Clark, Bob G. Pope, amici curiae.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Banke, Presiding Judge.

text:
    76968.
    N. C. CONSTRUCTION COMPANY v. ACTION MOBILPLATFORM, INC.
    (370 SE2d 800)
    Decided June 10, 1988.
    Charles O. Jones, pro se.

      M. David Harrison, J. Ben Moore, for appellee.
   Banke, Presiding Judge.

A default judgment was entered against the appellant in this case on March 5, 1987, based on a determination that its answer was not legally sufficient. The present appeal is from an order dated November 11, 1987, denying the appellant’s “Motion for Reconsideration or in the Alternative ... To Dismiss a Void Judgment.” Held:

It is well settled that neither a motion for reconsideration of a final judgment nor a motion to set aside a final judgment extends the time for filing a notice of appeal. See, e.g., Austin v. Carter, 248 Ga. 775, 776 (1) (285 SE2d 542) (1982). While the denial of a motion to set aside may be considered appealable in its own right where the motion is filed pursuant to OCGA § 9-11-60 (d), the right of appeal is conditioned, under such circumstances, upon compliance with the application procedures set forth in OCGA § 5-6-35. No application for appeal having been filed in the present case, it follows that the appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Birdsong, C. J., and Beasley, J., concur.


text:
    76169.
    MINDOCK v. THE STATE.
    (370 SE2d 670)
   Deen, Presiding Judge.

Appellant Mindock was one of several defendants arrested in November 1986 at the culmination of a six-month-long undercover operation conducted jointly by the Federal Bureau of Investigation (FBI) and the Georgia Bureau of Investigation (GBI) with regard to a Dade County drug distribution conspiracy. A jury found Mindock guilty as charged of the offenses of trafficking in cocaine and possession of a controlled substance, hydromorphone. He appeals, enumerating as error (1) the trial court’s overruling of an objection, on grounds of relevance, to the State’s eliciting from its own witness testimony regarding the guilty pleas of certain others arrested in the “drug bust,” and refusal to instruct the jury to disregard the testimony; (2) the sufficiency of the evidence on the trafficking charge; and (3) the tried court’s granting the State’s motion to curtail the closing argument of defense counsel. Held:

1. A careful reading of the relevant colloquy between prosecution, defense, and the court indicates that, in context, the prosecution’s objection was appropriate and should not have been construed as an improper motion to curtail defense counsel’s argument. The trial transcript filed with this court, moreover, does not include a transcript of the closing arguments. Absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. Miller v. Grier, 175 Ga. App. 91 (332 SE2d 323) (1985). When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. Hunnicutt v. Hunnicutt, 182 Ga. App. 578 (356 SE2d 679) (1987). We find no reversible error here.

2. At trial Appellant objected to testimony of a State witness regarding guilty pleas by joint offenders, as well as to testimony that two of the other joint offenders were fugitives. Specifically, the testimony and the objection thereto was as follows: “Q. Of course, Mr. John Boatwright entered a plea of guilty in the Federal Court, is that correct? A. Yes, Sir, that is my information. All of the individuals in this particular investigation with the exception of the two defendants today, and two of the suspects, Mr. Frank Miller and Mr. Ronald Teems, which are fugitives, and have never been arrested or arraigned, have plead guilty in this case. MR. EMMETT: [DC] Your Honor, I would object to that and ask that that be striken (sic), that has got nothing to do with this case. THE COURT: Objection sustained. MR. FRANKLIN: [DA] All right. MR. EMMETT: Likewise request that the jury be instructed to disregard that statement in its entirety. THE COURT: What says counsel for the State? MR. FRANKLIN: Your Honor, we believe that is part of the conspiracy, and result of it. MR. EMMETT: Conviction of someone else has nothing at all to do with conspiracy. THE COURT: Is that your objection? MR. EMMETT: Yes, sir, it’s completely irrelevant to the trial of Mr. Mindock. THE COURT: That objection based upon that ground is overruled.”

The ruling of the court was error requiring reversal. OCGA § 24-3-52 provides: “The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” (Emphasis supplied.) On the basis of this statute and its predecessor statutes, this court has consistently held that a guilty plea of a joint offender is not admissible in evidence at the trial of another joint offender. Gray v. State, 13 Ga. App. 374, 375 (79 SE 223) (1913); Hayes v. State, 136 Ga. App. 746 (1) (222 SE2d 193) (1975); Neal v. State, 160 Ga. App. 834, 837 (3) (288 SE2d 241) (1982); Foster v. State, 178 Ga. App. 478, 479 (1) (343 SE2d 745) (1986). As pointed out in Foster, the cases which apply this rule of inadmissibility rely upon § 24-3-52, supra, and upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, and hold that the plea cannot be used as substantive evidence against him. Although this rule does not apply where the joint offender is present and testifies as a witness subject to cross-examination, Brown v. State, 132 Ga. App. 200 (2) (207 SE2d 682) (1974), that exception is inapplicable here.

Under the rule set forth above, the testimony complained of by appellant is not relevant and admissible to establish the existence of a conspiracy. This is particularly true where, as here, appellant was not charged with conspiracy. See Neal, supra. As a general rule, an objection on the ground that testimony or evidence is irrelevant and immaterial, without more, is not a valid objection. See, e.g., Shouse v. State, 231 Ga. 716, 717 (4) (203 SE2d 537) (1974); Lightsey v. State, 160 Ga. App. 62, 63 (3) (286 SE2d 41) (1981). Valid or not, however, the court treated appellant’s objection as valid and ruled on it, not once, but twice. We are therefore bound to review the ruling of the court. Further, we held in Neal, supra, that “[t]he legal relevance of a co-defendant’s guilt or innocence is nonexistent in the trial of the other co-defendant. . . .” (Emphasis supplied.) Thus an objection that guilty pleas of other joint offenders “has got nothing to do with this case” (i.e., are not relevant) was a valid objection to the testimony of the State witness. Moreover, in view of Gray, Hayes, Neal and Foster, supra, and other cases cited above, even if the objection were deemed invalid or insufficient, the evidence was so prejudicial and so repugnant to the idea of a fair trial that to admit such evidence would be error even in the absence of an objection. See Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986).

Nor is the error harmless. To let the jury know that all defendants have pled guilty except the two on trial and two who are fugitives is extremely prejudicial and denies appellant his right to a fair trial. The only inference to be drawn from such testimony is that because all the other defendants pled guilty, appellant must also be guilty, since he was apprehended at the same time and place as the defendants who had entered guilty pleas.

Decided June 13, 1988.

John R. Emmett, for appellant.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

There was virtually no evidence to support the contention that appellant had any connection with trafficking in cocaine other than the fact that he was present in the house when law enforcement officials broke into the house and apprehended all persons present. In fact, the evidence indicated that the Boatwrights were the individuals dealing in cocaine, and were the individuals who had previous cocaine dealings with undercover agents and informers. The evidence against appellant on the charge of possession of hydromorphone was circumstantial. In such a factual situation, we cannot say that the testimony relating to guilty pleas of other joint offenders did not unduly prejudice the jury against appellant, and influence the verdict in this case. We held in Hayes, supra, that it was reversible error to allow a co-defendant to plead guilty in the presence of the jury panel, and that situation is in no way different from allowing the State here to present evidence that all other defendants in custody had pled guilty. Appellant’s conviction must be reversed and the case remanded for a new trial.

Judgment reversed; case remanded for new trial.

Sognier, J., concurs. Carley, J., concurs' in Division 1 and in the judgment.


author: Birdsong, Chief Judge.

text:
    76414.
    MITCHELL v. RAINEY.
    (370 SE2d 673)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court granting appellee’s motion for summary judgment.

The facts in this case are in dispute; however, those facts most favorable to the appellant/plaintiff are as follows. Appellant went to the Soap Opera laundromat to do her laundry. She washed her clothes and obtained a cart to take them to the dryer. Pushing the cart in front of herself on the way to the dryer, appellant slipped and fell on a foreign substance on the floor. She was looking in front of herself as she pushed the cart, but could not see the substance on the floor. After her fall, she observed the substance on the floor, and it appeared to be melted ice cream. At that time, she observed “the ice cream had melted down into a puddle after being dropped on the floor.” Appellant opined that “[b]ased on the size of the puddle and how much ice cream had melted, [she] would estimate that the ice cream had been on the floor for at least five to ten minutes.”

The Soap Opera is located in a center location of a small shopping center. A fish market, ice cream/hot dog parlor, grocery store, beauty shop and barber shop are also in the shopping center. The Soap Opera has a video game room in the back. Children would come into the Soap Opera with their parents and would play the video games while they waited. Although there was a strict policy against children bringing food into the laundromat, no signs prohibiting the practice were posted, and the only means of enforcing the policy was to stop children seen with food from entering the premises.

On the day of the accident, Mr. Rainey who was the owner and his employee, Ms. Sharon Mitchell-Parker (hereinafter referred to as Ms. Parker) were on the premises. Ms. Parker’s duties included that of “picking up after the customers and making certain that the floors at all times remained clean, dry and free of debris.” She performed these orally assigned duties as necessary and mopped the floors if needed. She was responsible for patrolling the entire area and keeping it clean. There is no evidence establishing that either the appellee or his employee, Ms. Parker, had actual knowledge of the spilled substance prior to the injury. Mr. Rainey did not witness the accident; he heard a noise and on investigation found that the appellant had fallen. Mr. Rainey attributes appellant’s fall to another cause not here relevant. In response to specific questions posed, Mr. Rainey testified as follows during his deposition: “Q. Do you remember what Ms. Parker had been doing in the laundromat [area] in the 15 to 20 to 30 minutes before Ms. Mitchell had fallen? A. Ms. Parker was cleaning the top of the washers, getting the soap off the washers, and basically sweeping the floor and mopping. If anybody spilled some water she would mop the floor. Q. I’m not talking about her general duties right now, I’m talking about specifically do you remember where she was and what she was doing? A. I could tell you, in this general area here cleaning up the area, it’s between “B” and “C” [on appellee’s diagram attached to his deposition]. This general area here where the top washers are [the area appears to be only several feet from the point of the alleged accident when appellee’s diagram is compared with appellant’s diagram which also is contained in the record] because when I heard the noise that’s where she was.” (Emphasis supplied.)

In Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327), the Supreme Court held that in slip and fall cases involving a foreign substance on the floor “ ‘[b]efore an owner can be held liable for the slippery conditions of his floors ... it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care’. . . . [0]nly ‘when the perilous instrumentality is known to the owner or occupant and not known to the person injured [is] a recovery . . . permitted.’ [Cits.] Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. [Cits.] . . . Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor ‘was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.’ [Cits.]”

In Mitchell v. Food Giant, 176 Ga. App. 705, 708-709 (337 SE2d 353), we stated that there are “ ‘two different classes of cases which may be based on constructive knowledge of a defect.’ The first class was said to require a statement of the period of time the dangerous condition has been allowed to exist, from which a jury could conclude the defendant breached his duty to inspect the premises and keep them in a safe condition. The second class of case involves actual or constructive knowledge of the dangerous condition, and, as to evidence of constructive knowledge, we said that where it was alleged that defendant’s employees were in the immediate area of the dangerous condition and could easily have seen the substance, ‘it is not necessary to allege any specific length of time that the condition had existed’. . . . The rule actually is that a defendant’s constructive knowledge of a foreign substance may be shown where the defendant had an ‘opportunity to discover the [defect]’. . . . We conclude there never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown ... by evidence that the hazard existed for a length of time sufficient for the defendant to discover . . . and remove it.” In this case, where there was melted ice cream on the floor, the amount of time for ice cream to melt would of necessity be a jury question.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479), citing Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). Moreover, opinion evidence can be sufficient to preclude the grant of summary judgment. Dickson, supra at 675. The movant has the burden “to show that no material issue remains, and the pleadings will be construed and inferences from the evidence interpreted favorably toward making and retaining a genuine issue of fact.” Hansford v. Robinson, 255 Ga. 530 (2) (340 SE2d 614).

Decided June 13, 1988.

Richard E. Stark, for appellant.

Stephen L. Cotter, Kent K. Carter, for appellee.

Applying the above test to the operative facts and law, we find that the trial judge erred in granting appellee’s motion for summary judgment, as a genuine issue of material fact existed within the meaning of OCGA § 9-11-56 (c). Compare Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) and Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    75837.
    SHAB v. THE STATE.
    (370 SE2d 775)
   McMurray, Presiding Judge.

Defendant was charged by accusation and convicted of the offenses of prostitution and solicitation of sodomy. Defendant contends that his conviction of solicitation of sodomy arose out of the same conduct as did his prostitution conviction and that his solicitation of sodomy conviction should have merged into the prostitution conviction as a lesser included offense. Held:

The State’s evidence is that an undercover agent of the Georgia Bureau of Investigation (GBI), was on assignment at an Atlanta hotel. The GBI agent “set up” a room, creating the appearance that he actually was visiting in the room. Then, the GBI agent established contact with defendant through an agency, Executive Models Services. Upon defendant’s arrival at the hotel room defendant explained to the GBI agent that “the agency fee is $70.00 [and] I work on tips [and] [w]e will discuss [how much] when we are through.” The two men had a drink and entered into conversation. In the course of the conversation defendant twice suggested that the two men engage in an act of sodomy. In the first instance defendant suggested oral-genital sex and in the second instance genital-anal sex.

Decided May 31, 1988

Rehearing denied June 14, 1988

Michael R. Hauptman, for appellant.

James L. Webb, Solicitor, Norman R. Miller, Assistant Solicitor, for appellee.

“One crime is included in another as a matter of fact if it is established by proof of the same or less than all the facts required to prove the other, i.e., if all the evidence needed to establish the one is ‘used up’ in proving the other. See OCGA § 16-1-6 (1); Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982).” Moreland v. State, 183 Ga. App. 113, 114 (1) 358 SE2d 276). In the case sub judice, the conviction for prostitution was predicated on defendant’s offer to perform sodomy for money. See Allen v. State, 170 Ga. App. 96 (1) (316 SE2d 500). Either of defendant’s two offers to perform different acts of sodomy would support the prostitution conviction. Whichever of the offers to commit sodomy was not “used up” in supporting the prostitution conviction remained and authorized the conviction and sentence for the offense of solicitation of sodomy. Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76081.
    STOVER & SONS, INC. v. HARRY NORMAN, INC.
    (370 SE2d 776)
   McMurray, Presiding Judge.

This is an action to recover a real estate sales commission. Plaintiff Harry Norman, Inc. was the listing broker on an unimproved tract of real property. On March 13, 1986, defendant Stover & Sons, Inc. and the sellers of the real property executed a contract for the purchase and sale of the real property. Plaintiff, as listing broker, and Northside Realty, as selling broker, were also parties to the contract. This contract required that closing be on or before 90 days after contract acceptance. On June 12, 1986, the sellers of the real property and defendant executed an amendment to the purchase and sale contract giving defendant an extension on the closing date until July 15, 1986, and the option of extending closing an additional 30 days when financing was obtained. Defendant never purchased the real property and plaintiff procured a new contract on the subject property from a different purchaser. Plaintiff filed this action seeking to recover a commission of $70,182.

Plaintiff moved for summary judgment. Defendant moved for partial summary judgment on the issue of damages. Both plaintiff’s motion and defendant’s motion were granted in part and denied in part, the superior court awarding a judgment to plaintiff in the amount of $33,621. Defendant appeals. Held:

1. Defendant contends the superior court erred in refusing to reduce plaintiff’s recovery by the amount of plaintiff’s commission from the subsequent sale of the real property to a different purchaser. Defendant argues that allowing plaintiff to recover its commission from defendant in addition to the commission from the subsequent sale permits a double recovery for plaintiff.

The purchase and sale contract provided that: “In negotiating this contract, Broker has rendered a valuable service for which reason Broker is made a party hereto to enable Broker to enforce its commission rights hereunder against the parties hereto on the following basis: . . . Purchaser agrees if Purchaser fails or refuses to perform any of Purchaser’s covenants herein, Purchaser shall forthwith pay Broker the full commission.”

Thus, plaintiff’s recovery is for the services it performed in connection with negotiating the contract. These services and the resulting contract are separate and apart from whatever services were rendered by plaintiff in connection with the subsequent sale of the real property. The subsequent sale of the real property to a different buyer was a separate transaction. Under these facts and circumstances there is no double recovery. See Clark v. Cox, 179 Ga. App. 437, 438 (2) (347 SE2d 4). This enumeration is without merit.

2. Defendant also contends that the superior court erred in partially granting plaintiff’s motion for summary judgment in that the amendment to the contract creates an ambiguity in the contract concerning whether the obligation of defendant to purchase the real property was contingent upon obtaining financing. The language from the amendment at issue states: “In consideration of the [defendant] paying to the undersigned Sellers $5,000 non-refundable Earnest Money, the undersigned agree to extend closing date of the referenced contract to July 15, 1986, allowing [defendant] time needed to obtain financing.

“When financing is obtained, [defendant] shall have the option of extending closing date an additional 30 days by paying to Seller an additional $10,000 non-refundable Earnest Money.”

“There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. Travelers Ins. Co. [v. Blakey, 255 Ga. 699, 700 (342 SE2d 308)].” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474). “The existence or non-existence of ambiguity is always a question of law for the court. Salvatori Corp. v. Rubin, 159 Ga. App. 369 (283 SE2d 326) (1981).” Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 593 (4) (337 SE2d 29).

Decided June 1, 1988

Rehearing denied June 14, 1988

G. Phillip Beggs, John H. Moore, for appellant.

John A. Howard, for appellee.

We find no error in the superior court’s ruling that “the wording of the June 12 amendment is clear and unambiguous and did not provide a financing contingency clause.” This enumeration is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76142.
    PARTEN v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (370 SE2d 778)
   McMurray, Presiding Judge.

Plaintiff General Motors Acceptance Corporation is the assignee of a retail installment contract arising from the purchase of an automobile by defendant Parten. The sum owed by defendant to plaintiff was refinanced several times. Following defendant’s default under the final refinancing agreement plaintiff filed its petition for writ of possession directed to the automobile in which plaintiff held a security interest. Defendant appeals the superior court’s award of summary judgment in favor of plaintiff and the issue of a writ of possession. Held:

While plaintiff’s original petition is predicated upon the original retail installment contract assigned to plaintiff, after amendment of its petition plaintiff’s claim is also predicated on refinancing contracts. Plaintiff’s amended petition averred that the amount still owed is a payment of $6,069.22 which was due on December 7, 1985, under the last refinancing agreement. Thus, to the extent that defendant contends that plaintiff’s action is predicated upon, only the original installment contract and the proposition that the original installment contract has been superseded by a novation, defendant’s position is without merit. In this connection we note that the record contains the several contracts between the parties as well as evidence that defendant never made the final payment of $6,069.22.

The last refinancing agreement is dated January 7, 1985, prior to the effective date of the new subsection (d) added to OCGA § 10-1-33 in 1985 which abolishes interest limit for motor vehicle installment sales contracts in excess of $5,000. The new subsection (d) is not to be applied retroactively, thus is inapplicable to the case sub judice. Southern Guaranty Corp. v. Doyle, 256 Ga. 790 (353 SE2d 510).

Decided June 1, 1988

Rehearing denied June 14, 1988

J. Laddie Boatright, for appellant.

Nolan C. Leake, Sylvia M. King, Lynn Kelley, for appellee.

Defendant contends that he was charged usurious interest in that his contracts with plaintiff provided for finance charges in excess of those permitted under OCGA § 10-1-33 (a). The interest rates allowed under OCGA § 10-1-33 (a) are add-on interest rates which when converted to annual percentage rates vary depending upon the duration of the payments. See In re McMichen, 23 B.R. 497, 498.

We have examined the calculations submitted in evidence by the parties and have concluded that defendant’s figures fail to reflect that, due to the unequal and irregular nature of the payment schedule in the contracts at issue, this is a transaction to which OCGA § 10-1-33 (c) is applicable. Also, we note that OCGA § 10-1-35 provides that, in connection with the refinancing, plaintiff was allowed to reclassify the automobile by its then model year in order to determine the maximum allowable rate of finance charges as specified under OCGA § 10-1-33 (a). Finally, we have independently reviewed each of the contracts between the parties and determined that in each contract the finance charges are within the legal limits. See generally 30 Mercer Law Review 281.

Defendant’s remaining arguments predicated upon the departure of our nation’s monetary system from the “gold standard” and the suggested lack of value of federal reserve notes are without merit.

Plaintiff’s motion for sanctions for frivolous appeal pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76214.
    DAVIS v. THE STATE.
    (370 SE2d 779)
   Beasley, Judge.

Davis was convicted of homicide by vehicle in the first degree, OCGA § 40-6-393 (a) and driving under the influence of alcohol with .12 percent or more by weight of alcohol in his blood, OCGA § 40-6-391 (a) (4); the latter offense was merged with the former for sentencing. He was acquitted of the charge of driving on the wrong side of the roadway, OCGA § 40-6-40.

1. Appellant contends that the trial court erred in denying his motion to suppress evidence or motion in limine to exclude evidence of the blood alcohol test because he asserts that he was never under arrest for violation of OCGA § 40-6-391 when the trooper requested a blood sample under the implied consent statute, OCGA § 40-5-55.

When the trooper arrived at the collision site about 2:30 a.m. he spoke with the first officer at the scene, who told him that Davis had already been taken to the medical center and that the trooper should check Davis “real close” because “you could smell alcohol on his (Davis’) breath.” The trooper observed the scene and the skid marks from Davis’ car and determined that Davis was on the victim’s side of the road when the head-on collision occurred. He went to the emergency room and spoke with Davis who was awake and lying on a stretcher. The trooper could smell a “medium strong” odor of alcohol on Davis’ breath as he was talking to him. Davis’ eyes were a little bit blood shot.

While the trooper “didn’t specifically say, ‘You are under arrest’ ” because Davis was under a doctor’s care awaiting treatment, he did advise Davis that he was charged with being on the wrong side of the roadway. The trooper testified that Davis was not free to go and that he would have stopped him if Davis tried to leave. He advised Davis of the implied consent law and that Davis would be charged with vehicular homicide if the test result was positive. Davis submitted to the blood test. The DUI charge was added later, based on its results.

Appellant contends that the test cannot be requested unless the person is under arrest for violating OCGA § 40-6-391, driving under the influence of alcohol or drugs. He bases this on certain words in OCGA § 40-5-55 (a) and a dictum note in footnote 1 in State v. Johnston, 249 Ga. 413, 414 (291 SE2d 543) (1982). The words he points to in the statute relate to the circumstance under which implied consent operates, which is: “if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391.” The statute continues: “The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391.”

Contrary to appellant’s argument, the arrest need not be for substance-influenced driving, which would require probable cause as to such offense at the time the officer arrested the person. Instead, if he is under arrest for “any offense” arising out of the acts concerning which the officer has at least “reasonable grounds” to believe that a violation of OCGA § 40-6-391 occurred, he may request the chemical test, even if then short of probable cause to arrest for substance-influenced driving. The obvious purpose of making such a request is to determine whether a violation of 40-6-391 has occurred, so that the person may in addition be charged with it, and to provide proof thereof. Of course, if the arrest is for substance-influenced driving in the first place, based on probable cause even without the test, the “reasonable grounds” standard is amply met and the test results would verify and amplify the evidence upon which probable cause was based so as to prove the offense “beyond a reasonable doubt.”

This construction is also in conformity with the concern expressed by the Supreme Court in the Johnston case footnote. Moreover, the “reasonable grounds to believe” standard is repeated in the statute again, in subsection (c), which provides for license suspension if the person refuses to submit to the test request which is bottomed on such a belief.

Though the officer arrested Davis for driving on the wrong side of the roadway rather than for violation of OCGA § 40-6-391, he had reasonable grounds to believe that Davis had been driving while under the influence of alcohol. This coupled with the fact that Davis was arrested for an offense which arose out of acts committed while apparently driving under the influence of alcohol was sufficient to permit the trooper to implement the provisions of the implied consent statute.

2. Appellant urges that the trial court erred in granting the State’s motions to strike for favor four veniremen when each stated that he or she had not formed a fixed opinion concerning defendant’s guilt or innocence and where the State did not demonstrate that each would not fairly decide the case.

Prospective juror Pritchett stated that he knew defendant and his family for years because his son was raised with defendant and had gone to school with him. He said that he could not be a fair and impartial juror. After further questioning by the defense and the State, Pritchett ultimately stated that while his opinion about defendant’s guilt or innocence was not fixed because he had not yet heard the evidence, his decision would be influenced by his longstanding knowledge of the defendant and defendant’s family.

Prospective juror Bennett stated that her son was “married to a Davis,” that she had seen defendant before, and that she would be persuaded by her prior knowledge of defendant. The defense made no attempt at rehabilitation.

Prospective juror Young stated that defendant and his family had been her next-door neighbors, that she would be biased because of the relationship, and that she would have a problem deciding the case based on the evidence produced in court because she would be influenced by her outside knowledge even though she had no fixed opinion in the case.

Prospective juror Cloud stated that she had known defendant and his family for years as customers of the store where she worked, and that she could not be a fair and impartial juror because she was influenced by her knowledge of defendant. On questioning from the defense, she further stated that while she had not formed a fixed opinion in the case as to Davis’ guilt or innocence, she could not forget that she knew Davis and his family and children and that she would be influenced by this and did not think she could decide the case strictly upon the evidence.

“Challenges for favor, in a criminal case, are based on admission by the juror that he is biased for or against one of the parties, in response to questions authorized by OCGA § 15-12-164, i.e., whether the juror has formed and expressed an opinion as to the guilt or innocence of the accused, has prejudice or bias for or against the accused, is perfectly impartial between the state and the accused, and in capital felony cases is not conscientiously opposed to capital punishment. . . . Whether to strike a juror for favor lies within the sound discretion of the trial court ([Cits.]), and absent manifest abuse of that discretion, appellate courts will not reverse. [Cit.]” Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986).

OCGA § 15-12-164 (a) (3) provides that the jurors be asked, “Is your mind perfectly impartial between the state and the accused?” Although none of the four jurors responded negatively to the question when it was propounded to the entire panel, it was made clear by the following individual voir dire that all four were favorably biased toward defendant because of their prior knowledge of him. “Although a juror may have been acceptable under [OCGA § 15-12-164] when questioned by the court, the juror may be shown to be partial when questioned by the state or defense and if such showing is made, the juror should be stricken for cause.” Jordan v. State, 247 Ga. 328, 339 (6) (276 SE2d 224) (1981).

The trial court did not abuse its discretion in striking the four jurors for favor.

3. Appellant maintains that the trial court erred in denying his motion for a directed verdict of acquittal for homicide by vehicle in the first degree because the evidence was insufficient as to causation, for a finding of guilt.

The evidence construed so as to uphold the verdict showed that Davis was driving by himself east on the road while the victim, Bland, was travelling by himself west on the same road. As Davis approached a hill he saw Bland’s headlights and slammed on the brakes, causing his car to skid and cross the centerline onto the other side of the road where his car hit that driven by Bland head-on. The point of impact was four feet, four inches from the centerline onto the victim’s side of the road. The impact ejected Bland from his car and he died as a result of the injuries sustained.

A sample of Davis’ blood drawn approximately two hours after the collision contained .16 grams percent of alcohol. The toxicologist from the State Crime Laboratory testified that, based on the average metabolism rate, Davis’ blood alcohol content could have been as high as .19 at the time of the wreck. She was further of the opinion that with .16 percent alcohol in his blood, defendant’s judgment would be greatly impaired, his reaction time would be slowed considerably, there would be some distortion of vision, and he might have a little trouble staying in his lane, more than likely he would be weaving.

Appellant argues that there was no direct evidence as to whether the collision was caused by his driving under the influence, i.e., no direct proof of proximate cause. He asserts that certain circumstances testified to by the trooper, namely, that the trooper could not say that the reason Davis hit the brakes that night was because he was drunk and that the fact that Davis hit the brakes would not necessarily be caused by his having alcohol in his system or that alcohol could be one of the causes, were not inconsistent with the theory that he hit the brakes and skidded for reasons that have nothing to do with alcohol. Inasmuch, then, appellant concludes, as the State’s evidence did not eliminate the possibility that the collision was not caused by his being impaired by alcohol, the trial court should have directed a verdict of acquittal on the vehicular homicide charge.

The State had to prove beyond a reasonable doubt that Davis, without malice aforethought, caused Bland’s death through violation of OCGA § 40-6-391. OCGA § 40-6-393 (a). “The term and concept of proximate cause has been applied in vehicular homicide cases in this state for many years. [Cits.]” Johnson v. State, 170 Ga. App. 433, 434 (1) (317 SE2d 213) (1984).

There was scientific and opinion evidence to support a reasonable inference that the alcohol in defendant’s blood at the time of the collision gave him a false perception of where the oncoming car was being driven and created a belief of danger from its perceived location in his mind. That is, that what his eyes saw was translated erroneously in his mind. This evidence further supported a reasonable inference that the alcohol also affected defendant’s response, i.e., a slamming on of brakes so as to cause skidding and loss of control, to what he thought he saw.

Even assuming that the State’s evidence of proximate cause was solely circumstantial, “ ‘ “[i]n order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference beyond a reasonable doubt, of guilt.”’ [Cit.]” Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983). “The jury was authorized not to accept an alternative hypothesis offered by [defendant].” Russell v. State, 174 Ga. App. 436, 437 (2) (330 SE2d 175) (1985).

There was sufficient evidence presented from which a rational trier of fact could find appellant guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the trial court did not err in refusing to direct a verdict in favor of the defendant.

4. Lastly, appellant contends that the trial court erred in overruling his objection to improper closing argument by the State.

Davis denied that he was driving with more than .12 percent by weight of alcohol in his blood. He claimed that the blood samples had at least partially decomposed prior to evaluation and also that the test results were suspect because he had been given Percocet, a mild central nervous system depressant, prior to the blood being drawn for testing.

The crime lab toxicologist testified that she tested the blood sample for “illegal drugs” and did not find any present. Defendant’s counsel did not ask the toxicologist whether or not she tested the sample for Percocet. Later, however, he argued to the jury that the fact the crime lab did not identify the ingested Percocet in his blood, corroborated his position that the blood test was invalid.

In response, the State’s counsel argued that defendant could have asked the toxicologist specifically about Percocet, and stated: “He could have asked her point blank. Her answer probably would have been no. ...”

Appellant objected on the ground that counsel may not give testimony in closing argument as to what witnesses would have said. He pursues that ground here and claims that the error was harmful since the only evidence that he violated OCGA § 40-6-391 was the crime lab analysis so that its accuracy and the reliability of the sample constituted the central issue.

The State’s attorney did not testify as to some out-of-court statement of a witness, as did the prosecutor in Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), the case cited by appellant. Nor did his statement constitute extra-trial evidence, as in the other case relied on by appellant, Williams v. State, 254 Ga. 508, 511 (3) (330 SE2d 353) (1985). Instead, it was a reasonable deduction or inference from the testimony given during trial. “ ‘While counsel should not be permitted in argument to state facts . . . not in evidence, it is permissible to draw deductions from the evidence. . . .” Walker v. State, 232 Ga. 33, 36 (205 SE2d 260) (1974). See also Cooper v. State, 178 Ga. App. 709, 712 (3) (345 SE2d 606) (1986), regarding deductions drawn from the absence of facts.

Judgments affirmed.

Birdsong, C. J., and Banke, P. J., concur.

Decided June 1, 1988

Rehearing denied June 14, 1988

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.