text:
    A90A1313.
    SKIPPER v. DEPARTMENT OF TRANSPORTATION.
    (399 SE2d 538)
   Cooper, Judge.

This appeal results from appellant’s challenge to the condemnation of appellant’s property as part of a road widening project by the Department of Transportation (“DOT”). The DOT condemned two permanent easements — “a permanent easement... for the right to construct and maintain a slope” and “a permanent easement... for the right to construct and maintain drainage.” The condemned property includes road frontage and also has a concrete block, two story building on it, which has been leased to tenants over the years. Appellant filed a motion to set aside the taking asserting that the condemnation of a permanent construction easement was an abuse and misuse of the DOT’s powers of condemnation. After a hearing on the motion and the receipt of evidence and testimony, the trial court denied the motion. A jury trial then commenced to determine the value of the property condemned, at which further evidence and testimony was received. A jury award was returned in the amount of $13,000, and this appeal, in which appellant enumerates error with respect to the denial of the motion to set aside and the jury trial, followed.

1. (a) Appellee initially argues that the appeal of the order denying the motion to set aside the condemnation should be dismissed because it was in itself a directly appealable order and appellant’s notice of appeal was not filed within 30 days of that order. Although this court has considered orders on motions to set aside condemnations on direct appeal, see Cox Communications v. Dept. of Transp., 178 Ga. App. 499 (343 SE2d 765) (1986), reversed on other grounds, Cox Communications v. Dept. of Transp., 256 Ga. 455 (349 SE2d 450) (1986); Chamlee v. Dept. of Transp., 189 Ga. App. 334 (375 SE2d 626) (1988), we determine that we nevertheless have jurisdiction over this appeal by virtue of OCGA § 5-6-34 (d). When an appeal is taken from a final judgment, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.” OCGA § 5-6-34 (d). See Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980).

(b) On the merits, appellant first argues that the taking of permanent construction easements by the DOT was an improper use, abuse and misuse of the powers of condemnation under OCGA § 32-3-11 (b) (2) and (3). Appellant essentially argues that the DOT is taking more, or a greater, interest than is necessary and further contends that condemnation of a temporary construction easement, with a definite termination date, is the proper use of the DOT’s powers. OCGA § 32-3-11 (a) establishes a prima facie presumption that the property or interest condemned is taken for and is necessary to the public use. Unless the factors specified in subsection (b) are met, “the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken. [Cits.]” City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343) (1979). The record supports the trial court’s finding that the acquisition of the permanent construction easements was necessary for the project, based on the testimony specifying the managerial, cost and delay problems that would result from including a termination date on the easements. The record also supports the trial court’s conclusion that the DOT did not improperly use, abuse or misuse its powers. “Courts must not substitute their judgment for that of the condemning authority — neither as to the quantum of the interest to be condemned, nor the location or the quantum of land to be acquired. [Cit.]” Concept Capital Corp. v. DeKalb County, 255 Ga. 452 (5) (339 SE2d 583) (1986). “ ‘The record in this case contains evidence to sustain [the DOT’s] determination of reasonable necessity for acquiring [the permanent easements].’ ” Id. at Division 2.

(c) Appellant further contends that the notice of taking was not adequate. We disagree. The notice clearly described and depicted the easement areas and specified the permanent nature of the easements. The descriptions were sufficiently clear to allow proof of damages under OCGA § 32-3-5. The case cited by appellant, City of Atlanta v. Airways Parking Co., 225 Ga. 173 (167 SE2d 145) (1969), is not persuasive in that it involved very different facts and concerned a notice of taking that did not specifically describe the location of the property to be taken.

(d) Appellant’s claims that the DOT offered to make the easements temporary if appellant would settle and that this was fraud and coercion is without merit. The testimony addúced at the hearing from the DOT engineer provides a reasonable and justifiable explanation for the DOT’s actions, which testimony was not contested by any proof of appellant. The engineer testified that alternatives to condemnation of permanent easements were offered to the landowner; that the DOT is unable to condemn temporary easements without a definite termination date, that due to the practical construction and political realities involved in a project such as this, the DOT could not establish a definite termination date; that a voluntary agreement by the landowner to a temporary easement was allowed; that even if the landowner agreed, the owner would still recover the value of the property and damages; and that the DOT would reconsider their offer if they were forced to institute condemnation and would then seek the permanent easements. There is no evidence in the record to show coercion or fraud by the DOT.

(e) Appellant contends that the project is one for “future roads” pursuant to OCGA § 32-3-1 (c), and consequently the timing restrictions that require construction to begin not less than two years nor more than ten years from receiving federal funds should apply. Appellant has submitted no evidence to show that this is a “future road project,” and in fact, the testimony at the hearing supported the fact that the project was to begin as soon as possible and that all administrative steps for planning the project were completed before acquisition was initiated. The evidence in this case authorizes the conclusion that OCGA § 32-3-1 does not apply. Appellant’s first enumeration regarding the denial of the motion to set aside the condemnation has no merit.

2. Appellant’s second through fifth enumerations assert error with the trial court’s denial of the motion to strike the testimony of Calvin Hicks, a tax assessor. Hicks testified at the trial to determine value as to the fair market value of the property and the methodology used to arrive at that valuation. Appellant first contends that Hicks’ testimony was based on the mass appraisal method, a method used for tax appraisal, not for determining individualized fair market values. A careful reading of the testimony lends no support to appellant’s assertions. Hicks testified that he looked at the property and further testified in depth as to the various methods he personally used to value this particular property. On cross-examination, he specified that in valuing the property, he checked on an individualized basis for comparables similar to this property. Hicks gave his own opinion as to the fair market value of this property. He was questioned about mass appraisal but never stated that he utilized the method in this case. There is no merit to appellant’s first argument.

Appellant next asserts error because Hicks gave a value to the building on the property but stated that he did not go inside the building. He testified that he observed the outside of the building and looked inside through a window; that he was familiar with the type of construction of the building and its previous uses; that the basement was unfinished and was used as storage; and that based on the square footage he could estimate the number of interior rooms. Hicks’ testimony on the value of the building was admissible based on his knowledge and familiarity with the building and his personal observations. State Hwy. Dept. v. Thomas, 106 Ga. App. 849 (2) (128 SE2d 520) (1962). Georgia Power Co. v. Livingston, 103 Ga. App. 512 (119 SE2d 802) (1961) is not controlling. See Thomas, supra at 851.

Appellant moved to strike Hicks’ testimony because the effective date of his valuation was January 1, 1989, which was after the date of the taking, August 25, 1988. Appellant contends that this was erroneous because it did not give consideration to the fact that the construction project itself could have lowered values in the area. “Whether or not this contention is correct, the witness was nevertheless qualified as an expert, and his opinion was admissible. Matters he may have omitted from consideration were appropriate matters for cross examination and rebuttal,. . . and ultimately for the weight to be given the opinion by the jury. [Cits.]” Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878 (2) (216 SE2d 694) (1975). Hicks stated that he was aware of nothing that occurred between the date of the taking and the date of his appraisal to make any difference in his valuation. He also stated that in his opinion the values were valid on August 25, 1988. Appellant’s objection is without merit.

Finally, appellant’s objection to the admission of Hicks’ statement that the land values were developed by a firm under contract with his office has no merit. Hicks’ statement did not render his opinion to be that of a third party. He testified that he personally reviewed the land values and in his own opinion, he determined the values to be correct. “An expert is entitled to testify to the facts upon which he bases his opinion of value. [Cit.] Such testimony is admissible, not as direct proof of value, but to show the basis of the expert’s opinion of value. [Cit.]” Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414 (2) (343 SE2d 497) (1986).

3. In her sixth enumeration, appellant contends that the court’s charge on consequential damages was erroneous. The charge was an exact statement of the well-settled law that “[t]he proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstances just prior to the time of the taking compared with its market value in its new circumstance just after the time of taking. [Cit.]” Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (1) (366 SE2d 160) (1988). Appellant argues that the court erred in omitting a proviso which stated that the value prior to the taking should be considered as if the project had never been planned. This proviso is not required by the cases cited by appellant in support of her position, and the charge being correct, no error occurred.

4. Similarly, appellant’s argument that the court erred in charging on damages for temporary inconvenience caused by the project construction was in error, is meritless. The charge given was a correct statement of the law. See Department of Transp. v. Fitzpatrick, 184 Ga. App. 249 (2) (361 SE2d 241) (1987). The case cited by appellant, Southwell v. State Hwy. Dept., 104 Ga. App. 479 (122 SE2d 131) (1961), involved a charge that was substantively different, and therefore does not require the addition of the proviso requested by appellant.

5. Appellant next alleges that the court erred in not giving appellant’s requested charge which distinguished the nature and purposes of the easements condemned, specifically that the easements were superior to the use of the fee. In reviewing the court’s charge as a whole, we conclude that the charge as given correctly described the nature and purposes of the easements and the respective rights of the parties with respect thereto. “It is no longer necessary to give the exact language ... when the same principles are fairly given to the jury in the general charge of the court.” (Citations and punctuation omitted.) State Farm &c. Ins. Co. v. U. S. Fidelity &c. Co., 190 Ga. App. 220, 223 (5) (378 SE2d 400) (1989). There was no error in the court’s charge.

6. There is no merit to appellant’s contention that the court erred in refusing to admit into evidence a photograph depicting a truck stuck on a ramp located on property unrelated to this case. “The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. [Cit.]” Rush v. State, 188 Ga. App. 520, 523 (8) (373 SE2d 377) (1988). The ramp depicted in the photograph was not the property involved in this case, the ramp depicted was not built like the ramp proposed on this property, no foundation was established as to when the photograph was taken or who took it and no one testified who was present when the picture was taken. The court did not abuse its discretion by refusing to admit the photograph.

Decided November 19, 1990.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Michael J. Bowers, Attorney General, Harris & Harris, William C. Harris, John B. Harris III, for appellee.

7. Appellant next objects to the court sustaining an objection to a question posed by appellant on cross-examination of an appraiser for the DOT. The appraiser had testified to certain comparables that he used to determine value and appellant asked the appraiser if he was aware that the price of one of the comparables had been reduced by road construction. The objection to the question, which was based on the ground that there was no evidence presented regarding any such road construction and that the witness had testified that he did not know why that comparable had increased in value since he reviewed it, was sustained. “Control of the nature and scope of the cross-examination of a witness is a matter inherently within the discretion of the trial court and will not be controlled by an appellate court unless abused. [Cit.]” Weaver v. Ross, 192 Ga. App. 568, 569 (1) (386 SE2d 43) (1989). We find no error in the court’s actions.

8. Appellant’s final enumeration involves a question posed by appellee to appellant’s appraiser. On re-direct examination, appellant questioned the appraiser about comparables he had used other than the ones he had testified to on direct examination. The appraiser was not asked to describe these additional comparables, only to state that he had used them. On re-cross examination, appellee asked the appraiser if he thought that appellant’s attorney would have questioned about these additional comparables if the attorney had considered them to be better comparables. T^he court disallowed the objection to the question. Since appellant had opened the issue of the additional comparables, we find the allowance of this question to be within the proper use of the court’s discretion. See Weaver, supra at 569-70.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A1366.
    ARDENEAUX v. THE STATE.
    (399 SE2d 258)
   McMurray, Presiding Judge.

Defendant was charged in four counts with aggravated child molestation, child molestation, aggravated assault and cruelty to children. (The aggravated assault and cruelty to children charges were based on the same incident.) The case was tried before a jury and the evidence showed that defendant physically abused and sexually molested his step-daughter when she was 13 years of age. More specifically, the victim testified, giving details of how defendant committed the acts which constituted the offenses charged. Defendant was found guilty of aggravated child molestation, child molestation and cruelty to children. He was found not guilty of aggravated assault. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first and fifth enumerations, defendant contends the State failed to prove the allegation of cruelty to children as alleged in the indictment. More specifically, defendant argues that his conviction for cruelty to children is inconsistent with his acquittal on the aggravated assault charge since both charges were based on the same incident.

“The inconsistent verdict rule has been abolished in criminal cases and an enumeration predicated upon this abolished rule is without merit. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).” Fitzgerald v. State, 193 Ga. App. 76 (1) (386 SE2d 914). In the case sub judice, defendant was charged with cruelty to children in that, “between September 1, 1987 and June 10, 1988, [defendant] did unlawfully and maliciously cause [the victim], a child under the age of eighteen (18) years, cruel and excessive physical and mental pain by cutting, stabbing and slashing the [victim] on and about the leg . . . .” The victim testified that defendant slashed her leg with a knife during an attempt to cut the child’s clothing from her body. This evidence was not at odds with the allegation of cruelty to children as alleged in the indictment. On the contrary, it was sufficient to support the jury’s finding, beyond a reasonable doubt, that defendant did “unlawfully and maliciously cause [the victim], a child under the age of eighteen (18) years, cruel and excessive physical and mental pain by cutting, stabbing and slashing the [victim] on and about the leg. . . .” See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Fitzgerald v. State, 193 Ga. App. 76 (2), supra. Defendant’s first and fifth enumerations are without merit.

2. Next, defendant contends the State impermissibly placed his character in issue by introducing testimony of the victim’s half-brother and half-sister, showing that defendant disciplined the children through beatings, verbal abuse and forced inhuman posture.

“Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.” Jordan v. State, 77 Ga. App. 700 (1) (49 SE2d 694). In the case sub judice, the victim gave virtually the same testimony regarding defendant’s punishment methods and practices as did the victim’s half-brother and half-sister. However, the victim’s testimony was introduced without objection. Consequently, any error in admitting the victim’s half-brother’s and half-sister’s testimony does not constitute reversible error. Griffin v. State, 170 Ga. App. 287, 290 (3), 291 (316 SE2d 797).

3. In his third enumeration, defendant contends the trial court erred “in holding that . . . the charge of child molestation was a lesser-included offense to the charge of aggravated assault-.” However, defendant failed to identify the specific portion of the trial transcript in which the alleged error occurred as is required by Rule 15 (c) (3) (i) of the Rules of the Court of Appeals of the State of Georgia. Consequently, counsel of record for defendant was ordered to file a supplemental brief, identifying the specific portion of the trial transcript in which the alleged error occurred. In response, counsel for the defendant stated that defendant’s third enumeration of error was improperly drafted due to a “scrivener’s error” and that the enumeration should provide as follows: “[T]he trial court erred in holding that in this case the charge of cruelty to children was a lesser-included offense to the charge of aggravated assault.” Defendant’s counsel then pointed to the trial court’s order denying defendant’s motion for new trial wherein the trial court stated, “There is no inconsistency between the verdicts in Counts Three and Four, given that under the facts of this case cruelty to children was a lesser included offense of aggravated assault.”

Counsel for defendant argues that “[b]y ruling that the charge of cruelty to children (unlimited by any particular facts) is a lesser-included offense of aggravated assault, the trial court justified the introduction of similar transaction evidence without the necessity of complying with Rule 31.3 of the Uniform Superior Court Rules. Subsection E of that rule allows evidence of lesser-included offenses to be introduced as an exception to the general rule that the prosecution must give notice in advance of trial of its intent to present similar transactions.” This argument is without merit for the reasons stated in Division 2 of this opinion.

4. Defendant next contends the trial court erred in allowing evidence regarding his punishment of the victim and the victim’s half-brother and half-sister. This enumeration is without merit for the same reasons stated in Division 2 of this opinion.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided November 19, 1990.

Valpey & Walker, Gregory W. Valpey, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Leonard C. Parks, Jr., Assistant District Attorneys, for appellee.


author: Pope, Judge.

text:
    A90A1474.
    NATIONAL UNION FIRE INSURANCE COMPANY v. MARTY.
    (399 SE2d 260)
   Pope, Judge.

Plaintiff/appellee was injured in a collision involving a motor common carrier. The collision occurred in Ocala, Florida. Plaintiff filed suit in the State Court of Fulton County against the driver of the truck, a Georgia resident, the owner of the truck, Wingate/Taylor Maid Transportation, Inc., a Delaware Corporation and its liability insurer, defendant/appellant National Union Fire Insurance Company. Plaintiff’s action against National Union was premised on OCGA §§ 46-7-12 and 46-7-58, which provide for direct prejudgment actions against liability insurers of motor common carriers and motor contract carriers, respectively. National Union moved for summary judgment on the basis that OCGA §§ 46-7-12 and 46-7-58 do not authorize direct causes of action when the accident giving rise to the suit occurs outside the State of Georgia, as was the situation here. The trial court denied the motion for summary judgment and National Union appeals. We reverse.

Both provisions relied on here, OCGA §§ 46-7-12 (e); 46-7-58 (e), relating to motor common carriers and motor contract carriers respectively, provide as follows: “It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” Plaintiff argues, and the trial court held, that the plain and unambiguous language of these direct actions statutes authorizes joinder of the motor carrier’s liability insurer in any suit, arising in tort or contract, whether the accident giving rise to the cause of action occurs on the highways of this state or the highways of any other state. For the reasons discussed more fully below, we disagree that such a broad interpretation is proper.

Although the provisions in question do not specifically restrict joinder to causes of action wherein the accident giving rise to the suit occurred on a highway of this state, other language found in Chapter 7 of Title 46 makes it clear the provisions of that Chapter govern the regulation and registration of motor carriers vis-a-vis the public highways of this state. “Public highway” is defined under the act as “every public street, road, highway, or thoroughfare of any kind in the state.” OCGA §§ 46-7-1; 46-7-51. Pursuant to OCGA § 46-7-2 “[t]he commission is vested with power to regulate the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire by motor vehicle on any public highway of this state.” (Emphasis supplied.) (As to contract carriers see OCGA § 46-7-52.) OCGA § 46-7-36 provides that “[w]hen a motor common carrier is engaged in both intrastate and interstate commerce, it shall be subject to all the provisions of this article so far as they separately relate to commerce carried on in this state.” Article 2 of Chapter 7, which governs motor contract carriers, “is intended to state the conditions and regulations under which motor carriers for hire other than common carriers are permitted to operate over the highways of this state.” (Emphasis supplied.) OCGA § 46-7-50.

Plaintiff, however, relies on cases wherein the state and federal courts of this state have held that Georgia’s direct action provisions are applicable to interstate as well as intrastate carriers. Although the carriers in the cases cited by plaintiff were engaged in interstate commerce at the time of the accident giving rise to the cause of action, the dispositive factor in those cases was that in all of the cases cited the accidents occurred on Georgia highways. For example, in Westport Trucking Co. v. Griffin, 254 Ga. 361 (329 SE2d 487) (1985), the accident occurred in Lowndes County, Georgia. In finding joinder of the motor carrier’s insurer appropriate the court in Westport specifically noted “Georgia’s interest in protecting the public in using its highways. . . Id. at 364. In Watkins v. Granary, 555 FSupp. 458 (N.D. Ga. 1982) the accident in question occurred when the “truck ran [plaintiff] off a Georgia highway” (id. at 459) and the court noted “the . . . [state’s] interest in protecting the claims of Georgia citizens who are injured on its highways. . . .” Id. at 461. Likewise, in Acme Freight Lines v. Blackmon, 131 F2d 62 (5th Cir. 1942) the court held that the joinder of the insurer was not error, “where, as here, persons are injured upon the highways of Georgia by the negligence of the carrier. ...” Id. at 64. Thus, in our opinion, the cases cited by plaintiff provide no authority for the joinder of the insurer when the accident occurred outside the State of Georgia.

We also find instructive the holding of the court in Rogers v. Atlantic Greyhound Corp., 50 FSupp. 662 (S.D. Ga. 1943). In Rogers the court addressed the question of whether an insurance carrier could be joined as a defendant with a motor carrier in a suit brought in Georgia by a passenger on an interstate journey for personal injuries caused by the carrier’s negligence in another state. In that case the court found that the joinder provisions of Georgia law were preempted by federal law regulating motor carriers, which did not allow joinder. The court noted, however, that provisions requiring motor carriers to provide insurance are not “an unreasonable burden on [interstate] commerce, if limited to damages suffered within the state by persons other than the passenger.” Id. at 664. Relying on this and similar language in Rogers, plaintiff argues the holding in that case is inapplicable to the facts at hand because plaintiff here was a member of the public and hence entitled to the protections afforded by the direct action statutes. We agree that “a different situation arises where local citizens, not passengers, are injured on the highways of the state.” Id. (Emphasis supplied.) However, such is not the situation in the case at bar inasmuch as plaintiff was injured on a Florida, not a Georgia, highway. “It will not be assumed . . . that the [legislature of this state] attempted to enact legislation having an extraterritorial effect.” Id. We conclude therefore that under the circumstances of this case joinder of the motor carrier’s insurer was not authorized by Georgia’s direct action statutes. Consequently, the trial court erred in denying National Union’s motion for summary judgment. See also Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610 (1) (367 SE2d 820) (1988).

Decided November 19, 1990.

Dennis, Corry, Porter & Thornton, R. Clay Porter, Linda L. Logan, for appellant.

B. Randall Blackwood, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A90A1498.
    HOUSE v. THE STATE.
    (399 SE2d 262)
   Cooper, Judge.

Appellant was convicted by a jury of conspiracy to commit murder and appeals from the denial of his motion for new trial.

At trial, the State called as a witness a co-defendant in this case, Valdas Montgomery, who had pled guilty but had not been sentenced. Montgomery testified that he and his brother went over to another co-defendant’s house where they were all drinking beer; that when they arrived appellant was in the bedroom, but at one point all of them, including appellant, were in the living room talking; that the other co-defendants, not including appellant, stated that they needed to “take care of” a Marcus Anderson; that one of the co-defendants said that the job was to kill Marcus Anderson; and that Montgomery was paid $400 and some cocaine at that time to kill Anderson and $40,000 worth of cocaine was to be paid to Montgomery when the job was done. Montgomery first stated that he could not recall if appellant was in the room when the murder was being discussed but later testified that appellant was present when the conversation occurred. Montgomery did testify that during the conversation, appellant left the room and returned with appellant’s gun in one hand and shells in the other hand; that he was not sure which of the other co-defendants actually handed him the gun, but that he got the gun which was to be the murder weapon. Montgomery testified that he did watch for Anderson on several occasions but finally abandoned the plan and went to the police. The State also called two police officers as witnesses who testified that they had interrogated appellant upon his arrest and that he had given three statements on his role in the conspiracy. Appellant’s statements corroborated Montgomery’s testimony; appellant admitted hearing and being present during the discussion of the murder of Marcus Anderson and stated that at the request of another co-defendant, he gave his gun to that co-defendant who then gave the gun to Montgomery. The court held a Jackson-Denno hearing prior to admitting the statements and determined, based on the testimony of the officers and appellant, and on a waiver and acknowledgment signed by appellant, that the statements were voluntarily given, that appellant was advised of his rights and he knowingly and intelligently waived them and that there was no promise, threat or coercion made to appellant to induce the statements. The officers testified at trial that the statements appeared to be given freely and voluntarily, that appellant was advised of his rights and that no one offered him any hope of benefit or reward or threatened him in order to obtain the statements.

Appellant testified at trial that he was in the bedroom during the co-defendants’ discussions and was not aware of the plan to kill Anderson; that one of the co-defendants, a very good friend of his, asked him for his gun and appellant got the gun and the shells and put them on a cabinet; that appellant did not know what the gun was to be used for; that he did not see who picked up the gun and that he would not have given anyone his gun if he knew they intended to kill someone with it. Appellant testified at the Jackson-Denno hearing and at trial that during his interrogation by the officers, he was told that if he did not cooperate with them he would get a 30-year sentence. He said that the officers mentioned pending drug charges against him, and appellant testified that he had been working undercover with one of the officers on these drug charges and that his hearing dates had been continually postponed. Appellant stated that his first statement was torn up by the officers and that they told him what statements they had received from Montgomery. Appellant said that, in fear of a 30-year sentence, he finally gave the statements introduced at trial. At trial, the officers denied appellant’s allegations. A co-defendant on trial with appellant testified that while in jail, he received notes from Montgomery indicating that Montgomery had fabricated the story of the conspiracy to get back at him for incidents in the past.

Decided November 19, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, for appellee.

1. Appellant’s first enumeration asserts that the court erred in denying appellant’s motion for directed verdict and motion for new trial because the evidence was insufficient to support the verdict. “ ‘(A) motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.’ [Cit.]” Ely v. State, 192 Ga. App. 203 (6) (384 SE2d 268) (1989). A careful review of the record in a light most favorable to the jury’s verdict reveals conflict in the evidence and further “ ‘reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of (the offense) charged.’ [Cits.]” Id. citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was no error in denying the directed verdict or the motion for new trial.

2. Appellant next contends that the court erred in admitting appellant’s statements made to the police because they were made in hope of a benefit. The officers denied appellant’s allegations regarding the inducements to make the statements. “The trial court’s findings regarding factual determinations and credibility when considering the admissibility of a confession will be upheld on appeal unless clearly erroneous. [Cit.]” Bryant v. State, 193 Ga. App. 840 (2) (389 SE2d 405) (1989). In light of the evidence presented, the court’s findings were not clearly erroneous and no error occurred. See Mims v. State, 159 Ga. App. 712 (3) (285 SE2d 67) (1981).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A2326.
    HARRIS v. THE STATE.
    (399 SE2d 264)
   Deen, Presiding Judge.

Appellant Harris was indicted and tried on a murder charge involving shooting another person to death. An Oglethorpe County jury found him guilty of voluntary manslaughter. After denial of his motion for new trial, he has appealed to this court, enumerating as error the trial court’s denial of his motion for new trial on two grounds: the State’s alleged failure (1) to prove criminal intent and (2) to prove the unlawfulness of his acts. Held:

Appellant was drinking beer and shooting pool in a neighborhood pub with several persons, including the victim, whose identity appellant claimed not to have known. Both the victim and the appellant sought rides home from a third person, apparently a mutual friend. According to appellant, this person obliged and let both men out at appellant’s home, the victim having asked to use appellant’s telephone. Appellant further testified that he led the victim into the house and showed him the location of the telephone, and then went into the bathroom, from whence he proceeded directly into his own room, where he “checked” for signs of trespassing and then pocketed the revolver which he had allegedly been cleaning and had left on a table.

Appellant Harris testified that as he was starting to enter an adjacent bed-sitting room, the victim suddenly lunged at him, shouting, “I’m going to kill you!” Appellant testified that the victim snatched a chain from his neck and attempted to throttle him, but that he managed to get off a shot at the alleged assailant. He further testified that he then continued shooting until the revolver was empty — a total of four shots.

After the victim fell to the floor, appellant testified, he called local law enforcement officers and told them that he had shot a man. On their arrival, Harris was read his Miranda rights, indicated that he understood them, and answered questions freely. Harris was transported to the sheriff’s office, where he again was read his Miranda rights and answered further questions.

One of the law enforcement officers involved in the case testified at trial that he had been troubled by certain discrepancies between Harris’ statements and the physical evidence (e.g., the bullets’ trajectories, the contents of the victim’s stomach when considered in conjunction with food found in the house, the fact that the necklace allegedly torn from appellant’s throat was found intact, lying on a table). This officer then questioned Harris further, according to the trial transcript, and was not satisfied with Harris’ efforts at reconciling or discounting these discrepancies.

The evidence, when construed in favor of the verdict, authorized a rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided November 19, 1990.

Floyd W. Keeble, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0877.
    ZATER v. THE STATE.
    (399 SE2d 222)
   Deen, Presiding Judge.

A Barnesville Police Department officer gave chase to a “small, red, Mercury Lynx” for speeding but lost sight of the car. She called for backup and was notified within a few minutes that a car answering that description had been stopped by the Lamar County Sheriff's Department. She met the officers some 30 minutes later at the Sheriff’s Department and charged the driver with speeding, and with fleeing and attempting to elude within the city limits of Barnesville. The case was dismissed in the Barnesville Municipal Court because the calibration of the radar was not offered.

The arresting officer testified in the instant case that he received a lookout for a small red vehicle being driven recklessly at a high rate of speed on Hwy. 41, towards Forsyth. Approximately five minutes later, the officer encountered the vehicle and stopped it. The defendant was driving and reeked of alcohol. He was taken to the Sheriff’s Department, an intoximeter test was given, and he was charged with DUI. Under “remarks” on the citation, the officer noted, “Stopped for lookout from city ref speeding auto . . . when stopped strong odor of alcoholic beverage on breath.” Nearly four months later, an accusation based upon the arresting officer’s citation was returned against the appellant for the offense of DUI in the Superior Court of Lamar County.

Appellant filed a motion to dismiss, and a plea in bar was filed alleging that the superior court prosecution was barred by the dismissal of the charges in the Barnesville Municipal Court. Zater appeals from the denial of his plea in bar.

1. Multiple convictions and successive prosecutions for the same conduct are prohibited under OCGA § 16-1-7 (b): “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. ...”

In determining whether the prosecuting attorney had knowledge of the offenses in the Barnesville Municipal Court, the Court in Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987), determined that OCGA § 16-1-7 (b) applies “ ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” Under Baker, the appellant bears the burden of showing that further prosecution is barred by the previous prosecution, including “a showing that the proper prosecuting attorney had actual knowledge of all the charges.” Hayles v. State, 188 Ga. App. 281 (372 SE2d 668) (1988); Farmer v. State, 184 Ga. App. 851 (363 SE2d 62) (1987).

The argument espoused by the defendant that the “proper prosecuting officer” is the arresting officer has been rejected by this court on several occasions. In Singer v. State, 156 Ga. App. 416 (2) (274 SE2d 612) (1980), construing what is now OCGA § 16-1-7 (b), this court held that “the language of the statute clearly means the prosecuting attorney for the state; that is, the district attorney or his authorized assistants.” Id. at 418. Although, as noted by the dissent, the holding in Singer should be expanded to include state court solicitors and their assistants, we do not agree with the dissent that we should retreat from the central holding in Singer that the “proper prosecuting officer” as that phrase is used in OCGA §. 16-1-7 means the prosecuting attorney for the State. More recently in Webb v. State, 176 Ga. App. 576 (336 SE2d 838) (1985), this court reiterated the holding in Singer and found that the knowledge of the arresting officer was immaterial because the “ ‘proper prosecuting officer’ within the meaning of OCGA § 16-1-7 (b) is not the arresting police officer but the prosecuting attorney for the State.” Id. at 577. Likewise, in Soule v. State, 184 Ga. App. 598 (362 SE2d 155) (1987), this court held that “[t]he fact that the arresting officer knew of all the charges [against the accused] is inconsequential, since the proper prosecuting officer is the prosecuting attorney, not the arresting officer.” Id. at 599.

Moreover, the cases cited by the dissent for the proposition that “[a] prosecutor in Georgia is not necessarily a State’s attorney” do not involve the application of OCGA § 16-1-7 (b), as did the cases cited above. Rather, the issue in McKee v. State, 168 Ga. App. 214 (1) (308 SE2d 574) (1983), concerned the term “prosecutor” as used in OCGA § 15-12-163 (b) relating to jury disqualification. In In re Herring, 185 Ga. App. 541, 542 (1) (365 SE2d 139) (1988), the court first had to ascertain the identity of the “prosecutor” within the meaning of OCGA § 17-11-4 (a) (3) so it could then determine whether the “prosecution” against the accused had been abandoned before trial so as to authorize the imposition of costs pursuant to that section. In Eady v. State, 10 Ga. App. 818 (74 SE 303) (1912), the question before the court concerned the use of the term “prosecutor” in legislation creating a city court which required defendants in criminal cases to be tried on a written accusation founded upon the affidavit of a “prosecutor.” In that case this court found that an accusation signed by the solicitor of the court was sufficient under the terms of the act. In sum, a reading of the cases cited by the dissent shows that they are in no way illuminative of the issue to be decided in this case, to wit, whether the arresting officer should be deemed to be the “proper prosecuting officer” within the meaning of OCGA § 16-1-7 (b).

Adoption of the view espoused by the dissent would be the first instance in which this court has placed the burden on a police officer to bind proceedings over to another court because the officer knows defendant has been charged with other offenses arising out of the same conduct. Implicit in this holding is that the police officer must know that failure to do so would result in the inability to try the accused for all the charges against him. In our opinion, such a drastic change in the law is not warranted.

2. Appellant’s reliance upon Daniels v. State, 78 Ga. 98, 102 (1886) and State v. Rowe, 138 Ga. App. 904, 905 (228 SE2d 3) (1976), is misplaced as those cases do not support Zater’s position that he should have been granted a jury trial on the issue of his plea in bar to the DUI offense. The issues of fact which must be submitted to the jury on a plea in bar are the identity of the offender and the offense, and the existence of the record. In Zater’s case, there is no issue as to identity of the offender who committed the offense, as he is clearly identified as the defendant in both courts and the record was shown to exist. It was not necessary to have a jury hear the plea.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I concur in Division 2 but not in Division 1. Defendant is entitled to reversal because of violation of his right to be tried in a single prosecution pursuant to OCGA § 16-1-7 (b).

The transcript of the motion hearing establishes that the statutory “prosecuting officer” in the Barnesville Municipal Court had actual knowledge when that case was commenced that defendant was charged also with driving under the influence. The statute says “prosecuting officer,” not “prosecuting attorney,” so the first government representative to proceed was the police officer.

A prosecutor in Georgia is not necessarily a State’s attorney. “A prosecutor is one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based. [Cit.]” Eady v. State, 10 Ga. App. 818 (1) (74 SE 303) (1912). In McKee v. State, 168 Ga. App. 214 (1) (308 SE2d 574) (1983), it was the detective who had interrogated defendant and swore out the arrest warrant, who was deemed the prosecutor for purposes of OCGA § 15-12-163 (b). In In re Herring, 185 Ga. App. 541, 542 (1) (365 SE2d 139) (1988), it was the complaining witness, affiant for the arrest warrant, who was deemed the prosecutor for purposes of OCGA § 17-11-4. Although these cases do not construe OCGA § 16-1-7 (b), they demonstrate that the descriptive term “proper prosecuting officer” as used in the Georgia statute is not necessarily confined to state’s attorneys.

The conclusion in Singer v. State, 156 Ga. App. 416, 418 (2) (274 SE2d 612) (1980), that “prosecuting officer” in what is now OCGA § 16-1-7 (b) means the district attorney or his authorized assistants, should be overruled to the extent that it is exclusive. For one thing, it omits the solicitor of the state court and the solicitor’s assistants. More pertinent here and in Singer, it omits the prosecuting officer in the first court in which charges are disposed of. To say that “the language of the statute clearly means the prosecuting attorney for the state” ignores its plain language, which is “prosecuting officer.” (Emphasis supplied.) Certainly, when a charge is prosecuted in superior court, it will be by a district attorney or assistant district attorney; that person will be the prosecuting officer in the context of OCGA §

16- 1-7 (b) because he or she is the government’s representative then pursuing the charge.

But when the government’s representative in a court proceeding which disposes of a criminal charge is another officer, then that is the “prosecuting officer,” contemplated. The point is that the first government representative pursuing less than all the connected charges then known to that person in a dispositive court proceeding has the power and thus the responsibility to advise the court so as not to put the defendant through multiple prosecutions. It also serves the constitutional goal of “speedy, efficient, and inexpensive resolution of . . . prosecutions,” Ga. Const. 1983, Art. VI, Sec. IX, Par. II, for the benefit of court, witnesses, parties, and the public, as well as the defendant who is the primary intended beneficiary of OCGA § 16-1-7 (b).

The cases upon which Singer relies do not deal with the question, and the primary case is foreign. The nolle prosequi statute, OCGA §

17- 8-3 relates expressly to certain authority of “the prosecuting attorney.” (Emphasis supplied.) Singer ignores the fact that many prosecutions of state offenses are conducted in lower courts without a district attorney. Thus it allows multitudes of double prosecutions. The protection afforded by the statute is not limited to felony prosecutions.

Webb v. State, 176 Ga. App. 576 (336 SE2d 838) (1985), relies on Singer. Moreover, that case differs from the instant case because “there was no showing that all of the charges against appellant were known to the proper prosecuting officer at the time the hunting offenses prosecution was commenced.” The first prosecution of Webb was in state court, by a solicitor. There was no earlier prosecution of the traffic charges in the municipal court; they were merely pending there. It is the knowledge of the first prosecuting officer who proceeds and “prosecutes” that governs. The arresting officer had not prosecuted in the municipal court; so of course he was not the prosecuting officer referenced in OCGA § 16-1-7 (b).

In Soule v. State, 184 Ga. App. 598 (362 SE2d 155) (1987), the officer first prosecuting was the state court solicitor. Since he knew of all charges and thus could have asked for bindover to superior court so that only one prosecution would be imposed on defendant, OCGA § 16-1-7 (b) was violated. The arresting officer was not the prosecuting officer in that case but would merely have been a witness, since the first prosecution proceeded in state court and not in a court which was not served by a prosecuting attorney as the government’s representative.

In this instance, construing the two-prosecutions statute, the first-government representative to proceed in court was the police officer. She should have requested all charges to be bound over.

Both she and the arresting officer were present together at the jail after defendant’s arrest. She charged defendant with speeding and with fleeing and attempting to elude, and the other officer charged him with DUI. Each officer knew of the other’s charges. They arose from the same conduct. Although the proof of intoxication was not obtained until after the second officer’s attention was drawn to defendant upon receipt of a radio message, defendant’s intoxicated condition while speeding and fleeing in the presence of the first officer a few moments before was inferentially the same. Besides, the specific acts of misconduct charged “occurred in one single continuous course of conduct” as in McCrary v. State, 171 Ga. App. 585, 587 (320 SE2d 567) (1984), aff’d sub nom. State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985).

In that the record is present here, this case differs from Sanders v. State, 188 Ga. App. 774 (374 SE2d 542) (1988).

Speeding, attempting to elude, and DUI are State offenses which are all within the jurisdiction of the superior court. OCGA §§ 40-6-181; 40-6-395; 40-6-391; Ga. Const. 1983, Art. VI, Sec. IV, Par. I. When the assistant district attorney was assigned to prosecute the DUI charge, defendant had already been prosecuted once for his conduct in the municipal court. It was not this second prosecuting officer’s actual knowledge which was at issue but rather that of the first prosecuting officer. Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987).

Defendant was entitled to the relief sought, as OCGA § 16-1-7 (b) is “designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct.” Waites v. State, 238 Ga. 683, 684 (235 SE2d 4) (1977).

Decided October 25, 1990

Rehearing denied November 20, 1990

Virgil L. Brown & Associates, Eric D. Hearn, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.


text:
    A90A1277.
    ANDEL et al. v. GETZ SERVICES, INC.
    (399 SE2d 226)
   Pope, Judge.

Plaintiffs Calvin C. and Frankie Andel are a married couple. In February 1976 Mr. Andel contracted with defendant Getz Services, Inc. to treat plaintiffs’ house for wood fungus. Defendant’s representative informed Mr. Andel the company would spray the wood in the crawl space under plaintiffs’ house with one of three chemicals, one of which was pentachlorophenol (“PCP”). Mr. Andel learned the first of two consecutive days defendant treated the house that PCP was the chemical used but Mrs. Andel denied knowing what the house was sprayed with until 1981 when a test for toxic substances revealed the presence of PCP vapors in the house.

Immediately after the house was sprayed plaintiffs noticed a strong and obnoxious odor in the house. In fact, defendant’s representative responded to a call to plaintiffs’ house late in the evening on the day the spraying was completed and informed plaintiffs the odor was only cosmetic and posed no hazard to them. The representative helped plaintiffs set up fans to ventilate the house and the strength of the chemical odor dissipated over time, though it was replaced by a “musty” odor that permanently lingered in the house. Also immediately after the house was sprayed both plaintiffs started experiencing physical symptoms such as burning skin, watery eyes and various respiratory problems. Mr. Andel testified the burning sensation to his skin and eyes subsided within days but Mrs. Andel testified these symptoms continued in her case whenever she was in the house until plaintiffs moved out of the house in 1982. Both plaintiffs developed other physical complaints and illnesses over time which they now allege are the result of exposure to PCP. In the case of Mr. Andel these include headaches, night sweats, chronic bronchitis and other respiratory problems and various neurological problems. In the case of Mrs. Andel these include basal cell carcinoma, tumor, headaches, swelling of tissue, heart palpitations and difficulty swallowing.

In late 1981 plaintiffs finally ordered an air sample test of their house which revealed the presence of PCP. The test was ordered after Mr. Andel removed the flooring from a closet in the house and discovered the odor plaintiffs had smelled for several years was coming from the crawl space of the house. Plaintiffs denied realizing the source of the odor prior to this date. In November 1981 plaintiffs’ family physician ordered blood and urine tests once he learned plaintiffs had been exposed to PCP and the tests revealed toxic levels of PCP in plaintiffs’ bodies. Despite plaintiffs’ repeated visits to several doctors for various symptoms over the years, the record does not reveal that any physician ever suggested plaintiffs’ complaints or ailments were related to toxic poisoning until the results of these tests were learned.

The complaint in this case was filed October 27, 1983. In 1987 the trial court granted defendant’s motion for summary judgment on those counts of plaintiffs’ complaint alleging fraud and breach of warranty on the ground that those counts were barred by the applicable statutes of limitation. At that time the trial court concluded plaintiffs’ remaining claims were timely filed under the “discovery rule,” which holds that the statute of limitation does not commence to run until the plaintiff knew or with reasonable diligence should have discovered his or her injuries and defendant’s alleged negligence. However, in December 1989 the trial court ruled the remaining claims were barred pursuant to this court’s ruling in Boyd v. Orkin Exterminating Co., 191 Ga. App. 38 (381 SE2d 295) (1989). Plaintiffs appeal.

1. The facts of this case are distinguishable from those in Boyd, supra. In Boyd the pleadings and the evidence showed the plaintiffs attributed their physical ailments to the defendant’s application of pesticide to their house more than four years before the complaint was filed. Plaintiffs in Boyd notified the defendant by letter in 1978 that they believed they were becoming ill because of the pesticide treatments and requested defendant to cease treating their house but did not file a complaint against defendant until 1985. In the case now before us, the undisputed evidence in the record shows neither plaintiffs nor their physicians related their ailments to defendant’s use of PCP until November 1981.

Even though plaintiffs experienced physical symptoms immediately after the spraying which they knew or should have known were associated with contact with the chemical substance used, this did not commence the period of limitation for subsequent symptoms which plaintiffs did not associate with the substance. “The fact that ‘an’ injury occurs and the causal connection is discovered does not cause the statute of limitations to run against different injuries yet unsustained, or with reasonable diligence yet undiscovered, and not yet causally connected. . . . [Plaintiffs] could not maintain an action for damages for [a particular illness] allegedly caused by [the chemical], until they knew or should have known through the exercise of reasonable diligence not only that they had the [particular illness] but that [said illness was] caused by [the chemical]. ... It is not for us to say, for example, that a plaintiff has no cause of action for a lung cancer allegedly caused by ‘Agent Orange’ merely because he had suffered and causally discovered an unrelated red rash on his palms and feet, or headaches, caused by ‘Agent Orange,’ two years and one day before.” Anderson v. Sybron Corp., 165 Ga. App. 566, 568 (353 SE2d 816) (1983).

Decided October 30, 1990

Rehearing denied November 20, 1990

Doffermyre, Shields & Canfield, Robert E. Shields, Kilpatrick & Cody, Alan R. Perry, Jr., James F. Bogan III, Walker, Hulbert & Gray, Michael G. Gray, for appellants.

Long, Weinberg, Ansley & Wheeler, James H. Fisher II, Stephanie F. Goff, for appellee.

Because plaintiffs’ action was filed within two years from the date the record shows plaintiffs first associated their illnesses with the spraying of PCP, their negligence claim for personal injury is not time barred as a matter of law. Mr. Andel knew PCP was the chemical used by defendant in treating his house and evidence was presented that Mr. Andel may have become informed at some time prior to two years before bringing the lawsuit that PCP was hazardous to human health. However, whether Mr. Andel should, through the exercise of reasonable diligence, have discovered the causal connection between his illnesses and the alleged negligence of defendant is an issue for jury determination. See King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981). Summary judgment was erroneously granted as to plaintiffs’ negligence claims for personal injury.

2. However, the discovery rule does not apply to property damage claims. Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988). In Mercer Univ. the Georgia Supreme Court ruled that all actions for negligent damage to property must be brought within four years after the cause of action accrues, as provided in OCGA § 9-3-30, even if the negligence was not discovered within that period. Plaintiffs’ argument that the cause of action could not possibly have accrued until the causal connection between defendant’s acts and plaintiffs’ injury was discovered is thus precluded. Summary judgment was properly granted as to plaintiffs’ claim for negligent damage to property.

Judgment reversed in part and affirmed in part.

Deen, P. J., and Beasley, J., concur.


text:
    A90A2184.
    PIGGLY WIGGLY SOUTHERN, INC. v. HEARD et al.
    (399 SE2d 244)
   Deen, Presiding Judge.

This appeal is from the grant of summary judgment to appellee landlords against appellant Piggly Wiggly Southern (hereinafter “PWS”) in which the trial court ruled that PWS had breached an express and implied covenant in a lease contract between the parties. On January 21, 1963, PWS and the landlords’ predecessor entered into a lease agreement whereby the landlords constructed a supermarket pursuant to plans and specifications prepared by PWS. The term of the lease was 15 years with an expiration date of January 31, 1979, at an annual rent of $29,053.60 plus the payment of percentage rent in the amount of one percent of annual gross sales in excess of $2,000,000. The lease was subsequently renewed for an additional seven years, with options to extend the term for two additional periods of three years each at the same basic and percentage rental amounts. PWS exercised its first three-year option and, on June 23, 1988, exercised the second option to extend the lease period to January 31, 1992. When the lease was executed in 1963 the building constructed for PWS was the only one on the property, but by the time the 1979 extension was signed the landlords had built up a small neighborhood shopping center with eight other satellite shops centered around the supermarket as the anchor store.

On March 4, 1989, PWS ceased operating a grocery store at the leased premises after it was acquired by another corporation, which moved the grocery store operations into a supermarket location in a nearby shopping center it owned. Since that time the leased premises have remained vacant and no applications were made for a business license. PWS continued to make the base monthly payments, but no percentage rent has been paid since the closing of the store because there have been no sales. While other competing supermarkets have attempted to lease the property at considerably higher base rents, PWS has refused to sublease the premises to a competitor. The landlords filed the instant suit to recover damages in the form of percentage annual rents from the date operation of the supermarket ceased to the end of the second three-year option; damages for the alleged loss of percentage rent from other leases and diminution of property values in the shopping center; and attorney fees and expenses of litigation. By amendment, the landlords added a claim for punitive damages and sought a declaratory judgment that they were entitled to possession of the premises so that they could lease it to another tenant to operate as a grocery store business. Motions for summary judgment as to various counts of the complaint were filed by both parties. The trial court entered an order granting the landlords’ motion on the basis of a breach of the lease contract by PWS and found that they were entitled to damages therefor, the amount to be determined later. It overruled PWS’ motion for summary judgment but dismissed the count of the landlords’ complaint seeking declaratory judgment. On appeal, PWS contends that the trial court erred in finding that it had breached the lease contract by failing to continuously occupy the premises and operate a business thereon; by denying its motion for summary judgment and failing to find that there was no express or implied covenant requiring it to continuously occupy the premises and operate a business thereon; and in finding that the landlords were entitled to damages based on its payment of past percentage rental.

1. The lease provision in controversy provides as follows: “LESSEE is leasing the leased building for use as a supermarket and the other parts of the leased property for parking and other uses incident to a supermarket business, but LESSEE’S use of the leased building and the leased property shall not be limited nor restricted to such purposes, and said building and property may be used for any other lawful business, without the consent of LESSOR.” The trial court determined as a matter of law that this language gave rise to both an express and implied covenant on behalf of PWS to continuously conduct business in the leased premises, interpreting the term “any other . . . business” as contemplating that some business enterprise must be conducted on the premises. PWS argues that such language permitting the leased premises to be used for certain purposes does not obligate the tenant to actually use the property for any purpose, and that the issues involved are controlled by the recent decisions of this court in Piggly Wiggly Southern v. Eastgate Assoc., Ltd., 195 Ga. App. 10 (392 SE2d 337) (1990) and Kroger Co. v. Bonny Corp., 134 Ga. App. 834 (216 SE2d 341) (1975), relied on therein.

Neither Eastgate nor Bonny involved a lease with language requiring that the leased property be used for a lawful business, only that the premises be used “in a lawful manner.” (Emphasis supplied.) Moreover, as found by the trial court in the instant case, the percentage rent paid while the store was being operated under the lease amounted to more than half of the total rent (53 percent) during the lease extension period. Thus the base rent, which was not raised when the lease was extended, did not represent the fair market value of the premises when the first extension was executed. In Eastgate no percentage rent was ever paid because the grocery store never opened; in Bonny it was stipulated that the base rent represented the fair market rental for the property when the lease was executed and the percentage rent, which was paid in only one year of a 13-year lease, amounted to barely over one percent of the total payments made. Based on those facts it was held that “ ‘when the rental to be received under a lease is based on a percentage of the gross receipts of the business, with a substantial minimum [or base rent], there is no implied covenant that the lessee will operate its business in the leased premises throughout the term of the lease. [Cits.]’ ” Eastgate, supra at 12.

The trial court found the case most factually similar to this one to be Fifth Ave. Shopping Center v. Grand Union Co., 491 FSupp. 77 (N.D. Ga. 1980). Applying the above Georgia substantive law, the federal district court concluded that “if the parties to a lease contemplate that the amount of rent to be generated by a percentage payment clause will be substantially greater than the minimum rental specified in the contract, it is possible to infer an implied covenant that the lessee will operate its business in the leased premises throughout the term of the lease.” Id. at 80-81. The Fifth Ave. case held that the base rent of only 57 percent of the total rental paid was “ ‘substantially below contemplated performance, and was therefore not “substantial.” ’ ” Id. at 81. Utilizing this reasoning, the trial court held that in the lease under consideration, the term “business” use of the premises did not contemplate a closed or vacant store; and that the lease contained an affirmative business use obligation that was mandatory as well as retroactive, which meant that in the event PWS decided to cease operating its grocery store in the leased premises, which it could do under the lease, it still had the duty to carry on a business use within the premises so as to generate percentage payments.

We agree and affirm. The lease contract was prepared by PWS and thus, even though it is the tenant, was properly construed against it. Farm Supply Co. of Albany v. Cook, 116 Ga. App. 814, 818 (2) fn. 2 (159 SE2d 128) (1967). The language permitting PWS to use the premises for “any other lawful business,” as opposed to using it in “any lawful manner,” clearly constitutes a business use covenant giving PWS the option to either use the premises for its supermarket or to use it or sublease it for some other lawful business use which would generate sales or other income. In contradistinction, if the covenant were only to use the premises in a lawful manner, there would be no obligation to operate a business during the term of the lease so long as the base rent was paid. The fact that the base rent of $29,053 a year paid by PWS is not an insubstantial sum standing alone, as it points out, does not negate the fact that when the percentage rent is equal to or greater than the base rent, the base rent is not considered “substantial” in the context of an implied use provision. Indeed, PWS was told when the 1979 extension was negotiated that the landlords would not raise the base rent agreed upon in 1963 because “the percentage rent will take care of inflation and we don’t need to draw another lease with a new base rent.”

Nor do we agree that if it were PWS’s motive to refuse to sublease in order to keep out competition for the benefit of its other store, this could be construed as a business use. “This result would be intolerable and would destroy the good faith reliance among individuals which permits them to act in accordance with their agreements.” Brack v. Brownlee, 246 Ga. 818, 820 (273 SE2d 390) (1980). Furthermore, this court has previously recognized that the situation in a shopping center differs from that where the leased building stands alone: “Obviously landlord would not want a vacant store in its shopping center even though the original tenant remained solvent and paid the minimum monthly rental.” Buford-Clairmont v. Jacobs Pharmacy Co., 131 Ga. App. 643, 647 (1) (206 SE2d 674) (1974). It follows that the trial court correctly granted summary judgment to the landlords and denied summary judgment to PWS on the issues of express and implied covenant to continuously occupy or sublease the premises and conduct a revenue-producing business therein under the terms of the lease.

Decided November 8, 1990

Rehearing denied November 20, 1990

Martin, Snow, Grant & Napier, George C. Grant, John C. Edwards, for appellant.

J. Sewell Elliott, Jr., Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellees.

2. Since the trial court expressly reserved for later determination the amount of damages to be awarded, appellant’s final enumeration of error concerning the calculation of damages based on past percentage rent payment presents nothing for consideration by this court. See Crawford v. Phillips, 173 Ga. App. 517 (2) (326 SE2d 593) (1985).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Pope, Judge. Beasley, Judge,

text:
    A90A1069.
    WALTON ACOUSTICS, INC. v. CURRAHEE CONSTRUCTION COMPANY, INC.
    (399 SE2d 265)
   Pope, Judge.

This is an appeal from the trial court’s grant of the motion of Currahee Construction Company, Inc. (Currahee) to vacate an arbitration award. Walton Acoustics, Inc. (Walton) and Currahee had entered arbitration pursuant to a construction contract between them. The arbitrator awarded Walton $13,756.47 on the contract, $728.81 in attorney fees and $305.61 administration fees and expenses. Currahee moved the trial court to vacate the award on the basis that it improperly included attorney fees. Held:

We affirm. OCGA § 9-9-97 (a) provides: “Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” In Hughes & Peden, Inc. v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989), this court held that attorney fees are not recoverable in an arbitration action. Walton argues that attorney fees are recoverable under OCGA § 13-6-11. We disagree. OCGA § 9-9-97, enacted in 1978, controls over OCGA § 13-6-11 because it is the later expression of the legislature on the subject of attorney fees in this context. “The courts are to be guided by the last expression of the General Assembly on a subject.” Board of Trustees v. Christy, 246 Ga. 553, 555 (272 SE2d 288) (1980). We do not find persuasive Walton’s argument that Jamison v. West, 191 Ga. App. 431 (4) (382 SE2d 170) (1989), stands for the proposition that attorney fees pursuant to OCGA § 13-6-11 may be recovered in an arbitration action, if timely and properly pleaded. Rather, we hold that Jamison stands only for the proposition that expenses, but not attorney fees, may be recovered. We note specifically that the pertinent portion of OCGA § 9-9-97 (a) allows recovery of “other expenses” incurred in the conduct of the arbitration.

Nor can we agree that the trial court has the power simply to set aside the award of attorney fees and confirm the remaining award. As logical as this would be, the statutory scheme does not permit it. OCGA § 9-9-93 (b) (3) provides that an award may be vacated if the arbitrator oversteps his authority, as was done in this case. The dissent’s reliance on OCGA § 9-9-97 (b) is misplaced. That Code section allowed the trial court to reduce or disallow fees or expenses it found excessive. However, to qualify as “excessive” the fees or expenses must have been authorized. Attorney fees were not authorized. This is the reason OCGA § 9-9-97 (b) is not discussed in Hughes & Peden, supra. In following the mandate of Hughes & Peden, supra, the trial court properly set aside the entire award.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., and Cooper, J., concur. Carley, C. J., Birdsong, Sognier and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I agree that attorney fees are not awardable in this case. However, the trial court erred in vacating the award “in its entirety” and remanding the case to the AAA “to begin anew with a new arbitrator.”

OCGA § 9-9-97 governs “other expenses” involved in this dispute. Subsection (a) expressly precludes counsel fees. Subsection (b) provides that “[u]pon application, the court may reduce or disallow any fees or expenses it finds excessive or may allocate them as justice requires.” Currahee moved to vacate the award. This subsection by its terms contemplates broad authority of the court over “arbitrators’ expenses and fees” and “other expenses” of the arbitration, even allowing its own allocation based on its own discretion. As to these specific incidental items alone, it is not restricted to vacating the award under OCGA § 9-9-93 nor limited to the strictures of its subsection (b). The court in Hughes & Peden, Inc. v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989), did not rule on the applicability of OCGA § 9-9-97’s subsection (b).

Decided November 20, 1990.

Smith & Fleming, Richard J. Storrs, for appellant.

Cornwell, Church & Healy, James E. Cornwell, Jr., for appellee.

Although this broader authority was eliminated in 1988, see OCGA § 9-9-17, it was extant in this case. It empowers the court to disallow the counsel fees as excessive because Walton is entitled to zero attorney fees. This the court should have done, as a matter of law.

It is wasteful and serves neither justice nor any useful purpose to send the whole matter back, for rearbitration with a new arbitrator and new potential applications to the trial court and a new appeal, when the law is clear.

I am authorized to state that Judge Birdsong and Judge Sognier join in this dissent.


text:
    A90A1411.
    THE STATE v. BYRD.
    (399 SE2d 267)
   Pope, Judge.

The parties to this appeal stipulated the following facts and entered the stipulation in the record. “In March, 1989, the Grand Jury for Catoosa County was summoned, sworn and charged. The Grand Jury served during the week of March 6, 1989, at which time the jurors were discharged. On May 17,1989, the Grand Jurors again met at which time the indictment was returned against Marilyn Byrd. In this case however, the Court did not order the Grand Jurors to be reconvened. The Clerk did not summons the Jurors back into session. The Grand Jurors were not resworn. The Grand Jurors were not recharged. In fact, when the Grand Jurors began meeting on May 12, 1989, no Superior Court Judge was even in attendance at the courthouse until later in the day. The Judge arrived prior to 10:00 a.m. while the Grand Jury was still meeting on May 17, 1989. The indictment was returned to the presiding Judge in open court later that day by the Bailiff who had been sworn to serve the same Grand Jury when they met in March, 1989. The District Attorney had verbally communicated to the Judge that the District Attorney intended to have the Grand Jury return on May 17, 1989. However, no order was entered.” (Indention and numbering omitted.) On these facts, the trial court granted appellee/defendant Byrd’s motion to quash the indictment on the basis that the grand jury was not properly convened because it had not been reconvened pursuant to an order of the court and summons by the clerk of the court and had not been recharged. The State brings this appeal from that order. Held:

The issue on appeal is: May a properly constituted grand jury, discharged earlier in term, but subject to recall, reconvene in the same term without an order of the superior court and without being recharged, and conduct business? Our answer is no, and we affirm the ruling of the trial court.

The trial court apparently relied upon Bird v. State, 142 Ga. 596 (1) (83 SE 238) (1914), as authority for the proposition that the court must issue an order to properly reconvene a grand jury. In Bird, the grand jury had been properly drawn, summoned and sworn and had completed its business at or near the end of the first week of the two-week term of court. The trial court discharged the grand jury for the term. The day following the discharge a homicide occurred. The court then issued a written order resummoning and reconvening the same grand jury previously discharged. The Supreme Court approved this procedure holding: “Where the grand jury is properly drawn, summoned, and impaneled for the term, the court may require them to serve for the term. And if they are discharged before the end of the term, the court may by appropriate order . . . reconvoke them to appear and serve until the end of the term, or for any specified period within that term, and such order will be considered as a vacation of the discharge of the jury.” Id. at 599-600. “The grand jury is but an arm of the superior court. . . .” Gates v. State, 73 Ga. App. 824, 826 (38 SE2d 311) (1946).

The State correctly notes the paucity of statutory or case law on this issue. However, we cannot agree with the proposition advanced by the State that the grand jury has the power to meet on its own and return indictments. Thompson v. State, 109 Ga. 272 (34 SE 579) (1899), relied upon by the State, contains the statement by the court that “the grand jury on their own motion, whether they are so charged or not, may investigate any supposed violation of law, and may after such investigation make a special presentment of any person who has been shown to have violated any of the penal laws.” Id. at 276. We note that this statement was contained in dicta discussing the various means by which a grand jury might prefer charges, i.e., upon the endorsement of the prosecutor or the charge of the judge of the court or on its own motion. However, in each instance, a fair reading of the opinion indicates an assumption of the court that the grand jury was not only in term, but was also in session. This distinguishes that abstract statement from the present case and from Bird, supra.

Decided November 20, 1990.

Ralph Van Pelt, Jr., District Attorney, John L. O’Dell, Assistant District Attorney, for appellant.

It is the institution of the court and not the individual judge that is paramount: “The requirement that indictments be returned into open court is manifestly one that they be returned to the court, not to the judge, for it is the court, not the judge, upon which the Constitution and the law confer general jurisdiction of criminal cases. Judges of the superior courts are clothed with many powers, and vested with much authority . . . but they are not clothed with power or authority to receive indictments from the grand jury. The court, not the judge, must do that. The judge is the court for the reception of indictments only when he is presiding in open court. There must be a judge presiding, the clerk must be present, and the place of the reception of the indictment must be one where the court is being held open to the public. [Cit.]” Cadle v. State, 101 Ga. App. 175, 180 (113 SE2d 180) (1960). “It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.” Zugar v. State, 194 Ga. 285, 289-290 (21 SE2d 647) (1942). “It is not enough to know that in this State there is hardly a chance that bogus indictments for personal spite will be filed in our courts. The preservation of the honor and purity of the courts, the confidence and respect of the public in those courts, and the good name of the citizens must not be left to chance. . . .” Zugar, supra at 291.

Public confidence and respect for the institution of the grand jury require that it operate only in conjunction with the institution of the superior court. We hold that the trial court correctly ruled that a grand jury, properly drawn, duly summoned and sworn and then discharged, may reconvene in the same term only upon order of the superior court and must be recharged. Although the requirement of recharge was not set out in Bird, supra, we believe that the better practice is to require recharge to ensure public confidence that the grand jury is operating in conformity with the law.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Christopher A. Townley, for appellee.


author: Birdsong, Judge.

text:
    A90A1507.
    DOMINGUEZ v. ENTERPRISE LEASING COMPANY.
    (399 SE2d 269)
   Birdsong, Judge.

Limo Dominguez appeals the grant of summary judgment to Enterprise Leasing Company, for $12,200 damages for the loss by theft of a vehicle he rented from Enterprise Leasing Company.

Appellant Dominguez executed the rental contract and bound himself to pay the rental price. But appellant contends he did so only to convenience his friend Vargas; that Enterprise knew the person really renting the car was Vargas; and that appellant was not involved in Vargas’ theft of the car two days later, so that there are factual issues which would limit his liability.

Dominguez also contends the judgment below is void because the judge was appointed by the chief county magistrate judge upon a request for “assistance” made by the superior court chief judge pursuant to OCGA § 15-1-9.1; appellant contends the appointee was in fact filling a vacancy created by the resignation of a superior court judge. The Constitution provides judicial vacancies “shall be filled by appointment of the Governor except as otherwise provided by law in the magistrate, probate, and juvenile courts.” Ga. Const., Art. VI, Sec. VII, Par. Ill; see Art. II, Sec. II, Par. V. Thus, appellant contends the appointee was neither elected nor properly appointed; nor was he appointed under OCGA § 15-1-9.1 (d) (2) which provides that the governor may appoint a temporary interim judge to a vacancy for which he is constitutionally authorized to appoint a judge. Held:

1. Although appellant asserts the invalidity of the judgment for the first time on appeal, we shall consider it; if a judgment is void, it is a nullity and may be attacked in any court where it becomes material. OCGA § 9-12-16; Adams v. Payne, 219 Ga. 638, 639-640 (135 SE2d 423); Barrett v. State, 183 Ga. App. 729 (360 SE2d 400).

To the extent OCGA § 15-1-9.1 (d) (2) provides only that the governor may appoint a temporary interim judge until he can fill the superior court vacancy, and to the extent that OCGA § 15-1-9.1 seems to authorize a request by the chief superior court judge for “assistance” even where there is a vacancy on the court, this issue seems controlled by OCGA § 15-1-9.1, as effective on the date of appointment. OCGA § 15-1-9.1 provides that the chief judge of “any court of this state” may make a written request for assistance to the chief judge of “any other court,” on a determination of the requesting court that the business of the court requires the temporary assistance of an additional judge or additional judges.

OCGA § 15-1-9.1 (a) (3) provides that “ ‘Judge’ includes Justices, judges, senior judges, magistrates, and every other such judicial officer of whatever name existing or created.” This statute permits the mutual appointment of judges by judges to sit in every judicial office in this state, without apparent limitation. It thus seems that if we had not enacted Rule 18 (c) to prevent it, the Georgia Court of Appeals could request a municipal court judge to appoint some physically qualified person to “assist” us in the business of this court, without regard to the constitutional provisions for public election of Court of Appeals judges and for appointment by the governor to fill vacancies. Under the seemingly limitless terms of § 15-1-9.1, even a “judge of the superior court” whom we designate pursuant to our Rule 18 (c) might be a person merely appointed to assist in superior court. And, seemingly any provision that might prevent such interjudicial appointments from supplying the judiciary of this state, can be avoided as often and as lengthily as requesting court judges might wish, simply by making these requests for assistance. This unreigned method of administrating the judicial business of a court, and its disaffection of the electors or of parties proceeding in the court, do not seem to be a sagacious result of the desire for judicial “flexibility.”

Georgia Const., Art. VI, Sec. I, Par. Ill provides that a person otherwise qualified “may exercise judicial power in any court upon the request and with the consent of the judges of that court.” But this provision plainly does not authorize legislation providing for wholesale judicial “assistance.” The debates underlying this amendment assert that the legislature has the right to “set up the courts,” but the debaters overlooked the plain fact that the provision does not give the General Assembly any authority and does not authorize the legislature to enact provisions for judicial “assistance.”

Formerly, the Constitution provided: “The General Assembly may provide by law for the appointment of some proper person to preside in cases where the presiding judge is from any cause disqualified,” (Ga. Const. 1933, Art. VI, Sec. IV, Par. IX); and “In any county within which there is, or hereafter may be, a City Court or a State Court the Judge of such a Court, and the Judge of the Superior Court may preside in the Courts of each other in cases where the judge of either Court is disqualified to preside.” Ga. Const. 1933, Art. VI, Sec. IV, Par. X. These provisions were replaced by present Art. VI, Sec. I, Par. III. In this present provision we see no language authorizing the legislature to grant broad means of “assistance.” We do not doubt the power of the General Assembly to pass laws, but we had the impression that laws which intrude on the judiciary must be authorized by some express constitutional provision; otherwise they violate the principle of separation of powers. Ga. Const., Art. I, Sec. II, Par. III. This seems more true in view of the 1976 amendments (Ga. Const., Art. VI, Sec. IX, Par. I; Art. VI, Sec. I, Par. V) which authorize the judiciary to set up, by unified rules, the means to administrate court business.

In Porter v. State of Ga., 53 Ga. 236, 238, it was said, “The superior courts have ever in our history been the great reservoir of judicial power — the aula regis, as it were — in which the judicial powers of the state were vested, and . . . the practice has been uniform to retain in [the Supreme Court] . . . supervisory power over them. . . . That [such] a policy . . . was intended to be abandoned, ought to be evidencefd] by plain words, and cannot fairly be deduced from a mere change in a form of expression. . . .” (Emphasis supplied.) We see no “plain words” authorizing the legislature to intrude upon the power constitutionally given the judiciary to administrate court business.

Since OCGA § 15-1-9.1 has not been held invalid, we are, however, required to find the judgment below not void.

2. On the merits we find no error. The rental contract provided prominently on its face: “REQUEST FOR PERMISSION FOR PERSON OTHER THAN RENTER TO DRIVE. I hereby request owner’s permission to allow Vargas Rodriguez (Friend) . . . License No. 148214 (Mexico) to drive the motor vehicle rented hereunder for me and in my behalf. It is understood and agreed that I shall be responsible for his acts while so driving and that he shall be under my exclusive control and direction. ... I further agree to be entirely responsible for the complete fulfillment of all the terms and conditions of the within rental agreement while he is so acting, x RENTER [Initialed by Dominguez].”

Dominguez signed the document where it avers, “I have read and agree to the terms and conditions on both sides of this agreement.” The contract provided: “This contract is the entire agreement between renter and owner. It is agreed that these terms are contractual and cannot be altered by another document or oral agreement.” The agreement proves the owner’s agent did know and agree that Vargas would be driving the car, but it conclusively provides that Vargas would drive the car as appellant’s agent and under his control, and that appellant would indemnify Enterprise for any loss caused by Vargas. Contract provisions enlarging or diminishing a bailee’s common law or statutory liability will be given effect; if the contract language is unambiguous, it is given its literal meaning. Saf-T-Green of Atlanta v. Lazenby Sprinkler Co., 169 Ga. App. 249 (312 SE2d 163).

Appellant has not borne his burden on appeal to show that the damages awarded were erroneous, or that his payment of rental was an agreed accord and satisfaction for the entire loss. No material issue of fact remains, and the evidence entitles the plaintiff to judgment as a matter of law. My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580).

Decided November 20, 1990.

Gingold, Kaufman & Chaiken, Fredric Chaiken, James Y. Rayis, for appellant.

McCrimmon & McCrimmon, Edward W. McCrimmon, Lisa L. McCrimmon, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.