author: Miller, Judge.

text:
    A00A1026.
    CAVIN et al. v. BROWN.
    (538 SE2d 802)
   Miller, Judge.

The issue on appeal is whether evidence supported an award for general and punitive damages and for OCGA § 9-15-14 attorney fees based on showings that (1) one defendant fraudulently conveyed property to the other defendant, and (2) both defendants pursued a defense that their own testimony contradicted. Holding that the evidence sustained the awards, we affirm.

When Carlton Hicks and Margaret Brown divorced in 1985, the court ordered Hicks to pay weekly child support payments of $70 plus half of any uninsured medical expenses of the two children. Within weeks the court held Hicks in contempt for refusing to pay as ordered. After a few years of compliance, Hicks then refused to pay for nine years, resulting in a second finding of wilful contempt in March 1998. The court found that he was in arrears in the amount of $19,339.60 and held that he could purge himself of contempt by paying $50 per week in addition to his ongoing child support obligations. This order, which expressly disclaimed affecting any previous order except as specifically set out therein, did not purport to modify the divorce decree or its child support obligations.

Hicks generally made the payments required to purge himself of contempt, resulting in an outstanding amount in arrears of $17,745.60 as of November 5, 1998. In the three weeks prior to November 5, Brown repeatedly demanded that Hicks pay an additional $9,796.90, representing his half of certain medical bills for a child, which demands he ignored. On November 5, Hicks transferred his only substantial asset — certain real property that he had purchased and then improved at a cumulative cost exceeding $30,000 — to his girlfriend Patricia Cavin. His remaining assets were worth approximately $225.

Brown sued Hicks and Cavin to set aside the transaction as a fraudulent conveyance and for general and punitive damages. Hicks and Cavin, responding pro se, defended on the ground that the transfer was for valuable consideration. Both defendants maintained that Cavin had loaned Hicks thousands of dollars in exchange for promissory notes, which money Hicks had deposited in his bank account and then used to purchase and improve the land. They asserted that in exchange for the land transfer to Cavin on November 5, she forgave the notes. Defendants obdurately maintained this position, even though (1). Hicks’s bank account statements contradicted the story, (2) the alleged notes could not be produced, (3) both defendants had certified to tax authorities that the November 5 transfer was a “Deed of Gift,” and (4) Hicks previously testified that the transfer was without present consideration and was testamentary in anticipation of Hicks’s demise.

Following a bench trial, the court found by clear and convincing evidence that the transfer was a voluntary gift that rendered Hicks insolvent and was a fraudulent conveyance designed to hinder and delay payment of the debts owed to Brown. The court set aside the deed and awarded Brown general damages ($10,000) and punitive damages ($20,000), with the damage awards against Hicks only. Pursuant to Brown’s post-trial motion, the court awarded $10,000 in attorney fees against Hicks under OCGA § 9-15-14 (a), reasoning that Hicks’s defense that he transferred the property for valuable consideration completely lacked any justiciable issue of law or fact and could not possibly be believed. On appeal, Hicks and Cavin argue that no evidence supported the court’s judgment or its award of attorney fees.

1. The evidence sustained the court’s finding that the November 5 transfer was fraudulent under OCGA § 18-2-22 (3). Under that Code section, “[e]very voluntary deed or conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance,” is conclusively presumed fraudulent and is void as to creditors holding demands against the debtor at the time of the conveyance. Thus, “a creditor seeking to set aside a conveyance need only show the indebtedness, the insolvency of the debtor, and that the deed was voluntary.”

(a) Indebtedness. On the date of conveyance, Hicks owed Brown $17,745.60 in child support arrears as well as additional monies for a child’s medical payments. This establishes the indebtedness. By statute Brown is considered a creditor, and Hicks a debtor, for purposes of attacking the November 5 transaction as a fraudulent conveyance.

Hicks and Cavin argue that the debt owed Brown was not reduced to a judgment and thus did not qualify her as a creditor. Not only is a judgment unnecessary under OCGA § 19-6-35 (b) which expressly provides that child support obligees are creditors, but under OCGA § 18-2-22 all that is needed is a claim, not a judgment.

Defendants then argue that the entire debt was not owed on November 5 because Hicks was current on his payments under the March 1998 contempt order, which order allowed Hicks to pay $50 per week on the amount in arrears to purge himself of contempt. This argument is nonsensical. Just because the court afforded Hicks the opportunity to purge himself of contempt by making weekly payments on the past due amount did not in any way mean that the debt was not due and owing. Simply providing Hicks an avenue to stay out of jail, the court did not purport to modify the arrearage amount or the child support obligations, nor could it have. In a contempt proceeding a court has no authority to modify the terms of a divorce decree. Moreover, in collecting on child support payments, an obligee may simultaneously pursue contempt, execution by writ of fi. fa., garnishment, and other remedies. Whether one may purge a contempt finding by paying incrementally has nothing to do with whether the entire amount of money is owed and collectible in other proceedings.

Finally, defendants argue that since Hicks paid off the arrearage amount shortly before the trial on the fraudulent conveyance, no fraud can be shown. Defendants misapprehend the date for determining what debt is owed to the creditor for purposes of adjudicating an alleged fraudulent conveyance. It is not the date of trial, but the date of the conveyance. Hicks’s belated paying off of the past due debt some eight months later on the eve of trial was no reason for the court to discontinue the fraudulent conveyance trial.

(b) Insolvency. The test for determining whether a debtor is insolvent under OCGA § 18-2-22 (3) is “whether the value of his remaining property is sufficient to pay in full all of his debts.” The value of that property is determined as of the date of the questioned conveyance. Here the evidence showed that on November 5 Hicks owed over $17,000 to Brown but retained assets amounting to only $225. Insolvency was shown.

(c) Voluntary. Under OCGA § 18-2-22 (3), a voluntary conveyance is one without present consideration. Here evidence showed that the November 5 transfer was a testamentary “Deed of Gift” without present consideration.

Because evidence showed the three criteria of OCGA § 18-2-22 (3), the court did not err in concluding that the transfer was a fraudulent conveyance.

2. Hicks contends that the court was not authorized to award general and punitive damages. This argument is without merit.

(a) General Damages. Kesler v. Veal held that in addition to setting aside the transaction, a court may award general and punitive damages upon proof of a fraudulent conveyance. Because general damages are those which the law presumes to flow from any tortious act, they may be recovered without proof of any specific amount. General damages awarded on a fraud claim may cover a broader range of damages than those awarded on contract claims. Here Brown showed that her credit had been damaged through her inability to collect on the outstanding debt. This resulted in her having to pay interest rates of 300 percent to pay off the medical bills. The court was authorized to award general damages of $10,000 against Hicks on the fraudulent conveyance.

(b) Punitive Damages. Although punitive damages are available in fraudulent conveyance actions, the plaintiff must prove “by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care” raising a presumption of conscious indifference to consequences. Here the evidence showed several badges of fraud, including Hicks’s secreting away some $40,000 in cash years earlier to prevent Brown from collecting, the transfer of nearly all Hicks’s assets when he was financially embarrassed and keenly aware of his debts to Brown, Hicks’s fabricated evidence and inconsistent testimony regarding the promissory notes (and his destruction of the alleged notes despite a subpoena for them), and Hicks’s possessing the property after allegedly conveying it away. Combined with the other evidence referenced above, this evidence supported the punitive damages award.

3. Under OCGA § 9-15-14 (a), the trial court shall award attorney fees and expenses of litigation to a plaintiff against whom a defendant has asserted a defense with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that the court would accept the asserted defense. Here Hicks asserted in his answer and throughout trial that he conveyed the property in exchange for the forgiveness of the notes owed to Cavin. Yet at other points in the trial he admitted that no consideration or value was given for the property. And in reporting the transfer to the tax authorities, he certified that it was a “Deed of Gift.” Despite a subpoena for the alleged promissory notes, Hicks destroyed them by tearing them up into small, illegible pieces.

Decided August 30, 2000

Reconsideration denied September 19, 2000

Joseph E. Willard, Jr., for appellants.

Renzo S. Wiggins, for appellee.

Brown was forced to disprove the bogus defense through testimony and through obtaining and introducing numerous documents, including Hicks’s bank statements, settlement documents showing the source of Hicks’s purchase money for the land, tax documents, etc. Evidence supported the court’s finding that this defense could not possibly be believed, thus justifying the attorney fees award.

4. Brown has moved this Court to impose a frivolous appeal penalty under Court of Appeals Rule 15 (b). “When the law is indisputably clear concerning the issues raised on appeal, frivolous appeal penalties may be imposed.” Based on the undisputed authorities, no argument raised by Hicks on appeal has any colorable merit, and thus we grant Brown’s motion for a penalty. We assess a penalty for frivolous appeal against Hicks in the amount of $1,000 pursuant to Court of Appeals Rule 15 (b). The trial court is directed to enter judgment for a $1,000 penalty against Hicks and in favor of Brown upon return of the remittitur.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       Hicks did produce minuscule and illegible scraps of paper at trial, which he claimed were the remnants of the notes after he had tom them up to spite Brown for having asked that they be produced. Such spoliation of material evidence raised a presumption against the spoliator that the evidence would have been harmful or that the claim against him was well founded. OCGA § 24-4-22; Greer v. Andrew, 138 Ga. 663, 664 (3) (75 SE 1050) (1912).

        Barclay v. First Nat. Bank of Polk County, 265 Ga. 744 (462 SE2d 374) (1995).

       (Citations and punctuation omitted.) Id. at 744.

       OCGA § 19-6-35 (b).

        Rolleston v. Cherry, 237 Ga. App. 733, 735 (1) (a) (521 SE2d 1) (1999).

        Boyett v. Wester, 265 Ga. 387-388 (456 SE2d 504) (1995).

        Hill v. Hill, 219 Ga. App. 247, 248 (464 SE2d 656) (1995).

       Cf. Goodman v. Lewis, 247 Ga. 605, 606, fn. 1 (277 SE2d 908) (1981) (in determining insolvency, the value of the debtor’s remaining property is determined as of the date of the conveyance sought to be set aside).

       (Citation omitted.) Id.

       Id.

        Barclay, supra, 265 Ga. at 744-745.

       Id.

       182 Ga. App. 444, 446-451 (3) (356 SE2d 254), rev’d in part on other grounds, 257 Ga. 677, 679 (362 SE2d 214) (1987).

       See Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 611 (2) (409 SE2d 60) (1991).

       OCGA § 51-12-2 (a); Harden v. Vertex Assoc., 226 Ga. App. 322, 324, fn. 2 (487 SE2d 12) (1997); see Kesler, supra, 182 Ga. App. at 447 (3).

        Harden, supra, 226 Ga. App. at 324-325 (2) (c).

        Kesler, supra, 182 Ga. App. at 451 (3).

       OCGA § 51-12-5.1 (b).

       See Varn Investment Co. v. Bankers Trust Co., 165 Ga. 694, 696 (141 SE 900) (1928).

       (Citation omitted.) Hightower v. Kendall Co., 225 Ga. App. 71, 73 (5) (483 SE2d 294) (1997).

       See id. at 73-74 (5).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A1308.
    HAY v. NEWTON COUNTY et al.
    (538 SE2d 181)
   Pope, Presiding Judge.

The Joint Development Authority of Jasper County, Morgan County, Newton County and Walton County (Joint Authority) and Jasper County, Morgan County, Newton County and Walton County (Counties) sought to issue $9,000,000 in revenue bonds to finance the acquisition and development of an industrial park. The Morgan County Superior Court entered an order validating the bonds on September 27, 1999. On October 6, 1999, appellant Samuel M. Hay III filed a motion to set aside the order validating the bonds; he also filed a notice of appeal on that date. The Joint Authority filed a petition requesting that Hay be required to post a supersedeas bond pursuant to OCGA § 50-15-2. The superior court entered an order requiring Hay to file a supersedeas bond in the amount of $35,000; the order further provided that Hay’s appeal would be dismissed by operation of law if he did not file the bond within ten days of the order. OCGA § 50-15-2. Hay filed an emergency motion in this court seeking to stay the order requiring him to post the appeal bond. This court denied Hay’s motion by order dated December 30, 1999. On January 19, 2000, Hay filed an “amended” notice of appeal, and on January 26, 2000, the superior court entered an order dismissing Hay’s appeal “by operation of law” for failure to file the supersedeas bond. Hay filed another amended notice of appeal seeking to appeal that order as well as the superior court’s previous adverse rulings. For the reasons that follow, we affirm the dismissal of Hay’s appeal.

1. Hay first challenges the jurisdiction of the Morgan County Superior Court to validate the bonds. Hay contends that jurisdiction of these proceedings was properly in Walton County because the Counties and the Development Authority of Walton County had sought validation of bonds for the industrial park in the Superior Court of Walton County prior to the institution of the Morgan County proceedings. Hay had not been allowed to participate in the Walton County proceedings, based on the trial court’s finding that Hay and another objector were not proper parties to those proceedings because they did not follow the intervention procedure set forth in OCGA § 9-11-24 (c). However, this court held that the trial court erred in requiring compliance with OCGA § 9-11-24 (c) and that OCGA § 36-82-23 allowed Hay to participate in the bond validation proceedings as a party without the necessity of filing a motion to intervene pursuant to OCGA § 9-11-24. Hay v. Dev. Auth. of Walton County, 239 Ga. App. 803, 804-805 (521 SE2d 912) (1999). We then “remanded [the case] with instructions to hold another validation hearing in which the objectors are allowed to participate as parties to the proceeding.” Id. at 805. Hay contends, inter alia, that pursuant to this opinion, jurisdiction of these proceedings was properly in Walton County and the filing of the petition in Morgan County was merely to circumvent this court’s decision. We find no merit to these contentions.

As an initial matter, the record shows that Hay was allowed to participate fully in the Morgan County proceedings and he has made no contention that he was not allowed to participate in any subsequent Walton County proceedings in accordance with this court’s prior opinion. Thus, we discern no basis for Hay’s argument that the Morgan County proceedings were instituted to circumvent our opinion requiring that Hay be allowed to participate in the bond validation process.

Moreover, OCGA § 36-82-75 requires the petition for validation of bonds to be filed in the superior court in which the governmental body issuing the bonds is located. The record shows that the Joint Authority is incorporated in Morgan County and thus the present petition was properly filed in the superior court of that county. The Walton County Development Authority was the development authority involved in the Walton County action; the Joint Authority was not a party to the Walton County action and did not exist at the time that petition was filed. The Walton County bonds were to provide temporary financing for the project, and the Morgan County bonds were to provide permanent financing for the project, including the “refunding” of the Walton County bonds. Thus, it appears that the present proceedings were properly instituted in Morgan County.

2. The Joint Authority and Counties argue that this court has already determined that the imposition of the supersedeas bond was appropriate in the order we issued on December 30, 1999, and therefore this appeal should be dismissed without consideration of the merits.

The Public Lawsuits Act [(OCGA §§ 50-15-1 to 50-15-4)] gives courts the authority to require a bond of any party who opposes a public improvement project in a public lawsuit. The purpose of the act is to protect the public from increased financial costs caused by the filing of non-meritorious or frivolous litigation against the project.

Haney v. Dev. Auth. of Bremen, 271 Ga. 403, 404 (1) (519 SE2d 665) (1999). The Act requires the court to conduct a hearing on the petition requesting the posting of a bond and gives the court the authority to set the amount of the bond if the court determines at the hearing that the posting of the bond is in the public interest. The Act further provides that the opposing parties or intervenors shall be dismissed by operation of law if the bond is not filed within ten days of the order. OCGA § 50-15-2. But our Supreme Court has made it clear that this dismissal by operation of law may be appealed. Haney, 271 Ga. at 405 (1). And in order to determine if the trial court abused its discretion in ordering the imposition of a surety or supersedeas bond, the appellate court must first determine whether the claims raised by the intervenors are meritorious. Id. at 406 (2); but see id. at 409 (Carley, J., dissenting). This is usually a determination that cannot be made before the appeal is docketed and the record is transmitted to the appellate court. Our December 30 order states that it was based on Hay’s emergency motion and the trial court’s order and was rendered prior to docketing and the receipt of the record by this court. Therefore, this order should not be read as addressing the merits of Hay’s appeal.

3. Hay contends that the Counties’ payments under their contracts with the Joint Authority are impermissible under state constitutional, statutory and case law. In support of this contention, Hay argues that the Counties cannot use their taxing authority to repay the bonds issued by the Joint Authority because the Joint Authority is not providing services or facilities that will be shared or used separately by any of the Counties as required by the intergovernmental contracts clause.

The resolution of this issue turns on whether the contracts between the Counties and the Joint Authority are valid intergovernmental contracts authorized by Art. IX, Sec. III, Par. I of our constitution (the intergovernmental contracts clause). Clayton County Airport Auth. v. State of Ga., 265 Ga. 24 (1) (453 SE2d 8) (1995). The intergovernmental contracts clause permits, inter alia, development authorities and counties to enter into contracts “for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.” Ga. Const. of 1983, Art. IX, Sec. III, Par. I (a).

[T]here is no constitutional or statutory provision which specifies how the consideration necessary to support an intergovernmental contract must be expressed by the parties to such a contract. See Nations v. Downtown Dev. Auth. of the City of Atlanta, [256 Ga. 158, 160 (1) (345 SE2d 581) (1986)] (upholding an intergovernmental contract wherein the consideration was expressed in terms of “an amount equal to the debt service on the bonds issued”). The only requirement is that the intergovernmental contract itself “must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake.” . . .

Clayton County v. State of Ga., 265 Ga. at 25 (1). Here the Joint Authority and the Counties are undertaking an activity clearly authorized by law, i.e., the development of trade and industry through the acquisition of an industrial park. See OCGA § 36-62-1 et seq. and Ga. Const. of 1983, Art. IX, Sec. VI, Par. III; see also OCGA § 48-5-220 (2). We thus find no merit to Hay’s argument that the contracts between the Counties and the Joint Authority are invalid under the intergovernmental contracts clause.

Decided August 11, 2000

Reconsideration denied September 19, 2000

Samuel M. Hay III, pro se.

Fredric D. Bright, District Attorney, Lambert & Roffman, Allan R. Roffman, King & Spalding, Richard G. Woodward, William T. Craig, William R. Childers, Jr., W. Dan Roberts, John W. Spence, for appellees.

Chesnut & Livingston, J. David Chesnut, Arnall, Golden & Gregory, John L. Gornall, Jr., James F. Grubiak, Walter E. Sumner, amici curiae.

Hay also argues that the Counties cannot use their taxing power to pay the principal or interest on the bonds. See Ga. Const. of 1983, Art. IX, Sec. VI, Par. I.

Although the bonds are obligations of the Authority and the Count [ies] cannot pledge [their] full faith and credit to pay them, the Count [ies] [do] have the “authority under (the intergovernmental [contracts] clause of) the Constitution, (cit.), to enter into contracts with the Authority and to pledge [their] full faith and credit and levy taxes to meet [their] contractual obligations pursuant to the law of contracts.” Thompson v. Municipal Elec. Auth. of Ga., 238 Ga. 19, 21 (5) (231 SE2d 720) (1976).

Clayton County v. State of Ga., 265 Ga. at 26 (2). And OCGA § 48-5-220 (20) authorizes the Counties to “provide for financial assistance to county or joint county and municipal development authorities for the purpose of developing trade, commerce, industry, and employment opportunities.”

In sum, none of the grounds asserted by Hay are meritorious. It follows that the superior court did not err in requiring him to post a supersedeas bond and that Hay’s appeal was properly dismissed pursuant to OCGA § 50-15-2.

Appeal dismissed.

Miller and Mikell, JJ., concur.


author: Blackburn, Presiding Judge.

text:
    A00A0914.
    TURNER v. THE STATE.
    (539 SE2d 553)
   Blackburn, Presiding Judge.

Aubrey Mark Turner appeals his convictions of aggravated assault on a police officer, theft by taking, possession of a gun during the commission of a felony, and manufacturing a destructive device. Turner raises 17 enumerations of error, many of which involve the same subject matter and, therefore, are consolidated in this opinion. For the reasons set forth below, Turner’s convictions are affirmed.

1. In two enumerations of error, Turner challenges the sufficiency of the evidence to support his convictions of aggravated assault on a police officer and manufacturing a destructive device.

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

Parrott v. State. See Jackson v. Virginia.

So viewing the evidence, it reveals that Jeff Smith testified that he saw Turner take all the propane tanks from the front of Roopville Grocery around 4:00 one morning. He also testified that he had gone to school with Turner for 12 years. Two uniform deputies with the Carroll County Sheriff’s Office, Richard Harrison and Kevin Johnson, responded to Smith’s 911 call within five to fifteen minutes. Smith told the deputies that Turner had taken the propane tanks and told them where Turner lived. Deputy Harrison also knew Turner and knew where he lived.

After driving to the house where Turner lived, the officers parked their patrol vehicle approximately one car length behind the truck that was involved in the theft. Because it was a foggy morning, the officers left their patrol car’s lights on and turned on their “take-down” lights. Deputy Harrison took an assault rifle found in the truck and locked it in the patrol car. While searching the yard with a flashlight, Deputy Johnson saw Turner crouched with a gun pointing in his direction. Deputy Johnson yelled, “Sheriff, drop the gun,” but Turner fired his gun at Deputy Johnson. Turner continued to fire at Deputy Johnson while the deputy obtained cover. Deputy Johnson returned fire, and Turner was shot.

During his ambulance ride to the hospital, Turner told the paramedic that once “he’s been drinking he tends to get bored.” The paramedic also testified that Turner nodded his head “yes” when the paramedic asked if he knew he was shooting at police officers. While Turner was at the hospital, Turner’s parents unlocked Turner’s bedroom and allowed the officers to search it. The officers found PVC pipe bombs, several hand grenades that had the bottoms removed, gunpowder, an assortment of shotgun shells, and other ammunition.

(a) Turner contends that the evidence was insufficient to support his conviction of aggravated assault on a police officer because the State failed to prove that Turner knew he was shooting at police officers. Deputy Johnson testified, however, that he identified himself as “sheriff,” when he told Turner to drop the gun. Additionally, the officers arrived in an official police vehicle and the “take-down” lights were left running. Furthermore, the paramedic testified that Turner responded affirmatively when asked if he knew he was shooting at police officers. The paramedic further testified that Turner said that he did not mean to do it, he did not want to hurt anyone, and he did not know why he did it. Turner asked the paramedic what was going to happen. After the paramedic responded that Turner would probably go to jail, Turner said it would probably do him some good.

This was sufficient evidence from which the jury could reasonably find that Turner was aware he was shooting at a police officer. See Jackson, supra.

(b) Turner contends that the evidence was insufficient to support his conviction of manufacturing a destructive device because the State failed to prove that the explosives found in his room were destructive devices as opposed to fireworks.

The State introduced the testimony of Kelly Fite, who was tendered and admitted as an expert in firearms and explosives. Fite testified that the items found in Turner’s room were explosive devices. Fite opined that exploding the devices would cause the PVC pipe to fragment, injuring people and damaging property nearby. Christopher Bish, a bomb technician with the GBI, testified that his search of Turner’s room indicated that explosive devices were being manufactured there. During his testimony, Bish reviewed all the items found in Turner’s room with the jury. Bish distinguished one item as a firework-type device and determined that the other devices were pipe bombs capable of doing damage to people or property. When asked by Turner’s counsel whether he felt like he had just left the Unibomber’s house or just someone making large firecrackers, Bish responded: “In between. An individual was making bombs.”

A destructive device is defined by OCGA § 16-7-80 (4) (A) as:

Any explosive, incendiary, or over-pressure device or poison gas which has been configured as a bomb; a grenade; a rocket with a propellant charge of more than four ounces; a missile having an explosive or incendiary charge of more than one-quarter ounce; a poison gas; a mine; a Molotov cocktail; or any other device which is substantially similar to such devices.

The only evidence presented indicated that the items which Turner was charged with manufacturing were bombs. Bish testified that, in addition to the bombs themselves, he found all the items necessary to manufacture pipe bombs in Turner’s room. Furthermore, the State also introduced several of Turner’s handwritten notes found in his bedroom. The notes contained various demands when robbing a bank. For instance: “Hello, this is a robbery. Fill this bag with all your money right now. No alarms, [dye] packs or warnings or I will hurt you. I am heavily armed.”

From this evidence, the jury was authorized to find that Turner was manufacturing bombs in his bedroom, rather than firecrackers. See Jackson, supra.

2. Turner contends that the trial court erred in denying his motion to suppress the evidence based upon the officer’s failure to obtain a search warrant or legal consent. Turner asserts that because he kept his room locked and his parents did not go into his room uninvited, that they did not have authority to consent to the search of the room.

“A warrantless search of a residence may be authorized by the consent of any person who possesses a sufficient relationship to the premises to be inspected. United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974); Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977).”

Howard v. State. In Howard, the defendant lived in a house owned by his mother and sister. The defendant did not pay rent, but he did perform some household chores. Id. This Court determined, based upon those facts, that no landlord/tenant relationship existed and that the defendant’s mother was authorized to consent to a search of the defendant’s room. Id. See also Williams v. State.

In the present case, Turner lived in his parents’ house. Although he kept his door locked, his father had a key for emergencies. Turner did not pay rent, but he did do chores around the house and yard. When he was working, Turner’s parents expected him to voluntarily contribute to the grocery expenses. Immediately prior to the incidents involved herein, Turner had been working stripping furniture, but he had not been paid. The owners of the house consented to the search of Turner’s room. Additionally, the evidence available to the officers at the time of the search “justified one of reasonable caution in the belief that the consenting party [Turner’s parents] had authority of the premises.” Ford v. State. See also Illinois v. Rodriguez (warrantless search based on unauthorized consent could nonetheless be upheld if the law enforcement officer conducting the search reasonably, albeit erroneously, believed the consent given was valid).

For the foregoing reasons, the trial court correctly denied Turner’s motion to suppress. Underwood v. State (“ ‘the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment’ ”).

3. Turner contends that the trial court erred in allowing certain evidence and testimony before the jury. Turner argues that the testimony regarding the bank robbery notes and the State’s question to its expert regarding the Centennial Olympic bombing required a mistrial. We disagree.

(a) The State’s theory of the case was that the bank robbery notes established Turner’s motive on the aggravated assault on a police officer count, i.e., Turner shot at the deputy officers in an effort to thwart their ability to discover the bank robbery notes. Additionally, the bank robbery notes establish a motive in the manufacturing of destructive devices. The State is entitled to present evidence of motive. Johnson v. State.

Furthermore, the State did not seek to introduce the bank notes until Turner had testified at length regarding his good character, and “ ‘[q]uestions of relevancy are generally matters within the trial court’s discretion.’ ” Sleeth v. State. Because Turner introduced his character into evidence, the bank notes were relevant to rebut his testimony regarding his good character. Therefore, Turner has failed to show that the trial court abused its discretion in allowing the introduction of the bank robbery notes. See Benford v. State (admission or exclusion of evidence reviewed on an abuse of discretion standard).

(b) Turner also asserts that the trial court should have granted, sua sponte, a mistrial because the State referred to the Centennial Olympic bomber when it questioned its expert. During the cross-examination of Bish, Turner’s counsel brought up the Unibomber. Thereafter, the State asked Bish whether he shared information gathered from Turner’s bedroom with the ATF in relation to its investigation of the Centennial Olympic bombing. Bish acknowledged that he informed the ATF that Turner’s bombs were not similar to that used at Centennial Olympic Park.

Turner contends that this exchange required that the trial court sua sponte order a mistrial. However, there being no “manifest necessity” for a mistrial in the absence of a motion for one by Turner, it was not incumbent upon the trial court to grant a mistrial sua sponte. Bennett v. State. Additionally, “ ‘[t]he granting or denial of a mistrial is within the sound discretion of the trial court, and we will not disturb his ruling in the absence of. abuse of that discretion.’ ” Baker v. State.

Moreover, the State’s question was in response to issues brought up by Turner’s counsel, and the testimony actually distinguished Turner from the notorious bombers mentioned. The testimony is also clear that Turner’s counsel was attempting to make such a comparison in an effort, albeit perhaps unsuccessful, to establish that Turner was making large fireworks rather than bombs such as those made by the Unibomber. Under these circumstances, we find no abuse of discretion by the trial court.

4. Turner contends that the trial court erred in failing to conduct a Jackson-Denno hearing regarding the admissibility of Turner’s statements to the paramedic.

Prior to the paramedic’s testimony, the State asked for a five-minute recess. The recess was not recorded. At the conclusion of the paramedic’s testimony, Turner’s counsel stated: “Let me just restate my objection that he wasn’t being formally interrogated. You know, that that wasn’t a — it may not have been a voluntary confession.” Based on the renewal of objection to the paramedic’s testimony, we must conclude that Turner’s counsel had previously objected and the argument was made off the record. Additional evidence supports this conclusion: At the end of the trial, the trial court went through Turner’s motions and gave rulings on the record. The State argued regarding Turner’s statements to the paramedic: “Again, we will contend that the paramedic is not law enforcement. At that point the defendant was not being interrogated, and these statements were spontaneous and were, again, not to law enforcement and, therefore, those statements were admissible.” (Emphasis supplied.)

We first address whether the trial court erred in failing to hold a Jackson-Denno hearing on the admissibility of the paramedic’s testimony. This issue raises two points: First, whether Turner was entitled to a Jackson-Denno hearing; and second, whether he was entitled to a hearing regarding the voluntariness of his confession pursuant to OCGA § 24-3-50. As we previously held in Griffin v. State, where there is no official action by the State, the defendant is not entitled to a Jackson-Denno hearing. In this case, the record before us is unclear as to whether a hearing regarding the voluntariness, OCGA § 24-3-50, took place. In fact, the colloquy on the record between the trial court and the counsel indicates that the issue was heard by the trial court. Therefore, to the extent that Turner raised a voluntariness issue pursuant to OCGA § 24-3-50, we find that Turner has not shown that he did not receive a hearing. See Griffin, supra at 322-323 (issue regarding voluntariness of confession pursuant to OCGA § 24-3-50 must be raised in the trial court).

We now turn to whether the paramedic’s testimony regarding Turner’s statements was properly admitted. Turner’s trial counsel filed two motions seeking suppression of Turner’s involuntary admissions, confessions, or statements. Neither of these motions raised the issue of whether Turner’s rights under OCGA § 24-3-50 were violated. See Griffin, supra. As the defendant’s voluntary statements are admissible, we find no error in the trial court’s allowance of the paramedic’s testimony.

5. Turner contends that the trial court erred in failing to charge the jury on the definition of destructive devices and the definition of fireworks. Turner argues that such requests to charge were required, even without a request, because proof that the item seized was a destructive device was an essential element of the crime and his sole defense was that the device was a firecracker rather than a destructive device.

(a) The trial court did not err in failing to charge the jury on the definition of destructive device. “In the absence of request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal. In any event, it is not error for the trial court to fail to define terms in common usage, even upon request.” (Citations and punctuation omitted.) Floyd v. State. In Floyd v. State, the trial court had failed to charge on the definition of sodomy, which was an element of the offense charged. See id. Similarly in the present case, although destructive device was an element of the offense charged, the trial court did not err in failing to charge, its definition. The indictment, which the trial court charged, specified explosive device and destructive device. The experts defined the items found in Turner’s bedroom as explosive devices, destructive devices, and bombs. The determination that a bomb is a destructive device is not beyond the ken of the jury.

(b) Initially, we note that ordinarily “[w]here there has been no written request to charge, failure to give the charge is not error.” (Punctuation omitted.) Bartel v. State. However, we have found situations where failure to give a charge on the defendant’s sole defense, even without a request, was reversible error. Stiles v. State. “The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” Tarvestad v. State.

In the present case, the trial court was not required to charge on the definition of fireworks because there was no evidence presented that the items found in Turner’s bedroom for which he was charged with manufacturing were firecrackers and not bombs. Although Turner testified that he made firecrackers, he did not testify that the items found in his bedroom were firecrackers. In fact, the firecrackers that he described making did not resemble the items found. The only testimony regarding the items found in Turner’s bedroom was introduced by the State and indicated that such items were bombs. Therefore, under the facts of this case, a charge on the manufacturing of firecrackers would not have been adjusted to the evidence. See Edwards v. State (failure to charge on lesser offense is not error where there is no evidence of the lesser offense).

6. In nine enumerations of error Turner contends that his trial counsel was ineffective. Turner asserts that his trial counsel failed by: not obtaining a ruling on his motion to suppress the evidence found in his bedroom; not objecting to the testimony regarding the bank notes; introducing additional bank notes; not objecting to the reference to the Centennial Olympic bombing; asking the State’s expert to compare Turner’s bombs to those made by the Unibomber; not obtaining a ruling on his motion to suppress his statements made to the paramedic; not requesting a jury charge on the definition of destructive devices; not reserving objections to the jury charge; and not properly communicating a plea bargain. The trial court denied Turner’s motion for new trial and found that Turner had received effective assistance of counsel. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Garrett v. State

To establish a claim of ineffective assistance of counsel, [Turner] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Turner] must establish both the performance and the prejudice components of the Strickland test. Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citation and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669. “Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Clay v. State, 232 Ga. App. 656, 657 (503 SE2d 560) (1998); Strickland v. Washington, supra at 689.

McGhee v. State

[Turner] did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, [Turner] made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. Garrett v. State, [supra at 873 (1)]. See also Harris v. State, 198 Ga. App. 503 (402 SE2d 62)[, rev’d on other grounds, 261 Ga. 386 (405 SE2d 482)] (1991); McCarthy v. State, 196 Ga. App. 839, 841 (4) (397 SE2d 178) (1990); Allsop v. State, 196 Ga. App. 379, 381-382 (396 SE2d 47) (1990); Balduf v. State, 190 Ga. App. 233 (378 SE2d 409) (1989). Although arguendo [Turner’s] representation may have been less than perfect, there is no indication in the record that the conduct of his counsel met the Strickland v. Washington, [supra,] criteria denoting ineffective assistance. A defendant is entitled not to perfect representation but to reasonably effective assistance. See Gabler v. State, 177 Ga. App. 3, 6 (338 SE2d 469) (1985). The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. Griner v. State, 192 Ga. App. 283 (384 SE2d 398) (1990). Anderson v. State, 197 Ga. App. 54, 55 (397 SE2d 557) (1990).

Decided September 19, 2000

Johnson, Word & Simmons, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

(Punctuation omitted.) Foreman v. State.

With these principles in mind, we have reviewed the trial court’s determination that Turner was afforded effective assistance of counsel. We find that either: (a) Turner’s claims are substantively merit-less as addressed in the Divisions above; (b) Turner failed to show affirmatively by the record in his motion for new trial that his alleged errors were not the result of trial strategy; or (c) the alleged errors “were not shown to have prejudiced [Turner’s] defense so that there is a reasonable possibility that the outcome of the proceedings would have been different.” Braswell v. State. Therefore, the trial court’s determination was not clearly erroneous.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Parrott v. State, 240 Ga. App. 173, 175 (2) (523 SE2d 29) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Although Turner’s trial counsel waived any error with regard to this enumeration by failing to secure a ruling on his motion to suppress, we address the merits of the motion because it relates to Turner’s ineffective assistance of counsel claim that is addressed in Division 6.

        Howard v. State, 207 Ga. App. 125, 126 (1) (427 SE2d 96) (1993).

        Williams v. State, 166 Ga. App. 798 (305 SE2d 489) (1983).

        Ford v. State, 214 Ga. App. 284, 286 (3) (447 SE2d 334) (1994).

        Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990).

        Underwood v. State, 218 Ga. App. 530, 531 (1) (462 SE2d 434) (1995).

        Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888) (1990).

        Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298) (1990).

       OCGA § 24-9-20 (b).

        Benford v. State, 272 Ga. 348, 349-350 (3) (528 SE2d 795) (2000).

        Bennett v. State, 262 Ga. 149, 154 (14) (414 SE2d 218) (1992).

        Baker v. State, 238 Ga. App. 285, 288 (2) (518 SE2d 455) (1999).

        Griffin v. State; 230 Ga. App. 318, 322 (496 SE2d 480) (1998).

        Floyd v. State, 193 Ga. App. 17 (387 SE2d 16) (1989).

        Bartel v. State, 202 Ga. App. 458, 459 (3) (414 SE2d 689) (1992).

        Stiles v. State, 242 Ga. App. 484, 486 (1) (529 SE2d 913) (2000).

        Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

        Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994).

        Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

        McGhee v. State, 237 Ga. App. 541, 543-544 (1) (515 SE2d 656) (1999).

        Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

        Braswell v. State, 245 Ga. App. 602, 606-607 (538 SE2d 492) (2000).


text:
    A00A1163.
    BECTON v. TIRE KING OF NORTH COLUMBUS, INC.
    (539 SE2d 551)
   Blackburn, Presiding Judge.

In this static defect trip and fall case, Peggy Becton appeals from the trial court’s grant of summary judgment to Tire King of North Columbus, Inc. on her claim, contending that genuine issues of material fact remain. For the reasons set forth below, we affirm.

We review the grant of summary judgment de novo. Jamsky v. HPSC, Inc.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Lau’s Corp. v. Haskins.

Viewing the evidence favorably to Becton, the record shows that, on Saturday, January 3, 1998, she and her friend Ervine Smith had just returned from an out-of-town visit when they noticed a screw stuck in one of the car’s tires. They drove to a nearby Tire Kang shop, but, as it was afternoon, the shop employees had already left for the day. The shop manager called another Tire King, and that Tire King indicated they could fix the tire.

Upon arriving at the second Tire King, Becton and Smith entered the store from a side entrance. Smith held the door for Becton, who walked directly to the counter. Looking straight ahead, she failed to notice to her left a large, permanent planter used to display tires located four or five feet from the counter. One of the employees asked if he could help her, but another employee spoke up, saying that they had spoken on the phone. However, as he and Becton began their conversation, his phone rang.

While Becton waited for him to finish the call, other customers approached the counter. Becton voluntarily moved back from the counter so that the other customers could take care of their business. Taking three steps backward without looking, she tripped and fell when her leg hit the base of the planter. The planter was made of railroad ties, approximately nine inches high. The planter itself was rectangular in shape, several feet long, and contained a com plant, other greenery, wood chips and several tires. Becton’s knee was injured as a result of the fall, and she subsequently sued Tire King.

Tire King moved for summary judgment on Becton’s trip and fall claim, contending that Becton failed to exercise ordinary care when she walked backward without looking. The trial court granted summary judgment to Tire King without comment.

The situation here involved a static condition, the large planter. A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it. Poythress v. Savannah Airport Comm.; Wright v. JDN Structured Finance. “[If] nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.” Poythress, supra.

Given the size and shape of the planter, as well as the greenery, tires and other items on display, the planter was an open and obvious condition and, therefore, could have been avoided in the exercise of ordinary care. See Wright, supra. It was not inherently dangerous. Consequently, “the issue [in this case] is whether, taking into account all the circumstances existing at the time and place of [Becton’s] fall, [she] exercised the prudence the ordinarily careful person would use in a like situation.” Robinson v. Kroger Co.

In the present case, there is evidence that Becton’s injuries were caused by her own negligence. Becton had never been in the Tire King store before. After entering the store without looking to the right or left, Becton took several steps backward, again without looking. Failure to look does not necessarily constitute failure to exercise ordinary care, see Robinson, supra; however, in the present case, we find that the evidence is plain and palpable that, by walking blindly backward in a store which she had not visited before, Becton failed to exercise the prudence of an ordinarily careful person. See Parker v. Welborn (plaintiff failed to exercise ordinary care when she walked blindly into an unfamiliar room through a closed door and fell down stairs); Wright, supra (plaintiff failed to exercise ordinary care when she tripped over high, yellow-painted curb); Carey v. W. R. Grace & Co. (plaintiff failed to exercise ordinary care when he walked backward without looking and tripped over a pallet). The trial court did not err in granting defendant’s motions for summary judgment.

Decided September 19, 2000.

Roper & McPherson, John W. Roper, Dennis P. McPherson, for appellant.

Webb, Carlock, Copeland, Semler & Stair, William E. Zschunke, Melissa C. Duffey, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Jamsky v. HPSC, Inc., 238 Ga. App. 447 (519 SE2d 246) (1999).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 306 (3) (494 SE2d 76) (1997).

        Wright v. JDN Structured Finance, 239 Ga. App. 685, 686 (2) (522 SE2d 4) (1999).

        Robinson v. Kroger Co., 268 Ga. 735, 749 (493 SE2d 403) (1997).

        Parker v. Welborn, 236 Ga. App. 344, 346 (1) (511 SE2d 917) (1999).

        Carey v. W. R. Grace & Co., 221 Ga. App. 728, 730 (3) (a) (472 SE2d 524) (1996).


text:
    A00A1184.
    BROWN v. THE STATE.
    (539 SE2d 545)
   Pope, Presiding Judge.

Johnny Mack Brown was tried for aggravated assault with intent to murder, hijacking a motor vehicle, two counts of armed robbery and two counts of aggravated assault. He was convicted of armed robbery, two counts of aggravated assault, aggravated battery, hijacking a motor vehicle and the lesser offense of theft by taking; he was acquitted of one count of aggravated assault. He appeals, raising four enumerations of error. For the following reasons, we vacate one conviction of aggravated assault; we affirm the remainder of the judgment.

Evidence at trial showed that around 11:00 a.m. on December 22, 1997, Brown shot Ricky Eberhardt, who was a courier guard, in the parking lot of a large shopping center. Brown came up behind Eberhardt as he was loading a money deposit into the armored truck. Without saying a word, Brown shot Eberhardt three times with a .45 caliber semi-automatic handgun. Two shots hit Eberhardt in the back of his body, while the third struck him in the front. Eberhardt fell to the ground next to the armored vehicle, and Brown grabbed the moneybag, which contained more than $146,000, and ran across the busy parking lot. James Pearce, Eberhardt’s co-worker, who was inside the armored vehicle, came out of it when he heard the shots. He followed Brown across the parking lot. Officer Bobby Tribble, an off-duty instructor at the Northeast Georgia Police Academy, was inside the Wal-Mart store and also heard the gunshots. He went outside and saw Brown holding a large canvas bag in one hand and a weapon in the other.

Both Tribble and Pearce followed Brown toward the exit of the shopping center. In front of the Upton’s store, Brown confronted Raymond Davenport, who was waiting in his car for his wife. Brown pointed his weapon at Davenport and stated several times that he wanted the car.

At about this time, Pearce (the co-worker of wounded Eberhardt) saw a police car and fired his revolver in the air to alert the police to Brown’s location. Brown then turned and pointed his gun in Pearce and Tribble’s direction. Brown opened fire on the two, and, as Tribble ducked behind the tire of a vehicle, Brown impaled the tire with a shot. Tribble then pulled his gun and returned fire. He fired three shots, grazing Brown once and striking Davenport’s vehicle twice.

Although Davenport was in his vehicle when the shooting began, he jumped out of his car when he heard the shots. Brown then jumped into Davenport’s car with his gun and the money and headed to the exit. Brown left behind his car which was parked back-end first in the parking lot of an adjoining restaurant. Brown then drove across the highway to Georgia Square Mall where he was apprehended in the common area. A police officer told Brown to stop several times at which point Brown raised his hands and eventually, as instructed, lay down on the ground. When apprehended, Brown was carrying a pistol and plastic pouches containing the stolen money.

After his arrest and after being read his rights, Brown confessed to all of the acts; he stated that he committed the crimes because he was trying to be killed by a police officer. He gave a statement to the police in which he explained that he had wanted to kill himself the night before, but had been unable to do so. Accordingly, Brown had gone to the mall with the specific purpose of doing something that would prompt a law enforcement officer to shoot him. He stated that he assumed that Eberhardt was wearing a bulletproof vest and he tried to shoot him where he would be protected by the vest.

In September 1998, about nine months after committing the crimes outlined above, Brown escaped from jail. Brown was picked up by the police in November 1998, in Florida.

At trial, Brown presented an insanity defense. In this regard, he presented the testimony of a psychologist who testified that Brown was suffering from severe recurrent depression and a borderline personality. Nevertheless, this expert also testified that, in his opinion, Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion. Furthermore, testimony from the two mental health experts called by the State and by the court was also that Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion which, if true, would have justified his acts.

1. Brown argues that the court erred by failing to merge the conviction and sentence for aggravated assault with intent to murder with the aggravated battery. Citing Lowe v. State, 267 Ga. 410, 411 (1) (478 SE2d 762) (1996), Brown contends that the act which formed the basis for these crimes was the same: the shooting of Eberhardt. He argues that he committed one continuous act and that therefore there was a factual merger.

The State, citing Grace v. State, 262 Ga. 746, 747-748 (2) (425 SE2d 865) (1993), argues that the crimes do not merge. The State argues that the shots which formed the basis of the aggravated battery were those to Eberhardt’s elbow and to his left back and spine; these shots caused Eberhardt to lose use of his arm and some use of his legs. The State contends that the assault with intent to murder was based on the third shot which Brown fired which struck Eberhardt’s bulletproof vest, resulting in a welt and a mark.

Evidence at trial was that Brown shot Eberhardt three times in quick succession. With regard to the gunshots, Eberhardt testified: “[t]o me the duration was pretty much like bam, bam, bam.” Eberhardt dropped his moneybag and fell to the ground. Eberhardt’s coworker stated: “I heard something like a fire pop, and I seen Rick turn around and looking. And I’rn like Rick, you okay. You okay. And then I heard rapid fire pop, pop like that. Then I heard him saying Oh, Lord, have mercy.” In Brown’s statement in which he confessed the crime, he stated that he did not know how many times he shot Eberhardt.

The issue of whether the firing of multiple gunshots may serve as the basis for separate charges has been addressed several times. In Lowe v. State, 267 Ga. 410, the defendant was charged with various crimes including malice murder and aggravated assault. The evidence showed that Lowe fired one shot which struck the victim in the arm and caused him to fall. Lowe then walked over to the victim and stood above him while he pled for his life. He then fired a second shot which struck the victim in the abdomen and killed him. Id. at 411 (1).

Lowe argued that the aggravated assault merged into malice murder as a matter of fact. Our Supreme Court rejected his argument, concluding that the separate convictions and sentences were authorized because Lowe committed the aggravated assault independently of the act which caused the victim’s death. Because the aggravated assault was proven by evidence that was not used to prove the murder itself and because the aggravated assault was completed before the murder was committed, the court concluded that the crimes did not merge. Lowe v. State, 267 Ga. at 412 (1) (b). “If, however, the murder itself resulted from the single act of firing a series of shots in quick succession at the victim, no aggravated assault independent of the murder would be shown.” (Citations and punctuation omitted.) Id.

Similarly, in Grace v. State, 262 Ga. at 747-748 (2), our Supreme Court concluded that the evidence established that the defendant had committed both an aggravated assault and an aggravated battery of Warren Jackson during an armed robbery. In Grace, the evidence showed that Jackson, the cash register operator, was shot between his eyes after ringing up a sale. The force of the gunshot knocked Jackson to the floor where he heard his co-worker plead for his life and then heard a second gunshot. Jackson was then shot a second time. Id. The State argued that the aggravated battery was established by evidence of the first shot, which blinded Jackson in one eye, and that the second shot constituted an aggravated assault. The court agreed, concluding that “[t]he evidence used to prove the commission of the aggravated assault was not used at all in proving the commission of the aggravated battery.” Id. at 748 (2).

On the other hand, in Montes v. State, 262 Ga. 473, 474-475 (1) (421 SE2d 710) (1992), our Supreme Court concluded that the evidence failed to show that the defendant had perpetrated both an aggravated assault and a malice murder of the deceased victim. In Montes, the evidence showed that using a semi-automatic weapon, the defendant had fired a number of shots that had struck several victims. One of the victims had been struck by three bullets; defendant was convicted of malice murder for the infliction of the fatal wound, and for aggravated assault for the infliction of the two nonfatal wounds. Id. at 474, n. 3.

Applying the “actual evidence” test of the substantive double jeopardy provisions, OCGA §§ 16-1-6 and 16-1-7 (a), the Montes court concluded that the evidence used to prove the aggravated assault — that the defendant fired a deadly weapon and wounded the deceased victim — was also used to prove that defendant had committed malice murder. Accordingly, the court set aside the conviction and sentence for the aggravated assault. In doing so, the court stated: “[w]e take this opportunity to disapprove the language in Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977), that each of a series of shots fired in quick succession constitutes a ‘renewed assault.’ ” Id. at 474-475 (1).

A review of the cases concerning factual merger when multiple gunshots are fired illustrates the complexity of this issue. As with any factual merger question, the dispositive issue is whether the State “used up” its evidence in proving the crime: “The ‘actual evidence’ test, in effect, means that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6 (1).” (Citations and punctuation omitted.) Montes v. State, 262 Ga. at 474 (1). Contrary to the State’s argument here, the question is not whether medically distinguishable injuries were inflicted; the question is whether the State proved two completed crimes. See, e.g., Fitzpatrick v. State, 268 Ga. 423 (1) (489 SE2d 840) (1997) (evidence used to prove that defendant committed an aggravated assault by cutting and stabbing the decedent more than 12 times was the same as that used to prove that he committed the malice murder and the crimes merged); Davis v. State, 186 Ga. App. 491 (367 SE2d 884) (1988) (two charges of aggravated assault were part of a single transaction when shots fired within sixty seconds and no evidence that assault with the pistol was complete). Compare Drane v. State, 265 Ga. 255, 260 (9) (455 SE2d 27) (1995) (aggravated battery did not merge with malice murder where victim’s throat was slashed at least six times after she was shot in the head and a rational trier of fact could have found defendant guilty of aggravated battery independent of the act causing the victim’s death); Wright v. State, 243 Ga. App. 167 (532 SE2d 724) (2000) (no factual merger where the evidence showed that defendant stabbed his wife twenty-six times because the two acts which disfigured the victim’s arm and heart supported the conviction for the aggravated battery while the remaining twenty-four acts supported the conviction for aggravated assault); Welch v. State, 216 Ga. App. 256 (454 SE2d 566) (1995) (evidence supported two aggravated assault convictions where defendant engaged in two assaults punctuated by several minutes in which defendant fired no shots and jury could find that first assault was completed before defendant resumed shooting).

In this case the evidence showed only that Brown’s actions were the result of a “single act of firing a series of shots in quick succession at the victim,” Lowe v. State, 267 Ga. at 412 (1) (b), and thus that the aggravated assault merged into the aggravated battery. Furthermore, the indictment in this case alleged only one act: the shooting of Eberhardt. Count 2 alleged that Brown unlawfully assaulted Eberhardt with the intent to murder by shooting him with a semiautomatic pistol; Count 3 accuses Brown of aggravated battery, charging that Brown “did maliciously cause bodily harm to Rick Eberhardt by depriving him of a member of his body by shooting Ricky Eberhardt” with a semi-automatic pistol. Because the evidence used to prove Count 2 of the indictment was also used to prove Count 3, the conviction and sentence for the aggravated assault of Eberhardt should be set aside.

2. Next Brown claims that the court below erred in denying his motion to strike for cause prospective juror Keith Hill. We disagree.

Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]

Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). See generally OCGA § 15-12-164. And, unless the trial court manifestly abuses its discretion in deciding whether or not to discharge a prospective juror, this court will not reverse the trial court’s decision. Harris v. State, 178 Ga. App. 735, 736 (344 SE2d 528) (1986).

During voir dire, juror Hill indicated that he had seen newspaper articles regarding the case. He also indicated that he worked at the same Dupont plant with Eberhardt’s brother, although at the time of trial they were working different shifts. Hill also stated that he knew Eberhardt, as an acquaintance. Hill stated that he knew the district attorney because of his job as a groundskeeper at Athens Country Club. Nevertheless, Hill stated without hesitation that he would be able to judge the case solely on the evidence presented, and he gave no indication that he would be prejudiced against Brown. ‘When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.” Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992).

In this case, the record as a whole shows no abuse of the trial court’s discretion in its failure to remove Hill for cause. See Fuller v. State, 230 Ga. App. 219 (1) (496 SE2d 303) (1998).

3. Brown argues that the court erred in denying his pre-trial motion for change of venue because the extensive newspaper and radio coverage and the nature of the offenses created an inherently prejudicial environment.

A motion for change of venue based upon excessive pretrial publicity invokes the trial court’s discretion, and its ruling will not be disturbed absent an abuse of that discretion. As the movant, [Brown] had the burden of showing (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.

(Citations and punctuation omitted.) Dixson v. State, 269 Ga. 898 (2) (506 SE2d 128) (1998).

Brown does not argue that actual prejudice resulted from the jury selection process; he contends that inherent prejudice arose from pre-trial publicity. He does not specifically argue here how that inherent prejudice manifested itself. In any case, we have considered the various factors regarding whether inherent prejudice existed, see, e.g., Chancey v. State, 256 Ga. 415, 429 (5) (349 SE2d 717) (1986), and find nothing in the record to indicate that the trial court abused its discretion in denying the motion. Moreover, in denying the motion, the trial court noted that 20 of the 25 articles submitted by Brown with his motion to change venue dealt with his escape. Importantly, the court noted: “Defense Counsel admits that there probably would not have been a Motion for Change of Venue without the additional media coverage from the alleged escape.” In Goodman v. State, 255 Ga. 226, 230 (14) (336 SE2d 757) (1985), the court stated:

we observe that courts will generally be less likely to closely scrutinize the prejudicial effect of publicity upon a defendant’s trial in cases where that publicity is created by the defendant’s escape attempt than in cases where the publicity stems from other sources.

For the additional reasons set forth in Goodman, we reject Brown’s contentions.

4. Finally, Brown contends that the evidence showed that he was insane at the time of the crimes and that the guilty verdicts are insupportable.

The defendant may be found “not guilty by reason of insanity at the time of the crime” if he meets the criteria of Code Section 16-3-2 (lacked mental capacity to distinguish between right and wrong in relation to the crime) or 16-3-3 (acted because of a delusional compulsion which overmastered defendant’s will to resist committing the crime) at the time of the commission of the crime. OCGA § 17-7-131 (c) (1). The appropriate standard of appellate review ... is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that appellant failed to prove by a preponderance of the evidence that [he] was insane at the time of the (crimes). [Cits.]

Decided September 19, 2000.

Thomas J. Killeen, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

Rodriguez v. State, 271 Ga. 40, 42 (1) (518 SE2d 131) (1999).

While there was expert evidence from three mental health professionals that Brown suffered from a severe recurrent depression and borderline personality, there was also expert evidence that Brown was able to differentiate between right and wrong, that he was not suffering any delusions that would have justified his acts, and that he was not legally insane at the time of the crimes. We conclude that the evidence was sufficient to support the jury’s finding that Brown was not legally insane at the time of his crimes. Furthermore, we find that a rational trier of fact could find from the evidence adduced at trial proof of Brown’s guilt of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed in part and vacated in part.

Miller and Mikell, JJ, concur.

       Count 2 of the indictment charges Brown with aggravated assault with intent to murder, stating that Brown “did unlawfully make an assault upon the person of Ricky Eberhardt with intent to murder by shooting him” with a semi-automatic pistol. Count 3 accuses Brown of aggravated battery, charging that Brown “did maliciously cause bodily harm to Rick Eberhardt by depriving him of a member of his body by shooting Ricky Eberhardt” with a semi-automatic pistol. Assault is defined in OCGA § 16-5-20, and the provisions under which an assault becomes an aggravated assault, including intent to murder, are set forth in OCGA § 16-5-21 (a). An aggravated assault is defined as an assault with the intent to murder. OCGA § 16-5-24 provides the definition for aggravated battery, stating:
      [a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.
      Brown does not argue that there was a legal merger.


text:
    A00A1361.
    COOMBS v. KOBLASZ.
    (539 SE2d 562)
   Blackburn, Presiding Judge.

In this defamation action, Franklyn K. Coombs appeals the dismissal of his case against Arthur Koblasz, contending that the trial court erred in finding that it lacked personal jurisdiction over Koblasz due to defective service of process. Because the evidence of record supports the trial court’s finding, we affirm.

“On the issue of improper service, as timely raised in [Koblasz’s] answer, the [trial] court was the trier of fact. In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence.“(Punctuation omitted.) Yeary v. Bell.

The record shows that Coombs attempted to serve Koblasz pursuant to OCGA § 9-11-4 (d) (7) by “leaving copies [of the summons and complaint] at [his] dwelling house or usual place of abode with some person of suitable age and discretion residing therein.” On June 15, 1995, a process server for Coombs delivered the summons and complaint to Victor Vaysman at Koblasz’s home. Vaysman, however, was not a resident there. Testimony showed that he was a student of Koblasz’s at Georgia Tech who had agreed to gather Koblasz’s mail and water his plants while he was teaching a course in Spain. At the time that process was served, Vaysman was living at another address with his parents. Although Coombs attempted to dispute Vaysman’s testimony with an affidavit from the process server stating that Vaysman told him that he was Koblasz’s roommate, Coombs did not offer the affidavit into evidence.

Decided September 19, 2000.

Lackland & Heyward, Theodore H. Lackland, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Kathryn L. Allen, Assistant Attorney General, for appellee.

On appeal, Coombs argues that the process server’s affidavit, which was reviewed by the trial court, raises a question as to Vaysman’s credibility and thereby makes the dismissal of his action improper. However,

[t]he trial court as trier of fact of this motion to dismiss for invalid service of process could make those findings of fact necessary in support of his determination and in doing so could weigh the evidence relevant to such factual issues under consideration and judge witness credibility pertaining to such issues. Conversely, determining witness credibility and weighing the evidence are not appellate court functions.

(Citations and punctuation omitted.) Yeary, supra.

It is not the function of this Court to determine the credibility of the witnesses involved. The record in this case supports the finding that Koblasz was not properly served, and we find no error in the trial court’s ruling. Because of this holding, Coombs’ remaining enumeration of error is rendered moot.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Yeary v. Bell, 228 Ga. App. 522, 524 (2) (492 SE2d 278) (1997).


author: Phipps, Judge.

text:
    A00A1677.
    FLEMING v. FLEMING.
    (539 SE2d 563)
   Phipps, Judge.

Mary Ellen Fleming appeals the trial court’s dismissal of part of her complaint. She contends that the trial court erred by finding that she could not proceed against her former husband on claims relating to his conversion of stock certificates owned solely in her name. We agree and reverse.

Mary Ellen Fleming filed a complaint for divorce against John Van Fleming. While the divorce action was pending, she discovered that he had forged her name to certain stock certificates and, without her knowledge or consent, redeemed them, and pocketed the money for himself. She then amended the divorce action to add a second count to recover damages including punitive damages based on John Fleming’s purported commission of theft, forgery, and conversion. The trial court ordered the bifurcation of the action and ruled that the divorce action would be tried first. The court reserved deciding whether SunTrust Bank could be added as a party defendant.

After the conclusion of a jury trial on Count 1 and a few days before the scheduled trial on Count 2, Mary Ellen Fleming filed a “trial amendment” in which she added claims for attorney fees and stubborn litigiousness. John Fleming responded by moving to dismiss the remaining count, claiming it was barred by res judicata and collateral estoppel. He argued that the stock ownership issue should have been adjudicated “in the prior trial of this action in which a verdict was entered.” He urged that “[p]laintiff is estopped from seeking a retrial of issues that were or could have been presented for trial.”

After considering his motion, the trial court ordered the dismissal of Count 2. In so doing, the court primarily relied upon the codification of the crime of conversion under OCGA § 16-8-4 (a). The court noted that within the criminal code, the statutory definition of “property of another” does not include “property belonging to the spouse of [the] accused or to them jointly.” Relying upon the criminal statute defining conversion, the trial court decided that “as a matter of law, the Defendant could not have converted the Plaintiff’s stock.” Finding that Mary Ellen Fleming’s complaint failed to state a claim for which relief could be granted, the court dismissed Count 2 in its entirety.

Mary Ellen Fleming contends that the trial court erred by finding as a matter of law that she could not bring a claim for conversion based on an allegation that her then husband forged her name to stock certificates held solely in her name. She argues that the trial court failed to distinguish between the preclusive effect of the criminal code sections defining and punishing the crime of conversion and the somewhat less restrictive rules governing civil tort actions between spouses.

Whether John Fleming could be criminally prosecuted for conversion was never at issue. Instead, the question was whether Mary Ellen Fleming could maintain the tort claims within the context of the divorce proceeding. Notwithstanding the trial court’s finding to the contrary, that action was not foreclosed.

Historically, the Supreme Court of Georgia and the General Assembly have distinguished between those interspousal tort claims involving property rights and those involving personal torts. In Eddleman v. Eddleman, the Supreme Court determined that the doctrine of interspousal immunity created a bar only to the latter claims. Similarly, in Shah v. Shah, the Supreme Court explicitly endorsed a wife’s right to amend her complaint for divorce to add a tort claim relating to property, a claim that her husband had fraudulently conveyed certain property to his father. In a recent case, Bearden v. Bearden, this court reached a similar result. We held that when there is no marital harmony to preserve and there exists no possibility of collusion between spouses, interspousal immunity does not automatically bar an action sounding in tort. Here, there was no marital harmony to preserve, and the likelihood of collusion was apparently nonexistent. For these reasons, the doctrine of interspousal immunity did not foreclose these tort claims even assuming the claims had arisen during the marriage. Accordingly, we find that the trial court erred as a matter of law by dismissing the tort claims.

Decided September 19, 2000

Greer, Klosik, Daugherty & Swank, Frank J. Klosik, Jr., Paul R. Koehler, for appellant.

Harrison & Harrison, G. Hughel Harrison, for appellee.

Notwithstanding John Fleming’s contention to the contrary, the tort claims at issue have not already been litigated. During the hearing on a motion to add SunTrust as a party defendant, apparently on its own initiative, the trial court decided to bifurcate the trial of the two counts and refused to allow the counts to be tried together. The doctrine of collateral estoppel applies when an issue of fact or law is actually litigated, is determined by a valid judgment, and that determination is essential to the judgment. Although John Fleming contends that the issues of forgery and the redemption of the stock were tried at length during the divorce proceedings, he fails to support these assertions with any citations to the record. Because the resolution of the tort claims raised in Count 2 has not as yet occurred, Mary Ellen Fleming is not collaterally estopped from pursuing those claims.

Judgment reversed.

Johnson, C. J., and Smith, P. J., concur.

       During a contempt hearing, John Fleming admitted that without his wife’s knowledge or consent, he signed her name to stock certificates issued solely in her name, then transferred $16,105.28 to a joint account with SunTrust Bank. He testified that when he sold his wife’s stock, they had already separated but his wife had not yet filed for divorce. He admitted, however, that after being served with the divorce suit, he subsequently transferred $16,000 of the proceeds from the sale of the stock to an investment account over which he had sole control.

       OCGA § 16-8-1 (3).

       OCGA § 19-3-9 provides that “[t]he separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.” This Code section protects the right of a spouse to keep, acquire, and control separate property.

        Barron v. State, 219 Ga. App. 481, 482 (465 SE2d 529) (1995); Calloway v. State, 176 Ga. App. 674, 677 (4) (337 SE2d 397) (1985); but see State v. Kennedy, 266 Ga. 195-196 (467 SE2d 493) (1996).

       Counsel for Mary Ellen Fleming conceded at the hearing on the motion to dismiss that absent proof of the elements of theft and conversion, actual damages would not be obtainable.

       See Shah v. Shah, 270 Ga. 649, 650 (1) (513 SE2d 730) (1999).

        Eddleman v. Eddleman, 183 Ga. 766, 771 (189 SE 833) (1937) (husband could maintain suit to recover personal property converted by wife); compare OCGA §§ 19-3-8 and 19-3-9.

        Eddleman, supra.

       See Shah, supra; OCGA § 9-11-18 (a) provides general authority to join other claims in a divorce action.

       231 Ga. App. 182, 183-184 (499 SE2d 359) (1998).

       Id.; see also Dester v. Dester, 240 Ga. App. 711, 713 (3) (523 SE2d 635) (1999); Shoemake v, Shoemake, 200 Ga. App. 182, 183 (407 SE2d 134) (1991) (physical precedent only).

       See Robeson v. Intl. Indent. Co., 248 Ga. 306, 307 (1) (282 SE2d 896) (1981).

       Compare Stanfield v. Stanfield, 187 Ga. App. 722 (371 SE2d 265) (1988) (application of interspousal tort immunity barred tort claims by wife against her former husband).

       See Shah, supra.

       The court declined a request to issue a certificate of immediate review of its order to sever the trial of the counts and to defer ruling on the addition of the bank as a party.

        Kent v. Kent, 265 Ga. 211 (1) (452 SE2d 764) (1995).

       See Motherly v. Kinney, 227 Ga. App. 302, 304 (2) (489 SE2d 89) (1997).


text:
    A00A1005.
    DEEP SIX, INC. et al. v. ABERNATHY et al.
    (538 SE2d 886)
   Miller, Judge.

The issues on appeal are (1) whether undisputed evidence that sellers of a business had title and the right to immediate possession of tax refund checks arising from the business’s pre-sale operations authorized the court to grant the sellers summary judgment on their trover action, and (2) whether the trial court erred in holding that the sellers had not agreed to indemnify the purchaser for all appellate attorney fees connected with a pre-sale tax dispute of the business with the Internal Revenue Service. We hold that the court correctly granted the sellers summary judgment on the trover action but that it erred in granting the summary judgment on the indemnity question. Accordingly, we affirm in part and reverse in part.

Elaine Marcus (as executrix of an estate), John Scasino, and John Abernathy sold to Deep Six, Inc. a business whose alcoholic beverage licenses were held by an allegedly nonprofit corporation known as Post 112 of the Jewish War Veterans. At the time, all parties knew that the IRS was auditing Post 112 and calling into question its nonprofit status. The parties executed an indemnity agreement, which they attached as Exhibit I to the simultaneously executed purchase agreement and which they incorporated into the purchase agreement by reference. The indemnity agreement obligated the sellers to indemnify Deep Six for expenses arising out of pre-sale operations of the business, and the purchase agreement specifically obligated the sellers to pay expenses and tax payments resulting from the ongoing audit. The sellers deposited money in an escrow account to defray the anticipated expenses.

As a result of its audit, the IRS claimed that Post 112 was not entitled to nonprofit status and demanded back taxes and fines. Deep Six sought to appeal this determination, but the sellers refused to fund the appellate attorney fees. Deep Six intercepted three tax refund checks, drafted to Post 112 for pre-sale tax payments of the business and admittedly belonging to the sellers, and announced it would hold these until the sellers and it resolved the attorney fees question.

The sellers filed a two-count lawsuit against Deep Six and Post 112, seeking to recover the checks in trover (or in the alternative for conversion damages) and requesting a declaratory judgment construing the agreements such that the sellers were not required to fund any appeal from the loss of tax-exempt status for Post 112. The court granted the sellers summary judgment on both counts, which Deep Six and Post 112 appeal.

1. The undisputed evidence shows that the sellers had both title to and the right to immediate possession of the tax refund checks. Accordingly, the court correctly granted the sellers summary judgment on their trover claim.

2. The declaratory judgment claim hinges on an interpretation of the sellers’ indemnity obligations as set forth in the written contracts. Since the construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract, the trial court must follow a three-step procedure in construing the contract language.

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.

This three-step procedure is a question of law that we review de novo and is independent of those rules allocating burdens of proof on motions for summary judgment.

Here the indemnity agreement obligated the sellers to indemnify Deep Six for “any and all losses, claims, damages, liabilities, costs or expenses including without limitation, attorneys’ fees, and all trial and/or appellate court costs” arising out of or connected with the presale operations of the business. The tax audit and associated appellate attorney fees concerned the pre-sale operations of the business and thus were covered by this indemnity obligation. On its face, this contract language does not appear ambiguous.

The parties addressed the sellers’ indemnity obligations specifically related to the tax audit in the text of the purchase agreement executed the same day, and thus the agreements must be construed together. In the purchase agreement the sellers agreed to indemnify Deep Six for “any and all expenses and tax payments accruing to the non-profit corporation or the Business as a result of said audit and investigation, including but not being limited to, accountants and attorneys’ fees and expenses authorized and approved by Sellers.” The reference to “attorneys’ fees and expenses authorized and approved by Sellers” could be construed to give the sellers the right to not pay those fees which they do not authorize and approve and thus could possibly create an ambiguity or inconsistency with the more expansive language of the general indemnity agreement and with the “any and all expenses” language of the purchase agreement provision.

At this point, therefore, we apply the rules of construction to resolve the potential ambiguity. OCGA § 13-2-2 (4) directs that we favor that construction which upholds the contract in whole and in every part, and that we look at the whole contract in arriving at the construction of any part. We should avoid any construction that renders portions of the contract language meaningless. Finally, when a provision specifically addresses the issue in question, it prevails over any conflicting general language.

We construe the language in the two agreements as consistent with each other, and thus one provision need not prevail over the other. The indemnity agreement covers “any and all” expenses, including appellate attorney fees, connected with pre-sale operations of the business. The purchase agreement covers “any and all expenses” resulting from the audit, “including but not being limited to, accountants and attorneys’ fees and expenses authorized and approved by” the sellers. The use of “any and all” and “but not being limited to” seems calculated to give the most expansive application possible. Thus, the purchase agreement does not purport to limit the covered legal expenses to only those approved by the sellers, but simply enumerates those as one specific example of audit-related expenses that are covered. The “but not being limited to” language would be rendered meaningless if we interpreted the provision to exclude legal expenses not approved by the sellers. Thus, when read as a whole, the two agreements are consistent and obligate the sellers to pay appellate attorney fees resulting from the audit.

The trial court erred in declaring that the sellers were not responsible for all accountant and attorney fees and expenses connected with the tax audit. Whether approved by the sellers, appellate in nature, or associated with preserving the tax-exempt status of Post 112, all expenses resulting from the audit are covered. Summary judgment in favor of the sellers on the declaratory judgment count is reversed, and the case is remanded for proceedings consistent with this opinion.

Decided September 8, 2000

Reconsideration denied September 20, 2000

O. Jackson Cook, for appellants.

Ted Marcus, for appellees.

Judgment on trover claim affirmed.

Judgment on declaratory judgment claim reversed.

Pope, P. J., and Mikell, J., concur.

       At some point counsel for Deep Six deposited the checks into his escrow account. Relief was granted in terms of conversion damages.

       See Bulloch County Bank v. Dodd, 226 Ga. 773, 775 (2) (177 SE2d 673) (1970); see generally Mashburn v. Valley Coaches, 112 Ga. App. 320, 321 (1) (145 SE2d 117) (1965) (right to immediate possession alone will support a trover action); Jones v. Brown, 108 Ga. App. 776, 780 (2) (134 SE2d 440) (1963).

       OCGA § 13-2-1; see OCGA § 13-2-3.

       (Citation omitted.) Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986); see Thornton v. Kumar, 240 Ga. App. 897, 898 (525 SE2d 735) (1999).

        Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995).

        Rizk v. Jones, 243 Ga. 545 (255 SE2d 19) (1979); see generally OCGA § 24-6-3 (a). We do not address the escrow agreement also executed as a part of the transaction, since it concerns only when escrow payments may be made to cover the indemnity obligations owed to Deep Six and does not address the extent or scope of those indemnity obligations.

       See Thornton, supra, 240 Ga. App. at 898-899.

        Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 142 (1) (a) (524 SE2d 790) (1999).

        Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 841 (2) (520 SE2d 505) (1999).

       (Emphasis supplied.)

        Bullock v. City of Dallas, 248 Ga. 164, 167 (2) (c) (281 SE2d 613) (1981).