author: Ruffin, Judge.

text:
    A95A1874.
    THE STATE v. GOODMAN.
    (469 SE2d 327)
   Ruffin, Judge.

Robert Scott Goodman was charged with driving under the influence, making an improper left turn and violating an open container ordinance. The State appeals the trial court’s grant of Goodman’s motion to suppress all evidence resulting from a traffic stop. Because the record supports the trial court’s determination that the arresting officer stopped Goodman without reasonable suspicion, we affirm the judgment below.

On January 19, 1995, at approximately 9:30 p.m., Goodman’s vehicle had stopped at a red light in a left-turn-only lane at the intersection of Tara Boulevard and Old Dixie Highway. Goodman was awaiting a green arrow signal when Officer Stubbs drove up behind him and noticed that Goodman had not activated his turn signal. When the arrow turned green, Goodman turned left into a U-turn. Officer Stubbs followed Goodman and immediately stopped him, suspecting he was driving under the influence of alcohol and drugs because Goodman failed to use a turn signal. Officer Stubbs testified that in connection with his four years’ service on the Clayton County Police DUI Suppression Unit, he was trained to identify persons driving under the influence of alcohol and drugs. Officer Stubbs explained that based on his experience in making numerous DUI arrests, turning without the use of turn signals is a common indicator of an impaired driver. However, Officer Stubbs also admitted that from Goodman’s position in the left-turn-only lane, his sole legal option was to turn left; that the U-turn was not illegal; and further that if Goodman had gone straight at the intersection, he would have committed an improper lane change.

1. In its first enumeration of error, the State contends the trial court erred in failing to dismiss Goodman’s motion to suppress because the motion did not contain sufficient “facts showing that the search and seizure were unlawful” as required by OCGA § 17-5-30 (b). The State argues that Goodman’s bare assertion in his motion to suppress that he “was lawfully operating his motor vehicle when he was pulled over by Officer W. S. Stubbs, Clayton County Police” was insufficient to apprise the State of its evidentiary burden in defending against the motion to suppress. The State also contends, contrary to Goodman’s assertion, that the proper standard is whether Officer Stubbs had an articulable suspicion to justify briefly detaining Goodman and not whether Goodman lawfully operated his vehicle. Therefore, the State maintains the motion to suppress did not properly raise a Fourth Amendment issue before the trial court, and the State was not required to produce evidence in rebuttal.

OCGA § 17-5-30 (b) requires that motions to suppress “state facts showing that the search and seizure were unlawful.” (Emphasis supplied.) Thereafter, the State has the burden of proving that the search and seizure were lawful. Id. However, in Lavelle v. State, 250 Ga. 224 (3) (297 SE2d 234) (1982), the court acknowledged that, “with respect to warrantless searches, many of the necessary allegations [in the motion to suppress] are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).” Id. at 227. Thus, to determine the sufficiency of the motion to suppress evidence obtained in a warrantless search and seizure, the court examined the specific allegations set forth in the motion to determine whether those allegations were “sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” Id.

In Goodman’s motion, he alleged not only that he was lawfully operating his motor vehicle on January 19, 1995, when Officer Stubbs pulled him over, but also that he was not committing any crimes or behaving in any manner that would have warranted his arrest; that he was cited for driving under the influence and improper lane change; and that he had broken no laws in Officer Stubbs’ presence which would justify his subsequent seizure. Consequently, the motion revealed the date of the stop, the identity of the person stopped, the identity of the officer who made the stop, the law enforcement organization with which he was affiliated, the nature of the stop (e.g., traffic stop), the offenses with which Goodman was charged, and the conclusion that no such violations occurred which would justify the stop. Moreover, immediately after the trial court denied the State’s motion to dismiss the motion to suppress, the suppression hearing commenced wherein the State called Officer Stubbs to testify and, based on his testimony, argued to the court that Officer Stubbs had an articulable suspicion that Goodman was actually involved in criminal activity or was about to be involved in criminal activity. Accordingly, Goodman’s motion was adequate, and we find no error in the denial of the State’s motion to dismiss.

2. The State next contends that in granting Goodman’s motion to suppress, the court erred in finding that Officer Stubbs lacked sufficient articulable suspicion to stop Goodman’s vehicle.

“ ‘This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. [Cit.] We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous. [Cits.]’ [Cit.] ‘Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. . . . This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.’ . . . [Cit.]” State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994).

The State argues that the trial court failed to consider the totality of the circumstances surrounding the stop, including Officer Stubbs’ considerable experience in detecting impaired drivers; the fact that failure to signal is a common indicator of an impaired driver; the fact that Officer Stubbs actually saw Goodman turn without signaling despite the presence of traffic behind him in violation of OCGA § 40-6-123 (a); and the fact that Goodman made a U-turn out of a left-turn-only lane. The State contends that when all of the evidence is viewed in the proper context, it is apparent that Officer Stubbs’ conduct was neither arbitrary, capricious, harassing nor pre-textual. We disagree because the evidence does not show that Goodman violated OCGA § 40-6-123 in Officer Stubbs’ presence nor would a reasonable officer conclude that Goodman was intoxicated solely because he failed to use a turn signal.

OCGA § 40-6-123 provides as follows: “(a) No person shall . . . turn a vehicle from a direct course or change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section, (b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” (Emphasis supplied.) Thus, the statute contemplates instances in which a turn on a roadway can be made with reasonable safety without the use of a turn signal, i.e., where a signal is not necessary to alert other drivers of a motorist’s intention to turn.

Other than Officer Stubbs’ vehicle, there was no evidence of any other vehicles in the vicinity at the time of Goodman’s turn. Consequently, we must examine whether safety dictated the use of a signal to alert Officer Stubbs of Goodman’s intention to make a U-turn. Officer Stubbs admitted that from Goodman’s position in the left-turn-only lane, his sole legal option was a left turn and that Goodman’s U-turn at the intersection was legal. Under these circumstances, Officer Stubbs could not reasonably maintain that he was unaware of Goodman’s, intention to turn. Therefore, a left turn signal was not necessary, and there was no violation of OCGA § 40-6-123 committed in Officer Stubbs’ presence which alone justified the stop. Compare Eisenberger v. State, 177 Ga. App. 673 (2) (340 SE2d 232) (1986). Furthermore, the traffic stop was not supported by a reasonable suspicion or an objective manifestation that Goodman was or was about to be engaged in criminal activity. See Tarwid v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63) (1987). Although Officer Stubbs testified to his extensive experience in making DUI arrests and in identifying impaired drivers, under the circumstances of this case, the trial court determined that it was not reasonable to conclude, based solely on Goodman’s failure to signal, that he was intoxicated. There was no evidence that Goodman operated his vehicle improperly before stopping at the intersection nor did Officer Stubbs testify that Goodman executed the turn in a manner demonstrating that he was intoxicated. Compare State v. Adams, 186 Ga. App. 87 (366 SE2d 326) (1988) (traffic stop based on defendant’s failure to signal lane change in moderate traffic, weaving between lanes and defendant’s failure to stop before entering the intersection); Huff v. State, 205 Ga. App. 557 (422 SE2d 664) (1992) (traffic stop based on weaving and failure to signal). Accordingly, the trial court did not err in granting Goodman’s motion to suppress based on Officer Stubbs’ unreasonable suspicion that Goodman was intoxicated. Tarwid, supra. See also Clark v. State, 208 Ga. App. 896 (2) (432 SE2d 220) (1993) (physical precedent only).

Decided February 12, 1996.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellant.

Steven M. Frey, for appellee.

Judgment ’ affirmed.

Beasley, C. J., and Pope, P. J., concur.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2098.
    GARRETT v. GARRETT.
    (469 SE2d 330)
   Beasley, Chief Judge.

Cynthia Garrett asks us to revive the child custody action she filed against her former husband, Dr. Wayne Garrett, but the trial court did not err in dismissing it.

Since filing for divorce, Ms. Garrett has been involved in almost constant litigation with Dr. Garrett in two states. She and Dr. Garrett separated in November 1991, and she moved from their home in Marshall County, Alabama, to Georgia with their six-month-old daughter. Ms. Garrett then filed for divorce in the circuit court in Alabama, which entered a divorce decree on April 28, 1993, granting custody of the child to her and visitation privileges to the father. Raising objections over the court’s property division and child support rulings, she appealed the judgment to the Alabama Court of Civil Appeals, which affirmed the judgment on April 22, 1994. Garrett v. Garrett, 637 S2d 1376 (Ala. Civ. App. 1994).

Approximately 40 days later, Ms. Garrett filed this action in Gwinnett Superior Court and sought the “emergency jurisdiction” of the court to suspend and modify the Alabama custody and visitation decree because, she alleged, Dr. Garrett had sexually molested their daughter when she visited him in Alabama during late May 1994. The trial court gave emergency relief by granting a temporary order suspending visitation, and it ordered a hearing. At the July hearing, Ms. Garrett’s attorney stated in his place that the daughter told Ms. Garrett her father put his “skin” in her mouth and that Atlanta-based experts, including social workers, had interviewed her and believed she was relating a credible account of sodomy. None of these experts testified, and the parties stipulated that Ms. Garrett and the couple’s daughter had lived in Georgia since November 1991.

After this action was filed but prior to the July hearing, the circuit court in Alabama entered an order claiming jurisdiction over the custody and visitation issues, forbidding Ms. Garrett to proceed with the Georgia case and inviting her to file a modification petition in that court. On this basis, Dr. Garrett moved at the July hearing for dismissal of the Georgia action for lack of personal and subject matter jurisdiction. The superior court decided to “continue everything” to allow Ms. Garrett time to respond. A new hearing was scheduled for September 1994 but was never held, and the issue of jurisdiction was submitted to the court on briefs only. The court dismissed the action after it found the Alabama court retained jurisdiction and determined, for that reason, that it “should not” exercise any jurisdiction. The only issue before us is whether the Georgia court should have exercised jurisdiction.

When two parents have sought help from the courts of two separate states to resolve a child custody dispute, the Parental Kidnapping Prevention Act (“PKPA”), 28 USC § 1738A, determines which court should give that assistance. Wilson v. Gouse, 263 Ga. 887, 889 (1) (441 SE2d 57) (1995). This “rule of decision for courts to use in adjudicating custody disputes” governs the decision in this case. Thompson v. Thompson, 484 U. S. 174, 183 (108 SC 513, 98 LE2d 512) (1988); Bergmann v. McCullough, 218 Ga. App. 353, 354 (1) (461 SE2d 544) (1995).

Under the PKPA, the Georgia court could not modify the Alabama court’s custody and visitation ruling included with its April 28, 1993, divorce decree so long as that ruling was made consistently with the provisions of the PKPA, unless 1) the Georgia court had jurisdiction over the dispute and 2) the Alabama court either had lost jurisdiction or had declined to exercise it. 28 USC § 1738A (a), (f).

The parties do not dispute that the Alabama court had jurisdiction under the PKPA to enter its original order of April 1993. Indeed, Ms. Garrett filed that action and appealed portions of the judgment, at no time questioning the jurisdiction of the court to hear the matter. Garrett, supra. Neither do the parties dispute that Georgia is the “home state” of their child and was such for six months before Ms. Garrett filed this action. That fact alone would give the Georgia court jurisdiction over the dispute. 28 USC § 1738A (b) (4), (c) (1), (c) (2) (A); OCGA § 19-9-43 (a) (1). The parties agree that the Alabama court has claimed jurisdiction, but they diverge on one crucial question: whether the court in Alabama “lost” jurisdiction when it issued its final order of April 1993.

Subsection (d) of the PKPA provides that a court of the state which made the original custody ruling retains continuing jurisdiction of the matter so long as 1) at least one of the parents or the child remains a resident of that state and 2) the laws of that state allow its courts to retain such jurisdiction. 28 USC § 1738A (c) (1), (d). The parties agree that Dr. Garrett remains a resident of Alabama, as he was when the parties separated. On its face, the divorce decree contemplated modification. While the decree forbade Dr. Garrett from flying the parties’ child in a plane, it also provided for modification “upon a showing that the child is not frightened by such transportation.” The decree’s custody, child support, and visitation provisions státed: “Only the court has the right to punish for failure to comply with its orders.”

Alabama law allows the assertion of continuing jurisdiction made by the Alabama court and finds the Georgia court did not err in dismissing the Georgia action.

We reach this conclusion by using the procedure outlined in Gouse, supra, in which the Supreme Court examined Ohio law to determine if Ohio courts would allow the assertion of continuing jurisdiction over a custody dispute stemming from an Ohio divorce decree. Id. at 894, n. 7 (3). There are numerous Alabama appellate decisions holding that Alabama courts may assert continuing jurisdiction under the PKPA, subsection (d), in circumstances similar to these. For example, in Lyon v. Lyon, 618 S2d 127, 129 (Ala. Civ. App. 1992), the appellate court found “continuing preferred jurisdiction” over a custody decree issued several years before by an Alabama court, even though the mother and child had become residents of Virginia and the father continued to live in Alabama. Similarly, in Blankenship v. Blankenship, 534 S2d 320, 321 (Ala. Civ. App. 1988), the court found continuing jurisdiction in the Alabama court which granted the original divorce although the mother and child had become residents of Iowa. See also Russo v. Myers, 588 S2d 887 (Ala. Civ. App. 1990), aff'd Ex parte Russo, 588 S2d 889 (Ala. 1991); Sebeniecher v. Corl, 567 S2d 321, 323 (Ala. Civ. App. 1990); Via v. Johnston, 521 S2d 1324, 1326 (Ala. Civ. App. 1987).

Decided February 12, 1996

Weekes & Candler, Terri A. Candler, Margaret C. Courtright, for appellant.

This position was recently cited with approval by the Alabama Supreme Court in Ex parte J. R. W., _ S2d _ (Ala. 1995). Dr. Garrett also cites Ex parte State ex rel. McLaughlin, 35 S2d 507, 509 (Ala. 1948), for the proposition that Alabama courts retain equity jurisdiction over the minors whose custody they adjudicate, a principle recognized in Thompson, supra, 484 U. S. at 180. While the Supreme Court in Gouse found appellate decisions showing Ohio trial courts should not retain continuing jurisdiction when the child has spent several years in a new “home state,” there is contrary authority in Alabama. See Gouse, supra at 890-893 (2, 3).

Whether another state’s court has jurisdiction is a question of fact for the trial court to decide. Mulle v. Yount, 211 Ga. App. 584, 585 (1) (440 SE2d 210) (1993). Although Georgia law prefers that custody disputes be determined in a child’s “home state,” there are situations in which the state which made the original custody decision is a more appropriate forum. Williams v. Goss, 211 Ga. App. 195, 196 (438 SE2d 670) (1993). Upon consideration of the above-cited authority and the short length of time between the termination of the Alabama divorce litigation in April 1994 and the filing of this Georgia action in June 1994, we cannot conclude that the Georgia court’s finding of jurisdiction in the Alabama court was “clearly erroneous.” Yount, supra at 585 (1).

We do not reach the issue of whether the Georgia court properly exercised “emergency jurisdiction” to temporarily suspend visitation, as that issue is moot. OCGA § 19-9-43 (a) (3); Osgood v. Dent, 167 Ga. App. 406 (1) (306 SE2d 698) (1983). Ms. Garrett sought and received that emergency relief through a temporary order suspending visitation. See also Shook v. Shook, 651 S2d 6, 9 (Ala. Civ. App. 1994) (emergency jurisdiction lasts only until proper forum is determined).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Lawler & Tanner, Nancy F. Lawler, Stephen E. Boswell, for appellee.

       It appears from the record that the suspension of visitation continued.


author: Andrews, Judge.

text:
    A95A2369.
    PRICE v. THE STATE.
    (469 SE2d 333)
   Andrews, Judge.

George S. Price, Jr., appeals from his conviction of one count each of aggravated sodomy and child molestation. The acts were alleged to have been committed against his two stepdaughters, N. M. and K. M., ages ten and six at time of trial. We reverse.

1. Viewed with all the evidence in favor of the jury’s verdict, it was that Price and Joann Price were both married to others when they first met in 1989. Price had a son by his first marriage and Joann had N. M. and K. M. by her first husband. The two were eventually married after divorcing their respective spouses.

N. M. and K. M. regularly visited their paternal grandparents, the Morrises. On January 23, 1993, Mr. Morris, his daughter Pam, and her two children were in the family room when Mrs. Morris brought K. M. out of the bedroom and told K. M. to tell her grandfather and Pam what she had told her. K. M. then said that “George had put diseases in my mouth.” At this point, N. M. was asleep in another bedroom. Mr. Morris got up from his seat and approached two-year-old Justin, another grandchild, to pick him up from the couch. He knelt down to pick him up and K. M. said “that’s the way George does it.” She then ran to the couch and lay down with her head off the edge and said “this is the way I lie.” The next morning, Mrs. Morris brought N. M. into the kitchen where Pam was sitting and N. M. said that George rubbed “his thing” on her backside.

The children’s natural father was called and came to the grandparents’ home where K. M. told him she wanted Price to stop putting “his thing” in her mouth. N. M. would not say anything to her father, but cried. The allegations were reported to the Department of Family & Children Services (DFACS) and the police and investigation and prosecution ensued.

The children were interviewed by a DFACS representative and a detective on January 25, 1993. That interview was taped and played during trial and both children also testified at trial.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Farmer v. State, 215 Ga. App. 243 (450 SE2d 271) (1994).

2. The first enumeration is that the court erred in allowing DFACS representative Bitterman to testify concerning Mrs. Price’s out-of-court statement to Bitterman that she believed her daughters.

At trial, on direct examination of Ms. Bitterman by the State, the following exchange occurred: “Q. Did you see her reaction as to the news, as to what [K. M.] and [N. M.] had told you and [Detective] Morelock? A. Uh-huh (affirmative). She — at first, it was disbelief; she was shocked. We then allowed her to watch some of the video tape that we had made . . . and then she of course cried a lot and said, . . . , that she believed what her children.” At this point, objection was made that the statement was hearsay and that it was improper to allow one person to determine another’s credibility. The court overruled these objections on the ground that the statement helped explain Bitterman’s conduct. Bitterman had testified that it was up to her to determine whether the children would be released into their mother’s custody or not.

Bitterman was then asked: “Q. After she saw the video tape, her reaction was — what were the words? A. She was crying and she said she believed her daughters after seeing it.” The objections were renewed and overruled.

(a) The repetition of an out-of-court statement made to the witness by another is hearsay. OCGA § 24-3-1 (a). Nonetheless, since Mrs. Price testified at trial and was subject to cross-examination by defense counsel, the statement was admissible. Calloway v. State, 199 Ga. App. 272, 273 (2) (404 SE2d 811) (1991); Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1986); see Duck v. State, 210 Ga. App. 205, 207 (3) (435 SE2d 725) (1993). There was no error in its admission over the hearsay objection.

(b) “In no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. . . . [Cit.] Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80.” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988); Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989); Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991). Such improper bolstering is exactly what occurred here.

Because there was no evidence of the molestation except the testimony of the two children, this bolstering of their credibility by Bitterman’s repetition of their mother’s statement cannot be said to have been harmless. Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994); Guest, supra. Compare Knight v. State, 207 Ga. App. 846 (1) (429 SE2d 326) (1993).

To say that the statement of Mrs. Price “explained the conduct” of Ms. Bitterman pursuant to OCGA § 24-3-2 does not justify its admission. The question of whether Mrs. Price would be given custody of the children pending the trial was not relevant to the issue of Price’s guilt or innocence, a condition precedent to admission under that Code section. Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); Jackson v. Dunkin’ Donuts, 211 Ga. App. 598, 599 (440 SE2d 56) (1993).

3. Because the matters dealt with in the third and fourth enumerations are likely to recur during any retrial, they are addressed.

(a) Price contends that the playing of the videotape containing the interviews of N. M. and K. M. was error.

Before the video of the January 25, 1993 interviews with the children was played, counsel for Price objected on several grounds.

(1) First was “the circumstances under which they [the video interviews] were made.” Relying on Knight v. State, 210 Ga. App. 228 (1) (435 SE2d 682) (1993) and Rolader v. State, 202 Ga. App. 134, 139 (1) (413 SE2d 752) (1991), objection was made that the statements were “clearly made for the purpose of gathering evidence and gathering incriminatory evidence against Mr. Price. They were not in a neutral place; this was not a neutral ground. . . .” The record and the video reflect that, while the interviews were conducted at the sheriffs department, they were conducted in a room furnished to look like an average residential living room, with an upholstered couch and chairs. While the video camera was not concealed, otherwise the circumstances are very similar to those in Knight, supra. As stated therein, the “reference to a neutral interviewer and place of interview in King [v. State, 194 Ga. App. 662 (2) (391 SE2d 660) (1990)] should be recognized as relating to the atmosphere, circumstances, and manner in which the interview was conducted.” Knight, supra at 229 (1). The video reveals that the room in which the interview was conducted fulfilled this requirement.

(2) The second ground for objection was that the video was repetitive of testimony already given by others. This ground has also been decided adversely to Price. Guest v. State, 216 Ga. App. 457, 458 (3) (454 SE2d 622) (1995); Knight, supra at 230 (2).

(3) Finally, a hearsay objection was made during the playing of the video because K. M. made statements about what Price had allegedly done to N. M. It is clear from the video, however, that these statements were not based on K. M.’s observations, but on what others in the family had told her. Therefore, as to this portion of the video only, the objection was valid. Thornton v. State, 264 Ga. 563, 564 (2) (a) (449 SE2d 98) (1994); Riddle v. State, 208 Ga. App. 8, 11 (2) (430 SE2d 153) (1993).

The remaining objections to the video are raised here for the first time and will not be considered.

(b) The fourth enumeration alleges error in the trial court’s allowing the State to introduce evidence of Price’s violation of conditions of his bond forbidding his going near the children. Mrs. Price testified that he had appeared outside her and the children’s house in violation of the bond before trial began.

Decided February 12, 1996.

Jill L. Anderson, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, Lee O’Brien, Assistant District Attorney, for appellee.

The objections made below to the introduction of State’s Exhibit 2, Price’s Appearance Bond, were that it was “not relevant and that it’s highly prejudicial,” it placed Price’s character in issue, and there was no evidence the conditions of the bond were violated. Here, however, the argument made is failure to comply with Uniform Superior Court Rule 31.3, which was not raised below and will not be considered here for the first time.

As noted by the trial judge, such evidence may be admissible under some circumstances. Morgan v. State, 240 Ga. 845, 846 (1) (242 SE2d 611) (1978); see Matthews v. State, 258 Ga. 144, 145 (1) (366 SE2d 280) (1988); Carroll v. State, 155 Ga. App. 514, 515 (1) (271 SE2d 650) (1980).

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A95A2715.
    JOHNSON & HARBER CONSTRUCTION COMPANY v. BING et al.
    (469 SE2d 697)
   Birdsong, Presiding Judge.

Plaintiffs Bing sued Johnson & Harber Construction Company (Johnson & Harber) for creating surface water runoff damage to their property by defective construction of drains and drainage basins on an adjoining development. The Bings added Henry County as a defendant, alleging the county failed to correct the faulty drainage system after accepting “dedication” of it from Johnson & Harber. The trial court granted summary judgment to the county.

Johnson & Harber appealed the grant of summary judgment to Henry County. Plaintiffs Bing did not appeal. Instead, after Johnson & Harber filed its notice of appeal, plaintiffs settled their claims against Henry County and dismissed the county from their suit without prejudice. Henry County then moved to dismiss this appeal. Held:

1. In its motion to dismiss this appeal, Henry County says it is no longer a part of plaintiffs’ suit and that Johnson & Harber has no standing to appeal because Johnson & Harber did not file cross-claims against the county. Johnson & Harber rejoins that plaintiffs’ dismissal of Henry County does not render moot Johnson & Harber’s appeal of the summary judgment in favor of the county, because plaintiffs’ dismissal was filed after Johnson & Harber filed its notice of appeal, because plaintiffs’ dismissal of the county does not affect the county’s status as joint tortfeasor, and because the issue of who will be responsible for maintenance of the drainage system in the future is not moot. See Haley v. Bailey, 199 Ga. 486, 488 (34 SE2d 685).

We agree that dismissal of this appeal is not demanded by plaintiffs’ dismissal of their suit against Henry County. Henry County was not dismissed by plaintiffs from their underlying suit until after notice of appeal had been filed by a party with standing to appeal the summary judgment. If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot. See Kubler v. Goerg, 197 Ga. App. 667, 671 (399 SE2d 229). If the county and Johnson & Harber were joint tortfeasors, Johnson & Harber would have a right of contribution against the county as joint tortfeasor (OCGA § 51-12-32) even if the county had never been part of the original suit (State Line Metals v. Aluminum Co. of America, 216 Ga. App. 14, 16 (453 SE2d 474)); this means the right of contribution exists even if Johnson & Harber had been sued alone and even if Johnson & Harber did not implead Henry County; and this means the right of contribution exists even though Johnson & Harber did not file cross-claims. This right of contribution gives Johnson & Harber, as a party to the suit, standing to appeal the summary judgment in favor of Henry County. C. W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741 (1) (412 SE2d 539).

Furthermore, our law “recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” (Footnote omitted.) Marchman & Sons v. Nelson, 251 Ga. 475, 477-478 (306 SE2d 290). The court in Marchman & Sons held a dismissal with prejudice of the underlying suit is not a bar to an action for contribution by one joint tortfeasor against another. It is therefore not requisite to a joint tortfeasor’s right of contribution that he file cross-claims against another joint tortfeasor in an underlying suit. Likewise his standing to appeal a judgment in a joint tortfeasor’s favor does not depend on his filing of cross-claims.

This accords with our recent decision in Nat. Foundation Co. v. Post, Buckley &c., 219 Ga. App. 431 (1) (465 SE2d 726) (1995).

Finally, and more to the point, there is an issue here whether the county and Johnson & Harber are joint tortfeasors. The substantive issue in the case is whether the county accepted Johnson & Harber’s dedication of the sewage system. Inasmuch as we reverse the trial court’s grant of summary judgment to the county and the jury may hold that the county accepted dedication of the sewage system, the status of the defendants in that event would not be that of joint tortfeasors, but of independent actors each being liable for the acts committed by it before and after the county assumed responsibility by accepting the dedication. See DeKalb County v. Orwig, 196 Ga. App. 255, 260 (5) (395 SE2d 824), rev’d on other grounds, 261 Ga. 137 (402 SE2d 513). Under the terms of this dedication and the county’s letter indicating acceptance of the dedication, the county may have accepted responsibility and liability for all damages caused by the drainage system. If Johnson & Harber’s appeal of the county’s summary judgment were dismissed because plaintiffs dismissed the county from the suit and Johnson & Harber filed no cross-claims, Johnson & Harber’s claim that the county is liable for all damages would be fatally prejudiced. The county would argue in a suit for indemnity filed by Johnson & Harber that plaintiffs’ dismissal of this appeal is res judicata on the merits and that no right of indemnity exists in Johnson & Harber as if the county had never been sued at all. This effort to secure immunity from indemnification by settling with the plaintiff and inducing dismissal from the suit, even though a right of indemnification might otherwise exist, might in some view constitute bad faith or excessive litigation. See OCGA § 9-15-14. The fact that one joint tortfeasor has been released by the plaintiff does not release all tortfeasors. Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417). Henry County’s motion to dismiss this appeal is denied.

2. The grant of summary judgment to Henry County was error. Johnson & Harber filed a plat in the county deed office on July 23, 1992, dedicating to the use of the public forever all streets, parks, watercourses, drains, easements, and public places thereon shown. On August 25, 1992, the county issued a letter “To whom it may concern,” requiring Johnson & Harber to establish a two-year maintenance bond on construction of all streets, curbs, gutters and storm drainage structures in this subdivision. This letter stated that after inspection, “Henry County will accept all future maintenance of Moseley Crossing Subdivision. [If the subdivision] does not pass county inspection . . . the County Department of Engineering & Roads . . . will make the necessary repairs to bring the subdivision up to county standards. Upon the completion of necessary repairs the county will accept all future maintenance of [the subdivision].”

The county’s requirement of the maintenance bond, particularly under the terms of this letter, indicates the county viewed these structures as its own. Cf. Bryant v. Kern & Co., 196 Ga. App. 165 (395 SE2d 620). Acceptance of a dedication may be shown by any act of a governmental entity treating a structure as its own. Id. at 167. Intention to dedicate to public use need not be shown by express declaration and may even be inferred from the owner’s acquiescence in the use of the property by the public, but a dedication is not complete until both the intention to dedicate and acceptance by the public are shown; whether dedication and acceptance have occurred is usually a jury question. Jackson v. Stone, 210 Ga. App. 465 (436 SE2d 673). Considering the express terms of the county’s letter, there is at the very least an issue of fact whether the county impliedly or expressly accepted dedication of the drainage system. See Smith v. Gwinnett County, 248 Ga. 882, 885 (286 SE2d 739); Watson v. Clayton County, 214 Ga. App. 225, 226 (447 SE2d 162).

Decided February 12, 1996.

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Daniel J. Huff, Fain, Major & Wiley, Christopher E. Penna, for appellant.

Decker & Hallman, Robert D. Feagin, Crumbley & Chafin, Wade M. Crumbley, Barnhart, O’Quinn & Williams, Michael A. O’Quinn, Robert K. Haderlein, for appellees.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A95A2789.
    HAYWOOD v. THE STATE.
    (469 SE2d 206)
   McMurray, Presiding Judge.

Defendant Haywood appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. Held:

1. The State’s evidence shows that defendant sold a “rock” of crack cocaine to an undercover police officer. The first enumeration of error complains of the admission of certain similar transaction evidence. In the similar transaction case, defendant had entered a plea of nolo contendere and been afforded first offender status which had not been revoked at the time of trial.

Defendant cites England v. State, 214 Ga. App. 275 (447 SE2d 654), and particularly Judge Pope’s dissent therein, as authority that Georgia law is not clear on the issue of whether a first offender record may be used to impeach a witness in a criminal case. But we reject defendant’s statement of the issue. In the case sub judice, the similar transaction evidence was presented as part of the State’s case in chief rather than in rebuttal or for purposes of impeachment. The State proved the entire case in the similar transaction matter, including crime laboratory testimony. Thus, the similar transaction evidence was admissible under this Court’s decision in Tilley v. State, 197 Ga. App. 97, 98 (2), 99 (397 SE2d 506).

Defendant presents the additional argument that there was a fundamental difference in the similar transaction incident because the purchasing police officer initiated the transaction with defendant while in the crime charged the defendant spoke first. Both transactions occurred on the same streets of Buford, Georgia, which were known as a drug hot spot, a place for virtually drive-through drug purchases. In both cases, the undercover officer drove into the area and completed small-scale purchases of crack cocaine from defendant who was on foot near the street. We find no significance in whether the officer or defendant spoke first so as to initiate the transaction.

2. Defendant’s remaining enumeration of error complains of the trial court’s refusal to admit into evidence six exhibits. Four of these exhibits consisted of incident reports, arrest reports, and arrest warrants arising in connection with the present prosecution of defendant or in connection with a case against another individual involving the same undercover police officer making another drug purchase on the same day that he bought contraband from defendant. This other drug seller was also arrested on the same day as defendant.

Defense counsel elicited testimony from the undercover police officer which related all of the information on these documents for the apparent purpose of establishing doubt as to the officer’s identification of defendant as the perpetrator of the crime charged. The officer at first did not recall the purchase from the other seller until confronted with the documents, but acknowledged that the indication of a second drug purchase on the same day as the purchase from defendant was accurate.

The content of the documents having been fully related in the cross-examination of the undercover police officer, the exhibits defendant sought to introduce were cumulative and their admissibility within the discretion of the trial judge. Any error in the exclusion of these exhibits was harmless. Spurgeon v. State, 214 Ga. App. 227, 228 (447 SE2d 164).

The remaining two defense exhibits, Exhibits 4 and 5, were marked for identification but never tendered for admission into evidence. Since no ruling of the trial court concerning the admissibility of these exhibits was elicited, there could have been no error in this regard.

It does appear that defense counsel recognized a problem in establishing a foundation for his Exhibits 4 and 5, and sought to present as a witness in this regard, an employee of the clerk of the trial court. But on the prosecution’s oral motion in limine it was determined that the witness could not present relevant probative evidence and was not permitted to testify. The exclusion of this witness’s testimony has not been enumerated as error and thus presents no issue on appeal.

Decided January 10, 1996

Reconsideration denied February 13, 1996

David L. Lebowski, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2808.
    TRST ATLANTA, INC. v. 1815 THE EXCHANGE, INC. et al. 1815 THE EXCHANGE, INC. v. TRST ATLANTA, INC.
    A95A2809.
    (469 SE2d 238)
   McMurray, Presiding Judge.

Plaintiff TRST Atlanta, Inc. (“TRST Atlanta”), a Texas corporation owned by the Teacher Retirement System of Texas, brought this action for breach of contract and negligent construction against defendant 1815 The Exchange, Inc., formerly known as Barge-Wagener, Inc. (“Barge-Wagener”). According to the complaint, on April 11, 1988, “Barge-Wagener as general contractor, and Club Tower L.P. as owner, entered into a written contract ([the] ‘contract’) for the construction of a forty-story high-rise apartment building ... [in Midtown] Atlanta, Georgia, . . . known as Club Tower.”

Barge-Wagener allegedly “fail[ed] to perform [certain] construction work in accordance with the plans and specifications. . . .” Alternatively, “Barge-Wagener failed to exercise that degree of care and skill ordinarily exercised by competent contractors. ...”

Defendant St. Paul Fire & Marine Insurance Company (“St. Paul”), is allegedly jointly and severally liable for any damages caused by Barge-Wagener, pursuant to a performance bond (“the bond”), executed with “Barge-Wagener as principal, and St. Paul as surety, . . . in favor of Club Tower L.P. as obligee, . . . conditioned on BargeWagener’s prompt and faithful performance of the Contract.” TRST alleged it was the “successor in interest to Club Tower L.P. with respect to the Contract and the Bond.”

Defendants jointly answered, denying the material allegations. After discovery, they filed a joint motion for summary judgment. Barge-Wagener contended that plaintiff’s claims against it were barred by an “anti-assignment provision of the Club Tower construction contract [. . . and because Barge-Wagener had been] released by Plaintiff’s assignor.” St. Paul contended, inter alia, that plaintiff “is not a ‘successor’ of the original obligees on the performance bond[; . . . that plaintiff’s claim] is barred by the two-year [period] of [limitation] contained in the performance bond[; and ... St. Paul had been] released by Plaintiff’s assignor.” The performance bond issued by St. Paul contains the following provisions: Barge-Wagener as principal and St. Paul as surety bound “themselves, their heirs, executors, administrators, successors and assigns, jointly and severally,” unto Club Tower L.P. as the owner-obligee, for payment and performance of the Contract to build. (Emphasis supplied.) But the bond expressly provides: “No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of Owner.” (Emphasis supplied.)

The trial court granted St. Paul’s motion for summary judgment but denied that of Barge-Wagener. In Case No. A95A2808, plaintiff appeals from the grant of summary judgment to St. Paul. In Case No. A95A2809, Barge-Wagener cross-appeals from the denial of its motion for summary judgment. Held:

Case No. A95A2808

1. The trial court concluded that plaintiff was only an assignee of Club Tower L.P. and not its successor, and, as a consequence, ruled that plaintiff was not authorized to recover against St. Paul on the performance bond. Plaintiff enumerates the grant of summary judgment to St. Paul as error, arguing alternatively that “TRST [Atlanta] is the ‘successor’ to Club Tower L. P., the obligee named in the Bond,” or that it may nevertheless maintain a claim as an assignee of the bond’s obligee. We disagree.

“ ‘(The term “successor”) means, ordinarily in the case of a corporation, another corporation which by a process of amalgamation, consolidation, or duly authorized legal succession has become invested with the rights and has assumed the burdens of the first corporation.’ Hanna v. Florence Iron Co., 118 NE 629, 631-632 (N. Y. 1918). ‘(A) legal assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one whole interest in an estate, chattel, or other thing.’ (Punctuation and citation omitted.) Hunter-Wilson Distilling Co. v. Foust Distilling Co., 84 FSupp. 996, 1000 (M.D. Pa. 1949). Clearly, the words ‘successors’ and ‘assigns’ have different meanings. ... [In the case sub judice, there is no evidence of a duly authorized legal succession by which plaintiff has become invested with the rights and has assumed the burdens of Club Tower L.P. Consequently, St. Paul’s] surety contract specifically excludes [plaintiff TRST Atlanta], as [a mere] assignee of the obligee, from a right of action on the [bond].” Southern Patrician Assoc. v. Intl. Fidelity Ins. Co., 191 Ga. App. 106, 107 (381 SE2d 98). Although plaintiff argues that this applicable and binding precedent “was wrongly decided and should be overruled,” we adhere to its commonsense ruling. The trial court correctly granted summary judgment to the surety, St. Paul. This disposition renders all other contentions moot. OCGA § 5-6-48 (b) (3).

Case No. A95A2809

2. The Teacher Retirement System of Texas, as “Permanent Lender . . . alleged a default by [Club Tower L.P. as] Borrower . . .” on the financing of the construction project. The Teacher Retirement System of Texas exercised forbearance to foreclose and “decided to accept the conveyance [of the project. . .] to TRST Atlanta. . . .” In a separate transfer, captioned “BILL OF SALE AND ASSIGNMENT,” Club Tower L.P. assigned “all personal property, tangible and intangible, of every kind and nature whatsoever owned by [Club Tower L.P.] and located on and/or used in connection with the Property. . . .” Barge-Wagener enumerates the denial of its motion for summary judgment, arguing first that the assignment from Club Tower L.P. as owner to plaintiff was without Barge-Wagener’s consent and was, therefore, prohibited by an anti-assignment provision in the construction contract.

The construction contract is the 1987 edition of the American Institute of Architects’ “Document A101,” the standard form of agreement between the owner and the contractor. The clause relied upon is incorporated through “the General Conditions of the Contract for Construction, AIA Document A201, 1987 Edition.” Section 13.2.1 of the General Conditions provides in part: “Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract.”

In our view, neither the assignment of personalty nor the conveyance by general warranty deed from Club Tower L.P., as a debtor in default, to plaintiff of all of Club Tower L.P.’s ownership interest pursuant to a separate “Agreement for Deed” amounts to an assignment of the construction contract as a whole, such that the assignment clause has not been triggered. Moreover, that clause does not expressly operate to release the non-consenting party under General Condition 13.2.1. Rather, the contractual clause at issue anticipates assignments and provides that an unconsented-to assignment does not release the assignor.

Furthermore, it appears that Barge-Wagener had already consented to an assignment for the benefit of the creditor when BargeWagener entered into a “General Contractor/Permanent Lender Agreement.” There, Barge-Wagener acknowledged that the Teacher Retirement System of Texas had already been “granted a security interest ... in all of [Club Tower L.P.’s] right, title and interest in, under and to the Construction Contract. ...” This agreement expressly provided that, in the event of default by Club Tower L.P., Barge-Wagener as “Contractor shall thereafter perform under the Construction Contract in accordance with its terms, so long as the Contractor shall be paid in accordance with the Construction Contract. ...” This enumeration is without merit.

3. The Architect issued his certification for final payment but then withdrew that certification because Barge-Wagener had “not completed the Substantial Compliance Certification punch list and its official amendments.” Thereafter, Club Tower L.P. and Barge-Wagener, with others, entered into a written “SETTLEMENT AGREEMENT AND MUTUAL RELEASE,” whereby Barge-Wagener agreed to correct certain items identified by the architect as incomplete or defective. Barge-Wagener contends that this agreement operates as a release of all construction claims against it, arguing that Club Tower L.P. “did not provide Barge-Wagener with the detailed assessment,” as contemplated by the settlement agreement. We disagree.

Club Tower, L.P., agreed on behalf of itself and its assigns to release Barge-Wagener from all warranties and obligations “except for any claims against Barge-Wagener, Inc. concerning work covered by any warranty which is still in effect, any latent defects and any work to be performed by Barge-Wagener, Inc. with respect to those items described in the Punch List letter as more specifically provided in paragraph 4. . . .” (Emphasis supplied.) Moreover, the evidence is conflicting as to whether Barge-Wagener ever completed its obligations under this settlement agreement, as enumerated in the “Punch List Letter,” and the March 19, 1991, report of a third-party construction consultant, Williams & Associates, Inc. A final engineer’s report was submitted on April 26, 1994, while the parties were operating under a tolling agreement. It is undisputed that Barge-Wagener never invoked the contractual provisions to “object to the items identified in such written assessment,” in response to either the March 19, 1991, report or the April 26, 1994, report. The trier of fact would be authorized to conclude that the written itemizations of incomplete or defective work are in substantial compliance with the intent of the parties to the settlement agreement. “ ‘Our general rule with respect to compliance with contract terms is not strict compliance, but substantial compliance. (OCGA § 13-4-20); (Cit.) “At common law a strict and literal performance of the terms of the contract was required; but by rules of equity, either adopted by statute or recognized by the courts, a substantial compliance with the terms of the contract is sufficient. . . .” (Cit.)’ Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (297 SE2d 222) (1982).” Building Materials Wholesale v. Reeves, 209 Ga. App. 361, 362 (1), 363 (433 SE2d 346). In the case sub judice, (the cross-appeal), Barge-Wagener has failed to establish its right to be released as a matter of law. The trial court correctly denied Barge-Wagener’s motion for summary judgment.

Decided January 29, 1996

Reconsideration denied February 13, 1996

Smith & Fleming, Robert O. Fleming, Jr., David A. Rutherford, for TRST Atlanta, Inc.

Sutherland, Asbill & Brennan, George A. Smith, William R. Wildman, Rocco E. Testani, Lisa C. Foster, for 1815 The Exchange, Inc.

Judgment affirmed in the main appeal, Case No. A95A2808, and also affirmed in the cross-appeal, Case No. A95A2809.

Andrews and Blackburn, JJ., concur.


text:
    A95A2874.
    FLATEAU et al. v. REINHARDT, WHITLEY & WILMOT et al.
    (469 SE2d 222)
   Beasley, Chief Judge.

Tifton Heating & Cooling, Inc. (Tifton) and Edward Rhodes sued Al-Temp Services, Inc. (Al-Temp), Means, his wife, attorney Reinhardt, Reinhardt’s law firm, and the Sheriff of Tift County. Plaintiffs seek damages against defendants for wrongful foreclosure and excessive levy, trespass, conversion, RICO violations, and abusive litigation. Plaintiffs appeal the trial court’s grant of Reinhardt and his law firm’s (the Reinhardt defendants) motion for summary judgment, as well as the denial of plaintiffs’ motion for partial summary judgment.

Al-Temp was owned by Means and his wife. Tifton is owned by Rhodes. In 1985, a sales contract was executed under which the assets of Al-Temp were sold to Tifton. Means and his wife, Al-Temp, Tifton, and Rhodes were parties to the sales contract. Shortly after the sales contract was executed, Al-Temp was dissolved.

The total purchase price of $230,200.87 was paid by a $20,000 down payment with the remainder to be paid under a promissory note payable to Al-Temp in 120 consecutive monthly installments. The note and a security agreement gave Al-Temp a security interest in Tifton’s accounts receivable, inventories of equipment (for sale), tools and equipment (for use), motor vehicles, and all proceeds and products of the business. The security agreement contained provisions stating that a default would occur if the note was not paid when due or if “the secured party fe[lt] insecure for any other reason whatsoever.”

Means testified that in January 1990, Rhodes told him he was having cash flow problems and would like one week’s extension for making the note payment due on January 15, and although he agreed to the extension he did not receive payment within the week.

Rhodes, on the other hand, testified that he told Means he would mail the January 15 payment to him on January 22, as it was his custom to send the note payments by mail; that he called Means on January 22 and told him that the check had been written; and that Means said he would pick it up but did not do so.

Means testified that after hearing that Rhodes had terminated his employees and was closing his business, he went to Tifton’s office on January 22 and found the doors locked and the business closed. According to Means, the business’ closing was confirmed by several employees who stated they had been asked to remain temporarily in order to wind up its affairs.

Means went to see his attorney, Reinhardt, concerned about the loss of easily transportable, untitled collateral. There was apparently a substantial quantity of collateral, including heavy equipment, so all of it was not easily transportable. Means and Reinhardt discussed past problems concerning Rhodes’ maintenance and unauthorized disposition of collateral. A decision was made to file a petition for an immediate writ of possession, naming Al-Temp as the plaintiff and Tifton as the defendant. The petition contained the same description of the secured property as that set forth in the note and security agreement. Means executed an affidavit on January 23 and executed a bond for Al-Temp.

The writ was issued on January 23. The writ ordered the sheriff to levy on the personal property described in the note and security deed and, at the option of plaintiff, either surrender the property to the plaintiff for retention and disposition in accordance with OCGA Title 11 or advertise and sell it. Plaintiff elected to receive the property.

Reinhardt testified that Means accompanied him to the chambers of the judge and represented to the judge that the writ was being sought because of concerns about collateral rather than a default in the note payment. The judge was informed of the default because it was relevant to the question of whether Means felt “insecure.”

Reinhardt further testified that after the judge signed the writ, Reinhardt asked Means to allow him to attempt to contact Rhodes and resolve the matter, and he unhesitatingly agreed. Reinhardt arranged a meeting with Rhodes, but Rhodes cancelled it. Rhodes said he told Reinhardt on January 24 that the business was not closing, but he acknowledged that he cancelled the arranged meeting. Reinhardt then called Rhodes’ attorney, who suggested that he contact Rhodes through an attorney who practices bankruptcy law and is a standing bankruptcy trustee. Reinhardt attempted to do so but was advised he was unavailable. Reinhardt and Means decided to file the petition for an immediate writ of possession with the clerk and obtain execution of the writ. That was done on January 25.

The sheriff testified that after Reinhardt and Means delivered the writ to him, he informed them that he had no facilities for storing the collateral and could only take control of it by securing the premises. He instructed them to arrange for a locksmith to meet him at Tifton’s offices. The sheriff also instructed them to accompany him. He executed the levy personally, supervised the locksmith’s changing of the locks, took possession of the keys, and retained possession of the collateral.

Tifton claims that, as a result of the levy, it was forced to leave construction sites and to default on contracts. Thereafter, Tifton sought relief under Chapter 11 of the United States Bankruptcy Code. On February 20, 1990, the bankruptcy court directed that the seized property be returned to Tifton.

The Reinhardt defendants moved for summary judgment as to their liability. Plaintiffs sought partial summary judgment on issues involving the liability of all defendants. The court granted the Reinhardt defendants’ motion and denied plaintiffs’ motion.

Plaintiffs appealed from the order granting the Reinhardt defendants’ motion, although the notice of appeal was served on the attorneys for all defendants. In their enumeration of errors and appellate brief, plaintiffs contend that the court erred in denying their motion for partial summary judgment as well as in granting the Reinhardt defendants’ motion for summary judgment.

Certificates of service show that plaintiffs’ enumeration of errors and brief were not served on the attorney representing Means, and Means has not filed an appellate brief. We have addressed the issues concerning Means’ liability without ordering or requesting that Means file a brief, because most of them are interrelated with the issues concerning the Reinhardt defendants’ liability; they are resolved against the plaintiffs in any event.

1. Plaintiffs’ primary argument is that Means and the Reinhardt defendants are subject to personal liability as agents acting on behalf of a non-existent principal, in that Al-Temp, having been dissolved, did not legally exist on the date the petition for an immediate writ of possession was filed.

Plaintiffs have overlooked OCGA § 14-2-1408 (b). It authorizes the shareholders, directors, and officers of a corporation which has been voluntarily dissolved to take actions to protect any remedy, right or claim on behalf of the corporation, which actions may proceed in the corporate name. Compare Gas Pump v. Gen. Cinema Beverages &c., 263 Ga. 583 (436 SE2d 207) (1993) (involving an administratively dissolved corporation).

2. Plaintiffs argue that they were entitled to partial summary judgment on the issue of whether Means and the Reinhardt defendants wrongfully declared a default and on the issue of whether the Reinhardt defendants are liable for wrongful foreclosure.

(a) Means wrongfully declared a default if he did not in good faith believe that the prospect of payment or performance was impaired. See OCGA § 11-1-208; Crosson v. Lancaster, 207 Ga. App. 404, 405 (4) (427 SE2d 864) (1993). Plaintiffs argue that they were entitled to summary judgment on this question but, at the very least, there is a material issue of fact on the question.

(b) A plaintiff’s attorney is not liable to the defendant for bringing a suit if he acts in good faith and without knowledge of any malice on his client’s part. Williams v. Inman, 1 Ga. App. 321, 324 (1) (57 SE 1009) (1907).

There is no evidence of any knowledge by the Reinhardt defendants of any malice on the part of Means. And the Reinhardt defendants have established that there is no evidence that they did not act in good faith. See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991); compare Crosson, supra at 407.

3. On a variety of grounds, plaintiffs argue that the immediate writ of possession was void. We review these grounds, because the validity of the writ is relevant to various tort claims asserted by plaintiffs. See Division 4, infra.

(a) As argued by plaintiffs, “[t]he procedures for the obtaining of writs of immediate possession have been found constitutional but must be strictly adhered to.” Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760, 762 (1) (360 SE2d 29) (1987).

(b) Plaintiffs argue that the judge issuing the writ acted without jurisdiction because there was no pending action. To the contrary, a petition for an immediate writ of possession is an “action” within the meaning of OCGA § 9-2-1 (1). Filing a foreclosure petition is not a jurisdictional prerequisite to a creditor’s right to seek an immediate writ of possession. The statutory provisions governing an immediate writ contemplate the filing of a petition to foreclose the security interest. See OCGA § 44-14-261; Deutz-Allis Credit Corp., supra; Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 (274 SE2d 20) (1980). However, they do not require the filing of such a petition either before or after the filing of the petition for the writ.

Whenever the writ is granted, the petitioner has the option of having the sheriff surrender the secured property to the plaintiff for retention or disposition in accordance with Article 9 of Title 11. OCGA § 44-14-236. Under certain circumstances, Article 9 of Title 11 allows the secured party in possession of collateral after default to retain possession of the collateral in satisfaction of the obligation. OCGA § 11-9-505 (2). The secured party’s exercise of this option after obtaining possession of the secured property would obviate the necessity for filing a foreclosure petition, although the defendant named in the writ could still make an appearance and file any legal or equitable defense or counterclaim. See OCGA § 44-14-267.

(c) There is no merit in plaintiffs’ argument that the petition for the writ was defective on its face. It sought foreclosure of a security interest in personal property. It was supported by Means’ sworn affidavit, in which he stated that the defendant named in the petition had defaulted on the note; that he had been advised by reliable sources and had knowledge that the business was closing; that, absent the writ, there was a possibility that Al-Temp would have trouble obtaining possession of the collateral; and that, because of the nature of the collateral, there was a substantial danger that any prior notice to named defendant would result in the security being sold or concealed. The facts stated in the affidavit, in conjunction with the facts alleged in the petition, were sufficient to show that it was within the power of the named defendant to “conceal, waste, encumber, convert, convey, or remove from the jurisdiction of the court the property which [was] the subject matter of the petition. . . .” OCGA § 44-14-262. This statute does require the allegations in support of the petition to be under oath, which was absent here, but this is an amendable defect. Cf. C. E. Morgan Bldg. Prods. v. Safe-Lite Mfg., 244 Ga. 475 (260 SE2d 870) (1979).

There is no merit in plaintiffs’ argument that the bond that was furnished pursuant to the requirements of OCGA § 44-14-263 was void. Although it named Al-Temp as the principal, it was executed by Means in effect as agent for Al-Temp. Means was thus personally liable on the bond. See Dixie Drive It Yourself System v. Lewis, 78 Ga. App. 236 (50 SE2d 843) (1948).

In the petition, Al-Temp requested that a hearing be scheduled and that summons issue requiring appearance by defendant as provided by OCGA § 44-14-232. The fact that the court did not issue a summons requiring the defendant’s appearance at a hearing, or schedule a hearing, does not render the petition defective.

(d) Nor would any failure by the sheriff to follow statutory procedures in levying on the property invalidate the writ.

Decided January 25, 1996

Reconsideration dismissed February 13, 1996.

William S. Stone, for appellants.

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., Walters, Davis, Meeks & Pujadas, W. Emory Walters, J. Converse Bright, for appellees.

4. Plaintiffs contend that, as a matter of law, they are entitled to recover damages against Means and the Reinhardt defendants for wrongful and excessive levy, trespass, and conversion. They argue that the levy was wrongful because it was made under a void writ, that the levy was excessive because it was made on property of a person other than the defendant named in the writ, and that a wrongful and excessive levy is a trespass as well as a conversion.

An attorney owes a duty to the adversary to refrain from tortious conduct. Arthur Pew Constr. Co. v. First Nat. Bank of Atlanta, 827 F2d 1488, 1493 (3) (11th Cir. 1987); see Williams, supra; see generally 7A CJS 185, Attorney and Client, § 142.

For reasons given in Division 3, the writ was not void. The record shows that the property described in the writ did not include any property other than that described in the security agreement. The sheriff testified that he controlled the levy on that property. This testimony was not controverted. Thus, the sheriff’s seizure of property not described in the writ would not give rise to any claims against Means or the Reinhardt defendants. Compare Williams, supra; McDougald v. Dougherty, 12 Ga. 613 (1853).

5. In regard to their claim for abusive litigation, plaintiffs argue that the undisputed evidence shows that Means and the Reinhardt defendants acted with malice and without substantial justification in obtaining the writ of immediate possession. There is no evidence of such by the Reinhardt defendants. See OCGA § 51-7-80 (5) and (7). Any evidence that Means acted with malice and without substantial justification is disputed.

6. Finally, plaintiffs argue that they are entitled as a matter of law to recover damages from Means and the Reinhardt defendants for RICO violations, but the evidence is insufficient to support a finding that Means and the Reinhardt defendants engaged in, or conspired to engage in, a pattern of racketeering activity. See generally Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 262 (5) (447 SE2d 617) (1994).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Smith, Judge.

text:
    A95A2177.
    KHD DEUTZ OF AMERICA CORPORATION v. UTICA MUTUAL INSURANCE COMPANY, INC.
    (469 SE2d 336)
   Smith, Judge.

KHD Deutz of America Corporation appeals from the grant of summary judgment to Utica Mutual Insurance Company, Inc. in a declaratory judgment action. We must determine whether the trial court properly concluded as a matter of law that Utica’s insured under an errors and omissions policy was not entitled to coverage under the policy for failing to procure insurance for KHD.

The record reveals that under the terms of a security agreement executed in connection with a multimillion dollar loan from KHD to Prime Commercial Corporation, Prime Commercial was required to purchase insurance coverage from Lloyd’s and to add KHD as an additional insured. International Risk, an insurance agency, and its agent, John Duke, agreed to procure such insurance for Prime Commercial; at the loan closing, it provided a certificate showing such coverage. Coverage was later discovered by KHD never to have existed, and KHD brought suit against International Risk and others on December 4, 1992, alleging fraudulent failure to procure insurance coverage.

International Risk was covered for errors and omissions under a policy of insurance issued by Utica. As a condition precedent to coverage, the policy specifically required International Risk to notify the insurer in detail “as soon as practicable” of any claim or any “fact or circumstance which may give rise to a claim,” to “[i] immediately forward . . . any demand, notice, summons, or other process or correspondence received by an insured,” and to cooperate with the insurer in the conduct of suits. International Risk did not notify Utica that suit had been filed against it and did not forward the complaint and summons to Utica.

On January 22,1993, Duke mailed Utica a letter informing it that an incident had occurred that “may give rise to a claim under the . . . policy.” The letter did not identify the incident or the party having a possible claim against International Risk. Despite the recitation in the letter that Duke would contact Utica’s claims department to follow up this matter “in detail,” neither Duke nor any other representative of International Risk initiated any further contact with Utica.

In late February 1993, in connection with its lawsuit against International Risk, KHD served Utica with a subpoena for the production of any policy issued to International Risk. After that, Utica’s attorney conversed with Duke, who assured Utica’s attorney that the litigation would be resolved “within days.” Representatives of Utica thereafter made numerous unsuccessful efforts to contact Duke, both for the purpose of executing a non-waiver agreement and to assist in investigating the claim. With one exception, Duke did not return telephone calls or accept mail. He did agree to meet with Utica’s investigator for the purpose of executing a non-waiver agreement, but he failed to keep that appointment and subsequently would not return that investigator’s telephone calls. On August 13, 1993, Utica filed this declaratory judgment action to determine whether coverage existed.

On June 27, 1994, Duke telephoned Utica and informed it that a motion for summary judgment was pending in the lawsuit filed by KHD. He then met with Utica’s attorney to execute the non-waiver agreement, and counsel was assigned by Utica to defend International Risk in that lawsuit the following day.

Utica’s motion for summary judgment in the declaratory judgment action as to the claims of KHD was granted on the ground that no coverage existed. The trial court concluded no coverage existed both because International Risk failed to notify Utica of the claim and because it failed to cooperate, both of which were conditions precedent to coverage.

1. KHD contends the trial court erred in granting summary judgment to Utica because the issue of the reasonableness of International Risk’s cooperation is “inherently factual.” We do not agree.

“In the case of a condition precedent, the condition must be performed before the contract becomes absolute and obligatory upon the other party.” (Citations and punctuation omitted.) Glass v. Stewart Title Guaranty Co., 181 Ga. App. 804, 805 (1) (354 SE2d 187) (1987). Although the issue of whether or not conditions precedent to coverage requiring the insured to cooperate have been met is generally a question of fact for a jury, an unexcused significant delay in notifying an insurer may be unreasonable as a matter of law. Townsend v. Nat. Union Fire Ins. Co., 196 Ga. App. 789 (397 SE2d 61) (1990). “ ‘Under all of the facts and circumstances of a particular case it may be found that an insured’s delay in giving notice of [a lawsuit] to [its] insurer was unjustified and unreasonable. In such event, on a motion for summary judgment, the court may rule on the question as a matter of law.’ [Cit.]” Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419, 420-421 (385 SE2d 97) (1989). Moreover, an insurer need not show it was prejudiced by this failure to comply with the policy conditions. Id. at 421.

The policy in issue here plainly required International Risk to forward the suit papers “immediately” after being served, as a condition precedent to coverage. Over a month after being served with a lawsuit, International Risk informed Utica only that an unspecified incident (which was the subject of that lawsuit) “may give rise to a claim” about which it would provide further details shortly. International Risk then made itself unavailable to Utica for more than 17 months. We agree with the trial court that under these circumstances, a jury question was not presented; International Risk’s failure to notify Utica promptly of the lawsuit and its failure to respond to Utica’s efforts to communicate were simply unreasonable. This was an “unexcused significant delay” that was “unreasonable as a matter of law.” Townsend, supra, 196 Ga. App. 789.

KHD acknowledges that “[a]n insurer is entitled to require its insured to abide by the policy terms, [cit.]” and to cooperate with the insurer. Diamonds & Denims v. First of Ga. Ins. Co., 203 Ga. App. 681, 683 (417 SE2d 440) (1992). KHD argues, however, that in this case, as in Diamonds & Denims, the insured did not completely fail to cooperate with its insurer, and consequently, a fact question with regard to that cooperation was presented for jury resolution.

We do not find this case analogous to Diamonds & Denims. In that case, the insured notified the insurer of the loss and complied with several policy provisions, but did not provide certain documents in response to demands by the insurer for “books and records.” Id. at 682-683. The insured contended that its records had been destroyed in the fire that formed the basis for the claim, and no evidence was presented to the contrary. Id. at 683. This court held that questions of fact existed regarding both the degree of the insured’s cooperation and the insurer’s diligence, when the record showed that representatives of the insured agreed at their depositions to provide documentation but the insurer never “followed up these generalized statements with specific requests.” Id.

Here, KHD argues that International Risk also cooperated “to some degree,” as evidenced by Duke’s conversations with Utica’s attorney, his eventual execution of the non-waiver agreement, and his notification that a motion for summary judgment had been filed. We do not find these actions to be evidence of cooperation. The conversation with Utica’s attorney was not initiated by Duke, and the notification of the motion filed against International Risk and the execution of the non-waiver agreement took place after many months of ignoring the policy conditions and refusing to respond to numerous efforts on the part of Utica to communicate. The trial court did not err in finding as a matter of law that International Risk failed to cooperate.

2. We find no merit in KHD’s contention that the trial court erred in finding that International Risk failed to cooperate when it did not find that any such failure was fraudulent. It is well established that “[willfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate.” (Citation and punctuation omitted.) Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 588 (2) (445 SE2d 569) (1994). The trial court did not err here, however, for two reasons.

First, no such requirement exists with regard to International Risk’s failure to notify its insurer of the lawsuit against it or its failure to forward to Utica the complaint and summons “immediately.” See, e.g., Caldwell, supra, 192 Ga. App. 419.

Second, we do not agree that the trial court failed to find that fraud was present. The defense of failure to cooperate is established upon a showing by the insurer that the insured “declined to cooperate.” Mason, supra, 213 Ga. App. at 588 (2). The absence of any affirmative misrepresentation does not indicate the absence of fraud; “the suppression of truth is as false and fraudulent as a wilful misrepresentation.” (Citation and punctuation omitted.) State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga. App. 227, 232 (160 SE2d 256) (1968). In this case, Utica showed that Duke and International Risk suppressed the truth when, even though suit had been filed against International Risk in December 1992, Duke represented to Utica in January 1993 only that a possible claim existed; Utica showed that International Risk “declined to cooperate” when it failed to respond to letters and telephone calls from Utica until 17 months later.

In addition, in Duke’s pro se response to Utica’s motion for summary judgment, he admitted that after speaking with Utica’s attorney, he formed the opinion that “no ‘claim’ existed,” and that he “decided” not to hold further communications with Utica until KHD’s suit was resolved. The trial court properly found that “[t]hese statements . . . clearly show that it was his purposeful intention not to cooperate because of his own conclusions concerning the claims.” Given the showings made by Utica, the trial court’s finding that Duke’s conduct, which included the suppression of the truth, was intentional and purposeful compels the conclusion that the trial court found International Risk’s conduct to be fraudulent.

3. KHD finally argues that the trial court erred in considering these statements in Duke’s pro se response to Utica’s motion for summary judgment because they are inadmissible hearsay. We cannot agree because a pleader is bound by such admissions. OCGA § 24-3-30. KHD misconstrues the principle set forth in Thomas v. Barnett, 107 Ga. App. 717 (131 SE2d 818) (1963), that “the admissions of one defendant shall not be considered as evidence against another defendant.” Id. at 729 (5). The statement refers to the principle that when one defendant admits wrongful conduct, that conduct may not be imputed to a co-defendant by means of that admission. Nothing prevents the consideration of Duke’s admission as to his own conduct in this lawsuit simply because establishing Duke’s wrongful conduct happens to work to KHD’s detriment. We find no error.

Decided February 13, 1996

Jones, Day, Reavis & Pogue, Dorothy Y. Kirkley, Robert M. Martin, for appellant.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Charles J. Cole, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       A response to the motion for summary judgment was due that day. Partial summary judgment has since been entered against International Risk and Duke in that lawsuit.


text:
    A95A2437.
    MORGAN v. THE STATE.
    (469 SE2d 340)
   Smith, Judge.

Cedric Morgan was charged by a Liberty County grand jury in two separate indictments with the possession of cocaine with intent to distribute and the sale of cocaine. OCGA § 16-13-30 (b). He was found guilty by a jury in November 1994 of possession with intent to distribute. He was brought to trial on the second charge, his plea of former jeopardy was denied, and he was convicted by a jury. His motion for new trial was denied, and he appeals.

Both indictments arose out of events that occurred on October 18, 1993, in the vicinity of a trailer occupied by Cedric Morgan’s cousin, Roy Morgan. A confidential informant and a drug agent went to the trailer to purchase drugs from Roy Morgan. The sale was monitored by four officers and two surveillance vehicles. One of the officers observed Roy Morgan take identified government funds into the woods at the rear of the trailer and return with crack cocaine, which he delivered to the confidential informant. Cedric Morgan’s vehicle was parked nearby. When a white Grand Prix automobile left the area of the trailer, two of the officers pursued it to a convenience store as the second surveillance vehicle followed. The Grand Prix was stopped and its occupants, including Cedric Morgan, were arrested. The identified government funds given to Roy Morgan were found in Cedric Morgan’s pocket along with a large amount of currency and 19 plastic bags containing crack cocaine.

In the November 1994 trial, Cedric Morgan was convicted of possession with intent to distribute the 19 bags containing crack cocaine. In that trial, the circumstances of the transaction, the surveillance, the pursuit and arrest, and the discovery of the identified government funds in Cedric Morgan’s pocket were testified to by the investigating officers. The trial court found that the sale was part of the res gestae because of the short lapse of time between the sale and the arrest.

In the February 1995 trial, Cedric Morgan was convicted of sale of the cocaine delivered by Roy Morgan to the confidential informant. The same evidence was elicited from the same investigating officers regarding the transaction at the trailer, the pursuit, the arrest, and the discovery of the government funds in Cedric Morgan’s pocket. The officers did not testify regarding the 19 pieces of cocaine found in Cedric Morgan’s pocket.

Cedric Morgan asserts claims of both substantive and procedural double jeopardy. See Teal v. State, 203 Ga. App. 440 (417 SE2d 666) (1992). We need not reach the claim of substantive double jeopardy, however, because the second trial violates the procedural aspect of the double jeopardy rule. Id. at 442 (2).

OCGA § 16-1-7 (b) provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” It is undisputed that the two offenses occurred in Liberty County and were both within the jurisdiction of a single court. The appearance of the district attorney’s name on both indictments is “conclusive circumstantial evidence” that the prosecuting officer at the outset of each case was aware of both offenses and the pendency of both prosecutions, and chose to proceed separately. Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989). The issue for determination here, therefore, is whether the offenses arose from the same conduct.

“The phrase ‘the same conduct’ in this statute has been used interchangeably with the phrase ‘the same transaction.’ [Cit.]” Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990). In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same “parties, circumstances, locations, and times.” State v. Hulsey, 216 Ga. App. 670, 671 (455 SE2d 398) (1995); compare State v. Steien, 214 Ga. App. 345 (447 SE2d 701) (1994) (offenses involved different acts on different dates and in different locations). The courts also consider whether “evidence of the other offenses could be presented without permitting evidence of the [first offense] or vice versa.” (Citations and punctuation omitted.) Harrell, supra, 196 Ga. App. at 103 (2).

The State acknowledges that “the better practice would have been to indict the Appellant in one indictment,” but relies on the fact that additional drugs were discovered in Cedric Morgan’s possession at the time of his arrest at a different location, the convenience store. The State contends this change of location and the additional drugs found are sufficient to establish that the second offense did not arise from the same conduct or transaction. We disagree. In Anderson v. State, 200 Ga. App. 530 (408 SE2d 829) (1991), a city police officer began pursuing a defendant who traveled into the unincorporated county, where a county officer joined in the chase before the defendant was apprehended. Observing that “[t]here was never a break in the pursuit,” we concluded that the offenses arose out of one course of conduct and one transaction, even though separate and distinct traffic offenses were committed by the defendant inside the city limits and in the unincorporated county. Id. at 532.

Similarly, Cedric Morgan was under continuous observation from the time of the sale at Roy Morgan’s trailer, through his journey down the highway followed by two surveillance vehicles, to his arrest at the convenience store. The offenses occurred on the same date and very close in time, involved the purchase or the possession for sale of the same type of drugs, and were part of an ongoing chain of events arising directly from the confidential informant’s purchase of drugs at Roy Morgan’s trailer. The same investigative team witnessed both offenses and had Cedric Morgan under continuous surveillance from the time of the sale until his arrest, and virtually identical testimony regarding the surveillance, the pursuit, the arrest, and the search was elicited from the same witnesses at both trials.

Moreover, the additional drugs were discovered in Cedric Morgan’s pocket, inside the marked money from the earlier sale. The officers testified to no further actions taken by Cedric Morgan during their surveillance, such as passing a package or money from hand to hand. It appears, therefore, that the offense of possession with intent to distribute was already complete at or immediately after the time of the sale. The State acknowledged as much before the trial court, stating that Morgan was convicted for the possession of cocaine “which he possessed on October 18, 1993, as he drove away from his cousin’s trailer.” (Emphasis supplied.)

This is in sharp contrast to the circumstances in Harrell, supra, and Teal, supra, which involved additional acts committed by a defendant at a later time constituting a separate, unrelated offense. Harrell was arrested for DUI and transferred to the custody of a different jurisdiction before committing an assault on a police officer. We held that the offenses did not arise out of the same transaction. Harrell, supra, 196 Ga. App. at 103. Similarly, the defendant in Teal was arrested for trespass on his former wife’s property and taken to jail, where he attacked a police officer. While we held that the trespass and the assault on the officer did not arise out of the same transaction, other charges of battery, obstruction, and resisting arrest did arise out of the same transaction: the defendant’s attack on the police officer. Teal, supra, 203 Ga. App. at 443 (2) (b), (c).

Decided February 13, 1996.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Because of the many close connections between Cedric Morgan’s two offenses, we conclude that they arose out of the same conduct and transaction, and the State was required to prosecute them in a single prosecution. To hold otherwise would unduly encourage pursuit and surveillance for lengthy periods of time and multiple prosecutions from the eventual arrest. In cases involving the sale or possession for sale of cocaine, this not only holds out the prospect of the harm the double jeopardy statute seeks to prevent, “the harassment of multiple prosecutions,” Smith, supra, 190 Ga. App. at 247, but also may result in a mandatory life sentence on the second conviction. See OCGA § 16-13-30 (d) (“Upon conviction of a second or subsequent offense, he shall be imprisoned for life”). The trial court therefore erred in denying Morgan’s plea of former jeopardy.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       In that case, the trial court properly denied Anderson’s plea of former jeopardy, however, because there was no showing that the proper prosecuting officer of the city hád knowledge of the pending county charges. Id.

       The transcript of Morgan’s sentencing hearing does not appear in the record. The sentencing hearing of his co-defendant and the sentencing hearing at his first trial show that the trial court and counsel were well aware that “the Judge would have no . . . discretion and the only sentence would be life in prison” on a subsequent conviction. It appears that Morgan, however, was sentenced to 15 years to serve concurrently with his first offense.


text:
    A94A2748.
    BROWN v. WELLER.
    (469 SE2d 550)
   Ruffin, Judge.

In Weller v. Brown, 266 Ga. 130 (464 SE2d 805) (1996), the Supreme Court reversed the judgment of this Court in Brown v. Weller, 217 Ga. App. 67 (456 SE2d 602) (1995). Therefore our judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided February 14, 1996.

Alvin L. Bridges, Jr., for appellant.

Richard T. Taylor, for appellee.


text:
    A95A2044.
    SAMS v. LESKANIC.
    (469 SE2d 703)
   Smith, Judge.

Gary Sams, the County Guardian for DeKalb County, was appointed guardian of James Leskanic, an incapacitated adult, in November 1993. Leskanic died intestate in January 1994, and Sams was appointed administrator ex officio of Leskanic’s estate. Pursuant to OCGA § 53-6-150, Sams petitioned for and was granted extra compensation of $711.50, which was disbursed from the estate. After completing the administration, Sams filed a final return, in which he sought the statutory commission on receipts and disbursements, including a commission on the extra compensation and on a previous commission of $46.80. The final return was denied by the probate court on the ground that it was “the practice of this Court to disallow commissions taken on . . . disbursements to a fiduciary which are for the payment of extra compensation or of regular commissions.” Sams appealed that order to this court, which dismissed the appeal as interlocutory, since the administration was still pending in the probate court.

Sams then resubmitted the final return, again claiming his statutory commission on the sums disbursed to him for extra compensation and the previous commission, this time also requesting letters of dismission. The probate court amended the final return, denying Sams’s commission on the two disbursements and reducing Sams’s commission accordingly. It then approved the return as amended and dismissed the administration. Sams appeals from the probate court’s order, contending the court improperly denied his statutory commission on two items.

Sams contends the probate court misinterpreted both OCGA § 53-6-140 and OCGA § 53-6-144 in concluding that he was not entitled to commissions on disbursements to himself for extra compensation or on a previous regular commission. OCGA § 53-6-140 (a) provides: “As compensation for his services, an administrator . . . shall have a commission of 2 1/2 percent on all sums of money received by him on account of the estate, except on money loaned by him and repaid to him, and a like commission on all sums paid out by him, either for debts, legacies, or distributive shares. The commissions are part of the expense of administration and shall be paid from the general estate, if any; if none, they shall be deducted from the debt or legacy paid.” OCGA § 53-6-144 provides, in pertinent part: “Unless otherwise specifically provided by the will, an administrator or executor is entitled to receive commissions on debts, legacies, and distributive shares paid to himself in the same manner as commissions to which he would be entitled under the terms of the will or applicable law on such items paid to others.”

1. We are constrained by the language in OCGA § 53-6-140 (a) to agree with Sams that he is entitled to a commission on the sum disbursed to him as extra compensation. It is well established that an administrator’s compensation is considered an expense of administration. OCGA § 53-6-140 (a). It is consequently a debt of the estate being administered, and it has priority over other debts. Colyer v. Huntley, 179 Ga. 332, 333 (175 SE 901) (1934); see Woodall v. First Nat. Bank, 118 Ga. App. 440, 441 (2) (164 SE2d 361) (1968); Lester v. Toole, 20 Ga. App. 381, 388 (4), (5) (93 SE 55) (1917). Indeed, the necessary expenses of administration rank third in priority of payment, only behind year’s support and funeral expenses. OCGA § 53-7-91. “An administrator or guardian is an agent appointed by law, whose duties are fixed by law and whose compensation is fixed by law. . . . [Cits.] ... If an attorney is employed as an administrator of an estate and performs services in his capacity as both administrator and attorney, his remedy for payment for his legal services is a petition for extra compensation for other extraordinary services to the probate court. [Cits.]” McDow v. Corley, 154 Ga. App. 575, 576 (269 SE2d 38) (1980). Since this payment to Sams was clearly an expense of administration and thus a “debt,” OCGA § 53-6-140 clearly provides for the payment of commissions on “debts,” and OCGA § 53-6-144 permits commissions on debts paid by the administrator to himself, we conclude that the probate court erred in refusing to allow the payment of a commission on extra compensation to the administrator.

2. We find a distinction, however, between “extra compensation” and “commissions,” and we are troubled by the payment of commission on the latter. The cardinal rule of statutory interpretation is to ascertain the intent of the legislature. We are mindful that where the language of a statute is plain and unequivocal, the courts may not resort to construction of those statutes. But even in cases where the literal language of an act is plain and unambiguous, in determining the intent of the legislature we must not ascribe to that body a “wholly unreasonable intention or an intention to do a futile and useless thing.” City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970).

The apparent clarity of the statutory language in this case is deceptive; a literal application of that language to previously paid commissions results in an absurdity that is also an invitation to abuse. An administrator is entitled under OCGA § 53-6-144 to receive a commission on “debts” of the estate paid to himself. His statutory entitlement, however, is only to one payment of this debt. Allowing a commission on the disbursement of a commission would permit payment of the same “debt” twice. If payment of a commission on a previously paid commission is authorized, under the same reasoning payment of yet another commission on the second commission paid would appear to be authorized as well, and so on. The mere fact that the commission was a partial one and was paid earlier, before the submission of the final return, cannot be dispositive, for such reasoning would surely result in routine applications for piecemeal commissions. This cannot have been the intent of the legislature.

Decided February 14, 1996.

Weekes & Candler, Gary M. Sams, Karen C. Gainey, for appellant.

Robert Leskanic, pro se.

We conclude, therefore, that the probate court properly amended the final return to disallow the payment of a commission on a previously paid commission.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Johnson, J., concur.


text:
    A94A2306.
    BREWTON v. THE STATE.
    (469 SE2d 550)
   Birdsong, Presiding Judge.

In Brewton v. State, 216 Ga. App. 346 (454 SE2d 558), we reversed appellant’s conviction of reckless conduct, arising from appellant’s chasing her son down the hall while swinging an axe-like maul (for purposes of breaking his toys) but affirmed her conviction of cruelty to children (arising from appellant’s malicious subjection of her children to living in an overall environment of unhealthy squalor). The Supreme Court granted certiorari, as to our affirmance of the cruelty to children conviction, and reversed our decision on that count in Brewton v. State, 266 Ga. 160 (465 SE2d 668), after concluding that “[g]iven the fact that there are conceivable justifications for the existence of unsanitary conditions and the fact that a parent may permit unsanitary conditions to exist [for example, an uncaged parrot living and excreting freely for over one week in the kitchen and ducks living in a bathroom] without an awareness that harm may result, it is clear that such conditions, alone, cannot serve to prove the element of malice in a prosecution for cruelty to children.”

Decided February 14, 1996.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee.

“The law provides that the Supreme Court is the final authority, whatever its holding, and accordingly our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.” Givens v. State, 216 Ga. App. 176, 177 (454 SE2d 141).

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


text:
    A95A2275.
    McLENDON v. THE STATE.
    (469 SE2d 551)
    Decided February 14, 1996.

      Michael 0. Horgan, for appellant.

      Dennis C. Sanders, District Attorney, William L. Hale, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

A suggestion of death has been filed by appellant’s counsel in accordance with Court of Appeals Rule 43 (a), advising that the appellant died on December 12, 1995. The appeal in the case sub judice is therefore dismissed as moot. Grogan v. State, 248 Ga. 312 (283 SE2d 899).

Appeal dismissed.

Andrews and Blackburn, JJ., concur.