text:
    A97A2471.
    POUND v. THE STATE.
    (496 SE2d 769)
   Andrews, Chief Judge.

Xavia Pound appeals from his conviction of entering an automobile with intent to commit theft, OCGA § 16-8-18. His sole enumeration of error is that the court erred in its charge to the jury on intent. We find no error and affirm the conviction.

1. Viewed with all inferences in favor of the jury’s verdict, Crumbley v. State, 207 Ga. App. 33, 34 (427 SE2d 27) (1993), the evidence was that around 6:00 a.m. on February 18, 1996, Fisher was arriving home from work at his apartment complex. He saw two young men, one black and one white, going to several cars in the parking lot, looking in the windows and trying the door handles. Fisher went into his apartment, and when the door shut, the two young men looked “startled.” As Fisher continued to watch, the two kept looking into cars, and he phoned the police. As he was giving a description of them, he saw one of them “go in the window of one of the cars,” a red one he believed was a Hyundai. They went in through the windows, unlocked the door and entered the car, “rooting around like they were looking for something in the car.” After rummaging around in the Hyundai, the two got in a Honda and started to drive off. Nothing was taken from the Hyundai, although there was a CD player in it. The Hyundai was owned by Romero, another apartment resident, who testified his windows were broken out and he did not give permission to enter the car.

Officer Boswell arrived as the Honda was driving off and stopped it. Pound was driving, and according to Boswell, he tried to come around her car when she stopped them. She ordered the two men out of the car, at which point Pound stated that they were not breaking into cars. Because of Pound’s aggressive attitude and failure to cooperate, she kept her gun pointed at the two until other units arrived. Fisher identified the two as the ones he saw looking into cars and entering the Hyundai, although he could not specify which _ one entered first.

Pound and his father testified that Pound was driving his father’s Honda the evening before and that morning and that two car radios found in its trunk belonged to the father.

Christian, Pound’s co-defendant, pled guilty to entering an automobile before trial and initially gave a statement implicating Pound, although at trial he denied Pound’s involvement. His initial statement was introduced into evidence.

2. The court gave the following charge, which is enumerated as error: “You are authorized, but not required, to infer an intent to commit a theft where an individual breaks into an area of an automobile in which valuables might be stored. Whether or not you draw such an inference is a matter solely within your discretion.”

This charge was in addition to the charge on intent contained in the Suggested Pattern Jury Instructions as well as the charges on reasonable doubt and definitions of entering an automobile and criminal trespass, a lesser included crime.

After some deliberation, the jury asked the difference between “guilty of entering an automobile and guilty of criminal trespass,” a lesser included crime. The court reinstructed the definitions of the two offenses, without repeating the objected-to intent instruction. The jury returned shortly thereafter with a guilty verdict. When the jury was polled, however, one juror disavowed it and deliberations began again. Thereafter, the jury asked for written copies of the two definitions, which the court refused. The court did orally redefine the two offenses. The jury also asked “[d]id prosecution need to prove intent once defendant was in vehicle unlawfully?” In response to this inquiry, the court recharged his initial charges on intent, including the challenged one.

Pound argues that this instruction was argumentative in favor of the State and failed to conform to appropriate, neutral language.

The objected-to charge is a correct statement of law. Shields v. State, 202 Ga. App. 659, 661 (3) (415 SE2d 478) (1992). As stated in Heflin v. State, 183 Ga. App. 149, 150 (2) (358 SE2d 298) (1987), “ ‘[a]s a general rule the state must, of necessity, rely on circumstantial evidence in proving intent.’ Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). While evidence that valuables were present in the trunk is sufficient to support a finding of the requisite intent (Fields v. State, 167 Ga. App. 400 (1) (306 SE2d 695) (1983)), lack of such evidence does not automatically result in a lack of evidence from which intent may be inferred. The intent to commit a theft may also be inferred by appellant’s admitted action of attempting to break into an area of an automobile in which valuables might be stored. The fact that appellant may have failed in accomplishing his apparent purpose does not render a finding of guilty improper. Bradshaw v. State, 172 Ga. App. 330 (2) (323 SE2d 253) (1984).” See Addis v. State, 203 Ga. App. 270 (416 SE2d 837) (1992).

Despite Pound’s argument that Heflin and Addis are distinguishable factually because they involved burglaries, we find the legal principle indistinguishable and applicable to entering an automobile. Further, the court here changed “attempts to break in” to “breaks in” before giving the charge.

“ ‘The charge of the jury must be taken as a whole and each part thereof considered in connection with every other part of the charge. See Marchman v. State, 129 Ga. App. 22 (3) (198 SE2d 425); Hightower v. State, 135 Ga. App. 275, 277 (217 SE2d 636).’ Grant v. State, 136 Ga. App. 351 (1), 352 (221 SE2d 210).” Leigner v. State, 213 Ga. App. 871, 872 (3) (446 SE2d 770) (1994).

Decided February 5, 1998.

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Robert M. Coker, Assistant District Attorneys, for appellee.

So considering the charge here, including the recharges, Mobley v. State, 218 Ga. App. 739, 740 (2) (463 SE2d 166) (1995), we do not find it subject to the objection made and find that the court properly instructed the jury. Shields, supra.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0273.
    FONTAINE CONDOMINIUM ASSOCIATION v. SCHNACKE.
    (496 SE2d 553)
   Judge Harold R. Banke.

Fontaine Condominium Association (“the Association”) appeals from an order granting permanent injunctive relief, monetary damages, and attorney fees to Richard Schnacke, a condominium unit owner. On appeal, the Association enumerates six errors.

Schnacke purchased his unit in 1980 and fell behind in the payment of his dues in 1990. In January 1994, the Association filed suit against Schnacke in the State Court of Gwinnett County to recover unpaid condominium assessments and related charges. After answering the Association’s suit but before the entry of a final order, Schnacke filed a Chapter 13 bankruptcy petition. After its counsel submitted a proposed final order to the court, the Association received notice of the bankruptcy filing. The record does not show that Schnacke apprised the state court of his bankruptcy filing. About two weeks after his bankruptcy filing, on August 15, 1994, the State Court of Gwinnett County entered an order in the Association’s favor against Schnacke for $7,626.04 including principal, interest, costs, and attorney fees. In March 1997, nearly three years after Schnacke filed the bankruptcy petition, the bankruptcy court dismissed his case due to noncompliance.

After the dismissal of the bankruptcy action, the Association notified Schnacke twice by certified mail that it would suspend electricity to his unit unless he satisfied a delinquency of $10,058.55. The Association suspended utility service to his unit allegedly under the terms of OCGA § 44-3-76. In order to have the utility service reinstated and to prevent its future disruption, Schnacke sought a temporary restraining order and permanent injunctive relief in the Superior Court of DeKalb County. He amended his complaint to seek attorney fees from the Association for stubborn litigiousness and bad faith.

Over the Association’s objection, the trial court consolidated the hearing for the temporary restraining order with a final hearing on the merits. The trial court denied the Association’s request for a jury trial on the issue of attorney fees. During the hearing, the trial court expressed its concern that the Association failed to exercise other possible remedies such as executing a fieri facias on the judgment or garnishing Schnacke’s wages. Insinuating that the Association was engaging in purposeful harassment, the court observed, “If they [the Association] feel like they have a valid judgment, then they should attempt to satisfy that judgment by other means.” At the conclusion of the proceedings, the court granted permanent injunctive relief to Schnacke and awarded him $725 for lost rental income and $2,300 in attorney fees, plus court costs. Held:

1. The Association contends that the trial court erred in consolidating the hearing for a temporary restraining order with a final hearing on the merits over the Association’s objection. We agree. Where one party objects, consolidation is procedurally improper and the court’s judgment on the merits must be vacated. Brevard Fed. Savings &c. v. Ford Mountain Investments, 261 Ga. 619, 620 (1) (409 SE2d 36) (1991). See OCGA § 9-11-65 (a) (2); Gwinnett County v. Vaccaro, 259 Ga. 61, 62 (1) (376 SE2d 680) (1989). Although the Association participated in the hearing at issue, it did so under protest. Under these facts, we cannot say that the Association acquiesced to the procedure. Compare id. See Ga. Kraft Co. v. Rhodes, 257 Ga. 469, 471 (1) (360 SE2d 595) (1987).

We reach the following issues which may arise on retrial.

2. The Association contends that the trial court erred in granting permanent injunctive relief to Schnacke in light of its statutory rights under OCGA § 44-3-76. We agree. As a matter of public policy the legislature has deemed an owner’s responsibility to pay assessments, like those at issue here, an absolute and unequivocal obligation. Forest Villas Condo. Assn. v. Camerio, 205 Ga. App. 617, 618-619 (1) (422 SE2d 884) (1992). Schnacke cited no authority and we know of none which requires the exhaustion of alternative remedies by an association as a condition precedent to an association’s use of this statute. See, e.g., id. Rather, the statute plainly authorizes condominium associations which provide utilities to terminate water, gas, electricity, heat, and air conditioning to a unit or unit owner where an owner fails to pay assessments and other amounts due pursuant to OCGA § .44-3-109, provided that: (1) the action is permitted by condominium instruments; (2) the association complies with proper suspension standards and notice requirements; and (3) the association obtains a final judgment in excess of $750 from a court of competent jurisdiction. OCGA § 44-3-76. On retrial, in the event that the Association satisfies all these essential statutory elements, it cannot be required to elect another means of collecting its judgment from Schnacke.

Decided February 5, 1998.

Weissman, Nowack, Curry & Wilco, Charles B. Waters, Jr., for appellant.

Richard Schnacke, pro se.

3. The trial court erred in its award of attorney fees sought under OCGA § 13-6-11 because such an award under this statute necessitates jury determination. C & S Trust Co. v. Hicks, 216 Ga. App. 338, 340 (2) (454 SE2d 207) (1995); Jamison v. West, 191 Ga. App. 431, 433 (4) (382 SE2d 170) (1989). Moreover, on retrial, if the actions taken by the Association are determined to have been authorized by statute, we question whether Schnacke can make the requisite showing upon which a jury could predicate attorney fees. See Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988) (recovery of attorney fees generally foreclosed unless damages recovered).

Judgment vacated and case remanded with direction.

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

       It is undisputed that the Association had earlier sued Schnacke in a different action in DeKalb County for unpaid assessments and that a consent order had been entered in that case. Schnacke subsequently filed a separate action in the Magistrate Court of DeKalb County alleging that the Association had violated the terms of this order by withholding excess funds during his refinancing.

       Even assuming arguendo that the state court judgment was obtained in violation of an automatic stay, as a matter of law that judgment may merely be voidable but not void. Cole v. Shoffner, 205 Ga. App. 65 (1) (421 SE2d 322) (1992). Schnacke’s counsel admitted that no effort had ever been made to set aside that judgment.


author: Pope, Presiding Judge.

text:
    A97A2013.
    ZUBERI et al. v. GIMBERT et al.
    (496 SE2d 741)
   Pope, Presiding Judge.

Steven and Janis Gimbert leased a warehouse to a toilet cleaner manufacturing business owned by Manzar Zuberi. Zuberi signed the lease as the purported representative of a non-existent corporation, “ATM Manufacturing, Inc.” Zuberi later manufactured toilet bowl cleaner on the premises under the name of an existing corporation, “Ameri-Pak International,” of which he was president. The Gimberts claimed the business’s use of hydrochloric acid in its operations severely damaged the premises. Following a bench trial, the court found Ameri-Pak International responsible for the damage. The court also held Zuberi personally liable because it found he knowingly signed the lease with the Gimberts as the representative of a non-existent corporation. We find the evidence sufficient to support the trial court’s judgment and affirm.

When reviewing an appeal from the trial court’s denial of a motion for involuntary dismissal in a bench trial, this Court will uphold the trial court’s findings if there is any evidence to support them. Hamil v. Stanford, 264 Ga. 801, 802 (1) (449 SE2d 118) (1994). In his two enumerations of error, Zuberi claims that 1) no evidence allowed the court to find him personally liable; and 2) no evidence allowed the court to determine that his business operations caused the damage at issue.

1. Zuberi contends the court erred by finding him personally liable for damage to the Gimberts’ warehouse. We disagree. The evidence established that on November 1, 1990, Zuberi and the Gimberts entered a one-year lease on the warehouse. Zuberi signed the lease “ATM MANUFACTURING, INC. BY: s/ Manzar Zuberi Its: Pres/CEO.” However, “ATM Manufacturing Inc.” never existed as a corporation. Under OCGA § 14-2-204, “[a]ll persons purporting to act as or on behalf of a corporation, knowing there was no incorporation . . ., are jointly and severally liable for all liabilities created while so acting.” This statute imposes personal liability on one who, with “culpable knowledge,” incurs liabilities on behalf of a non-existent corporation. See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 835 (1) (446 SE2d 186) (1994).

The trial court found Zuberi knowingly signed on behalf of the non-existent company, and evidence supports that finding. First, questions of a defendant’s intent are generally for a factfinder to determine. See Goodlett v. Ray Label Corp., 171 Ga. App. 377, 379 (1) (319 SE2d 533) (1984). Zuberi signed on behalf of a corporation that simply did not exist, either before or after this transaction. Compare Weir, 213 Ga. App. at 835 (company representative had taken steps to incorporate, and no evidence showed he knew the incorporation was not effective). Second, although Zuberi claimed he misread the corporate name on the lease, his answers conflicted regarding the entity for which he meant to sign. In his interrogatory answers, admitted at trial, Zuberi stated that he believed he was acting on behalf of ATM America Corp.; however, no evidence showed that

ATM America was an existing corporation. At trial, Zuberi testified he was president of ATM Enterprises, Inc., and his attorneys argued that he meant to sign on behalf of this existing corporation. The conflicting evidence allowed the factfinder to reject his claim of mistake. Third, the name of the business on the lease is ATM Manufacturing, Inc., not ATM Enterprises, Inc. or ATM America Corp. Unlike the “misnomer” in Pinson v. Hartsfield &c. Center, 191 Ga. App. 459, 461 (382 SE2d 136) (1989), the difference in names is substantial and does not involve the mere abbreviation of a longer, official corporate name. The conflicting evidence allowed the trial court to determine that Zuberi knowingly signed on behalf of a corporation that did not exist.

Zuberi also suggests that because the Gimberts believed they were dealing with a corporation, they are estopped from holding Zuberi personally liable. This contention has no merit. See Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541-542 (287 SE2d 577) (1981) (a defendant may not assert the defense of corporation by estoppel where he has acted on behalf of a nonexistent corporation). Because Zuberi entered the lease on behalf of a company that did not exist, the trial court could find he was personally bound by the lease, and by any extensions of that lease beyond the original one-year period, so long as a business he operated occupied the premises. Therefore, the fact that Zuberi later occupied the premises under the corporate form, “Ameri-Pak International,” did not relieve Zuberi of personal liability. See Korey v. BellSouth Telecommunications, 225 Ga. App. 857, 858 (1) (485 SE2d 498) (1997) (cert, granted).

2. Contrary to Zuberi’s second enumeration, the Gimberts sufficiently proved their claim for damages to the warehouse by specifically showing how the warehouse deteriorated during the time Zuberi’s business occupied it. Evidence showed severe corrosion of roof, joists, concrete floor, wiring, plumbing, and metal surfaces in that portion of the warehouse occupied by Zuberi’s business. Expert testimony indicated this damage was consistent with the effects of hydrochloric acid vapors. The tenant in the other portion of this warehouse testified that he saw no such damage before Zuberi began his operations and that he often noted clouds of caustic vapor floating through Zuberi’s area. Mr. Gimbert testified that he purchased this warehouse in 1979 along with two adjacent ones built at the same time of the same materials. When Mr. Gimbert saw this warehouse a few months before Zuberi moved in, it was in as good condition as the other two warehouses. When he returned in 1991, he noticed corrosion of the metal surfaces and was told by Zuberi’s employee that hydrochloric acid had leaked from tanker trucks delivering that product. At the time of trial, Mr. Gimbert testified the other two warehouses remained in good shape but the area which Zuberi rented had severely deteriorated and corroded. The trial court had the opportunity to view the other warehouses and compare them with Zuberi’s area. The Gimberts’ experts gave specific solutions for each of the problems they described. By producing this evidence, the Gimberts adequately “show[ed] specific acts of waste or damage the results of which at the end of the term had not been repaired.” (Citation and punctuation omitted.) Abernethy v. Cates, 182 Ga. App. 456, 457 (1) (356 SE2d 62) (1987).

Decided January 8, 1998

Reconsideration denied February 6, 1998

Robertson & Walker, Charles T. Robertson II, Andrew W. Hartman, Allan E. Alberga, for appellants.

Thomas B. Benham, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Andrews, Chief Judge.

text:
    A97A2091.
    BROGDON v. WAL-MART STORES, INC. et al.
    (496 SE2d 499)
   Andrews, Chief Judge.

Gladys Brogdon appeals from the trial court’s grant of summary judgment to Publix Supermarkets and Wal-Mart Stores on Brogdon’s claims arising from injuries she received when a runaway shopping cart hit her in Wal-Mart’s parking lot. We affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . .” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So viewed, the evidence was that on the day in question, Brogdon parked her car about ten to twelve feet from the lawn and garden entrance to the Wal-Mart store. On her way into the store, she noticed some shopping carts on the sidewalk by the door. Brogdon made her purchases and left the store about 15 minutes later, walking out the same way she entered. She walked down a ramp from the sidewalk to the parking lot, took about four or five steps, and heard a noise behind her. She turned around and saw a shopping cart coming down the ramp toward her. The shopping cart hit Brogdon and knocked her down. Brogdon said that it was very windy on the day in question, and a strong gust of wind must have set the cart in motion. A Wal-Mart employee stationed near the exit said she watched Mrs. Brogdon leave the store and confirmed that a gust of wind sent a Publix shopping cart rolling toward Mrs. Brogdon.

Brogdon sued both Publix and Wal-Mart for the injuries she received when she was knocked down by the cart. The trial court granted summary judgment to Publix, finding Brogdon submitted no evidence whatsoever that Publix was negligent. The trial court also granted summary judgment to Wal-Mart, finding Brogdon’s injury to be the result of an “unexpected and unforeseeable circumstance.” This appeal followed.

1. The trial court properly granted summary judgment to Publix on Brogdon’s claim. Brogdon, without citing any authority, argues that Publix is liable for her injury because it failed to keep its shopping cart in a place where it could not harm Brogdon. She does not point to any evidence of negligence on Publix’s part, and indeed, there is none. Brogdon herself testified that Publix was in a separate building and “Wal-Mart is nowhere near Publix.” Further, two assistant store managers for Publix who worked on the day in question stated in their affidavits that Publix employees are instructed to visually inspect the parking lot and retrieve shopping carts every 15 to 20 minutes. The assistant managers also stated that no one informed them that there were shopping carts belonging to Publix in the Wal-Mart parking lot.

Although Brogdon cites several “unattended vehicle” cases in support of her claim against Publix, contending they are analogous, they are not on point. In situations where an unattended vehicle started rolling and caused damage or injury, the person responsible was the person who left the vehicle unattended. Here, there is no evidence Publix took the cart to the Wal-Mart and no evidence Publix was aware the cart was in front of the Wal-Mart. Indeed, as previously stated, the only evidence in the record is to the contrary. Therefore, Brogdon’s statement that “[Publix] negligently caused its cart to be moved to a place behind the Wal-Mart store where it was standing loose” is totally unsupported by any evidence in the record.

2. The trial court correctly granted summary judgment to WalMart. Brogdon’s theory of recovery against Wal-Mart was that WalMart failed to exercise ordinary care to keep the approaches to its premises safe when it allowed shopping carts to remain loose and unattended near the entrance of the store. This argument fails for two reasons.

First, a gust of wind strong enough to send a shopping cart sailing down a ramp into the parking lot, striking a shopper, and knocking her down, is an unexpected and unforeseeable circumstance. There is no evidence in the record this had ever happened before and, as the trial court correctly found, “[n]egligence is predicated on what should have been anticipated rather than on what happened. And one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” Moses v. Chapman, 113 Ga. App. 845 (149 SE2d 850) (1966). See also Cummings v. Grubb, 184 Ga. App. 872 (363 SE2d 167) (1987); Byrd v. Rivenbark, 183 Ga. App. 564 (359 SE2d 433) (1987); Ramsey v. Mercer, 142 Ga. App. 827 (237 SE2d 450) (1977). As there was no evidence of any negligence on Wal-Mart’s part, the trial court correctly granted summary judgment to Wal-Mart on Brogdon’s claim.

Decided January 27, 1998

Reconsideration denied February 6, 1998

Clark & Clark, Fred S. Clark, for appellant.

Karsman, Brooks & Callaway, Stanley Karsman, Trade G. Smith, McClain & Merritt, Howard M. Lessinger, for appellees.

3. Publix’s motion for imposition of a penalty for frivolous appeal pursuant to OCGA § 5-6-6 and Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1864.
    OBI v. THE STATE.
    (496 SE2d 556)
   Judge Harold R. Banke.

Kenneth Nnadi Obi was accused of using false information to obtain a drivers’ license and unlawful use of license. He pleaded guilty to the latter, a misdemeanor offense, and was sentenced to time served. The record on appeal contains no transcript of the plea hearing. Obi enumerates four errors, challenging the trial court’s acceptance of the plea. Held:

1. We reject Obi’s contention that the trial court accepted his plea without assuring its voluntariness. Notwithstanding the absence of a transcript of the plea hearing and the fact that waiver may not be inferred from a silent record, the State satisfied its burden of establishing the voluntariness of the plea and the validity of Obi’s waiver of the concomitant rights against self-incrimination, to a jury trial, and to confront one’s accuser. Parks v. State, 223 Ga. App. 694, 695 (479 SE2d 3) (1996). The State met its burden with a written plea statement, made and signed in the court’s presence, in which Obi acknowledged the specific rights he was waiving and admitted to freely and voluntarily entering the plea. Id.; see Uniform State Court Rule 33.11 (requiring the preservation of a record when guilty pleas are entered); compare Warner v. State, 214 Ga. App. 343, 344 (447 SE2d 692) (1994).

2. Obi maintains the trial court erred in accepting his plea without determining its factual basis as is required by Uniform Superior Court Rule 33.9. State v. Evans, 265 Ga. 332, 333 (1) (454 SE2d 468) (1995) (finding Rule 33.9 mandatory). Violations of Rule 33.9 do not always require reversal when the record otherwise establishes the trial court’s awareness of the factual basis for the plea. Id. at 335-336 (3). Here, however, the only factual predicates for the plea the State has offered are (1) an application for arrest warrant from the county magistrate court which was not a part of the record on appeal and (2) a statement in its brief that the State, Obi’s counsel, and the judge discussed the case in an unrecorded conference in chambers. This evidence, none of which was part of the record below, is clearly insufficient. See Crawford v. State, 220 Ga. App. 786, 788 (1) (470 SE2d 323) (1996) (statements unsupported by the record will not be considered); see also Tripp v. State, 223 Ga. App. 73, 74 (476 SE2d 844) (1996) (physical precedent only).

“[I]t is incumbent upon the trial court to produce a record on the basis of which a reviewing court can determine whether an abuse of discretion occurred.” Evans, 265 Ga. at 334. The record, as it stands, provides us with nothing to review. Accordingly, we remand for an on-the-record determination of the factual basis for the plea.

3. Obi maintains that the trial court erred in accepting his plea when the statute of limitation barred his prosecution. The record shows that trial counsel raised this issue several days before the plea hearing. The record, however, contains no ruling on the motion, no indication that Obi objected to entering his plea without such a ruling, or showing that he otherwise attempted to elicit a ruling. Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997). Thus, the issue is waived. See Peterson v. State, 212 Ga. App. 31, 33 (3) (441 SE2d 267) (1994) (physical precedent only) (counsel’s failure to obtain rulings on motions and objections ordinarily results in waiver).

4. Obi asserts that the trial court erred in accepting his plea because the accusation violates Georgia’s prohibition against ex post facto prosecutions. Obi’s failure to raise this issue in the trial court precludes our consideration of it on appeal. Stephens v. State, 201 Ga. App. 744, 745 (4) (412 SE2d 571) (1991). However, in determining the factual basis for the plea on remand, the trial court must apply the law in effect at the time of the offense and decide whether Obi’s actions constituted the crime charged. See McIntosh v. State, 185 Ga. App. 612, 615-616 (5) (365 SE2d 454) (1988).

Decided February 6, 1998.

Gloria D. Reed, for appellant.

Keith C. Martin, Solicitor, Donna R. Sims, Assistant Solicitor, for appellee.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Beasley, J., concur.

       It is troubling that the information on the application stating that Obi obtained a license under a false name does not conform with the accusation, which charges him with assisting another person in procuring a false license.

       Obi’s failure to file a motion to withdraw distinguishes Caldwell v. State, 213 Ga. App. 531, 532 (1) (445 SE2d 560) (1994) (physical precedent only), which reversed a judgment predicated on a plea entered without a determination of its factual basis.


author: Johnson, Judge.

text:
    A97A1878.
    HEMPHILL v. JOHNSON.
    (497 SE2d 16)
   Johnson, Judge.

Lesa Hemphill, the mother and administrator of the estate of L’Qwuisha Whiteside, appeals the superior court’s grant of summary judgment to Judy Johnson in this wrongful death drowning case. Although the superior court properly granted the motion on Hemp-hill’s premises liability claim, issues of material fact remain on Hemphill’s negligent supervision claim. Therefore, we reverse in part.

“On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. [Cit.]” Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). In order to prevail at summary judgment under OCGA § 9-11-56, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to non-movant Hemphill, the record reveals the following pertinent facts: During the afternoon of May 23, 1995, Lesa Hemphill’s 11-year-old daughter, L’Qwuisha Whiteside, drowned in Judy Johnson’s pool. L’Qwuisha and her seven-year-old sister Teda were invited over to swim by Chase Brumagin, a seven-year-old boy who was in Johnson’s care during the day. Another friend of Chase’s, seven-year-old Gary Wyms, also came to play in the pool. Teda and L’Qwuisha had never been in Johnson’s pool before. Before Johnson allowed them to go swimming, she sent them home to get permission to swim, a swimsuit, and a towel. Johnson said it is her policy never to allow children in the pool without parental permission and unless she is there to supervise. Both Hemphill and Teda state in their depositions that L’Qwuisha called Hemphill at work and got permission to swim. Although Hemphill never spoke to Johnson about the condition of the pool or Johnson’s swimming abilities, Hemphill did believe, based on her children’s representations, that Johnson could swim.

When the children returned to the pool with their towels and swimsuits, Johnson assumed they had permission to swim. Johnson inquired of the children’s swimming abilities. L’Qwuisha told Johnson that she could swim, but that Teda could not. Johnson restricted Teda to the shallow end of the pool, with Gary and Chase. Johnson said L’Qwuisha demonstrated her swimming ability by swimming across the shallow end of the pool. Therefore, L’Qwuisha was not restricted to the shallow end. L’Qwuisha had taken swimming lessons when she was six years old and could swim above and under the water.

Johnson admitted that although she considered herself a good swimmer, she had no underwater swimming ability when she undertook to supervise the children. Johnson also did not have any lifesaving equipment, like a shepherd’s hook, which would enable her to pull a child from beneath the eight feet of water at the deep end of her pool.

After she determined the children’s swimming abilities, Johnson walked to the edge of the shallow end of the pool to help the younger children inflate a float. According to Johnson, L’Qwuisha was the only child in the water at the time. Johnson said she watched the pool area continuously from the time the children arrived and did not go inside the house. Within moments of L’Qwuisha’s swimming across the pool, Johnson heard Gary and Chase say that L’Qwuisha was drowning. Teda told Johnson that L’Qwuisha was just kidding, that she could hold her breath underwater. Johnson walked around to the deep end of the pool and saw that L’Qwuisha was not kidding, that she was sinking under the water. Johnson, realizing she could not pull the child from the water, ran next door to call 911 and to get a neighbor to pull the child from the pool. The neighbor, however, was unable to pull L’Qwuisha from beneath the water.

L’Qwuisha’s sister, Teda, recalls the incident somewhat differently. When Teda and L’Qwuisha arrived at Johnson’s house, Johnson was sitting in a chair near the pool reading a magazine. Johnson asked Teda and L’Qwuisha if they could swim and restricted Teda to the shallow end. Gary was already playing in the pool and Chase was walking around it, playing. Teda recalled that Johnson went inside the house to turn on a radio at some point during the afternoon. L’Qwuisha did not get into the pool right away. Rather, she sat down on some steps near the deep end of the pool. Chase threw a float into the water and asked L’Qwuisha to get it for him. L’Qwuisha climbed into the deep end and swam out to the middle of the pool to retrieve the float while Teda and Gary played in the shallow end. As L’Qwuisha was swimming toward the float, Teda went inside Johnson’s home to use the bathroom. When Teda came outside, she passed Johnson, who was sitting in a chair, reading a magazine. When Teda returned to the side of the pool, she could not see Johnson because foliage obstructed her view. As Teda stood by the side of the pool, L’Qwuisha was going under the water. Gary told Teda that her sister was drowning and yelled for Johnson. Teda at first thought L’Qwuisha was kidding. However, when Teda saw L’Qwuisha’s eyes blinking as she drifted further underwater, she realized something was seriously wrong. As this was happening, Johnson walked up behind Teda, looked down into the pool, and then took her shoes off. Johnson then started screaming and ran to the front yard, calling for help.

1. In nine of her twelve enumerations of error, Hemphill argues the trial court erred in granting summary judgment to Johnson on her claim of negligent supervision. We consider these enumerations together.

Johnson admits she undertook to supervise L’Qwuisha and the other children who came to her house to swim. ‘When a person undertakes to control and watch over a young child, even without compensation, he becomes responsible for injury to the child through his negligence, and his duty to use reasonable care to protect the child is not measured by what his duty would have been to a social guest or licensee. However, the measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.” (Citations and punctuation omitted.) Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972); Wallace v. Boys Club of Albany, 211 Ga. App. 534, 535 (1) (439 SE2d 746) (1993).

Evidence exists which would authorize a finding that Johnson failed to use reasonable care commensurate with the reasonably foreseeable risk of harm to L’Qwuisha under these circumstances. Although L’Qwuisha could swim, she was only 11 years old and unfamiliar with Johnson’s pool. Further, Johnson had never supervised L’Qwuisha before and knew very little about her physical abilities. Johnson admits she could not swim underwater and had no lifesaving equipment with which to pull a child from beneath the water of the deep end of her pool. Johnson also admitted she did not jump into the pool when L’Qwuisha began to drown because she knew she was not strong enough to pull L’Qwuisha from the water. Though Johnson knew or should have known that she could not rescue L’Qwuisha from beneath the water in the foreseeable event of the child’s drowning, she let L’Qwuisha swim in the deep end of the pool. Given these circumstances, a jury could find that Johnson’s decision to let L’Qwuisha swim in the deep end was both unreasonable and a proximate cause of L’Qwuisha’s death. We cannot say, therefore, that Johnson’s supervision of L’Qwuisha was not negligent as a matter of law.

2. With respect to Hemphill’s remaining enumerations of error, we hold that the trial court properly granted summary judgment on Hemphill’s premises liability claim. Unlike the negligent supervision claim, the premises liability claim is based upon Johnson’s allegedly permitting a defect or hazardous condition to exist upon the premises, and not upon Johnson’s conduct as a supervisor. L’Qwuisha, as Johnson’s social guest, was a licensee. Bowers v. Grizzle, 214 Ga. App. 718, 720 (4) (448 SE2d 759) (1994) (physical precedent only); Riley v. Brasunas, 210 Ga. App. 865, 866 (1) (438 SE2d 113) (1993). Under Georgia law, Johnson, as a landowner, owed a duty to L’Qwuisha not to injure her wilfully or wantonly. OCGA § 51-3-2 (b); Bowers, supra at 720 (4); Riley, supra at 867 (1). The existence and condition of Johnson’s pool was open and obvious. Further, a swimming pool is not per se a mantrap. Oliver v. City of Atlanta, 147 Ga. App. 790, 792 (3) (250 SE2d 519) (1978).

There is no evidence in this case that L’Qwuisha’s drowning was proximately caused by any defect in the pool, including the absence of safety or rescue equipment. Contrary to Hemphill’s contentions, Johnson’s poor swimming abilities or the absence of safety or rescue equipment does not convert the pool into a mantrap because the risk of drowning remains obvious, even to a child of L’Qwuisha’s age. Bowers, supra at 720 (4); Riley, supra at 867 (1). Rather, if swimming in the pool is rendered more dangerous by these circumstances “it would normally be the duty of a parent or other adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger.” (Citation and punctuation omitted.) Bowers, supra at 720-721 (4).

Judgment affirmed in part and reversed in part.

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

Decided February 6, 1998.

Mullins & Whalen, Richard L. Mullins, Samuel H. Sullivan, for appellant.

Swift, Currie, McGhee & Hiers, Sybil C. Hadley, Julia B. Haffke, for appellee.


author: Ruffin, Judge. Eldridge, Judge

text:
    A97A2262.
    COBB COUNTY v. HERREN et al.
    (496 SE2d 558)
   Ruffin, Judge.

Appellees Sara Allgood Herren and her family (“the Allgood family”) filed a Petition for Certiorari in superior court seeking a review of the Cobb County Board of Zoning Appeals’ denial of the family’s request for a land disturbance permit for a mobile home park they owned. Cobb County, as respondent in certiorari, moved to dismiss the petition because it did not contain a bond or pauper’s affidavit as required by OCGA § 5-4-5 and was not endorsed with the sanction of the appropriate judge in accordance with OCGA § 5-4-3. The superior court denied the motion, permitted the Allgood family to amend their petition in accordance with OCGA § 5-4-10 and sanctioned the petition. Cobb County filed an application for interlocutory appeal, arguing that the court erred in allowing the family to amend with a late sanction beyond the 30-day time period of OCGA § 5-4-6. We granted the application, and for the following reasons, reverse the decision of the superior court.

The underlying facts are not in dispute. The Allgood family operated the Allgood mobile home park on property located on Atlanta Road in Cobb County. Although the mobile home park violated the Cobb County zoning ordinance adopted in 1972, the family’s use of the land predated the adoption of the ordinance and thus it was deemed a prior existing nonconforming use. In 1996, the Allgood family planned to renovate the park. In preparation thereof, the family removed approximately 90 percent of the existing mobile homes. Cobb County, however, refused to permit the renovations, which included the placement of approximately 140 new mobile homes, concluding that the mobile home park was no longer a legal, grandfathered, non-conforming use. The Allgood family petitioned for a land disturbance permit, which the county denied. The family appealed to the Cobb County board of zoning appeals (“the board”), which affirmed the county’s decision on November 26, 1996.

The Allgood family filed a petition for certiorari in the superior court on December 26, 1996 against the board and its individual members. As respondent in certiorari, Cobb County moved to dismiss the petition because it was not filed within 30 days with the appropriate sanction and bond or pauper’s affidavit attached. In response to the motion to dismiss, the Allgood family admitted that they did not include a bond or pauper’s affidavit, believing that it was not required. They also admitted that the petition lacked the sanction of the appropriate judge and moved to amend the petition. On April 9, 1997, the superior court denied the county’s motion to dismiss and permitted the family to amend in accordance with OCGA § 5-4-10. However, the court declined to sanction the family’s petition for certiorari nunc pro tunc to December 26, 1996. On May 5, 1997, the superior court sanctioned the petition for certiorari, together with the amendments permitted by the April 9 order.

The issue presented in this appeal is whether the failure to obtain the requisite sanction from the appropriate judge is an amendable defect in certiorari proceedings. We find that it is not amendable if the 30-day time requirement for applying for certiorari under OCGA § 5-4-6 (a) has expired.

Initially, we note that the Allgood family properly sought review of the board’s denial of the land disturbance permit by petitioning for a writ of certiorari. Section 134-96 of the Cobb County Zoning Ordinance provides that “[a]ny person or persons severally or jointly aggrieved by any decision of the board of zoning appeals may take an appeal to the superior court. The appeal to the superior court shall be by writ of certiorari.” See also Jackson v. Spalding County, 265 Ga. 792 (1) (462 SE2d 361) (1995) (county can specify means of judicial review of zoning matters, including denials of applications for variances and conditional use permits); Dougherty County v. Webb, 256 Ga. 474 (1) (350 SE2d 457) (1986).

To obtain a writ of certiorari, an aggrieved party, such as the All-good family, must petition the superior court for the county in which the case was tried, setting forth plainly and distinctly the errors complained of. OCGA § 5-4-3. Furthermore, “[a]ll writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.” OCGA § 5-4-6 (a). The language of OCGA § 5-4-6 is “certain, positive, and unequivocal.” Hitt v. City of Atlanta, 103 Ga. App. 717, 718 (120 SE2d 339) (1961) (applying substantially similar language of former Code Ann. § 19-209).

Viability of a petition for a writ of certiorari is also contingent upon the party obtaining the sanction of the appropriate judge. “[Upon] the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit... it shall be the duty of the clerk to issue a writ of certiorari.” (Emphasis supplied.) OCGA § 5-4-3. Absent the sanction, the clerk of the superior court has no authority to either file the application for certiorari or issue the writ. Bellew v. State Hwy. Dept., 127 Ga. App. 301 (193 SE2d 202) (1972). Sanctioning is an integral part of the application for certiorari and without it, the certiorari process cannot move forward.

Moreover, a superior court judge is not vested with judicial discretion to grant or deny a sanction of a petition for certiorari when that petition is presented to the judge for sanction more than 30 days after the final determination of the underlying case. Hitt, supra at 718; see also Williams v. Brownlee, 147 Ga. App. 831 (250 SE2d 567) (1978) (writ sanctioned and issued more than 30 days from the date of the board’s decision was properly dismissed for failure to comply with statutory deadline); Goldstein v. Smith, 141 Ga. App. 493, 494 (2) (233 SE2d 864) (1977) (amendment to petition containing a true petition for writ of certiorari and a sanction filed after the 30 days had run did not save the petition from dismissal). To hold that the judge had such discretion would amount to rewriting OCGA § 5-4-6. See Hitt, supra. Accordingly, in the instant case, the superior court judge had no discretion to sanction the Allgood family’s petition for a writ of certiorari after the 30-day statutory deadline had run.

The Allgood family insists, however, that the absence of a sanction was amendable in accordance with OCGA § 5-4-10, which provides that “[c]ertiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.” We disagree.

“In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cit.] All words, except words of art, shall be given their ordinary significance.” City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). As the dissent aptly points out, the Act of 1961 was passed to clarify and simplify the procedure in certiorari proceedings, as well as to repeal OCGA § 5-4-10 and to substitute for that section a new section providing for amendments. Ga. L. 1961, p. 190. In this new OCGA § 5-4-10, the legislature listed the documents that could be amended as to form or substance at any time: the bond, petition, answer and traverse. Had the legislature intended to allow for an amendment of a late sanction, it would have included it in the Code section.

The dissent believes that a party could obtain a late sanction in certiorari proceedings prior to the 1961 amendment of OCGA § 5-4-10. McDonald v. Cousins, 23 Ga. 227 (1857). Furthermore, the dissent asserts, the legislature intended to permit late sanctioning to continue when it enacted the current version of OCGA § 5-4-10 relating to amendable defects. We do not find McDonald dispositive or applicable. McDonald involved the filing of a writ of certiorari from the decision in a forcible entry and detainer case. The Supreme Court had previously held in Taylor v. Gay, 20 Ga. 77 (1856), that the Act of 1850, which was enacted to amend the several laws of Georgia regarding writs of certiorari, did not apply to the facts in Taylor, in which a party was seeking a writ of certiorari from a judgment in a forcible entry and detainer case. We note that the Act of 1850 was the precursor to the current statutory scheme for obtaining writs of certiorari. McDonald concluded that it was the constitutional writ of certiorari and not the statutory writ of certiorari provided by the Act of 1850 that was applicable where a party seeks certiorari from the decision in a forcible entry and detainer case. Thus, it does not appear that McDonald relied on the precursor to OCGA § 5-4-1 et seq. in concluding that a late sanction could be obtained.

Furthermore, as mentioned previously, the language of the legislature in OCGA § 5-4-10 is clear and unambiguous as to what defects are amendable, and sanctioning is not listed. While a petition for certiorari can be amended under OCGA § 5-4-10, the petitioner must timely file for certiorari within 30 days, and this filing must occur only after the sanctioning by the appropriate judge. OCGA §§ 5-4-3; 5-4-6. If the filing is not timely nor is there a sanction, there is nothing viable that can be filed, issued or, accordingly, amended. Bellew, supra at 302. The petition here was void at the time of filing because it was not filed within 30 days with the sanction of the judge.

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Pope, P. J., Johnson and Blackburn, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge

dissenting.

I respectfully dissent.

Prior to Ga. L. 1961, pp. 190, 192-193, § 9 (OCGA § 5-4-10), certiorari to the superior court could not be amended. See Hudson v. Watkins, 225 Ga. App. 455, 456 (484 SE2d 24) (1997); Scott v. Oxford, 105 Ga. App. 301, 303 (3) (124 SE2d 420) (1962). The descriptive caption of the act to Ga. L. 1961, p. 190 states as the purpose of the statute: “[a]n Act to clarify, simplify and conform the procedure in certiorari proceedings to that prevailing in ordinary civil cases as to appearance day ... to repeal section [OCGA § 5-4-10], relating to traverse of the answer, and to substitute therefor a new section providing for amendments.” See Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130 (105 SE 629) (1921). Under OCGA § 9-11-81, certiorari proceedings are considered “special statutory proceedings” to which the Civil Practice Act applies “except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law. . . .” OCGA § 9-11-81; see Bragg v. Bragg, 225 Ga. 494, 495 (170 SE2d 29) (1969); Hudson v. Watkins, supra at 456. OCGA § 5-4-10 limits amendments to the petition, bond, answer, and traverse. Late service of the answer is not an amendable defect. Schaffer v. City of Atlanta, 144 Ga. App. 702 (242 SE2d 288) (1978). The failure to serve the opposite party is not an amendable defect. Hudson v. Watkins, supra at 457.

“Thus, until amendment, the petition is equally lifeless under either the old or the new law [when OCGA § 5-4-6 is not complied with by the petitioner]. The only difference is that now a right to amend exists, and when that right is exercised, it does result in breathing life into what was completely lifeless before. . . . The new statute does not change the old law, but it adds to it by providing a method of resuscitation not formerly existing.” Scott v. Oxford, supra at 305.

In this case, it was the petition for the writ of certiorari that was defective for lack of the judge’s signature sanctioning the writ of certiorari prior to filing. The execution of the sanction by the court is not a discretionary but a ministerial act, which can only be denied when the petition for writ of certiorari is defective on its face. See OCGA § 15-6-9; Clark v. Morris Plan Bank, 194 Ga. 522, 523 (22 SE2d 147) (1942). Prior to OCGA § 5-4-10, upon motion the petition in certiorari could be amended to subsequently sanction an unsanctioned petition. “In the case before us, everything was done, except obtaining the previous mandate of the Court, for the writ of certiorari to issue. The answer of the Justices [was] in, and all the facts before the Court; and we hold, therefore, that the motion to amend should have been allowed.” McDonald v. Cousins, 23 Ga. 227, 229 (1857).

The petitioners made a motion to amend the petition for certiorari and to sanction the petition, and the amendment was granted by the trial court on April 9, 1997 at the same time that the Court denied the motion to dismiss for lack of a sanction and approved security bond; however, the trial court refused to make the sanction nunc pro tunc to December 26, 1996. The trial court stated in its order: “the Court declines to sanction the Petitioners’ petition for certiorari nunc pro tunc to December 26, 1996.” In Bellew v. State Hwy. Dept., 127 Ga. App. 301, 302 (3) (193 SE2d 202) (1972), this Court held that upon motion to amend praying for sanction and the exercise of discretion by the trial court to make a late sanction that the defect would be cured under McDonald v. Cousins, supra at 229, which was done in this case.

Legislation shall be construed in light of the existing case law and the mischief to be remedied by a new act to determine the intent of the legislature. Atlanta & West Point R. Co. v. Wise, 190 Ga. 254 (9 SE2d 63) (1940); see also McGuire v. McGuire, 228 Ga. 782 (187 SE2d 859) (1972). Thus, the General Assembly would have been aware of McDonald v. Cousins, supra, when it passed OCGA § 5-4-10 and intended that the power to amend would also encompass the late addition of the sanction. The power to amend would resuscitate not only a void petition but also the filing, service, and answer once the sanction was given. Scott v. Oxford, supra at 305.

Decided February 6, 1998

Parks F. Huff, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, John K. Moore, for appellees.


text:
    A97A2497.
    JACKSON, STATE REVENUE COMMISSIONER v. CITY OF COLLEGE PARK.
    (496 SE2d 777)
   Pope, Presiding Judge.

This complex case involves a dispute among Fulton County municipalities and the Georgia Department of Revenue regarding the proper distribution of revenues obtained from a sales and use tax imposed in the Fulton County Special Tax District. The distribution of these funds has been litigated before. See City of Atlanta v. Collins, 262 Ga. 261 (417 SE2d 141) (1992); City of Roswell v. City of Atlanta, 261 Ga. 657 (410 SE2d 28) (1991). This particular dispute arose after the Legislature amended OCGA § 48-8-89 in 1994. That statute has long required the individual governments in a special tax district to negotiate and agree to the percentages of the tax “pie” to which each government would be entitled. In 1994, the Legislature amended OCGA § 48-8-89 (b) and added a list of criteria the governments should consider when negotiating the distribution agreements. In a new subsection (d) (7), the Legislature provided that certain existing certificates would expire on December 31, 1995 and required the renegotiation of those certificates before July 1, 1995.

Pursuant to the amended statute, the governments in Fulton County entered the negotiations and, in June 1995, the county and all but one of the cities reached an agreement regarding the percentage of revenues each would receive. They filed this “certificate of distribution” with the Revenue Department on June 30, 1995. Union City’s government, however, examined the most recent census data and realized it would receive a greater share of tax funds if it opted out of the agreement and chose “absent municipality” status pursuant to OCGA § 48-8-89 (b) and City of Winder v. Collins, 259 Ga. 570, 572 (385 SE2d 71) (1989). That authority provides that a city may choose to be treated as an “absent municipality” and receive sales tax revenues based on its population in proportion to the population of other cities in the county. Specifically, the statute states that where a city chooses “absent municipality” status, the remaining parties to the agreement “shall, in behalf of the absent municipalit[y], specify a percentage of that portion of the remaining proceeds which each such municipality shall receive, which percentage shall not be less than that proportion which [the] absent municipality’s population bears to the total population of all qualified municipalities in the special district multiplied by that portion of the remaining proceeds which are received by all qualified municipalities within the special district.” OCGA § 48-8-89 (b). On June 23, 1995, the Revenue Department received Union City’s letter requesting this “absent municipality” status.

Although some time passed before the Revenue Commissioner could confirm the official census figures, the results did show that Union City, as an absent municipality, was entitled to a statutory minimum of 1.1689 percent of the tax revenues. This figure was .0689 percent higher than the percentage allocated in the June 1995 certificate. Under City of Atlanta v. Collins, 262 Ga. at 263, Union City’s increase required offsets “from the tax proceeds allocated to all the [other] qualified municipalities.” On January 2, 1996, the Commissioner notified the county and municipalities of the problem and stated that “in the absence of the Revenue Commissioner’s receiving a new, valid distribution certificate by . . . March 4, 1996,” the Revenue Department would distribute tax revenues to all the cities in the tax district based only on the proportion of each city’s population to the population of all cities in the district.

The City of College Park immediately protested the Revenue Department’s plan, as it completely disregarded the percentage distributions the other cities had agreed to in the June 1995 certificate. College Park suggested that the reallocation needed to increase Union City’s percentage be taken from all the other cities pro rata. The record is unclear as to whether College Park and the remaining governments attempted to renegotiate the agreement to account for the necessary change. When the. Revenue Department did not receive a new agreement, it wrote the governments on March 5, 1996, and notified them that it would impose on the governments its proposed distribution scheme.

College Park then filed this declaratory judgment action against the Commissioner, and the other cities involved were joined as parties. College Park claimed that the Revenue Department had no power to impose its own distribution scheme and that the scheme it imposed failed to take into account any criteria other than population, in violation of the 1994 amendments to OCGA § 48-8-89 (b). Both sides moved for summary judgment. The trial court struggled to determine whether the Revenue Department had power to impose its own plan; nevertheless, it found that the Revenue Department’s plan did not treat College Park fairly and granted a summary judgment which adopted College Park’s “pro rata” approach.

We reverse the trial court’s judgment because 1) the Revenue Department had no statutory power to impose on the county and cities its own distribution plan; and 2) the trial court, likewise, had no power to impose the distribution plan advocated by College Park. We further find that under the statutory scheme, when the Revenue Commissioner notified the municipalities of Union City’s position, those governments should have renegotiated the June 1995 agreement and, if such negotiations were unsuccessful for 60 days, should have submitted their dispute to nonbinding arbitration, mediation, or other similar manner of conflict resolution.

1. In determining the merits of this case, the trial court did not specifically decide whether, when one city chooses absent municipality status, the Revenue Department has power to disregard prior negotiations and impose its own distribution formula. In fact, the trial court’s order notes that “greater detail is needed in order to guide this [c]ourt as to a proper course of action.” After closely examining OCGA § 48-8-89 and Supreme Court cases interpreting it, we conclude the Revenue Department has no power to impose this formula on the city governments.

First, the statute states that all distributions in the special tax district “shall be [made] in accordance with a certificate which shall be executed in behalf of each respective governing authority, except as otherwise provided in this subsection.” OCGA § 48-8-89 (b). The statute provides certain criteria the governments are required to use in reaching their agreement. OCGA § 48-8-89 (b) (l)-(8). When a city chooses “absent municipality” status, the statute provides that “the submitting political subdivisions shall” specify a percentage share for the absent municipality, provided that share is equal to or above the statutory minimum. (Emphasis supplied.) Id. In the present case, the governments were statutorily required to renegotiate their agreement and file it with the Revenue Commissioner before July 1, 1995. OCGA § 48-8-89 (d) (7). If negotiations continued for 60 days with no agreement, the parties were required to “agree to submit the dispute to nonbinding arbitration, mediation, or such other means of resolving conflicts in a manner which, in the judgment of the commissioner, reflects a good faith effort to resolve the dispute.” OCGA § 48-8-89 (d) (3). Nowhere does the statute empower the Commissioner to decree a distribution formula if the governments cannot agree; rather, the Revenue Department’s only obligation is to receive the filed agreement certificate and “distribute the proceeds of the tax in accordance with the directions of the certificate.” OCGA § 48-8-89 (b). If the governments failed to submit a valid agreement by the July 1, 1995 deadline, the authority to impose the sales and use tax was to terminate on December 31, 1995. OCGA § 48-8-89 (d) (7). Compare OCGA §§ 48-8-89.2 and 48-8-89.3, which provide that the Commissioner may make specific revisions to an existing certificate when municipalities in the district cease to exist or municipalities omitted from the original certificate seek part of the tax proceeds.

The Revenue Department claims that a prior action, City of Atlanta v. Collins (Fulton Superior, Case No. D-90750, decided November 15, 1991), finally determined its power to declare this distribution plan when the governments failed to agree. There the superior court determined that when certain cities in the Fulton County special tax district opted out of a certificate and took “absent municipality” status, the Revenue Commissioner could declare that all cities in the tax district would be allocated revenues proportionately according to their population. We disagree, as that ruling is not binding in this case. First, that ruling has no res judicata or collateral estoppel effect. This case involves two different transactions, so res judicata does not apply. See Cheely v. State of Ga., 251 Ga. 685, 687 (3) (309 SE2d 128) (1983); OCGA § 9-12-40. Moreover, the law has changed significantly since the 1991 ruling. Collateral estoppel does not apply where “a new determination is warranted to take account of an intervening change in the [law].” 46 AmJur2d, § 540. This Court will not allow a lower court ruling in a limited 1991 action to declare for all time the power of the State Revenue Department. See Miller v. Charles, 211 Ga. App. 386, 388-389 (3) (439 SE2d 88) (1993) (court will not apply preclusive effect where doing so would cause injustice). Second, we disagree with any contention that the Supreme Court’s decision in City of Atlanta v. Collins, 262 Ga. at 263-264, somehow validated the superior court’s 1991 ruling regarding the Commissioner’s power. On the contrary, nothing in that opinion discusses this precise issue. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (Citations and punctuation omitted.) Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960). See OCGA § 9-11-60 (h) (law of the case rule abolished, except that appellate decisions govern later proceedings in same case).

2. Although the trial court correctly declared that the Revenue Commissioner improperly imposed its plan on College Park and the other municipalities, it erred by ordering that the Revenue Commissioner adopt College Park’s “pro rata” solution. Just as nothing in the statute gives the Revenue Department power to impose a plan, no law allows College Park and the cities allied with its position to unilaterally impose their will on the Revenue Department and the other governments. The legislative scheme of OCGA § 48-8-89 shows clearly an intent that the governments in each tax district reach an agreement on the distribution of funds. The Legislature stated its “express intent” that “eligible political subdivisions shall analyze local service delivery responsibilities and the existing allocation of proceeds made available to such governments under the provisions of this article and make rational the allocation of such resources to meet such service delivery responsibilities.” OCGA § 48-8-89 (d) (1). Voluntary agreement, not judicial decree, is the only means of producing the necessary “certificate of distribution.”

If those voluntary negotiations fail, resort to the courts is not the correct remedy. OCGA § 48-8-89 (d) (3) provides that, when the governments fail to agree to a certificate of distribution within a 60-day period, they must submit their dispute to “nonbinding arbitration, mediation, or such other means of resolving conflicts in a manner which, in the judgment of the commissioner, reflects a good faith effort to resolve the dispute.” The time-honored statutory construction rule of ejusdem generis “limits the interpretation of broad language in a series ... to the class of the defined terms preceding it.” (Emphasis omitted.) Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996). Therefore, if negotiations failed, the City of College Park and the other governments were required to attempt to resolve the conflict using a type of dispute resolution which did not involve coercive relief or rule by decree or fiat — techniques such as mediation or nonbinding arbitration. The incentive to negotiate is not the threat that a judge or the Revenue Department will decide the issue; rather, if the parties reach no agreement their power to levy the tax may terminate. See OCGA § 48-8-89 (d) (7). The court-imposed remedy was, therefore, error.

We note that, had the remaining governments simply omitted from the certificate any portion of the tax proceeds for Union City, the Revenue Department would have followed the procedure outlined in OCGA § 48-8-89.3. That statutory procedure was, in effect, the procedure the trial court adopted in this case. As “fair” as that procedure may be, it is not applicable to this factual scenario as the statute is currently drafted.

3. We have not been asked to determine the validity of the June 1995 certificate of distribution, although we note that it was not endorsed by all municipalities and allocates Union City a percentage of revenues below the statutory minimum. Pursuant to OCGA § 48-8-89 (d) (7), were the June 1995 certificate invalid, the authority to impose the tax would have terminated on December 31, 1995. Under the circumstances, we offer no opinion on that issue. The superior court’s judgment is reversed, and this case is remanded with direction that the court require the municipalities within the Fulton County Special Tax District to engage in appropriate dispute resolution procedures as required by OCGA § 48-8-89 (d) (3).

Decided February 6, 1998.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, David A. Runnion, Senior Assistant Attorneys General, Harold D. Melton, Assistant Attorney General, for appellant.

Glaze, Glaze & Fincher, George E. Glaze, Laurel E. Henderson, Theodore P. Meeker III, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

        City of Winder, 259 Ga. at 572, held that a city may choose to be treated as an absent municipality, but it did not address the central question here: who determines what percentage of revenues the absent muncipality will receive, and how is that determination made?


author: Beasley, Judge.

text:
    A97A2295.
    NORRIS v. THE STATE.
    (496 SE2d 781)
   Beasley, Judge.

Norris was convicted of one count each of kidnapping (OCGA § 16-5-40), making a false statement on a matter within the jurisdiction of a city (OCGA § 16-10-20), false imprisonment (OCGA § 16-5-41), and bigamy (OCGA § 16-6-20), two counts of battery (OCGA § 16-5-23.1), and four counts of cruelty to children (OCGA § 16-5-70).

The indictment alleged that Destiny Healey was the victim of the cruelty to children counts, the kidnapping and false imprisonment counts, and one count of battery; that Rebecca Lyn Carlton was the victim of the other count of battery; that the false statement was made by Norris to a police officer during an investigation into the whereabouts of Destiny Healey; and that Norris committed bigamy by being married both to Rebecca Lyn Carlton and Molly Reeve.

The State’s evidence showed that Kathy Healey moved into Norris’ trailer along with her daughter Destiny after dating Norris for a brief period. Norris was “real nice” at first but soon became very controlling and physically abusive to both Kathy and the child. Initially, he became angry at Kathy and physically assaulted her because he thought she was going to leave him. His abuse of Kathy included hitting her, choking her almost to the point of asphyxiation, pulling her hair, and cutting her hair in a fit of jealousy so as to make her unattractive to other men. He physically abused Destiny in a multitude of ways. During these periods of abuse, Norris physically prevented Kathy and Destiny from leaving the trailer. At other times, he threatened to kill them, as well as members of their family, if they attempted to leave. On the occasion of the first visit of Kathy’s parents, Norris was “nice,” but later attempts by family members to visit were fruitless because Norris forced Kathy and Destiny to pretend they were not home.

Rebecca Lyn Carlton, sworn as a State’s witness under the name Rebecca Lyn Norris, testified she was Norris’ wife. He was “really nice” to her during their brief courtship, but when they married, he began hitting and choking her and pulling and cutting her hair.

1. Norris challenges the overruling of his objection to the admission of similar transaction evidence.

The State sought to introduce such evidence to show a pattern of physical and mental abuse by which Norris intimidated women into remaining with him, thereby rebutting the defense that Kathy Healey had voluntarily remained in the parties’ relationship. Norris objected on grounds that the other transactions were not sufficiently similar in nature and that they would improperly place his character into evidence and unduly prejudice the jury against him.

The testimony of the eleven similar transaction witnesses showed the following basic pattern of conduct by Norris toward seven other women: At the beginning of their relationship, he was very pleasant to them; after dating six of them for a brief period, he either began living with or married them; he would then become very jealous, controlling, and physically abusive; the physical abuse included hitting, choking, hair cutting, and in some instances abuse of children; he prevented some of the women from seeing their families; and he prevented all of them from leaving by threatening to harm or kill them and/or their families.

The similar transactions were of sufficient similarity to the crimes charged so that the court did not err in admitting evidence of them for the limited purpose of showing a course of conduct by Norris, evincing the same pattern of abusive behavior toward women with whom he had an intimate relationship, which tended to prove criminal intent. See Jackson v. State, 226 Ga. App. 604, 606 (1) (487 SE2d 142) (1997) and cits.; compare McGee v. State, 267 Ga. 560, 562 (2) (480 SE2d 577) (1997). “The fact that the evidence might incidentally place appellant’s character in evidence does not destroy its admissibility as a similar transaction. . . . [Cits.]” Willis v. State, 214 Ga. App. 479, 480 (3) (b) (448 SE2d 223) (1994). As in Willis, it was not error to determine that relevance outweighed prejudicial effect.

2. Norris moved for mistrial, on the basis of OCGA § 24-9-20 (b), when testimony was given by a Coast Guard investigator and later by a similar transaction witness showing Norris was a military deserter.

The investigator testified concerning injuries Norris inflicted on the similar transaction witness and his resulting conviction of assault in a military court. When the investigator was asked how he knew Norris, he responded that he was assigned to locate Norris after Norris was declared a deserter from the Coast Guard. Norris sought a mistrial on the ground the State improperly placed his char-' acter in issue by evidence of an independent dissimilar crime. The court denied the motion but instructed the jury to disregard the testimony.

The second motion for mistrial was made after the similar transaction witness gave an unresponsive answer to a question of the prosecuting attorney which also showed Norris had gone AWOL from the Coast Guard. The court denied this motion as well and again instructed the jury to disregard the testimony.

The Coast Guard investigator’s connection with Norris was relevant to explain how he learned of the assault on the similar transaction witness. The inadmissible fact was not elicited by the State, was only briefly referred to, and was not focused on except in the context of excising it immediately from the body of evidence for the jury to consider. The court did not abuse its discretion in determining that the testimony regarding the investigator’s reason for investigation was not so prejudicial as to warrant a mistrial. See generally Freese v. State, 196 Ga. App. 761, 762-763 (1) (396 SE2d 922) (1990); Nowlin v. State, 225 Ga. App. 447, 450-451 (5) (414 SE2d 14) (1997). A limiting instruction was sufficient. Maxwell v. State, 262 Ga. 73, 76 (4) (414 SE2d 470) (1992). The same is true for the other mention of it.

3. Norris urges that his convictions of false imprisonment and kidnapping should have been merged, but they were based on different conduct on separate occasions. False imprisonment was the confinement of Destiny Healey in Norris’ trailer, and the kidnapping was Norris’ abduction of her in an automobile. “In [such] circumstances, false imprisonment does not merge with kidnapping either as a matter of fact or as a matter of law. . . .” Johnson v. State, 195 Ga. App. 723, 724 (2) (394 SE2d 586) (1990); compare Massey v. State, 265 Ga. 632 (1) (458 SE2d 818) (1995).

4. Norris contends the evidence was insufficient to support the conviction of bigamy because: (a) there was no evidence that would support an inference of knowledge by Norris that his marriage to Molly Reeve had not been dissolved and (b) his supposed marriage to Rebecca Lyn Norris was based solely on her testimony that they married in August 1992. She did not identify the date or location of the marriage, nor was a certified copy of a marriage certificate presented.

(a) “In a prosecution for bigamy the State makes out a prima facie case by proving the first marriage, and that while the first spouse was living the defendant contracted a second marriage, knowing that the first marriage had not been dissolved by death or divorce; and the knowledge need not be shown by direct evidence, but may be inferred from circumstances.” Robinson v. State, 6 Ga. App. 696 (1) (65 SE 792) (1909); see OCGA § 16-6-20 (a).

Molly Reeve testified that she and Norris entered into a ceremonial marriage in January 1992. Initially she testified that she did not obtain a divorce because she could not locate Norris. Later she explained that although she did initiate a divorce action, she did not attend a hearing because she did not receive timely notice of it, and she did not have sufficient funds to pursue the matter further. A rational trier of fact could infer that Norris knew he and Reeve had not been divorced.

(b) To prove bigamy, “it is necessary to establish the marriage either by the record thereof, or by the admission of the defendant, or by the testimony of some one who saw the ceremony performed, or by such other evidence as will clearly establish the factArnold v. State, 53 Ga. 574 (1875). Thus, the testimony of one of the participants in the marriage ceremony is sufficient to prove the marriage. See 36 AmJur 465, Proof of Facts, § 10 (1983). Production of the marriage certificate is not necessary. Id. If the location and exact date of the marriage are not provided by the witness on direct examination, defendant may inquire into such matters during cross-examination.

5. The final issue involves dismissal of a juror from deliberations. The juror had responded in the negative to a voir dire question by the State concerning whether any panel members had been involved in an abusive relationship. During deliberations he informed other jurors that he had been assaulted by women on prior occasions, and he displayed a scar.

“ ‘OCGA § 15-12-172 authorizes the trial court to replace a juror who “dies, becomes ill, upon other good cause shown to the court is found to be unable to perform (his) duty, or is discharged for other legal cause.” . . .’ [Cit.]” Stokes v. State, 204 Ga. App. 141 (1), 142 (418 SE2d 419) (1992). “Under OCGA § 15-12-172, the trial court has discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis. [Cits.]” Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994).

It was not an abuse of discretion to conclude that the juror’s failure to respond truthfully during voir dire, coupled with his admitted actions during jury deliberations, constituted legal cause for removal. See McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991); see also Worthy v. State, 223 Ga. App. 612, 613 (1) (478 SE2d 421) (1996); compare Gardiner v. State, 264 Ga. 329, 333 (4) (444 SE2d 300) (1994). Further inquiry into the juror’s ability to be fair and impartial was not required. Bias was already evident. See McGuire, supra; compare Scott v. State, 219 Ga. App. 798 (2) (466 SE2d 678) (1996); Maxwell v. State, 218 Ga. App. 780 (1) (463 SE2d 517) (1995).

Decided February 9, 1998.

Kenneth W. Krontz, for appellant.

Peter J. Skandalakis, District Attorney, Christopher J. Adams, Kevin W. Drummond, Assistant District Attorneys, for appellee.

Judgment affirmed. McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A98A0045.
    SCOTT v. PERKINS.
    (497 SE2d 21)
   Blackburn, Judge.

In this discretionary appeal, Wade E. Scott contends that the trial court erroneously applied the “unclean hands” doctrine in denying his petition for modification of child support. For the reasons set forth below, we agree and vacate the trial court’s judgment.

Scott and Jennifer D. Perkins were divorced on July 9, 1993. The divorce decree required Scott to pay $650 per month as child support for their two children and also to provide health insurance coverage for the children. On October 16,1996, Scott filed a petition for modification of child support, claiming that his income had substantially decreased since the divorce and that his living expenses had increased due to his custody of a child from a subsequent marriage.

During the modification hearing, Scott testified that he had not provided insurance for the children, but that Perkins had provided such insurance. At that point, the judge sua sponte terminated the hearing and stated that he was denying the petition because Scott had unclean hands. The judge subsequently entered a written order denying the petition solely on the grounds that “[pjlaintiff has unclean hands in that he does not have health insurance on the children.” The judge did not make any findings of fact regarding whether Scott had experienced a change in income or financial status or whether modification would be consistent with the needs of the children.

The doctrine of unclean hands is based on OCGA § 23-1-10, which provides that “[h]e who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.” “The unclean-hands maxim which bars a complainant in equity from obtaining relief has reference to an inequity which infects the cause of action so that to entertain it would be violative of conscience. It must relate directly to the transaction concerning which complaint is made.” (Punctuation omitted.) Pryor v. Pryor, 263 Ga. 153, 154 (1) (429 SE2d 676) (1993).

The fact that a parent has not complied with his obligations under a divorce decree does not automatically bar that parent from seeking modification of child support due to changed circumstances. OCGA § 19-6-19 (a) provides that a child support order “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse or in the needs of the child or children.” The statute further provides that, “[a]fter hearing both parties and the evidence, the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment ... in accordance with the changed income and financial status of either former spouse or in the needs of the child or children ... if such a change in the income and financial status is satisfactorily proved so as to warrant the modification and revision.” OCGA § 19-6-19 (a). “The final decision of whether to modify the award is within the discretion of the trier of fact.” Marsh v. Marsh, 243 Ga. 742 (256 SE2d 442) (1979).

Thus, OCGA § 19-6-19 (a) identifies the factors to be considered by the court in assessing a petition for modification of child support: (1) the changed income and financial status of the parents and (2) the needs of the children. See Miller v. Tashie, 265 Ga. 147, 149 (454 SE2d 498) (1995). Nothing in the statute indicates that noncompliance with the petitioner’s obligations under the existing divorce decree bars an action for modification of such obligations. Indeed, such a rule would defeat the very purpose of the statute, as a parent who has a legitimate need for modification due to an adverse change in financial condition is likely to have failed to meet his current support obligations.

In holding that strict compliance with the terms of an existing divorce decree is not a prerequisite for maintenance of a modification action, we do not suggest that noncompliance is irrelevant to such an action. Where a parent wilfully fails to provide support despite an ability to do so, the trier of fact may consider this relevant in evaluating the credibility of the parent’s claim that a modification is necessary or the likelihood that the parent will comply with the modification if granted. However, the failure to comply with the existing decree, in and of itself, does not operate as a bar to an action for modification.

Nor does our holding allow parties to evade responsibility for their failure to fulfill their support obligations simply by seeking a modification thereof. A modification order may only alter the parent’s future support obligations and may not operate retroactively. Hen drix v. Stone, 261 Ga. 874 (1) (412 SE2d 536) (1992). Even if a parent is entitled to modification of a child support order due to changed circumstances, he or she is bound by the previous order until such time as a modification order is entered. Lindwall v. Lindwall, 242 Ga. 13, 14 (3) (247 SE2d 752) (1978). Therefore, a parent may be subject to contempt proceedings for failure to comply with an existing child support order, regardless of the outcome of the modification action.

Decided February 9, 1998.

Allen W. Bodiford, Martin C. Jones, for appellant.

Jennifer D. Perkins, pro se.

In this case, the trial court did not consider whether Scott’s actions in failing to perform under the previous decree should subject him to contempt. Nor did it make any findings as to Scott’s purported change in financial status or the needs of the children. Rather, it terminated the hearing and denied the petition for the sole reason that Scott had not complied with the terms of the divorce decree requiring him to provide health insurance for the children. As the trial court failed to exercise its discretion in considering whether a modification was appropriate under the standards set forth in OCGA § 19-6-19 (a), we vacate the judgment and remand the case for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0218.
    CLASSIC INSURANCE COMPANY v. REIGER et al.
    (497 SE2d 20)
   Judge Harold R. Banke.

Classic Insurance Company (“CIC”) brought this declaratory judgment action against its insured, Melissa Reiger, and Jeron Nelson to determine whether Reiger’s policy covered injuries she sustained in a traffic accident. The trial court granted Reiger’s motion for summary judgment and denied CIC’s. In its sole enumeration, CIC challenges the amount of Reiger’s award.

Reiger sustained serious injuries while a passenger in her own vehicle, which was involved in a one-car accident. Nelson, the permissive driver, was uninsured. Reiger’s policy provided $100,000 in liability protection and $100,000 in uninsured motorist protection. After learning that her liability coverage excluded injuries to the insured, Reiger sought uninsured motorist coverage. Because her policy’s uninsured motorist provisions covered only “uninsured” vehicles, CIC questioned coverage and filed this action. Held:

The parties agree that Iowa law controls. See Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992). Uninsured motorist coverage is mandatory in Iowa. ICA § 516A.1. Exclusions to uninsured motorist coverage for injuries to the policyholder while occupying an insured vehicle violate Iowa law. Rodman v. State Farm &c., 208 NW2d 903, 909-910 (Iowa S.Ct. 1973) (construing ICA § 516A.1). Uninsured motorist coverage may be omitted from liability policies in Iowa only when the named insured expressly rejects such coverage on a separate sheet of paper containing only the rejection. ICA § 516A.1.

In light of § 516A.l’s clear mandate, CIC concedes that Reiger is covered. It disputes the amount of coverage it must provide, however, arguing that the statute limits its coverage to $20,000, the amount set in ICA § 321A.1. Reiger maintains that she is entitled to coverage to her policy’s $100,000 limit.

In striking an insured vehicle exclusion under identical circumstances, the Iowa Supreme Court reasoned that “ ‘the distinction that the uninsured motorist was the driver of the automobile in which [the] plaintiff [the insured] was a passenger, rather than the driver of another automobile, is not decisive. . . . [B]ecause she was excluded from the liability coverage of the policy, the automobile was not an insured automobile and the driver was not an insured motorist, notwithstanding that as to all others the automobile and the driver may have been insured. Because no liability insurance was applicable to the plaintiff at the time of the accident, her uninsured motorist coverage necessarily became effective in light of the legislative mandate.’ [Cit.]” Rodman, 208 NW2d at 910. From this language, it follows that the invalid exclusion had no effect on the uninsured motorist coverage. See id. (citing Markham v. State Farm &c., 326 FSupp. 39, 45 (W.D. Okla. 1971) which required payment of the full amount of coverage provided under the policies). This finding comports with § 516A.l’s legislative purpose: to protect the insurance consumer, not insurers. Rodman, 208 NW2d at 909.

Decided February 9, 1998.

Shur, McDuffie, Brockman & Leveille, Brett F. Shur, for appellant.

John C. McCaffery, for appellees.

Notwithstanding CIC’s argument to the contrary, § 516A.1 does not require insurers to pay only the statutory minimum when a policy’s drafters intended to provide no coverage in violation of Iowa law. The statute simply sets the minimum amount of coverage an insurer can sell. It is undisputed that Reiger purchased $100,000 in uninsured motorist coverage. “There is no reason to believe that the legislature intended to deny the purchaser of uninsured motorist coverage the protection he purchased just because the liability coverage is” inapplicable. Id. at 909. Nor is there any reason to believe that Iowa courts would reward an insurer for promulgating an exclusion violative of Iowa law by enforcing the statutory minimum when the insured paid premiums for $100,000 in uninsured motorist coverage.

Judgment affirmed.

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

       The policy was issued in Iowa.

       In pertinent part, ICA § 516A.1 provides: “No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle ... because of bodily injury,... caused by accident and arising out of the ownership, maintenance, or use of such uninsured [vehicle] ... , or arising out of physical contact. . . with a motor vehicle which the person insured is occupying at the time of the accident.... [T]he uninsured motor vehicle [coverage]... shall include limits for bodily injury or death at least equal to those stated in section 321A.1, subsection 10____”


text:
    A98A0544.
    SCHMIDT et al. v. FELDMAN et al.
    (497 SE2d 23)
   Blackburn, Judge.

Linda and George Schmidt appeal the trial court’s dismissal of their medical malpractice complaint for failure to attach a properly notarized expert affidavit. For the reasons discussed below, we affirm.

The plaintiffs sued Paul Feldman, M.D., and Advanced Aesthetics, P.C. for medical malpractice in connection with a breast implant procedure. Pursuant to OCGA § 9-11-9.1, the plaintiffs attached to their complaint the expert affidavit of Frank Bongiorno, M.D. During Bongiorno’s deposition, he admitted that he had signed the affidavit in Michigan, although it was notarized by a Fayette County, Georgia notary.

In response to defendants’ motion to dismiss, plaintiffs submitted the affidavit of the notary, Tom Petersen, a paralegal working for the plaintiffs’ attorneys. Petersen testified that, on April 23, 1996, he forwarded the affidavit to Bongiorno in Michigan. On April 30, 1996, Petersen spoke with Bongiorno by telephone and reviewed the affidavit with him. Petersen testified that he had a copy of the affidavit in front of him, and that it was clear he and Bongiorno were looking at the same document. Petersen then had Bongiorno swear to the truth of the contents of the affidavit. Bongiorno returned the signed affidavit to Petersen, who received the affidavit on either May 3 or May 7, 1996. Petersen notarized the affidavit as of April 30, 1996, the date it was signed. Petersen testified that he had met Bongiomo and was familiar with his signature and voice.

1. Plaintiffs contend that the affidavit was properly executed and notarized, as there is no requirement that a notary be physically present in order to administer the oath and witness the affiant’s signature. This contention is contrary to well-established case law.

In Carnes v. Carnes, 138 Ga. 1 (74 SE 785) (1912), the Supreme Court held that “[i]n order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. There must be some solemnity, not mere telephone talk. Long-distance swearing is not permissible.” Id. at 6 (3). In Redmond v. Shook, 218 Ga. App. 477 (462 SE2d 172) (1995), the notary administered the oath over the telephone to the affiant, who was in Pennsylvania. Relying on Carnes, we affirmed the trial court’s grant of summary judgment to the defendant, holding that “an oath cannot be administered over the telephone in Georgia.” Id. at 477 (1).

Although plaintiffs argue that Carnes is no longer relevant in the modern world, it remains the law, and we are not at liberty to overrule the Supreme Court. Nor can we say that the Supreme Court’s unambiguous statement that “[l]ong-distance swearing is not permissible” is mere dicta that can be disregarded by this Court. Carnes, supra. Therefore, we are bound to hold that the affidavit in this case was not properly notarized. “Inasmuch as a writing in the form of an affidavit has no force or validity in the absence of a valid jurat, the trial court did not err in ruling that [Bongiorno’s] expert affidavit was invalid.” (Citation omitted.) Redmond, supra at 477-478 (l).

2. Plaintiffs contend that the relevant statutes do not clearly express the requirement that the affiant be in the physical presence of the notary and therefore amount to an unconstitutional violation of due process. This constitutional issue was raised in the trial court but not expressly addressed in its dismissal order. This appeal was originally filed in the Supreme Court, but was transferred to this Court because of the Supreme Court’s express determination that “the trial court did not rule upon the constitutional questions raised by the appellants.” Although it could be contended that the trial court implicitly rejected plaintiffs’ constitutional argument by ruling against them, we are bound to conclude under these circumstances that “ [t]he transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised.’ ” Stephens v. Ivey, 212 Ga. App. 407 (1) (442 SE2d 248) (1994). Compare Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996) (transfer does not necessarily mean that constitutional issue has no merit).

Decided February 9, 1998

Robert C. Koski, for appellants.

Alston & Bird, Angela T. Burnette, Lori G. Baer, for appellees.

Moreover, "[o]ur Supreme Court has exclusive jurisdiction over ... all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question. Further, if the Supreme Court has jurisdiction over a case because of this constitutional provision, it will not transfer that case, but will issue a decision addressing the merits of the constitutional issues raised therein. Thus, although this Court can no longer deem the transfer of an appeal to this Court as a determination by the Supreme Court that no meritorious constitutional issue was presented, appellate review in this Court ultimately is not affected because this Court has no jurisdiction to address a constitutional issue, except in limited circumstances.” (Citations and punctuation omitted.) Braden v. Bell, 222 Ga. App. 144, 145-146 (1) (473 SE2d 523) (1996). As such circumstances are not present in this case, plaintiffs’ constitutional argument is not properly before this Court for review.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

       The affidavit states “May 3 or May 6, 1997,” but it is apparent that it refers to 1996.

       We note that, because the trial court apparently considered Petersen’s affidavit and Bongiomo’s deposition testimony in ruling on the motion to dismiss, it arguably converted the motion to dismiss into a motion for summary judgment, triggering a requirement that plaintiffs “be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” OCGA § 9-11-12 (b); Hewett v. Kalish, 264 Ga. 183, 184-185 (442 SE2d 233) (1994). However, plaintiffs have not enumerated as error the trial court’s failure to comply with this requirement in ruling on the motion, nor did they raise this issue at the hearing on the motion. Accordingly, this issue is not before this Court for review. Bill Parker & Assoc. v. Rahr, 216 Ga. App. 838, 840 (2) (456 SE2d 221) (1995).