text:
    A89A1167.
    SMITH v. THE STATE.
    (387 SE2d 419)
   Carley, Chief Judge.

Indicted as a recidivist, appellant was tried before a jury and found guilty of aggravated assault and armed robbery. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s verdicts of guilt.

1. Urging that the aggravated assault merged into the armed robbery as a matter of fact, appellant enumerates as error the entry of a separate judgment of conviction and sentence as to both offenses.

The evidence adduced at trial would authorize the following findings: Appellant, armed with a sawed-off shotgun, forced his way into the office of the manager of a restaurant. He brandished the gun at the manager and demanded money. When she did not immediately comply, appellant fired the shotgun. The manager was wounded by the blast. She then gave appellant the money that he had originally demanded and he fled.

Under this evidence, there was no gratuitous violence employed against the victim in addition to that which was employed by appellant to effectuate the theft. Compare Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978). The violence preceded the theft and was the means by which appellant secured the victim’s compliance with his demand for the cash. Compare Harvey v. State, 233 Ga. 41, 42 (1) (209 SE2d 587) (1974) (violence subsequent to completed armed robbery); Williams v. State, 184 Ga. App. 480, 481 (2) (361 SE2d 713) (1987) (violence subsequent to completed armed robbery); Loumakis v. State, 179 Ga. App. 294, 297 (4) (346 SE2d 373) (1986) (violence subsequent to completed armed robbery); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981) (violence subsequent to completed attempt to commit armed robbery). “ ‘Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other. (Cits.) The only aggravated assault (committed by appellant) shown by the evidence in this case was that by which the commission of the armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it follows that the evidentiary basis for the aggravated assault conviction was “used up” in proving the armed robbery. (Cit.) The entry of separate convictions for both offenses is thus barred by OCGA § 16-1-7 (a), which prohibits multiple convictions for the same conduct. (Cits.) The aggravated assault conviction is accordingly vacated.’ [Cits.]” Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988).

2. Appellant moved for a continuance in order that his counsel could have additional time to prepare for trial. The denial of this motion is enumerated as error.

It is well-settled that a motion for a continuance for additional time to prepare for trial addresses itself to the sound discretion of the trial court and that the exercise of that discretion will not be disturbed on appeal unless it has been clearly abused. OCGA § 17-8-22; Pendergrass v. State, 168 Ga. App. 190 (2) (308 SE2d 585) (1983). Counsel was appointed to represent appellant some three months prior to trial. In addition, appellant was given the assistance of a private investigator at public expense. Some ten days before trial, appellant was informed of the names and, where available, the addresses and telephone numbers of 18 potential witnesses for the State. Most of these potential witnesses were persons known to appellant, the primary accusers being his alleged accomplices in the crime. Appellant’s accomplices were available to be interviewed. Moreover, on the morning of trial, their statements were produced as potentially exculpatory. Only four of the State’s witnesses then lived outside of Georgia. All of these four lived in Chattanooga, Tennessee. Two were the FBI agents who had arrested appellant, and the remaining two were related to one of appellant’s accomplices.

“In all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 17-8-20. Under the circumstances, the trial court was authorized to find that appellant failed to apply diligently such pre-trial time and resources as were available to him. Accordingly, it cannot be said that the trial court manifestly abused its discretion by refusing to grant appellant a continuance for additional time to prepare for trial.

3. On the third day of trial, appellant made an oral motion for a 24-hour continuance in order to obtain the testimony of an unsubpoenaed non-resident alibi witness. In addition, appellant also sought the continuance so as to obtain certain documentary evidence. The overruling of this motion is enumerated as error.

It is not error to refuse to continue a case in order to procure the testimony of a witness who resides beyond the jurisdiction of the court. Tolbert v. State, 12 Ga. App. 685 (7) (78 SE 131) (1913); Whitehead v. State, 43 Ga. App. 401 (2) (158 SE 917) (1931). As to the securing of documentary evidence, appellant “cites no authority . . . and gives no reason or rationale [as to how the trial court abused its discretion]. He therefore has abandoned this enumeration of error under Court of Appeals Rule 15 (c) (2). [Cit.]” Mitchell v. State, 157 Ga. App. 146 (1) (276 SE2d 658) (1981).

4. On direct examination by the State, one of appellant’s accomplices gave an unresponsive answer which was to the effect that appellant “was on the run from Monroe County.” Appellant moved for a mistrial on the ground that his character had been placed into issue impermissibly. The trial court denied the motion for mistrial. The trial court did, however, instruct the witness simply to answer the questions posed to her and not to interject extraneous statements. In addition, the jury was admonished to disregard the witness’ remarks. The denial of the motion for mistrial is enumerated as error.

In light of all of the relevant circumstances, including independent corroboration of the accomplices’ testimony by appellant’s own incriminating outcry upon arrest, “we find that the trial court did not abuse its discretion in denying the motion for mistrial.” Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983).

5. Appellant filed a written request to charge, the substance of which was to the effect that the testimony of an accomplice should be received with great care. The refusal to give this requested charge is enumerated as error.

The record shows that the trial court did charge the jury as to the assessment of the credibility of any witness, and further instructed that independent corroboration of an accomplice’s testimony is necessary before that testimony may be used to convict an accused. We find no error in the failure to give appellant’s request. See Ladson v. State, 248 Ga. 470, 476 (9) (285 SE2d 508) (1981).

Decided October 17, 1989.

Clifton M. Patty, Jr., for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.

6. Pursuant to OCGA § 17-10-7 (b), appellant was given a life sentence without parole as a fourth-offender recidivist. He enumerates this sentence as erroneous.

OCGA § 17-10-7 (c) provides that “conviction of two or more crimes charged on separate counts of one indictment. . ., or in two or more indictments . . . consolidated for trial, shall be deemed to be only one conviction.” (Emphasis supplied.) The State introduced exemplified copies of appellant’s eight prior felony convictions. Because he pled guilty to each of these charges in only two court appearances, appellant urges that they were “consolidated for trial” and that he has erroneously been denied the benefit of parole as a fourth-offender recidivist. Frazier v. State, 155 Ga. App. 683 (272 SE2d 548) (1980) controls this issue adversely to appellant’s contentions. Separate sentencing orders were entered, the sentences imposed were not uniform, and only three sentences were concurrent. Accordingly, there are at least three prior felonies which cannot be considered to have been “consolidated for trial” under OCGA § 17-10-7 (c).

Appellant further urges that the trial court erred in giving consideration to any of his prior felonies because the State failed to prove that his guilty pleas were voluntary. The record shows that the trial court in the underlying felony cases made explicit findings in six of the cases to the effect that appellant’s guilty pleas were voluntarily and understandingly made, having been entered with the assistance of counsel and accepted by the trial court after its own examination of appellant in open court.

7. The conviction and sentence for aggravated assault are reversed. The conviction and sentence under OCGA § 17-10-7 (b) for armed robbery are affirmed.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A1267.
    STANDER v. THE STATE.
    (387 SE2d 422)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of aggravated sodomy and aggravated child molestation. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds.

“There is no requirement that the testimony of the victim of child molestation be corroborated. [Cit.] Nevertheless, the testimony of the victim in this case was corroborated [by testimony concerning the outcry that she made to her mother].” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). The only conflicting testimony was that given by appellant himself with regard to his alibi. See King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). “[W]e find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant’s guilt of aggravated child molestation [and aggravated sodomy] beyond a reasonable doubt. [Cit.]” Adams u. State, supra at 599 (1).

2. The trial court’s entry of a conviction and sentence for both aggravated child molestation and aggravated sodomy is enumerated as error. Appellant urges that the two offenses are based on the same facts and that a conviction and sentence for both are violative of federal and state principles of double jeopardy.

“If both of appellant’s convictions were in fact based upon the same, single act, only one conviction . . . could stand. LaPalme v. State, 169 Ga. App. 540 (313 SE2d 729) (1984); OCGA § 16-1-7, generally.” McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985). However, the victim testified to several consecutive acts of sodomy and to yet another entirely separate act of sodomy, all of which occurred one morning. Thus, “the evidence authorized the jury to find that more than one instance of [sodomy] occurred, permitting conviction for each offense based on separate occasions.” Kirby v. State, 187 Ga. App. 88, 89 (2) (369 SE2d 274) (1988). “LaPalme is inapplicable, since there were multiple, separate acts as bases for each conviction.” McCollum v. State, supra at 40 (1).

3. Appellant enumerates the trial court’s charge on alibi as unconstitutionally burden-shifting.

The charge was not erroneous, since it essentially tracked the language which was approved in Patterson v. State, 233 Ga. 724, 730 (7), fn. 2 (213 SE2d 612) (1975). See also Kennedy v. State, 172 Ga. App. 336, 337 (2a) (323 SE2d 169) (1984); Tarplin v. State, 156 Ga. App. 407, 408 (4) (274 SE2d 773) (1980). “[T]he record shows that the trial court did charge the jury on alibi, thoroughly and correctly, making it clear that the burden was upon the State to prove that appellant was at the scene of the crime.” Brannon v. State, 176 Ga. App. 781, 782 (4) (337 SE2d 782) (1985).

Decided October 17, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


author: McMurray, Presiding Judge.

text:
    A89A1397.
    DILL v. THE STATE.
    (387 SE2d 424)
   McMurray, Presiding Judge.

Defendant was convicted in a jury trial of five counts of violation of the Georgia Controlled Substances Act. Defendant then retained another attorney who filed a motion for new trial and argued that defendant’s trial counsel was ineffective. This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends that he “was denied his Sixth Amendment right to effective assistance of counsel due to his [trial] attorney’s role as ‘family’ lawyer to the [State’s] informant in his case.”

“ ‘The reason a conflict of interests exists in a situation in which defense counsel is simultaneously representing a witness, even though the witness is not a co-defendant at trial, is that defense counsel might not be vigorous enough in his . . . examination of such a witness.’ Lemley v. State, 245 Ga. 350, 352 (264 SE2d 881). ‘It is (a) fundamental principle that the Sixth Amendment guarantee of effective assistance of counsel includes the right of an accused to be represented by an attorney free of any conflicts of interest.’ Keen v. State, 164 Ga. App. 81, 82 (1) (296 SE2d 91).” Craddock v. State, 173 Ga. App. 133 (1) (325 SE2d 804).

In the case sub judice, the evidence in a hearing on defendant’s motion for new trial showed that defendant’s trial attorney represented the State’s confidential informant in unrelated civil and criminal matters before and after defendant’s trial. However, defendant’s trial counsel testified that his loyalty to defendant was not impaired by his relationship with the State’s confidential informant and that he represented defendant to the best of his ability. Defendant’s trial counsel further testified that he was not certain that his former client was the State’s confidential informant until the sixth day of trial and that he was not aware that the informant’s testimony would benefit defendant. In fact, defendant’s trial counsel explained that he had received reliable information that the informant’s testimony would be detrimental to defendant’s defense and that this information was critical to his decision not to call the State’s informant to testify. Notwithstanding, defendant argues that divided loyalties prevented his trial attorney from calling the informant as a witness and presenting the informant’s purportedly exculpatory testimony.

Decided October 17, 1989.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, James F. Morris, Assistant District Attorneys, for appellee.

“ ‘In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler [v. Sullivan, 446 U. S. 335, 348 (100 SC 1708, 64 LE2d 333)]. ‘ “A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence.” ’ Brown v. State, [247 Ga. 298, 299 (2) (275 SE2d 52)]; Montgomery v. State, 156 Ga. App. 448, 454 (275 SE2d 72) (1980).” Hudson v. State, 250 Ga. 479, 480, 482 (299 SE2d 531).

In the case sub judice, although defendant showed that his trial attorney represented the State’s informant in unrelated matters before and after trial, he failed to conclusively demonstrate that an actual conflict existed between his interests and the informant’s interests which adversely affected his lawyer’s performance. On the other hand, the State presented evidence which authorized a finding that there was no conflict of interest which adversely affected defendant’s attorney’s performance at trial. Under these circumstances, we cannot say that the trial court erred in finding that defendant received adequate representation at trial. Craddock v. State, 173 Ga. App. 133 (1), supra. See Wharton v. Thomas, 256 Ga. 76 (343 SE2d 694).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A1666.
    MITCHELL v. THE STATE.
    (387 SE2d 425)
   Sognier, Judge.

Blair Warren Mitchell was convicted on two counts of aggravated assault and one count of rape. He filed this appeal.

1. Appellant contends the evidence was insufficient to support his convictions. Construed to support the verdict, the evidence adduced at trial showed that the rape victim and Robert Seay had dinner at a hotel restaurant and encountered appellant, a casual acquaintance of Seay’s, who asked them to join the group at his table. Appellant made comments about the rape victim’s breasts, causing an argument which spilled out into the parking lot, at which point the manager of the restaurant asked them all to leave. The rape victim and Seay returned to their room at the hotel. The rape victim testified that as she was washing up in the bathroom she heard a knock on the door, which Seay answered, and then she saw appellant reflected in the bathroom mirror. The rape victim fought appellant, but he choked her into unconsciousness. When she awoke, she discovered that she was nude from the waist down, that she had been badly beaten, and that her face was swollen. It was later determined that her jaw had been broken in one place and fractured in another.

Seay testified that fifteen or twenty minutes after he and the rape victim left the restaurant and returned to their room, he opened the door and was struck by appellant with what he thought was a tire tool. Seay testified that the next thing he remembered was waking up in pain from a broken nose and two broken ribs and seeing appellant on top of the rape victim, who was flat on the floor with her legs pulled back and apart by appellant. Seay stated that from the inert state of the rape victim, he thought she was dead. Seay testified that when he picked up a chair and approached appellant, from that angle Seay saw appellant having intercourse with the rape victim. Seay testified he hit appellant with the chair, but that appellant then got up and attacked Seay again. After Seay pled for his life and convinced appellant he would not tell anybody about what happened, appellant dressed and left the room. Seay then got the manager of the hotel to contact the police and observed appellant being driven quickly away by appellant’s girl friend.

This evidence is more than sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the aggravated assault on Seay and the aggravated assault and rape of the rape victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the State improperly introduced his character into evidence. The transcript reveals that appellant testified on direct that “I was sure that the law was going to come, and it was best for me to get away.” When appellant’s counsel asked him why he would want to get away from the law, appellant responded, “Habit. Training. Reflexes.” On cross-examination, objection was made to the assistant district attorney’s question “what was this habit and training from?” After the trial court overruled the objection, appellant answered the question by stating that “I do have a criminal record.” Appellant subsequently testified that he had been convicted of robbery and when he testified he could not remember any other convictions, the State laid the foundation and introduced appellant’s numerous other prior convictions.

Decided October 17, 1989.

Glenn Zell, for appellant.

Thomas J. Charron, District Attorney, Thomas A. Cole, Debra H. Bernes, Assistant District Attorneys, for appellee.

A defendant in a criminal case may testify in his own behalf. “If a defendant testifies, he shall be. sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20 (b). We agree with the State that the assistant district attorney’s initial question to appellant constituted proper cross-examination of testimony appellant had given on direct about his habit, training, and reflexes. “ ‘(I)t was appellant, on direct examination, who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination. (Cit.)’ [Cits.]” Lockett v. State, 188 Ga. App. 645, 646 (373 SE2d 768) (1988). It is thus not necessary to determine whether appellant’s testimony on direct examination had “opened the character door,” id., since it was appellant who introduced his character into evidence by discussing his criminal record in the response he chose to give to the prosecutor’s proper cross-examination as to appellant’s direct examination testimony. Therefore, we find no merit in appellant’s second enumeration challenging the prosecution’s questions.

Nor do we find any merit in appellant’s final enumeration in which error is asserted in the admission of appellant’s prior convictions. “In Phillips v. State, 254 Ga. 370, 372 (329 SE2d 475) (1985), the Supreme Court held that when ‘a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20 (b), . . . (with the result that) the prosecutor may cross-examine him as to such conduct and may prove other prior convictions.’ The evidence of the separate offenses [committed by appellant] was clearly admissible under the Phillips standard. . . .” Spencer v. State, 180 Ga. App. 498, 499-500 (1) (349 SE2d 513) (1986). Accordingly, the trial court did not err by overruling appellant’s objections to the admission of his prior convictions.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1789.
    SHORTER v. THE STATE.
    (387 SE2d 427)
   Sognier, Judge.

Darryl Keith Shorter was convicted bn charges of burglary, possession of a firearm during the commission of a crime, and on three counts of aggravated assault. He appeals.

1. Appellant enumerates the general grounds. Three eyewitnesses testified that appellant was one of five men who broke into the apartment of Mario Rowland and shot Rowland and two others inside the apartment. Appellant’s statement in which he admitted being armed with a shotgun and entering the apartment after one of his co-defendants kicked in the apartment door was admitted into evidence. Another co-defendant testified as to appellant’s involvement in the attack on Rowland’s apartment and stated that appellant fired the shot which blinded one of Rowland’s guests. We find this evidence sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by admitting testimony by Derrick Maddox and Frank Jones about bribes offered to them by appellant and testimony by Rowland’s mother about telephone threats her son had received from appellant. The transcript reveals, however, that as to Maddox and Jones, not only did appellant make no objection to the admission of this evidence, appellant’s counsel cross-examined the witnesses on the matter, asking the witnesses whether they had demanded appellant pay them money, rather than the version proffered by the witnesses. As to Rowland’s mother, the only objection made to her testimony is addressed in Division 3, infra, and appellant’s counsel cross-examined the witness as to her maternal bias.

“Enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Punctuation and citations omitted.) Cooper v. State, 188 Ga. App. 297, 298 (3) (372 SE2d 679) (1988).

3. Appellant contends the trial court erred by allowing Rowland’s mother to testify because her name did not appear on the State’s list of witnesses and she remained in the courtroom and heard testimony after the rule of sequestration had been invoked. The transcript reveals that the prosecutor informed the court that after Rowland had testified, including statements that appellant had not made telephone threats to him, Rowland’s mother approached the prosecutor and stated that she had had five or six conversations with Rowland in which he had related to her bribes and threats appellant had made to him. The prosecutor stated he had not been aware of this evidence until 45 minutes before he sought to introduce it. After appellant’s counsel objected to her testifying, the trial court instructed the jury that the witness had been present in the courtroom during part of the previous testimony and that they could use that information to “assess her credibility along with all the other facts and circumstances of the case.”

Decided October 17, 1989.

F. Jordan Dowdell, Randall S. Rolader, for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, Thomas S. Clegg, Assistant District Attorneys, for appellee.

We find no error in the trial court’s admission of this evidence despite the violation of the rule of sequestration. See O’Kelley v. State, 175 Ga. App. 503, 505 (333 SE2d 838) (1985). Appellant argues admitting this evidence was error because appellant was not allowed to interview the recently discovered witness, citing Jones v. State, 181 Ga. App. 651 (353 SE2d 593) (1987). However, the transcript fails to reflect an interview with the witness was ever requested or that the trial court made any ruling on such a request. “The burden is on him who asserts error to show it affirmatively by the record, and this cannot be done by evidentiary assertions ... in enumerations and briefs.” (Punctuation and citations omitted.) Veit v. State, 182 Ga. App. 753, 758 (6) (357 SE2d 113) (1987). “It is well settled that an error not raised below cannot be reviewed by the appellate court. [Cits.]” Hamilton v. State, 181 Ga. App. 279, 280 (2) (351 SE2d 705) (1986).

4. Appellant has failed to support his fifth, sixth, and seventh enumerations of error by either argument or citation of authority. Therefore, we deem them abandoned pursuant to Rule 15 (c) of this court. Fowler v. State, 188 Ga. App. 873, 874 (3) (374 SE2d 805) (1988).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1885.
    TADDEI v. THE STATE.
    (388 SE2d 766)
   Deen, Presiding Judge.

By order dated August 3, 1989, this court ordered counsel for appellant to file an enumeration of errors and brief in this case no later than August 8, 1989. Upon motion for an extension of time, appellant was granted an extension until noon, August 23, 1989. A brief and enumeration of errors have not been filed. Nevertheless under this court’s holding in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), we have reviewed the entire record submitted on appeal. We find no error and affirm.

Decided October 17, 1989.

Denise Taddei, pro se.

Thomas Taddei, pro se.

Roger G. Queen, District Attorney, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1902.
    CRUDUP v. THE STATE.
    (388 SE2d 765)
    Decided October 17, 1989.

      John N. Crudup, pro se.

      Richard H. Taylor, Solicitor, for appellee.
   Deen, Presiding Judge.

This case previously appeared before this court at 191 Ga. App. 551 (382 SE2d 391) (1989), and it was remanded for resentencing to conform with the due process principle established in North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969). Crudup was resentenced to a 12-month suspended sentence and a fine of $375, to include court costs. Once again he contends that the sentence violates his due process rights as set forth in the Pearce case. Held:

As there is nothing in the record to explain his $375 fine, we must agree. When his case was originally tried, he received a 12-month suspended sentence and was ordered to pay court costs of $59.95.

This case is remanded for resentencing that must conform with the law set forth in Crudup v. State, 191 Ga. App. 551, supra.

Case remanded with direction.

Birdsong and Benham, JJ., concur.


text:
    A89A1169.
    JAMISON v. FIRST GEORGIA BANK.
    (387 SE2d 375)
   Sognier, Judge.

David K. Jamison brought suit against First Georgia Bank alleging breach of contract, libel, negligent hiring and retention of a bank employee, and fraud. The jury returned a verdict in favor of Jamison only as to the libel count, to which the trial court granted First Georgia’s motion for judgment notwithstanding the verdict. The trial court denied Jamison’s motion for new trial on the remaining issues and Jamison appeals.

1. Appellant contends the trial court erred by denying his motion for a new trial as to his breach of contract claim, based on his argument that the trial court misapplied OCGA § 11-4-406 (the charge to the jury of which is contended as error in appellant’s third enumeration). The case involves a deposit made by appellant into his account on October 16, 1985. Appellant contended the deposit consisted primarily of cash, but that his account was credited with only the amount of a check deposited by appellant at the same time. Appellant thereafter wrote checks on his account which caused an overdraft because the cash funds, which appellant’s personal account balance showed as present in the account, were not included in appellant’s account at appellee. The evidence at trial established that the discrepancy in the amount was reflected in appellant’s November statement, particularly in an altered deposit slip included in the statement, but that appellant did not bring the matter to appellee’s attention until February 1986.

We need not address the applicability to this case of OCGA § 11-4-406, discussing a customer’s duty to discover and report to his bank any unauthorized signatures or alterations on items contained in a statement of account, since we agree with appellee that appellant’s breach of contract claim is controlled by the contract between the parties. The contract provides: “In consideration of the opening of this account by [appellee], the depositor [appellant] agrees that all transactions handled by [appellee] for this account shall be governed by the provisions of the Uniform Commercial Code of Georgia, except as such provisions are herein varied. . . . [Appellee] is authorized to mail all statements and cancelled items to the depositor. . . . The depositor will immediately examine such statement and accompanying evidence of charges and promptly report to [appellee] any difference of account of any unauthorized or altered items among those received. In the absence of notice to [appellee] of any difference in the balance of the account within 60 days after any aforesaid mailing by [appellee], the account between the depositor and [appellee] as shown by such statement shall be considered to be correct and shall become an account stated.” Thus, regardless whether the deposit slip in this case could qualify as an altered item within the contemplation of OCGA § 11-4-406, appellant’s failure to notify appellee within 60 days of his receipt of the November statement reflecting the discrepancy in his balance resulted in the forfeiture of appellant’s right to challenge the statement. Error, if any, in charging the jury as to the provisions of the statute was accordingly harmless, and the trial court did not err by denying appellant’s motion for a new trial. See generally Orkin Exterminating Co. v. Flowers, 187 Ga. App. 270, 271-272 (1) (370 SE2d 29) (1988).

2. Appellant contends the trial court erred by denying his motion for a new trial as to his fraud claim. “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Punctuation and citations omitted.) Koppar Corp. v. Robertson, 186 Ga. App. 856, 859 (4) (368 SE2d 807) (1988).

Appellant asserts he proved all five elements of fraud in regard to three representations made by appellee’s employees, Doug McCoy and Carol Bruce, that if appellant deposited monies to cover the overdraft in his account, appellee would credit appellant’s account after the internal investigation over the disputed funds ended. Appellant claims that relying on each of these deceptive representations he deposited funds to cover the overdraft and suffered the loss of the funds when appellee subsequently determined it was not in error, thereby applying the deposited funds to the overdraft and not crediting appellant’s account with those funds.

As to Bruce’s representation, appellant testified she told him that she would take care of the matter and check on his complaint the following morning to see if appellee’s records were out of balance as a result of appellant’s allegedly uncredited deposit. The following day she informed him appellee’s records were not out of balance and appellant testified that they “couldn’t resolve [the problem] obviously.” The record establishes that Bruce’s withdrawal of the alleged misrepresentation occurred prior to the time appellant deposited the funds to cover the overdraft. “[I]n order to sustain [a] cause of action for fraud the record must show that [the plaintiff] acted upon the misrepresentation of [the defendant], [Cit.]” Davis v. Northside Realty Assoc., 165 Ga. App. 96, 97 (2) (299 SE2d 186) (1983). “ [Representations which are not used as a basis for action will furnish no ground for complaint. [Cit.]” North Peachtree &c. v. Hicks, 136 Ga. App. 426, 430 (221 SE2d 607) (1975). See also Parks v. Assoc. Commercial Corp., 181 Ga. App. 235, 236 (1) (351 SE2d 661) (1986).

Appellant testified that McCoy asked appellant to deposit funds to cover the overdraft, stating to appellant that “[h]e was sure that . . . [appellee] was going to take care of this.” While “[ajctionable fraud can arise in the case of ‘promises as to future events made with the present intention not to perform, (cits.) or where “the defendant knows the future event will not take place” [cit.]’ [cit.],” Cooper v. Re/Max North Atlanta, 186 Ga. App. 79, 81-82 (1) (a) (366 SE2d 328) (1988), our careful review of the trial transcript fails to reveal any evidence that appellee did not intend to follow through on its employee’s statement. “[A] party asserting fraud must introduce some evidence from which an inference of fraud may be drawn in order to make an issue.” Leachman v. Cobb Dev. Co., 229 Ga. 207, 209 (190 SE2d 537) (1972).

We agree with appellee that review of appellant’s testimony regarding the final alleged representation failed to establish the existence of any fraud. The transcript reveals that appellant was asked whether McCoy told appellant he had investigated “these types of situations before,” to which appellant responded that McCoy had stated that when complaining customers were shown the microfilm records of appellee, “they went away,” and that appellant did not think McCoy did any investigation of the matter. Nothing adduced at trial indicates McCoy had not investigated similar matters or that customers had not behaved as McCoy stated. Therefore, “we find no error of law or abuse of discretion that would justify reversing the judgment below.” Commercial Artservices v. Buchtal Corp., 180 Ga. App. 305, 306 (348 SE2d 768) (1986).

3. Appellant contends the trial court erred by granting appellee’s motion for judgment n.o.v. as to the libel claim. Appellant alleged that he was libelled when appellee dishonored appellant’s checks drawn on his personal account. The libel in issue here was thus the notation on appellant’s checks as returned to appellant’s creditors by appellee that the checks were dishonored for insufficient funds, and the trial court granted appellee’s motion for judgment n.o.v. made solely on the basis that appellant failed to present any evidence of special damages. We agree and affirm.

The libel found to exist by the jury in the case sub judice was not libel per se because it did not impute to appellant a criminal, dishonest, or debasing act, see Reece v. Grissom, 154 Ga. App. 194, 195 (1) (276 SE2d 839) (1980), nor was it defamatory in relation to appellant’s trade or business. Compare Southland Corp. v. Garren, 138 Ga. App. 246, 250 (2) (c) (225 SE2d 920) (1976). We find no merit in appellant’s argument that the libel did impute criminal guilt under OCGA § 16-9-20 (issuance of bad checks), since there is no evidence that the libel showed that appellant wrote any of the checks “knowing that [they would] not be honored by the drawee.” OCGA § 16-9-20 (a).

“ ‘The special damages necessary to support an action for defamation, where the words are not actionable in themselves must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value. [Cit.] The loss of . . . income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant’s words. . . .’ [Cit.]” (Emphasis supplied.) Mell v. Edge, 68 Ga. App. 314-315 (3) (22 SE2d 738) (1942). See also OCGA § 51-12-2 (b). In support of his argument that such evidence was presented, appellant points to his testimony at trial that after he insisted appellee pay him the cash sum he had deposited but which was not credited to his account, he was informed that appellee deemed itself insecure and accelerated his four loans with appellee. As a result, appellant testified he incurred damages when he had to refinance certain loans, lost the interest as early withdrawal penalties when he had to withdraw funds out of other accounts, and also incurred certain losses when he was forced to sell the collateral securing a number of those loans.

“[I]n libel actions, special damages which are not shown to be the result of the defamation are not recoverable. [Cit.]” Van Gundy v. Wilson, 84 Ga. App. 429, 440 (66 SE2d 93) (1951). We cannot agree with appellant that the evidence of damages set forth above (the costs he incurred in response to appellee accelerating his loans), constituted expenses actually flowing from appellee’s tortious act toward appellant. See Meyer v. Ledford, 170 Ga. App. 245, 246 (316 SE2d 804) (1984). Appellant’s own testimony established that the damages he proved were not caused by appellee’s libel but were incurred when appellee accelerated his loans in response to appellant’s demand for his money. Since his testimony was the sole evidence presented on the issue of damages, the transcript establishes that appellant failed to adduce any evidence from which the jury could have attributed to appellee’s libel the damages appellant sustained.

Appellant argues, however, that he also presented evidence regarding his wounded feelings as a result of the dishonored checks and, citing Fuqua Television v. Fleming, 134 Ga. App. 731, 734 (215 SE2d 694) (1975), asserts that such damages are recoverable as special damages here. Fuqua Television, however, involved defamation by broadcast under OCGA § 51-5-10 and held wounded feelings to constitute “actual” damages under that statute. As noted in American Broadcasting &c. v. Simpson, 106 Ga. App. 230, 234-240 (126 SE2d 873) (1962), defamation by broadcast or “defamacast” is a new category of defamation different from common law libel and slander with its own limits on damages and not controlled by libel and slander case law. Id. at 240, fn. 8. This court in Simpson declined to discuss whether “actual” damages under OCGA § 51-5-10 equated to “special” damages required in slander and libel case law. Simpson, supra at 240-241, fn. 9. The case law cited in Fuqua Television, supra, in support of its holding does not reference libel or slander law, nor was any attempt made to explain or overrule Signal Oil & Gas Co. v. Conway, 126 Ga. App. 711, 716 and 717 (3) (191 SE2d 624), rev’d on other grounds, 229 Ga. 849 (194 SE2d 909) (1972), in which, citing Mell, supra, we held that loss of peace of mind and similar “wounded feeling” damages were not the types of damages giving rise to libel per quod. Since proof of injury to the reputation and feelings without proof of special damages is sufficient to authorize a verdict for a plaintiff when libel per se is involved, see, e.g., Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 331 (4) (a) (60 SE2d 802) (1950); Melton v. Bow, 241 Ga. 629, 631 (247 SE2d 100) (1978), to construe “actual” damages under OCGA § 51-5-10 (as defined in Fuqua Television, supra) as applying to the special damages required to be shown where libel per se is not involved would in effect eliminate the difference between libel per se and libel per quod. We decline to do so here.

Decided October 6, 1989

Rehearing denied October 18, 1989

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., H. Clifton Cobb, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shel-Ihouse, for appellee.

A judgment n.o,v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Coates v. Mulji Motor Inn, 178 Ga. App. 208, 209 (2) (342 SE2d 488) (1986). Where a verdict for a party is demanded as a matter of law and the jury has returned an adverse verdict, the grant of a judgment n.o.v. is not error. Harrell v. Thompson, 182 Ga. App. 470, 472 (5) (356 SE2d 69) (1987). There being no evidence that appellant sustained special damages as a result of appellee’s tortious act, the trial court did not err by granting appellee’s motion for judgment n.o.v.

4. Appellant contends the trial court’s failure to specify pursuant to OCGA § 9-11-50 (c) (1) the reasons why the trial court granted appellee’s motion for judgment n.o.v. and denied his motion for a new trial entitles appellant to a new trial. The statute, however, does not require the trial court to state the reasons for its holding on a motion for judgment n.o.v. and, as to a motion for new trial, it applies only where the movant for judgment n.o.v. and the movant for new trial are one and the same party, and thus is not applicable by its terms to appellant’s motion for new trial. Therefore, the trial court’s “failure” in this matter would not be grounds for a new trial for appellant. But see Melton v. Elbert Sales Co., 181 Ga. App. 61, 62 (351 SE2d 261) (1986).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1262.
    AMERICAN LEGION v. FOOTE & DAVIES, INC.
    (387 SE2d 380)
   Sognier, Judge.

Foote & Davies, Inc., brought suit against the American Legion, alleging claims for fraud, negligent misrepresentation, breach of intended third party beneficiary contract, and promissory estoppel. We authorized the American Legion’s interlocutory appeal from the denial of its motion for summary judgment.

Construed against appellant as movant, the evidence introduced below reveals that Richard Wooten, a part time employee hired by appellant to develop a “family benefits program” under which appellant’s members would receive discounts from participating businesses, met in early 1985 with Howard Cohen, publisher of Better Times magazine, to discuss the magazine’s inclusion in the family benefits program. Appellant and Better Times signed an agreement dated May 15, 1985 (hereinafter the “FBP agreement”), whereby Better Times agreed to offer discount subscriptions to appellant’s members and to escrow funds sufficient to ensure fulfillment of all subscription orders in exchange for appellant’s agreement to advertise the magazine to its members as part of the family benefits program. Better Times subsequently was included in at least one advertisement of the program.

Cohen then contacted appellee about printing an issue of Better Times for distribution to appellant’s local posts, asserting that appellant had agreed to use the magazine as part of a national fundraising campaign and would enlist the members of the youth baseball teams at each post to solicit subscriptions. He provided appellee with a copy of a May 8, 1985 agreement, purportedly signed by appellant, Better Times, and an escrow agent, which stated in part that “[t]he National Executive Committee passed a formal resolution on May 8,1985 naming Better Times as the National fund raising program for [appellant].” Edward Fay, appellee’s credit manager, telephoned Wooten for confirmation of the plan. Although in their depositions Fay and Wooten disagreed about much of the content of this conversation, with Fay maintaining that Wooten confirmed Cohen’s description of the commitment by appellant, they agree Fay was told that Better Times was to be included in appellant’s family benefits program but that marketing of the magazine would be up to the commanders of each local post. On May 17th, Fay drew up a credit authorization for Cohen contingent upon receipt by appellee of “necessary legal papers” binding appellant to market Better Times, but there is no dispute that no such documents were ever received by appellee.

Two weeks later, representatives of appellee met with Wooten, Cohen, and financial and legal advisors and drew up a collection and escrow agreement setting up an escrow account and agent for disbursal of the anticipated subscription revenue among appellee, appellant, and Better Times. The agreement stated in the preamble that Cohen “proposes to enter into an agreement with [appellant] regarding the marketing of the Magazine.” The parties agree that at this meeting the marketing plans were discussed only in general terms, and that at no time did appellant agree to guarantee payment of Cohen’s printing ML

Appellee then printed approximately one million copies of Better Times, which included complimentary advertising and membership information for appellant, and distributed them to local Legion posts by July 4, 1985, but as of the end of July only $48,000 had been deposited into the escrow account (whereas the collection and escrow agreement contemplated the receipt of $1.5 million). The parties disagree about the events that transpired in August, but there is no dispute that in September appellant terminated Wooten and suspended the participation of Better Times in the family benefits program, and that appellee was not compensated for the bulk of its expenses incurred in printing and distributing the magazine. Appellee then filed this action, contending that it extended credit to Cohen based upon the existence of an agreement between appellant and Cohen that appellant would actively market Better Times to its members and would solicit subscriptions through the local post baseball teams and others.

1. Appellant first contends the trial court erred by denying its motion for summary judgment on the third party beneficiary claim because there is no evidence of any agreement between it and Cohen to which appellee was an intended beneficiary. “A third-party beneficiary contract is one in which the promisor engages to the promisee to render some performance to a third person. [Cit.]” Stewart v. Gainesville Glass, 131 Ga. App. 747, 753 (206 SE2d 857) (1974). “In order for a third party to have standing to enforce [such] a contract... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976).

We find no evidence here of any intent of appellant and Cohen to benefit appellee. The only written agreement between appellant and Cohen, the FBP agreement, does not suggest or contemplate any benefit to appellee from the inclusion of Better Times in the family benefits program. Indeed, at the time the FBP agreement was signed, appellee had not been selected as the printer of the magazine. Even assuming, without deciding, that a fundraising agreement between appellant and Cohen did exist (which appellant vehemently denies), any such agreement was made for the mutual benefit of appellant and Cohen, not appellee, and also was made before appellee agreed to print Better Times. Accordingly, we hold appellant was entitled to summary judgment on the third party beneficiary claim. See generally West End Investments v. Hills, 188 Ga. App. 274, 277 (372 SE2d 665) (1988) .

2. Appellant next enumerates as error the trial court’s denial of its motion for summary judgment on the fraud claim. “ ‘ “(M)isrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. And where the representation consists of general commendations or mere expressions of opinion, hope, expectation, and the like, and where it relates to matters which from their nature, situation, or time, can not be supposed to be within the knowledge or under the power of the party making the statement, the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.” ’ [Cit.] ‘Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events.’ [Cit.] Expressions which amount to no more than mere sales ‘puffing’ do not constitute legal fraud. [Cits.]” Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 793 (359 SE2d 920) (1987).

The misrepresentations at issue here are the alleged confirmations given to appellee by Wooten and others at appellant’s national headquarters that Cohen had validly represented to appellee that appellant had adopted Better Times as the centerpiece of its national fundraising campaign, that it would enlist its local posts (specifically the members of the youth baseball teams) in an effort to sell magazine subscriptions, and that it would provide certain advertising and promotional efforts in literature disseminated to its members. Even assuming, without deciding, that Wooten had the authority to bind appellant and that Wooten and other representatives of appellant did make the alleged statements regarding appellant’s planned marketing efforts, there can be no dispute that these were nothing more than statements of hope or enthusiasm of promises as to future events. See Brady v. Dandridge, 190 Ga. App. 543, 544-545 (379 SE2d 429) (1989) . Appellee concedes it understood that subscriptions were to be sold by the individual posts, and the record is clear that the local posts were autonomous units that could not be ordered by the national organization to perform. There is no evidence that appellant guaranteed the sale of a specific number of subscriptions or even that appellant promised any sales, and appellee’s witnesses acknowledge they knew the venture was risky with no guarantee of sufficient sales. Even if appellant made every representation alleged by appellee, there was no reliable guarantee of success because the entire scheme hinged upon voluntary acts by third parties not subject to appellant’s authority. Although, as appellee contends, fraud may be predicated upon statements regarding future acts or events when there is either a present intention not to perform or a present knowledge that the future event will not occur, “such exception has no application to this case because the promises upon which the [appellee relies] for establishing fraud were unenforceable even absent any fraud at the time of their utterance.” (Citations and punctuation omitted.) Taylor v. Amisub, Inc., 186 Ga. App. 834, 836 (2) (368 SE2d 791) (1988). Consequently, as appellant has pierced appellee’s pleadings with regard to essential elements of the fraud claim, and appellee’s response did not set forth facts sufficient to support a claim of fraud against appellant, we find the trial court erred by denying summary judgment to appellant on this issue. See Brady, supra at 544-545 (1).

3. Appellant next enumerates as error the denial of its motion for summary judgment made on the claim for negligent misrepresentation. That cause of action was recognized in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983), and “[s]ince that case approved the Restatement of Torts 2d, § 552 (1977) which sets forth essentially the same five elements to recover as are required for fraud,” Guernsey, supra at 795 (2(c)), we find that appellant is entitled to summary judgment on this claim as well, and the trial court erred by denying its motion on this issue. See id; see generally West End Investments, supra.

4. The final enumeration of error concerns the trial court’s denial of summary judgment to appellant on the claim for promissory estoppel. The principle of promissory estoppel is codified at OCGA § 13-3-44 (a), which provides: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” “The principle of promissory estoppel merely provides that, in certain circumstances, the reliance by the promisee or third party upon the promise of another is sufficient consideration, in and of itself, to render the executory promise enforceable against the promisor. [Cit.]” Loy’s Office Supplies v. Steelcase, 174 Ga. App. 701, 702 (331 SE2d 75) (1985). This principle has no application in the instant case, as the evidence shows that even if appellant made every promise alleged by appellee, there was no basis for appellee to assume that appellant could compel its local posts and their members to sell the magazine subscriptions. Further, the evidence is undisputed that appellant made no promise either to sell enough subscriptions to enable Cohen to pay his printing bill or to pay the outstanding obligation to appellee if Cohen did not. Accordingly, there is no executory promise by appellant to be enforced, see Loy’s Office Supplies, supra; compare Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986), and thus appellant was entitled to summary judgment.

Decided October 6, 1989

Rehearing denied October 18, 1989

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Jeffrey W. Kelley, John T. Sparks, for appellant.

Kilpatrick & Cody, Everette L. Doffermyre, Jr., K. Christine Harrelson, for appellee.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1383.
    DEPARTMENT OF EDUCATION v. KITCHENS.
    (387 SE2d 579)
   Sognier, Judge.

Lee Ann Kitchens petitioned the Superior Court of Fulton County for review of the decision of the Board of Education of the State of Georgia (the “Board”) upholding a special master’s decision denying her certification as a public school teacher. The trial court reversed the ruling because in promulgating the regulations relied upon in the certification decision the Board failed to follow the procedures mandated by the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq. (the “APA”). The Department of Education (“DOE”), the named defendant, filed this appeal.

1. Appellant first contends the trial court erred by exercising personal jurisdiction over it because the Board, not DOE, is empowered to take the challenged actions.

We agree with appellant that the Board should have been named as a defendant because it is responsible for teacher certification and promulgation of regulations for the certification process. OCGA §§ 20-2-200; 20-2-240. Indeed, appellee concedes the Board should have been named as a defendant, but asserts the designation of DOE as the defendant was a clerical error. However, we find this issue to be one of misjoinder, not jurisdiction, as DOE, the administrative arm of the Board, was a proper, albeit not necessary, party to this suit. See Guhl v. Tuggle, 242 Ga. 412-414 (1) (249 SE2d 219) (1978); see also OCGA §§ 9-11-19 (a); 9-11-21. We see no risk of prejudice to the Board by the action taken in its absence because it had notice of the suit and its interests were ably represented by the Attorney General and by DOE, the administrative arm of the Board. Accordingly, there is no basis for dismissal of the action. OCGA § 9-11-21; see Guhl, supra at 414. Parties may be added by the court on its own initiative at any stage of the litigation, including appeal, Guhl, supra, and thus we direct the trial court to add the Board as a party defendant upon remittitur of this case to the trial court. Id.

2. Appellant maintains the trial court erred by concluding that the regulations pursuant to which appellee was denied a teaching certificate were invalid because appellant had not complied with the APA.

The procedural requirements set forth in OCGA § 50-13-4 for adoption or amendment of “rules,” which are the aspect of the APA at issue here, apply to any “agency.” The APA defines the term “agency” as “each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases, except . . . any school, college, hospital, or other such educational, eleemosynary, or charitable institution” and other specific exceptions not relevant to the case at bar. (Emphasis supplied.) OCGA § 50-13-2 (1). “ ‘Rule’ means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy” with certain enumerated exceptions. OCGA § 50-13-2 (6). Appellant maintains that although it is a “department,” it is also an “educational institution” and thus exempt from the APA.

“[I]t is the duty of the courts in the construction of statutes to give effect to the intention of the legislature when it is ascertainable [cit.]; and in construing laws . . . proper regard should be given to the old law, the evil, and the remedy. [Cits.]” Moore v. Baldwin County, 209 Ga. 541, 545-546 (74 SE2d 449) (1953). The legislative intent of the APA, as reflected in the Senate committee report included in the record sub judice, was to provide for “uniformity in administrative procedure” among state agencies, and in so doing to “equip each agency with the means of attaining statutory purposes and to provide ample safeguards in protecting the public interest.” Accordingly, the committee stated that “[e]xclusions from the [APA] should be as few as possible and should not occur except for cause.” For additional analysis of the legislative intent to provide uniform state agency procedures through the APA, see 1965-66 Op. Att’y Gen. No. 65-73.

With this legislative intent in view, we turn to analysis of the exclusion in OCGA § 50-13-2 (1) at issue. “Where the language of a statute consists of common, ordinary words, and there is nothing to show that any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary, usual signification; nor is the court required to give the language a forced and strained interpretation. [Cit.]” Sheffield v. Cotton States &c. Ins. Co., 141 Ga. App. 861, 863 (234 SE2d 695) (1977). The American Heritage Dictionary, 2d ed., defines “educational” as “[s]erving to educate; instructive,” and as “[o]f or relating to education,” with “education” defined as “[t]he act or process of educating or being educated.” Id. at 439. “Institution” means, inter alia, “[a]n established organization or foundation, especially] one dedicated to public service or to culture.” Id. at 666. Black’s Law Dictionary, 5th ed., p. 461 defines “educational institution” as “a school, seminary, college, or educational establishment.” The term “educational institution” also has been defined by Georgia courts and the legislature in other contexts. In construing a statute concerning testamentary bequests to “any charitable, religious, educational, or civil institution” in Trustees of Univ. of Ga. v. Denmark, 141 Ga. 390, 394 (81 SE 238) (1914), overruled on other grounds, Hood v. First Nat. Bank, 219 Ga. 283, 286 (133 SE2d 19) (1963), the Supreme Court concluded the University of Georgia was an “educational institution.” Id. at 398. OCGA § 48-5-41 (a) (6), which governs property tax exemptions, equates “educational institution” with “college, incorporated academy, or other seminary of learning.” See J.A.T.T. Title Holding Corp. v. Roberts, 258 Ga. 519-520 (1, 2) (371 SE2d 861) (1988).

Construing the language of OCGA § 50-13-2 (1) as a whole so as to give effect to the legislative intent of the entire statute, Board of Trustees v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980), we find that the exclusion of “any school, college, hospital, or other such educational, eleemosynary, or charitable institution” was intended to apply only to those institutions which provide educational or charitable services directly, and not to the administrative bodies through which they are regulated. Given the legislature’s intent to provide uniformity in administrative procedure of state boards and departments and to limit the number of exemptions from the APA, we view this provision as exempting primary service providers, but we cannot agree with appellant that the exclusion should be read to include the administrative bodies which regulate such institutions, as those agencies are precisely the entities the APA was intended to cover. Further, all other boards or departments exempt from the APA are specifically named in OCGA § 50-13-2 (1).

This construction of the statute is consistent with the principle of ejusdem generis, which has long been recognized by the courts of this state. “ ‘Where a statute or other document enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause embraces “other” persons or things, the word “other” will generally be read as “other such like,” so that persons or things therein comprised may be read as ejusdem generis with, and not of a quality superior to or different from those specifically enumerated.’ [Cit.] . . . [Cit.] . . . ‘The general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words; or, in other words, as comprehending only things of the same kind as those designated by them; unless, of course, there be something to show that a wider sense was intended.’ ” Standard Oil Co. v. Swanson, 121 Ga. 412, 415 (49 SE 262) (1904). This rule, which is applicable to the instant case, compels the conclusion that the general term “educational institution” following the specific terms “school” and “college” must refen to other institutions like schools and colleges — e.g., universities, academies, trade schools — and not to administrative agencies which regulate those institutions.

Decided October 4, 1989

Rehearing denied October 18, 1989

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Patricia T. Barmeyer, Senior Assistant Attorney General, Richard S. Thompson, Assistant Attorney General, for appellant.

Bensonetta T. Lane, for appellee.

We note that we are not called upon to decide upon the validity of the Quality Basic Education Act, OCGA § 20-2-130 et seq., nor do we intimate any such opinion. We hold only that as the Board and DOE are included within the APA definition of “agency” and are not included within the list of exclusions, both entities are subject to the APA. See generally Dept. of Human Resources v. Williams, 130 Ga. App. 149, 150-151 (1) (202 SE2d 504) (1973). As the regulations at issue here are encompassed within the APA definition of “rules,” see OCGA § 50-13-2 (6), and appellant concedes the APA procedural requirements for rule promulgation were not followed, said regulations are invalid and cannot be enforced against appellee. See OCGA §§ 50-13-3 (b); 50-13-4 (d).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1076.
    ALL PHASE ELECTRIC SUPPLY COMPANY v. FOSTER & COOPER, INC. et al.
    (387 SE2d 429)
   Carley, Chief Judge.

Appellant-plaintiff filed a materialman’s lien. Appellee-defendants discharged the lien by filing a bond. Subsequently, appellant commenced this action against appellees, seeking to recover on the bond. A bench trial resulted in a judgment in favor of appellees. Appellant moved for a new trial. When its motion for new trial was denied, appellant filed a notice of appeal from the judgment that had been entered in favor of appellees.

1. Appellees have moved to dismiss appellant’s appeal as untimely. Relying upon Sands v. Lamar Properties, 159 Ga. App. 718 (285 SE2d 24) (1981), they contend that appellant’s motion for new trial was ineffective to extend the time for filing a notice of appeal from the judgment.

The Sands case involved “peculiar circumstances.” Sands v. Lamar Properties, supra at 720. The parties to that declaratory judgment action entered into what was, in effect, a stipulation of the facts. Thereafter, the trial court conducted a hearing and entered an order granting declaratory judgment, specifically stating “that the facts were not in dispute and the only issue between the parties was their differing contention of the legal conclusions based upon the undisputed facts.” Sands v. Lamar Properties, supra at 718. Under these “peculiar circumstances,” this court held that the case was, “in all relevant particulars^] similar to a grant of summary judgment. The trial court acted upon the admitted facts and as a matter of law resolved the position of the parties. . . . Though appellants dispute the application of those facts to the law, their proper remedy was a direct appeal to this court, not a challenge to the judgment entered through the vehicle of a motion for a new trial. [Cits.]” Sands v. Lamar Properties, supra at 721.

The “peculiar circumstances” of Sands are not present in the instant case. Here, there was no stipulation of facts between the parties and the trial court did not purport to conduct a mere hearing, but a full bench trial. The trial court’s judgment does not indicate an absence of any factual dispute and the existence of only legal issues, but makes findings of fact and conclusions of law in compliance with the requirements of OCGA § 9-11-52. Thus, unlike Sands, the judgment in this case is, “in all relevant particulars [,]” the grant of a judgment in favor of appellees after a bench trial. A motion for new trial is a proper procedural vehicle to extend the time for filing a notice of appeal from a judgment rendered after a bench trial. OCGA § 5-6-38 (a). Accordingly, appellees’ motion to dismiss this appeal is denied.

2. Relying upon Newton Lumber & Supply v. Crumbley, 161 Ga. App. 741 (290 SE2d 114) (1982), the trial court concluded that appellant had no viable claim because of its failure to comply with the notice provisions of OCGA § 44-14-361.1 (a) (3). The trial court’s reliance upon the decision in Newton Lumber & Supply was misplaced and its judgment rests upon the erroneous legal theory that appellant’s compliance or non-compliance with the notice provisions of OCGA § 44-14-361.1 (a) (3) is material to a recovery on the bond. “[A]ppellant’s failure to file the notice required under OCGA § 44-14-361.1 (a) (3) [is] not a bar to a recovery in [this] suit against appellee[s] on the bond. . . .” Burgess v. Travelers Indem. Co., 185 Ga. App. 82, 84 (363 SE2d 308) (1987). “[I]t is apparent that the trial court’s ruling in the case sub judice rests upon an erroneous legal theory. The trial court’s reliance upon an erroneous legal theory requires reversal. [Cits.]” Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984).

Decided October 18, 1989.

Davis, Kirsch & Wolfe, Dock H, Davis, for appellant.

Porter & Dosier, J. Alexander Porter, for appellees.

Judgment reversed.

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


text:
    A89A1115.
    HARDEE et al. v. SPIVEY.
    (387 SE2d 430)
   Carley, Chief Judge.

On January 26, 1987, appellee-defendant filed a materialman’s lien against appellant-plaintiffs property. According to its terms, the lien was for satisfaction of a claim which became due on January 5, 1987. On October 14, 1987, appellants filed a bond for discharge of the lien on their property. On July 25,1988, appellants filed a petition seeking release of their bond. Appellants’ petition alleged, in material part, that “[o]ne year having passed since [appellee’s] claim came due (January 5, 1987), and no notice of suit being on the record, said lien is dissolved by operation of law. See OCGA § 44-14-361.1 (a) (3).” Attached to their petition was a certified copy of their bond.

Appellee answered, admitting the allegations of appellants’ petition, and he also filed a counterclaim. As to the main action seeking release of their bond, appellants moved for partial judgment on the pleadings. See generally First Nat. Bank in Elberton v. Osborne, 233 Ga. 602, 604 (1) (212 SE2d 785) (1975). The trial court denied appellants’ motion, but certified its order for immediate review. This appeal results from the grant of appellant’s application for an interlocutory appeal from the denial of their motion for partial judgment on the pleadings.

“ ‘ “For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. . . .” [Cit.] [T]he question here is whether the undisputed facts appearing from the pleadings show [appellants are] entitled to judgment as a matter of law.’ [Cit.]” Christner v. Eason, 146 Ga. App. 139-140 (245 SE2d 489) (1978). Since this lien action involves a bond, the admitted allegation of appellants’ petition regarding appellee’s failure to file notice of suit is irrelevant and would not authorize the grant of appellant’s motion. See Burgess v. Travelers Indem. Co., 185 Ga. App. 82 (363 SE2d 308) (1987). What would be relevant and would authorize the grant of appellants’ motion is an admitted allegation that appellee had failed to commence an action for the recovery of the amount of his claim within 12 months of the time that his claim became due. See Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513 (373 SE2d 295) (1988). There is, however, no such admitted allegation. Appellants’ petition alleged only that one year had passed since appellee’s claim became due and that no notice of suit had been filed. It did not allege that one year had passed and that appellee had not commenced an action on this claim within that one-year period. It may very well be true that appellee has failed to commence a timely action on his claim, but such undisputed fact is not demonstrated by the allegations of the pleadings. Accordingly, the trial court did not err in denying appellants’ motion for partial judgment on the pleadings.

Decided October 18, 1989.

Charles R. Hager III, for appellants.

S. Lee Storesund, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A1198.
    ZUBIADUL v. THE STATE.
    (387 SE2d 431)
   Beasley, Judge.

Defendant appeals his conviction for trafficking in cocaine. OCGA § 16-13-31. His sole enumeration of error asserts that the trial court erred in admitting testimony concerning a statement he made to a DEA agent and an assistant district attorney.

Defendant was arrested in the Atlanta Airport for giving a false name to a law enforcement officer. A suitcase, which defendant denied was his, but the only one on the flight having the same itinerary as his, Miami to Minneapolis via Atlanta, was found to contain 585 grams of 42 percent cocaine. When the officer first saw defendant’s plane ticket, it had a baggage claim check attached. When he later asked defendant for the ticket, the claim check was gone.

Defendant appeared in court for his bail bond hearing. At the conclusion of the hearing after his retained attorney left the courtroom, defendant asked to speak to the assistant district attorney, Sticher, and requested an opportunity to explain the circumstances concerning the suitcase.

Sticher searched for defendant’s attorney and although he was unable to find him, defendant continued to entreat for a chance to offer an explanation. As a result, Sticher sought a DEA agent to accompany him in discussions with defendant. The agent, who was not the one assigned to defendant’s case, attempted to read defendant his Miranda rights. Defendant continuously interrupted and repeatedly stated: “I don’t understand, I just want to tell you about the suitcase.” Because of the interruptions the agent was unable to complete the Miranda warnings, so Sticher tried to explain defendant’s rights using “layman’s language.” Defendant interjected repetitiously: “I don’t undérstand. I just want to tell you the truth. I want to tell you about the suitcase. I want to tell you what happened.” Sticher reiterated that “you do not have to talk to us.”

Defendant continued to insist that although he did not understand what was being told him he wanted to tell the truth about the suitcase. Finally he related to the agent and Sticher that he was stranded in Miami without funds and sought the aid of his roommate in Minneapolis, who put him in contact with the roommate’s brother who lived in Miami. The brother purchased defendant a ticket home in exchange for his delivering a suitcase to his roommate in Minneapolis. These conversations with the assistant district attorney and the DEA agent occurred in the courtroom, while defendant was sitting in the jury box.

Once an accused has invoked the right to counsel, he may not be subjected to further interrogation unless counsel is present. Roper v. State, 258 Ga. 847 (375 SE2d 600) (1989), U. S. cert, pending. [The protection furnished as to post arraignment interrogation is if anything even stronger than early custodial interrogation. Michigan v. Jackson, 475 U. S. 625, 631 (106 SC 1404, 89 LE2d 631) (1986).] Thereafter, his responses to further questioning may be admitted only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Hall v. State, 255 Ga. 267, 270 (1) (336 SE2d 812) (1985); Edwards v. Arizona, 451 U. S. 477, 484-5 (101 SC 1880, 68 LE2d 378) (1981); Smith v. Illinois, 469 U. S. 91 (105 SC 490, 83 LE2d 488) (1984).

Crucial is whether a statement results from a custodial interrogation. If an accused volunteers a noncoerced statement then it is not necessary to invoke the tests which only apply to information obtained as a result of interrogation. This was recognized in Miranda v. Arizona, 384 U. S. 436, 478 (86 SC 1602, 16 LE2d 694) (1966), where it was held: “In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Id. at 478.

All statements obtained by the police after a person has been taken into custody are not to be considered the product of interrogation. Rhode Island v. Innis, 446 U. S. 291, 300 (100 SC 1682, 64 LE2d 297) (1980), explains: “It is clear . . . that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” The court concluded that “Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. . . . [These] safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” The court added that “since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.”

Edwards v. Arizona, supra at 485, observed that had defendant there initiated the meeting with police officers “nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that [defendant] invoked and there would [have been] no occasion to determine whether there had been a valid waiver.” Compare Arizona v. Mauro, 481 U. S. 520, 527 (107 SC 1931, 95 LE2d 458) (1987).

Defendant had retained an attorney but he initiated the discussions with the law enforcement personnel. They only furnished him a willing audience for his story and engaged in no attempt to interrogate him or elicit information from him. Defendant ignored their efforts to inform him of his rights and insisted upon relating his explanation to them. Although this is not a typical waiver of rights but instead a deliberate shunning of them or choosing to remain ignorant of them, it does come within the volunteered statement principle. There is no burden on State officials to prevent defendant from talking about the incident if he wishes to do so. Simply stated they must not interrogate but they need not refuse to listen.

Decided October 18, 1989.

The Garland Firm, Donald F. Samuel, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

The admission of defendant’s statement was not error.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1356.
    DENEGAL v. THE STATE.
    (387 SE2d 434)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant moved to suppress the introduction of evidence of his identification as the perpetrator of the offense, contending that he had been identified in a pre-trial photographic display and a physical line-up which were impermissibly suggestive and that this suggestiveness would serve to taint any in-court identification. The trial court’s denial of this motion is enumerated as error.

The trial court found that there was no impermissible suggestiveness in either of the pre-trial identification procedures and the evidence of record supports this conclusion. The pre-trial photographic display consisted of head-and-shoulder photographs of six men, one of whom was appellant and all of whom were of the same general age and physical characteristics. See generally Jones v. State, 251 Ga. 361, 362 (1) (306 SE2d 265) (1983). Likewise, the six-man pre-trial physical line-up consisted of appellant and five other physically similar males. Although appellant appeared at the physical line-up wearing a tank top and the other five participants wore t-shirts, the perpetrator was reported to have been wearing a coat and there is no basis for concluding that the clothing worn by appellant at the physical line-up impermissibly suggested that he was the perpetrator. See James v. State, 157 Ga. App. 645, 646 (2) (278 SE2d 187) (1981). Moreover, that the physical line-up was not impermissibly suggestive is further demonstrated by the fact that only one of the two witnesses who participated in that procedure identified appellant as the perpetrator. See Fletcher v. State, 159 Ga. App. 789 (1) (285 SE2d 762) (1981).

Decided October 18, 1989.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, District Attorney, Henry Newkirk, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Appellant was the only person to appear in both the photographic display and the physical line-up, but this would not render the pre-trial identification procedures impermissibly suggestive. See Clark v. State, 166 Ga. App. 366, 368 (3) (304 SE2d 494) (1983). The trial court did not err in denying the motion to suppress evidence of the identification of appellant as the perpetrator.

2. In his opening statement, counsel for the State purportedly stated that, at the time of appellant’s arrest for the instant armed robbery, he was already under arrest for a shoplifting offense. Appellant subsequently moved for a mistrial, urging that this comment was improper. The trial court’s refusal to grant the motion for mistrial is enumerated as error.

There is considerable doubt whether appellant has even preserved this issue for appellate review. He made no contemporaneous objection, but moved for a mistrial only after the State’s crucial eyewitness had testified. See Cawthon v. State, 65 Ga. App. 428, 430 (3) (16 SE2d 247) (1941). Moreover, there is no transcript of the opening statement. See Wyley v. State, 169 Ga. App. 106, 108 (1) (311 SE2d 530) (1983). However, even assuming that a proper objection had been made and that the transcript demonstrated that counsel for the State did make the comment attributed to him, there was no error in denying the motion for mistrial. Under the controlling Supreme Court authority of State v. Luke, 232 Ga. 815 (209 SE2d 165) (1974), evidence regarding the circumstances of appellant’s arrest would be admissible and those circumstances would, therefore, be a proper topic for comment in the opening statement. See Bryan v. State, 157 Ga. App. 635, 636 (4) (278 SE2d 177) (1981).

3. Appellant enumerates the general grounds. We find more than sufficient evidence from which a rational trior of fact could reasonably have found proof of appellant’s guilt of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A89A1360.
    SOUTHERN GENERAL INSURANCE COMPANY v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (387 SE2d 435)
   Carley, Chief Judge.

Gregory Sims was seriously injured when the automobile in which he was riding was struck by a tractor-trailer truck weighing more than 6,500 pounds when unloaded. Sims was provided $5,000 in no-fault coverage under his own automobile policy issued by appellee-plaintiff Cotton States Mutual Insurance Company (Cotton States). The owner and operator of the truck was provided $100,000 in liability coverage under a policy issued by appellant-defendant Southern General Insurance Company (Southern). Sims was paid the full $5,000 in no-fault benefits available under his Cotton States policy. Since it had a potential subrogation claim under OCGA § 33-34-3 (d) (1) (A), Cotton States notified Southern of its payment of no-fault benefits to Sims. Subsequently, Southern settled with Sims, paying him the full $100,000 policy limits and receiving a release.

Alleging that it was entitled to recover $5,000 under OCGA § 33-34-3 (d) (1) (A), Cotton States brought this subrogation action against Southern. Southern answered and asserted, as one of its defenses, that Cotton States was not entitled to pursue a subrogation claim under OCGA § 33-34-3 (d) (1) (A). Southern subsequently moved for summary judgment. The trial court denied the motion, but certified its order for immediate review. Southern’s application for an interlocutory appeal was granted.

In urging that the trial court erred in denying its motion for summary judgment, Southern relies upon Smith v. Employers’ Fire Ins. Co., 255 Ga. 596 (340 SE2d 606) (1986); Blaylock v. Ga. Mut. Ins. Co., 239 Ga. 462 (238 SE2d 105) (1977) and Hawkins v. Travelers Ins. Co., 162 Ga. App. 231 (290 SE2d 348) (1982). In those cases, it was held that the complete compensation of the injured insured is a condition precedent to a no-fault carrier’s right to seek subrogation. However, those cases also construed former OCGA § 33-34-3 (d). It is existing OCGA § 33-34-3 (d), enacted in 1984, which is controlling in the present case. See Ga. L. 1984, p. 516. OCGA § 33-34-3 (d) (1) provides, in relevant part, as follows: “If the responsible tort-feasor is uninsured and is not a self-insurer, the insurer or self-insurer providing benefits shall have a right of action to the extent of benefits provided against such tort-feasor only in the event that the person for whom benefits are provided has been completely compensated for all economic and noneconomic losses incurred as a result of the motor vehicle accident.” (Emphasis supplied.) Under this controlling provision, it would appear that the complete compensation of the injured insured is a condition precedent to the no-fault carrier’s right to seek subrogation only in the event that the tortfeasor is uninsured and is not a self-insurer. The owner and operator of the truck that struck Sims is insured. Therefore, it would appear to follow that Sims’ complete compensation is not a condition precedent to Cotton States’ right to seek subrogation and that Southern’s reliance upon the holdings in Smith, Blaylock, and Hawkins is misplaced.

However, we need not base our resolution of the present case upon a construction of existing OCGA § 33-34-3 (d) (1). Regardless of whether that statutory provision contemplates the complete compensation of Sims as a condition precedent to Cotton States’ right to seek subrogation, it is otherwise clear that Cotton States has no viable subrogation claim against Southern. “Nothing contained in [OCGA § 33-34-3 (d) (1)] shall be deemed to increase or enlarge the bodily injury liability, personal injury protection, or medical payments limits of any policy of motor vehicle liability insurance in this state.” OCGA § 33-34-3 (d) (2). Because Southern has already exhausted the $100,000 limits of the liability policy that it issued to the owner and operator of the truck, any subrogation claim by Cotton States against Southern would necessarily constitute an unauthorized attempt to increase or enlarge the limits of that policy. The legislative intent of OCGA § 33-34-3 (d) (2) is clear. A liability carrier has potential exposure in connection with the tort claim of the injured party and with the subrogation claim of the no-fault carrier up to the limits of the liability policy. However, the no-fault carrier’s potential subrogation claim is extinguished by the liability carrier’s exhaustion of the policy limits in payment of the tort claim of the injured party. Thus, a liability carrier that settles with the injured party for, less than the policy limits does so at its own risk and remains potentially liable for the no-fault carrier’s subrogation claim up to the policy limits. See Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755 (294 SE2d 570) (1982). In the instant case, however, Southern took no such risk by entering into the settlement with Sims. By making the determination that Sims’ personal injury claim was of such magnitude as to warrant payment of the policy limits, Southern was acting in the justifiable best interests of its insured. By making the determination that he would accept Southern’s offer, and release the tortfeasor, Sims was acting in the justifiable best interests of himself. As the nofaiilt carrier, Cotton States must accept the consequences of Southern’s and Sims’ decision. Among those consequences is that OCGA § 33-34-3 (d) (1) (A) is inapplicable and Cotton States now occupies the status that no-fault carriers normally do. Having paid the no-fault claim of its insured, Cotton States has no subrogation claim to pursue. “Insurers and self-insurers providing benefits without regard to fault. . . shall not be subrogated to the rights of the person for whom benefits are provided except: [In certain limited enumerated instances which have no application under the circumstances of the present case].” OCGA § 33-34-3 (d) (1). Accordingly, the trial court erred in denying Southern’s motion for summary judgment.

Decided October 18, 1989.

Freeman & Hawkins, Michael J. Goldman, for appellant.

Bovis, Kyle & Burch, Steven J. Kyle, Terry L. Yewell, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in judgment only.


text:
    A89A1509.
    CHANCE v. THE STATE.
    (387 SE2d 437)
   Carley, Chief Judge.

After a bench trial, appellant was found guilty of improper lane usage and of driving under the influence in violation of OCGA § 40-6-391 (a) (1). He appeals from the judgments of conviction and sentences entered on the trial court’s findings of guilt and from the denial of his motion for new trial.

1. Over objection, law enforcement officers were permitted to testify that, based upon their personal observations, it was their opinions that appellant was under the influence of alcohol to the extent that he was rendered a less safe driver. The trial court’s refusal to sustain the objections to this opinion testimony is enumerated as error.

Although appellant concedes that it was permissible to allow the officers to testify to opinions that he was intoxicated, he urges that it was error to allow the officers to testify to opinions that the extent of his intoxication was such as to render him a less safe driver. It is clear, however, that “[a] witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based. [Cits.]” (Emphasis supplied.) Lawrence v. State, 157 Ga. App. 264 (2) (277 SE2d 60) (1981). Appellant’s further contention that testimony concerning the extent of his intoxication would be inadmissible as the expression of an opinion on the ultimate issue has likewise previously been rejected. See Fisher v. State, 177 Ga. App. 465 (1) (339 SE2d 744) (1986). The trial court did not err in allowing the officers’ opinions into evidence.

2. On October 24, 1988, appellant and his counsel signed a written waiver of the right to trial by jury. The case was specially set for trial on October 28, 1988. After the case was called for trial and the rule of sequestration had been invoked by appellant, the trial court heard and denied appellant’s motion in limine. Only after the adverse ruling on his motion in limine did appellant seek to withdraw his waiver of jury trial. The State opposed the withdrawal. The trial court refused to allow appellant to withdraw his waiver of jury trial, finding that the case “was set specially for trial this afternoon at two o’clock. No request was made earlier ... to reinstitute the jury demand in the case. It’s the Court’s position that the [S]tate is ready at this time, all witnesses are present, apparently ready to go, and it appears the defense is also ready to go in the matter.” Appellant enumerates as error the refusal to allow him to withdraw his waiver of jury trial.

Decided October 18, 1989.

Stephen E. Curry, for appellant.

Robert W. Hunter III, Solicitor, Carl P. Dowling, Assistant Solicitor, for appellee.

“ ‘The right of trial by jury in criminal prosecutions is a great constitutional right of which the accused cannot be deprived except of his own accord. While he may voluntarily waive it, yet he may revoke such waiver by making timely application therefor. This right of revocation must be exercised in such season as not substantially to delay or impede the cause of justice., [Cits.] ‘ “If the statute sets no time limit within which the demand (for jury trial) must be made, it may be made at any time before the case is called for trial, or upon the call for trial. (Cit.)” [Cit.]’ [Cit.]” (Emphasis supplied.) Brumbalow v. State, 128 Ga. App. 581, 582 (197 SE2d 380) (1973).

Appellant was represented by counsel when he initially waived his right to trial by jury. Compare Fleming v. State, 139 Ga. App. 849, 850 (2) (229 SE2d 800) (1976). The request to withdraw that waiver and to reinstate the demand for jury trial was not made before the case was called for trial or upon the call for trial. Compare Fleming v. State, supra; Brumbalow v. State, supra. It was made only after an adverse ruling on appellant’s motion in limine. Accordingly, appellant made no timely request to withdraw his waiver of jury trial. Moreover, the trial court was clearly authorized to find that the request was a mere dilatory tactic and that to grant the request would substantially delay the cause of justice. Compare Fleming v. State, supra; Brumbalow v. State, supra. Accordingly, the trial court did not err in failing to allow the withdrawal of the waiver of jury trial.

Judgments affirmed.

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


author: Birdsong, Judge.

text:
    A89A0922.
    BUTTON GWINNETT LANDFILL, INC. v. SINNOCK.
    (387 SE2d 439)
   Birdsong, Judge.

Button Gwinnett Landfill, Inc. (the Landfill) appeals from the grant of summary judgment to Jon Sinnock on its claim against him, personally, arising from his issuance to the Landfill of a blank Day/ Green, Inc. (Day/Green) corporate check signed by Sinnock. Sinnock was an officer and stockholder of Day/Green and he asserts that his dealings with the Landfill were in his capacity as an officer and agent of Day/Green, not in his personal capacity. After the Landfill filled out the amount to be paid on the check, someone acting for Day/ Green other than Sinnock, stopped payment on the check. The Landfill sued Sinnock, Day/Green, other officers and shareholders of Day/ Green and other related businesses to recover the amount of the check.

The Landfill contends that it can recover from Sinnock because the check does not indicate that he signed as a representative of Day/ Green, and thus he can be held personally liable. The Landfill claims that Sinnock also is personally liable because the corporate defendants and other defendants commingled their funds to the extent that the corporate entity should be disregarded.

The trial court granted summary judgment because parol evidence showed that Sinnock signed the check only as an agent of the corporation, and thus is not personally liable for the check. Further, the trial court found that regardless whether the various corporate defendants commingled their funds, there was no evidence that Sinnock had done so. The Landfill appeals, contending that summary judgment was erroneously granted because there were questions of fact remaining whether Sinnock had disregarded the corporate entity so that the separate personalities of the corporation and Sinnock should be disregarded, and also whether Sinnock cheated and defrauded the Landfill. Held:

Sinnock’s motion for summary judgment contended that all of his actions in this matter were conducted in his capacity as an officer and agent of the corporation, that he did not pay any debt to the Landfill with a personal check, and he made no personal promises to pay the debt or make good the check. These contentions were supported by Sinnock’s affidavit, his deposition, and the deposition of the chief executive officer of the Landfill.

Examination of the copy of the check in the record shows a check on which the name, address, and telephone number of Day/Green are printed. The check is signed by Sinnock but there is no indication of Sinnock’s office in the corporation or that he was otherwise signing the check in a representative capacity. Since it is apparent from the face of the check that the information necessary to invoke OCGA § 11-3-403 (3) is not present, under OCGA § 11-3-403 (2) (b), Sinnock bears the burden of proving that he signed in a representative capacity, Yeomans v. Coleman &c. Drug Co., 167 Ga. App. 646, 648 (307 SE2d 121), and he may do so through parol evidence. Kramer v. Johnson, 121 Ga. App. 848, 849 (176 SE2d 108).

Decided October 19, 1989.

Alan Mullinax, Michael Greene, for appellant.

Childs & Knight, George C. Childs, Jr., for appellee.

The documents supporting Sinnock’s motion for summary judgment established that the check was delivered as part of Sinnock’s negotiations with the Landfill on behalf of Day/Green or one of its subsidiaries for the right to use the landfill property. The materials submitted, specifically including the deposition of the Landfill’s chief executive officer, demonstrate that Sinnock signed the check in his representative capacity as Day/Green’s agent and not in his personal capacity. Thus, Sinnock pierced the allegations of the complaint which asserted his personal liability, and he would be entitled the grant of summary judgment unless the Landfill rebutted these matters. See OCGA § 9-11-56 (e). Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566-567 (307 SE2d 99); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173).

The Landfill responded by amending the complaint to assert that Sinnock, Day/Green, some other officers and stockholders of Day/ Green, and certain other corporations had commingled their assets and otherwise disregarded the Day/Green corporate entity so that the separate personalities of Day/Green, Sinnock, and all the other defendants should be disregarded. The trial court found the matters submitted did not show Sinnock had commingled his assets with the corporation or disregarded the corporate entity. We agree with this finding. The matters submitted do not make a sufficient showing to create an issue of fact that Sinnock signed the check other than in his capacity as an agent representing Day/Green, nor do they create any issue that Sinnock is otherwise personally liable because of fraud or otherwise. The cases cited to our attention by appellant, while containing accurate statements of the law generally, are not applicable to these particular facts. Accordingly, the trial court properly granted summary judgment to Sinnock.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.