text:
    A00A2101.
    WADE v. THE STATE.
    (541 SE2d 426)
   Barnes, Judge.

John Wade was indicted for child molestation, first degree cruelty to children, and aggravated sexual battery. A jury convicted him of child molestation and cruelty to children, but found him not guilty on the aggravated sexual battery charge. The trial court sentenced him to concurrent sentences of twenty years, to serve seven in prison. Wade appeals, alleging that insufficient evidence supports the convictions. Wade also asserts that the trial court erred in charging the entire cruelty to children statute after the prosecutor announced during Wade’s directed verdict motion that she was proceeding under only the mental cruelty portion of the indictment. Finding no reversible error, we affirm.

1. Construed to support the verdict, the evidence revealed that the victim and her brother were spending the night with Wade and his wife, who are the parents of their stepfather. The victim, who was ten at the time, testified that she was asleep on the sofa when she woke to discover Wade’s hand on her vagina underneath her underwear. He moved his fingers up and down and inserted a finger into her, which she said “kind of hurt.” When she told him to stop, he got up and went away, but then he came back and began touching her vagina. The victim started crying, got up, and went into her step-grandmother’s bedroom to wake her and tell her what happened. The victim then locked herself in the bathroom because she was afraid that Wade might hurt her. Then her stepgrandmother took her and her brother home to her mother.

The victim’s mother testified that her mother-in-law, the children’s stepgrandmother, brought the victim and brother home around 1:00 or 2:00 in the morning. The mother-in-law was “squalling” and said that Wade had touched the victim “where he was not supposed to.” The mother looked at her daughter’s vagina, which was “really, really red” with some discharge, but the child did not want to go to the doctor. The child has suffered a recurrence of bed-wetting since the incident, the mother said.

This evidence is sufficient to sustain the convictions for child molestation and cruelty to children under the principles of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilhelm v. State, 237 Ga. App. 682, 685 (3) (516 SE2d 545) (1999) (the determination of what is cruel or excessive physical or mental pain is for the jury).

2. In response to Wade’s motion for a directed verdict on the cruelty count, the prosecutor said, ‘Your Honor, the State is going under the theory of his cruel mental pain and not physical pain.” The prosecutor then proceeded to outline the evidence supporting that count. Wade asserts the trial court thus erred in subsequently charging the jury as follows:

The third count of the indictment alleges the crime of cruelty to children. As related to this case, the State law defines cruelty to children as follows: Any person commits the offense of cruelty to children when that person maliciously causes a child under the age of 18 years cruel and excessive physical or mental pain.

(Emphasis supplied.)

(a) The State argues first that Wade waived his right to argue this error on appeal, because he neither asked for a different charge nor objected after the charge was given. However, the record shows that the trial court never asked the parties if they had any exception to the jury charge. Therefore, Wade cannot be deemed to have waived the right to raise his objection on appeal. Tolver v. State, 269 Ga. 530, 533 (5) (500 SE2d 563) (1998).

(b) Regardless of the prosecutor’s comment to the court that the State was proceeding only under the mental cruelty portion of the indictment, the physical cruelty allegation was not deleted and the State presented evidence of physical cruelty. The child testified that Wade’s actions hurt, and her mother testified that the child said it hurt and that her vagina was very red. “The instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court.” (Citation and punctuation omitted.) Hightower v. State, 210 Ga. App. 386, 388 (3) (436 SE2d 28) (1993). The trial court’s charge to the jury defining the crime of cruelty to children was adjusted to the evidence and was not error.

Decided November 1, 2000.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A00A2364.
    WOLF v. THE STATE.
    (540 SE2d 707)
   Andrews, Presiding Judge.

Lacey Wolf appeals from the judgment entered after a jury convicted her of cruelty to children. Because the record shows that the evidence was sufficient to support the verdict, we affirm.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. Wolf’s fiancé, Lamar Poole, was taking care of Wolf’s children one Saturday while Wolf was at work. Tammy and James Patterson, relatives of Poole, stopped by to see Poole and noticed Wolf’s three-year-old son, Cody, sitting outside. Cody was wearing underwear and a tank top, and the Pattersons could see serious burns on his leg and groin area. The burns were oozing a yellow liquid, and there were flies, bees and gnats buzzing around the open wounds. The Pattersons offered to take Cody to the hospital immediately, but Poole would not let them. He told them they could not take Cody without his mother’s permission. Poole said he was scared of the Department of Family & Children Services and did not want to go to the hospital. James Patterson testified that Cody was crying in pain and he called the restaurant where Wolf worked two times and left an emergency message for her to come home and take Cody to the hospital. Wolf never responded. Patterson said that he saw Cody around noon on Saturday and the sores on his leg were the same as they appeared in the pictures taken at the hospital the next day.

The nurse who treated Cody at the hospital said he had “multiple bruises from head to toe,” in addition to the bums. The bruises were different colors which showed that they occurred over a period of time. Also, the nurse noted bruises and a burn on the child’s scrotum, a hematoma, contusion and numerous other large bruises.

The doctor who first treated Cody at the hospital testified that his first act after seeing the child was to prescribe a morphine IV because Cody was in so much pain. The doctor stated that it was very unusual to give a three-year-old child morphine, but it was necessary in this case because he was in so much pain. He said that Cody was dirty and disheveled and was crying. The doctor stated that Cody had severe bums on his legs and extensive bruises, some of which looked to be several days old. The doctor also described Wolf’s behavior, which he characterized as different from what he would have expected. He said she was very “nonchalant” and did not seem as concerned as most mothers would be in this situation. The doctor noted in his records that Wolf said, “Oh, it’s just a burn. He’ll be okay” and also that she did not think Cody’s injuries were “a big deal” and she just came in to have them looked at and then “just go home.” It was not until the doctor began questioning her about the bums and all the bruises that she became upset.

The investigator who was called to the hospital after Cody was admitted, testified that he spoke to Wolf at the hospital and she could give no explanation for Cody’s injuries. Wolf told the investigator that Cody complained that his leg hurt during the night sometime between Friday evening and early Saturday morning, but she gave him a drink of water and he went back to bed. She admitted she saw her son on Saturday morning, but said she thought he had fallen and scraped his leg.

1. The evidence was sufficient to convince a rational trier of fact that Wolf was guilty of cruelty to children beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). OCGA § 16-5-70 (b) provides that a person is guilty of cmelty to children when that person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. Here, contrary to Wolf’s argument on appeal, there was direct as well as circumstantial evidence that she failed to seek medical treatment for Cody. The Patter-sons testified that the day before Cody was brought to the hospital he was suffering from severe bums that were already infected. Although Wolf claimed that she looked at Cody’s leg and it just appeared to be a scrape, the Pattersons both testified that it was obvious to them immediately that Cody was severely burned, was in pain and needed to go to the hospital.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [supra]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Decided November 1, 2000.

Ann C. Stahl, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). The jury, assessing the weight of the evidence and the credibility of the witnesses, chose not to believe Wolf’s explanation that she was unaware of Cody’s injuries until the day she brought him to the hospital. See Weems v. State, 267 Ga. 182, 183 (476 SE2d 585) (1996).

2. Likewise, we reject Wolf’s claim that there was no showing that she acted maliciously in not getting help for Cody. Wolf’s argument misconstrues the meaning of malice in OCGA § 16-5-70 (b).

For purposes of this Code section, malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

Hill v. State, 243 Ga. App. 614, 616 (533 SE2d 779) (2000), quoting Brewton v. State, 266 Ga. 160, 161 (2) (465 SE2d 668) (1996). Here, the jury could properly find that Wolf wantonly and wilfully failed to get medical care for Cody and was aware of the harm to Cody as a result of this failure to act. See Hill, supra at 616-617. Therefore, there was sufficient evidence of malice for a jury to find Wolf guilty of cruelty to children beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Phipps, Judge.

text:
    A00A2420.
    KELLEHER et al. v. PAIN CARE OF GEORGIA, INC. et al.
    (540 SE2d 705)
   Phipps, Judge.

In 1995, Dr. Larry Empting treated Sharon Kelleher for chronic pain in facilities operated by Pain Care, Inc. (PCI) and Pain Care of Georgia, Inc. (PCGI). Kelleher died as a result of an overdose of controlled substances prescribed by Dr. Empting. As her surviving spouse and the administrator of her estate, Tommy Kelleher brought this medical malpractice action against Dr. Empting, PCI, and PCGI. Kelleher appeals the trial court’s grant of summary judgment to PCI and PCGI. The question presented is whether PCI and PCGI can be held vicariously liable for any negligence of Dr. Empting in treating the decedent, on the ground that his acts were committed in the course of a joint venture. The trial court answered this question in the negative, as do we.

Dr. Empting is a psychiatrist and neurologist. PCI operates pain care centers in Macon and Atlanta which provide specialized programs for the diagnosis and treatment of acute, post-acute, and chronic pain. PCGI is a wholly owned subsidiary of PCI.

In 1992, Dr. Empting and PCI entered into “consulting and development,” “chief medical officer,” and “billing and collection” agreements. The billing and collection agreement was amended in 1995.

In the consulting and development agreement, Dr. Empting agreed to assist PCI in the development of its pain care centers and to provide medical consultation services. His duties included assisting in the development of protocols for the diagnosis and treatment of chronic pain patients, providing educational services to other physicians in the pain care centers, and rendering administrative services customarily expected of a medical consultant. Under the chief medical officer agreement, Dr. Empting became PCI’s chief medical officer and assumed duties such as assisting PCI in recruiting physicians to practice in PCI’s pain care centers and ensuring that such centers were appropriately staffed. PCI retained final authority to approve all policies, procedures, and services at its centers. Under these agreements, Dr. Empting was paid an hourly fee for services rendered. Both agreements recognized that Dr. Empting would continue to engage in the private practice of medicine, which he conducted at certain of PCI’s and PCGI’s pain care centers. Under the billing and collection agreement, Dr. Empting retained PCI to perform billing, collection, and other support services for his private medical practice. As compensation for these services, PCI retained 35 percent of fees it collected.

The consulting and development and chief medical officer agreements state that Dr. Empting is an independent contractor performing services for PCI. Similarly, the billing and collection agreement states that PCI is an independent contractor performing services for Dr. Empting.

Dr. Empting and PCI amended the billing and collection agreement in 1995 partly as a result of expenses incurred by PCI in establishing the pain care center at which decedent was treated in Atlanta. The amended agreement provided that collections from Dr. Empting’s medical practice at all of the pain care centers, as well as the “net” amount collected from other neurologists practicing at the Atlanta center, would be applied first to reimburse PCI for all operating expenses of the center. If, however, these collections and certain other sums exceeded the operating expenses, the excess would be shared 25 percent to Empting and 75 percent to PCI.

The trial court concluded that Dr. Empting was not engaged in a joint venture with PCI or PCGI, because there was no right of mutual control and no evidence of an agreement to share in the centers’ profits and losses. Therefore, the court ruled that PCI and PCGI cannot be held vicariously liable for Dr. Empting’s alleged negligent acts.

“A joint venture ‘arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control.’ ” “There must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied of each member of the joint venture to direct and control the conduct of the other. [Cits.]” Thus, it is the “right” of mutual control, rather than its actual exercise, which must be shown. This right of mutual control is a “crucial element” to establishment of a joint venture. Similarly, it has been held in medical malpractice cases that a hospital generally cannot be held vicariously liable for the negligent performance of professional services by a staff physician, unless it undertook to control the way and manner of treating his patients.

Here, the agreements between the parties show that PCI had no right to control Dr. Empting in the treatment of his patients. And Dr. Empting, as well as PCI’s and PCGI’s president, have given uncontradicted testimony that no such control was in fact exercised. Because PCI and PCGI have shown by reference to evidence of record that there is no evidence sufficient to create a jury issue on at least one essential element of Kelleher’s case, the trial court did not err in granting their motion for summary judgment.

Decided November 1, 2000.

W. McMillan Walker, for appellants.

Alston & Bird, Clifton M. Iler, Laura L. Owens, for appellees.

Judgment affirmed.

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

       (Footnote omitted.) Rossi v. Oxley, 269 Ga. 82 (1) (495 SE2d 39) (1998); see Pope v. Goodgame, 223 Ga. App. 672, 674 (2) (c) (478 SE2d 636) (1996).

        Security Dev. &c. Co. v. Williamson, 112 Ga. App. 524, 525 (1) (145 SE2d 581) (1965).

       See City of Eatonton v. Few, 189 Ga. App. 687, 690 (2) (377 SE2d 504) (1988) (finding authorized that swimming pool jointly operated and maintained by city and county was a joint enterprise, notwithstanding parties’ determination between themselves how control over the facility would be exercised).

       See Rossi v. Oxley, supra at 82-83; Gilleland & Son, Inc. v. Misener Marine Constr., 173 Ga. App. 713, 714 (327 SE2d 829) (1985).

        Hodges v. Doctors Hosp., 141 Ga. App. 649, 650 (2) (234 SE2d 116) (1977).

       See, e.g., Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706 (434 SE2d 532) (1993).


text:
    A00A1839, A00A2053.
    WILKERSON v. THE STATE (two cases).
    (540 SE2d 303)
   Phipps, Judge.

R. B. Wilkerson and Milton Wilkerson were jointly indicted and tried for the theft by taking of a box of Nike athletic shoes that belonged to Roadway Express, Inc. and had a value greater than $500. Both were given ten-year, partially probated sentences. In Case No. A00A1839, R. B. Wilkerson appeals. In Case No. A00A2053, Milton Wilkerson appeals.

R. B. Wilkerson argues that the State’s proof of the value of the shoes consisted of nonprobative hearsay of a State’s witness and of testimony from the witness concerning the general cost of Nike shoes without consideration of the age or condition of the shoes involved in this case. Based on these arguments, Wilkerson asserts that the evidence is insufficient to support imposition of felony punishment for his conviction of theft by taking. Arguments advanced by Milton Wilkerson in his pro se appeal raise these same issues. We find that the witness’s opinion evidence as to the shoes’ value was sufficient to support the verdicts and sentences. We therefore affirm.

Roadway Express provides transportation services to shippers and receivers of goods. Daniel Saviola, Roadway’s security manager, is responsible for investigating thefts of goods. He began conducting surveillance of Roadway’s Lawrenceville facility after receiving reports of thefts at that location. Saviola and a security guard hired by Roadway observed the Wilkersons appear at the facility during the early morning, enter a Roadway trailer without authority, and attempt to remove a box containing 12 pairs of Jordan Nike athletic shoes being shipped to a Nike outlet store in a shopping mall. The Wilkersons were then arrested.

When the prosecuting attorney asked Saviola the value of the shoes, defense counsel raised a hearsay objection. Outside the presence of the jury, Saviola then testified that he had examined the shoes in the box and, through documentation he received from Roadway’s cargo claims department and Nike in the regular course of his job duties, he determined their “claim value” (i.e., the amount Roadway would have had to pay for loss of the shoes). He also related that “I own a pair of those shoes and I know what I paid for them.”

Before the jury, Saviola testified that the shoes had a value of approximately $1,200 (or about $100 per pair). When asked how he made this determination, Saviola responded that it was based on his inspection of the shoes and on his knowledge of the shoes’ value through other thefts he had investigated in which Nike shoes were taken. Saviola also explained that Roadway is a self-insurer, so that when it suffers a loss he must ascertain the claim value. Held:

1. Had Saviola testified that his determination of the shoes’ value was based solely on documents examined by him but prepared by others, we agree that his testimony would have been objectionable on the ground of hearsay. But, as recognized by the Wilkersons, through his testimony Saviola also expressed his opinion as to the value of the shoes. In part, Saviola’s opinion was based on his examination of the shoes, the fact that he owned a pair, and his investigation of prior thefts involving similar merchandise.

Opinion evidence as to the value of an item has probative value and may be admitted if a foundation is laid showing that the witness has some knowledge, experience or familiarity with the value of the property or similar property and if the witness gives reasons for the value assessed and has had an opportunity for forming a correct opinion. Saviola’s testimony met these criteria. The fact that his opinion as to value was based in part on hearsay went to the weight of his testimony and was not a basis for excluding it. The evidence supports findings that the shoes taken by the Wilkersons were new and that the cost to the purchaser at the outlet store would have equaled or exceeded Roadway’s claim value. The price paid by the consumer for new merchandise constitutes proof of its value. Moreover, Jordan Nike athletic shoes can be considered “everyday objects,” and the jurors’ awareness of the value of such objects is sufficient to allow them to consider opinion evidence such as that given by Saviola and make reasonable deductions exercising their own knowledge. Accordingly, the trial court did not err in overruling the hearsay objection.

Decided October 12, 2000

Reconsideration denied November 2, 2000

Herbert Adams, Jr., for appellant (case no. A00A1839).

Milton Wilkerson, pro se.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

2. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the Wilkersons guilty beyond a reasonable doubt of felony theft by taking and that felony sentencing was authorized.

Judgments affirmed.

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

       See Sapp v. State, 222 Ga. App. 415, 419 (5) (474 SE2d 233) (1996) (value is not an element of the crime of theft by taking but is relevant for purposes of distinguishing between misdemeanor and felony punishment); OCGA §§ 16-8-2; 16-8-12 (a) (1) (authorizing felony punishment for theft by taking if property which was subject of theft exceeded $500 in value).

        Barnes v. State, 239 Ga. App. 495, 498 (1) (521 SE2d 425) (1999).

        Vitello v. Stott, 222 Ga. App. 134, 136 (1) (473 SE2d 504) (1996).

       See Warsham v. State, 200 Ga. App. 322 (3) (408 SE2d 122) (1991); compare Dunbar v. State, 146 Ga. App. 136 (2) (245 SE2d 486) (1978).

       See Smith v. State, 207 Ga. App. 290, 291 (1) (428 SE2d 95) (1993).

        Pace v. State, 235 Ga. App. 872, 873 (510 SE2d 617) (1999).


author: Blackburn, Presiding Judge.

text:
    A00A1276.
    McCOY v. THE STATE.
    (541 SE2d 444)
   Blackburn, Presiding Judge.

Korey McCoy appeals from the trial court’s revocation of his probation for violation of a special condition and the resulting sentence of incarceration, contending that the conditions he violated were not special conditions pursuant to OCGA § 42-8-34.1. In addition, McCoy contends that if the conditions of probation were special conditions within the meaning of the statute, he did not enter his plea intelligently and voluntarily. McCoy further contends that the revocation hearing was untimely and, therefore, violated his due process rights. For the reasons which follow, we vacate the judgment and remand for resentencing.

On September 29,1997, McCoy pled guilty to one count of violating the Georgia Controlled Substances Act, possession of cocaine. McCoy was sentenced to seven years on probation. The sentence listed the conditions of his probation under sections titled “General Conditions of Probation,” “Other Conditions of Probation,” and an addendum titled “Additional Conditions of Probation.” McCoy signed the sentence, including the addendum.

On November 26, 1998, McCoy was arrested for violation of his probation. The petition for modification/revocation of probation was served on January 6, 1999, and a hearing was held the next day. The trial court found that McCoy had violated the conditions of his probation by failing to pay his court-ordered fine, by failing to complete his CSAI weekends, and by committing the offenses of driving without a license, failure to show proof of license, and driving in an HOV lane. McCoy’s probation was revoked for four years.

1. In separate enumerations of error, McCoy contends that the trial court erred by finding that the conditions of his probation which he violated were “special conditions” within the meaning of OCGA § 42-8-34.1 (c) and, as a consequence, by revoking four years of his probation. We agree.

OCGA § 42-8-34.1 (b) provides:

At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.

In revoking McCoy’s probation, the revocation court determined that McCoy did not meet the criteria for alternatives to confinement. Consequently, since the revocation court was authorized to sentence McCoy only to not more than two years confinement, the revocation order sentencing McCoy to serve four years violates OCGA § 42-8-34.1 (b). Cockrell v. Brown. Therefore, we hereby vacate the judgment and remand this case to the trial court for resentencing to a term no greater than two years.

2. Because this case is remanded for sentencing, we address McCoy’s contention that his plea to the underlying offense was not valid because he was unaware of the consequences of a violation of a special condition. This enumeration has no merit.

At a hearing to recreate the record of McCoy’s guilty plea, it was stipulated that McCoy’s guilty plea was knowing, voluntary, and freely entered and that he was sentenced to seven years under an order of probation. It was further stipulated that McCoy was not told orally that his probation could be revoked for a violation of some conditions of his probation. McCoy contends that this lack of knowledge regarding the conditions of his probation renders his guilty plea invalid.

“There is no constitutional requirement that a defendant be advised of . . . collateral consequences [of a guilty plea] in order for his guilty plea to be valid.” Williams v. Duffy. In Williams, the Supreme Court found that eligibility or ineligibility for parole is such a collateral matter. Likewise, whether all or some portion of probation could be revoked, if McCoy violated conditions of his probation, would have only a collateral effect on the sentence. It does not lengthen the sentence. Furthermore, we note that McCoy signed the sentence which contained the conditions of his probation and advised him that he was subject to arrest if he violated the conditions of probation and that probation could be revoked.

3. McCoy contends that his revocation hearing was untimely and violated his due process rights. A probationer is entitled to due process in the revocation proceeding. Porter v. State. The petition for revocation was filed 43 days after his arrest for violating probation, even though Cobb County guidelines require that petition be filed within 15 days of arrest. The hearing was held the same day the petition was filed. McCoy’s lengthy detention before the petition for revocation was filed cannot be condoned. See Morrissey v. Brewer; Gagnon v. Scarpelli However, even though the trial court was informed that McCoy had been in custody for more than 30 days before a petition was filed, McCoy did not raise a due process violation in the trial court. As this issue was not raised in the trial court, it cannot be considered for the first time on appeal. Tanthongsack v. State.

Judgment vacated and case remanded for resentencing.

Eldridge and Barnes, JJ., concur.

Decided November 2, 2000.

Wanda S. Jackson, for appellant.

Patrick H. Head, District Attorney, Steven C. Chen, Maria B. Golick, Dana J. Norman, Assistant District Attorneys, for appellee.

       Community Service as an Alternative to Incarceration.

       The balance of probation was approximately six years, exceeding the two-year limitation on confinement.

        Cockrell v. Brown, 263 Ga. 345 (433 SE2d 585) (1993).

        Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999).

        Porter v. State, 142 Ga. App. 481 (1) (236 SE2d 172) (1977).

        Morrissey v. Brewer, 408 U. S. 471 (92 SC 2593, 33 LE2d 484) (1972).

        Gagnon v. Scarpelli, 411 U. S. 778 (93 SC 1756, 36 LE2d 656) (1973).

        Tanthongsack v. State, 265 Ga. 88 (1) (453 SE2d 468) (1995).


author: Smith, Presiding Judge.

text:
    A00A1307.
    CHOATE CONSTRUCTION COMPANY, INC. v. IDEAL ELECTRICAL CONTRACTORS, INC.
    (541 SE2d 435)
   Smith, Presiding Judge.

Choate Construction Company, Inc., the general contractor for the construction of a medical facility in LaGrange, appeals from the trial court’s entry of judgment on a jury verdict in favor of Ideal Electrical Contractors, Inc., a subcontractor on the project, in Ideal’s action against Choate for breach of contract and in quantum meruit for extra work performed. Choate contends the trial court erred in the following: in denying its motion to dismiss or, in the alternative, to compel arbitration; in denying its motions for directed verdict, judgment notwithstanding the verdict, and for a new trial; and in failing to require Ideal to elect its remedy, permitting it to recover both in contract and quantum meruit. The trial court denied Choate’s motion to dismiss or, in the alternative, to compel arbitration because it found that the subcontract did not include a mandatory arbitration clause and that it included a condition precedent to arbitration which was not fulfilled. The trial court also denied the motions for directed verdict, judgment n.o.v., and new trial on Ideal’s claims for recovery in quantum meruit. The motions were made on the ground that the contract itself addressed payment for changes in the work and extra work and that Ideal therefore was precluded from seeking payment under a theory of quantum meruit. Because we disagree with these findings, we conclude that the trial court erred in denying Choate’s motions.

1. We first note that although the denial of a motion to compel arbitration is subject to interlocutory appeal under OCGA § 5-6-34 (b), the denial may also be appealed after final judgment. Bishop Contracting Co. v. Center Bros., Inc., 213 Ga. App. 804, 805-806 (1) (445 SE2d 780) (1994).

2. In Choate’s motion to dismiss or, in the alternative, to compel arbitration, it sought to enforce certain provisions in the subcontract requiring dissatisfied subcontractors to submit their disputes to binding arbitration.

Article IX, Paragraph 23 of the subcontract provides in Section A that all subcontractors are bound to Choate to the “same extent that [Choate] is bound to” the owner under the contract between Choate and the owner and that subcontractors must go through the contractor before initiating actions against the owner.

Section B of Paragraph 23 provides that subcontractors will be bound by any arbitration between Choate and the owner on matters involving the subcontractor’s rights.

Section C of Paragraph 23 provides:

If at any time any controversy should arise between contractor and subcontractor, which controversy is not controlled or determined by sections (a) or (b) above or other provisions of this subcontract, then the decision of contractor shall be followed by subcontractor, and said controversy shall be decided as follows:
(i) Subcontractor shall conclusively be bound by and abide by contractor’s decision, unless subcontractor shall commence arbitration proceedings.
(ii) If subcontractor decides to appeal the decision of contractor, then the controversy shall be decided by arbitration in accordance with the construction industry rules of the American Arbitration Association and the arbitration decision shall be final and binding both parties to resolve the controversy; provided, however, that arbitration proceedings shall be commenced by subcontractor not later than 30 days following receipt of notice of contractor’s decision.

Section E of Paragraph 23 provides:

Should either party to this agreement institute a lawsuit, or demand arbitration to enforce any of the provisions hereof, to protect its interest in any matter arising under the subcontract, or to collect damages for the breach of the subcontract . . . , the prevailing party shall be entitled to recover and the losing party agrees to pay all reasonable attorney’s fees, costs, charges, and expenses expended or incurred therein.

The trial court concluded that Section C “did not provide that arbitration was a mandatory substitute for litigation” but merely provided the option of arbitrating. Choate contends this conclusion is erroneous, and we agree.

OCGA § 13-2-3 commands us, in construing a contract, to “ascertain the intention of the parties.” A contract must be enforced if “that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention.” Id. The subcontract in issue reflects clearly the intention of the parties to resolve all disputes by arbitration. It is apparent both in the “flow down” provision in Section A and in the mandatory language regarding arbitration used in Section C.

The trial court construed Section E as creating an ambiguity because it intimates that instituting a lawsuit is an alternative to demanding arbitration. But the language in Section E does not authorize instituting a lawsuit; it simply provides for payment of costs and attorney fees in the event that one or the other party does, in fact, institute a lawsuit, whether forbidden by the contract or not. With respect to any matter arising under the subcontract, if either party institutes a lawsuit or demands arbitration and loses, Section E requires it to bear all costs and expenses, including attorney fees.

3. The trial court also concluded that a “ ‘final decision’ ” on the part of Choate was required “for purposes of submitting the matter to arbitration.” The trial court found, with regard to Ideal’s claims, that Choate had not rendered such a decision, nor had it rendered a decision that would conclusively bind Ideal without Ideal having chosen to arbitrate. We agree with Choate that these conclusions were error as well.

Section C of Paragraph 23 places the burden on Ideal to arbitrate any decision made by Choate or be bound by it. It does not, however, use any language modifying the word “decision.” Conditions precedent, which are not favored in interpreting contracts, are created by language such as “on condition that,” “if,” and “provided,” or by explicit statements that certain events are to be construed as conditions precedent. Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (388 SE2d 916) (1989). If the contract’s terms are clear and unambiguous and do not clearly establish a condition precedent, we cannot construe the contract to create one. Id. at 775-776 (1) (b). Yet here, that is what the trial court did.

On November 6,1995, Ideal’s counsel sent a letter to Choate listing its claims for additional compensation. Choate rendered its decision, responding to each of Ideal’s claims by letter dated November 30, 1995. Under the subcontract provisions, if Ideal was not satisfied with Choate’s decision on its claims, it was required to demand arbitration within 30 days of Choate’s response to its claims. Because Ideal did not demand arbitration after receiving the November 30 letter, under the contract provisions it became bound by Choate’s decision.

Ideal correctly describes a 1960 decision of this court. In it, this court held that an early Supreme Court of Georgia case established that

an agreement to refer matters in dispute, to arbitration, is not sufficient to oust the Courts of Law or Equity of their jurisdiction. Unless the agreement provides that the parties shall arbitrate their differences as a condition precedent to a right to sue, a party may resort to the courts to settle a dispute.

(Citations and punctuation omitted.) Millican Elec. Co. v. Fisher, 102 Ga. App. 309, 311 (3) (116 SE2d 311) (1960). But the Georgia Arbitration Code for Construction Contracts, OCGA §§ 9-9-80 through 9-9-97, was enacted after Fisher was decided. The Supreme Court of Georgia later noted that in construction contracts, but not in other contracts, the parties may agree, under the authority of the Georgia Arbitration Code for Construction Contracts, to a “contractual imposition of the duty to arbitrate as an exclusive and binding remedy for disputes which arise in the future.” Ga. Kraft Co. v. Rhodes, 257 Ga. 469, 472 (360 SE2d 595) (1987); see also Rhodes v. Inland-Rome, Inc., 195 Ga. App. 39, 41 (3) (392 SE2d 270) (1990) (pre-1988 revision contracts). In 1988, the General Assembly revised the Georgia Arbitration Code extensively, renumbering the statute, deleting the phrase “for Construction Contracts” from its title, and extending the enforcement of arbitration provisions to “all contracts in which the parties have agreed to arbitration in writing. Ga. L. 1988, p. 903 et seq.” Weyant v. MacIntyre, 211 Ga. App. 281, 282 (1) (438 SE2d 640) (1993). See OCGA §§ 9-9-1 through 9-9-84. Since the subcontract was executed in 1995, it was entirely permissible for the parties to contract for binding arbitration. The trial court erred in construing the contract otherwise.

4. Ideal claimed it was owed compensation for extra work it alleged was performed outside the contract. Choate contends that its motions for directed verdict and judgment n.o.v. as to these claims should have been granted because Ideal admitted the validity of the subcontract, which itself precluded Ideal from seeking payment for any changes or extra work not approved in writing. We agree.

Ideal’s vice president admitted that Ideal entered into the subcontract, that the subcontract encompassed the rights and obligations of both parties, and that it formed the basis of this lawsuit. Article IV of the subcontract provided, in pertinent part: “Contractor agrees to pay subcontractor for the performance of its work the sum set forth as the subcontract amount subject to additions and deductions for changes as may be agreed upon in writing.” Paragraph 7 of Article IV provided, in part: “There will be no payment for extra work unless authorized in writing by contractor prior to the beginning of the actual work.” Further, Article X of the subcontract provided that it could be amended only by a signed writing.

Decided November 2, 2000.

It has long been the law in Georgia that although a party may plead in alternative counts, no recovery may be had in quantum meruit when a contract governs all claimed rights and responsibilities of the parties. Gilbert v. Powell, 165 Ga. App. 504, 507-509 (2) (301 SE2d 683) (1983). See Lord Jeff Knitting Co. v. Lacy, 195 Ga. App. 287, 288 (2) (393 SE2d 55) (1990). The contract in Gilbert, like the contract in this case, included provisions under which all changes and extra work were addressed. This court held in Gilbert that because the entire agreement was covered in the written contract, no evidence could be offered that would support a theory of recovery under quantum meruit. Id. at 508.

The same is true here. It is plain from the language of the subcontract that it contemplated changes and modifications to the original subcontract and provided a method for carrying out such changes and modifications. It provided unambiguously that any work done without conforming to the process set forth in the contract for approving that work would not be compensated. It would be unfair, under these circumstances, to allow a subcontractor to circumvent the explicit terms of the subcontract it had admittedly agreed to by seeking payment outside the subcontract for work that was contemplated and provided for under the subcontract. Because Ideal admitted the subcontract but did not follow the procedure it prescribed for changes in work or extra work, it cannot recover for such work under a theory of quantum meruit. The trial court erred in denying Choate’s motions for directed verdict and judgment n.o.v. and in allowing the jury to award payment to Ideal under a theory of quantum meruit. Lord Jeff Knitting Co., supra.

5. Our holding in Division 3 renders it unnecessary that we consider Choate’s contention that the trial court erred in failing to require Ideal to elect between recovery under the contract and recovery in quantum meruit.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

Smith, Curry & Hancock, Philip E. Beck, Mark V. Hanrahan, for appellant.

Daniel W. Lee, for appellee.

       The contract between the owner and Choate requires arbitration of disputes, and subcontract Art. IX, Par. 23, Sec. A requires subcontractors to be bound by this contract when their rights and responsibilities are concerned.

       Indeed, two written change orders were executed.


text:
    A00A1448.
    FULTON COUNTY v. FULTON COUNTY SCHOOL DISTRICT.
    (542 SE2d 507)
   Blackburn, Presiding Judge.

Fulton County (the County) appeals the trial court’s grant of summary judgment to Fulton County School District (the School) in this declaratory judgment action filed by the School against the County to declare the rights and obligations of the parties relevant to certain past and future school projects. The County enumerates as error the trial court’s grant of summary judgment to the School in the following particulars:

1. Genuine issues of material fact exist regarding the alleged Interim Agreement;
2. The course of dealings between County and School are factually distinguishable from the case authority relied upon by the Court;
3. In declaring “that the County must reimburse [the School] for amounts expended by [the School] pursuant to the Interim Agreement to pay for Traffic Improvements at new schools”;
4. In declaring “that the County is legally responsible for paying for Traffic Improvements at new schools”;
5. In declaring “that traffic signals, flashing warning signs, acceleration and deceleration lanes, road paving or road widening projects, and any other similar improvements made to facilitate and control the flow of traffic on public streets and highways in the vicinity of public schools located in unincorporated Fulton County must be paid for by the County”;
6. In granting summary judgment as to issues which were moot; and,
7. In granting summary judgment as to County’s liability for future events.

On January 16, 1998, the School filed a petition for declaratory judgment against the County. The School alleged that it had built eighteen new schools over the past ten years and anticipates building additional seventeen new schools over the next five years, many of which are or will be located in unincorporated Fulton County; new schools often require improvements to the public streets and highways in the vicinity of such schools; and that the School and the County disagree as to which of them is responsible for such traffic improvements.

The School further alleged that to resolve the dispute on an interim basis, the parties had entered into an agreement (Interim Agreement), which provided that the cost of traffic improvements at new schools would be split between them, subject to a later legal determination of responsibility. The School alleged that it had expended in excess of $140,000 pursuant to the Interim Agreement at the time of filing the petition for declaratory judgment.

The relief sought by the School was a declaration by the court that the School was prohibited by the Georgia Constitution and OCGA § 20-2-411 from using state or local tax funds for traffic improvements at new schools; an order declaring that the County is legally responsible for paying for traffic improvements at new schools; an order declaring that certain specified traffic improvements on public streets and highways in the vicinity of public schools located in unincorporated Fulton County must be paid for by the County; and an order declaring that the County must reimburse the School for amounts expended by it pursuant to the Interim Agreement to pay for traffic improvements at new schools.

On April 29, 1998, the School filed its motion for summary judgment as to each and every claim asserted in its complaint. On May 29, 1998, the County filed its cross-motion for summary judgment. On August 10, 1998, the trial court’s order of August 6, 1998, granting the School’s motion for summary judgment and its petition for declaratory judgment and denying the County’s cross-motion for summary judgment was filed.

We address initially the appropriateness of a declaratory judgment action in this case.

The Declaratory Judgment Act provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done. The purpose of the Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. OCGA § 9-4-1.

(Citation and punctuation omitted.) Baker v. City of Marietta.

The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. And where, as here, the [petition] shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of [the School’s] rights is necessary in order to relieve it from the risk of taking any future undirected action incident to its rights, which action without direction would jeopardize its interest, the [petition] fails to state a cause of action for declaratory judgment. A declaratory judgment will not be rendered to give an advisory opinion.

(Citation and punctuation omitted; emphasis in original.) Solid Rock Baptist Church v. Freight Terminals.

In its declaratory judgment action, the School sought a declaration by the court that it was not authorized to expend the $140,000 in school funds which it had already spent. Being advised that it was not authorized to expend those funds in no way provides relief or guidance in relation thereto. The School was clearly aware of its limited authority to expend school funds under OCGA § 20-2-411, and under Art. VIII, Sec. VI, Par. I (b) of the Georgia Constitution, at the time it filed the underlying action.

In 1994, in DeKalb County School Dist. v. DeKalb County, our Supreme Court addressed a similar dispute between authorities in DeKalb County. At issue was whether DeKalb County School District or DeKalb County should pay for improvements to a county road associated with the construction of a new school. In that case, our Supreme Court held that:

The 1983 Georgia Constitution, Art. VIII, Sec. VI, Par. I (b), provides that school tax funds shall be expended only for the support and maintenance of public schools, public vocational-technical schools, public education, and activities necessary or incidental thereto, including school lunch purposes.

(Punctuation omitted.) Id. at 880. The Supreme Court also noted that OCGA § 20-2-411 limits the use of school funds to educational purposes. OCGA § 20-2-411 provides, inter alia:

The school funds shall be used for educational purposes and may be used to pay the salaries of personnel and to pay for the utilization of school facilities, including school buses, for extracurricular and interscholastic activities, including literary events, music and athletic programs within individual schools and between schools in the same or in different school systems when such activities are sponsored by local boards of education as an integral part of the total school program, and for no other purpose.

Consequently, the Supreme Court held that the DeKalb County School District could not constitutionally expend its tax funds to pay for road improvements.

[B]ecause the road improvements not only stray from the District’s principal responsibility of furthering the education of the County’s children, but also provide a benefit to the citizens of the county in a way generally reserved to the County, we hold that the expenses are not “necessary and incidental” to public education and may not be paid for with school tax funds. If we were to reach a contrary holding, then school districts could arguably use precious educational funds to improve dangerous intersections and road conditions along all routes used by school buses.

DeKalb, supra at 882.

The opinion in DeKalb was rendered approximately six years ago, and OCGA § 20-2-411 could not be clearer. Here, the School needed no declaration as to the limitations on its authority to expend school funds, either those it had already expended or those it contemplated expending. If it was without authority to expend school funds for traffic improvements, it was likewise without authority to contract to do so.

The obligations of a county to generally provide traffic improvements to the county road system required by new school construction, within its discretionary authority, was addressed in DeKalb. Our Supreme Court found that road improvements to the county road system fell within the services to be provided by the county. Id. at 882. We note that DeKalb involved a single school project, and it was undisputed that the subject road was a part of the county road system.

It is unclear from the record in this case whether or not all of the projects, past and future, involve traffic improvements to roads that are a part of the county road system. If, for example, a project involved a road that was a part of the state highway system, the county may have no responsibility for such road. In this case, there I was, in fact, no written Interim Agreement, and the parties dispute D the existence and content of the oral agreement which the School alleged. The record contains no evidence of the projects involved, past and future; no evidence as to whether or not such projects involve improvements to the county road system; no evidence of the details of the particular projects; no evidence of whether the improvements associated with each project benefit the public in general as well as those entering or leaving the school grounds; and no evidence that the subject road improvement projects were approved and adopted as provided by statute.

The statutory law that governs a county’s rights, duties, powers, and responsibilities as to the county road system is found at OCGA § 32-4-40 et seq. Our Supreme Court has applied these statutes and their relevant constitutional interpretation in several cases involving conflicts between branches of county government, which provide some basis for a resolution of this case. See Russell v. Fletcher. The County takes the position that

[t]he Constitution of the State of Georgia does not render counties responsible for road improvements which are made to portions of the road adjoining school property and which are required solely for the purpose of insuring the safety of people entering or leaving the school and not for the purpose of insuring the safety of all citizens of the county.

County’s Answer, Third Affirmative Defense. Given our Supreme Court’s interpretation of the limits imposed upon the School by the Georgia Constitution and statutory law, improvements to any portion of the county road system are generally the responsibility of the county, if such improvements are approved pursuant to law, even if the purpose of the improvements is solely to insure the safety of people entering or leaving the school.

As indicated above, the record in this case does not permit a determination of responsibility as to the particular projects, because there is no evidence to establish the elements necessary to resolve the issue. Also, a declaratory judgment is not a proper remedy for the relief sought by the School. In its post-oral argument brief, the School contends that “no monetary relief is sought in this action”; that “the Interim Agreement is not the basis for the relief sought in this case”; and that the “[C]ounty thus assumes [in its brief! that the [court’s] Order implicitly granted [the School’s request for monetary damages].” Fulton County School District’s Post-Argument Brief, pp. 3-6. Given the fact that the School specifically prayed for monetary relief in excess of $140,000; that in the School’s motion for summary judgxnent, it prayed for judgment as to each and every claim asserted in its complaint', and that the trial court granted the School’s motion for summary judgment, there was nothing implicit in the trial court’s ruling; it explicitly granted the relief for which the School prayed.

Decided November 2, 2000.

Yvonne Latorre, Willie J. Lovett, Jr., for appellant.

We note that despite the existing law in this area, we once again have two branches of county government choosing to litigate over their respective responsibilities at taxpayers’ expense rather than resolving their differences within the county government structure. It would appear that the Fulton County Commission should assume some responsibility for the actions of these two branches of Fulton County government. Sadly, it is the county taxpayers who must pay the cost and expense of such litigation, and the children and teachers of Fulton County are deprived of needed funds that are being needlessly expended on attorney fees and other litigation expenses. We echo the sentiments of Justice Fletcher in his special concurrence in DeKalb:

This case illustrates once again why the various branches of local government should work together in a spirit of cooperation to accomplish the greatest good for the taxpayers without needless waste of public funds. Here, the taxes which support both parties are derived from the same source, the citizens of [Fulton] County. Upon these same citizens is cast the burden of attorney fees and expenses of litigation of both parties in this action. In [Justice Fletcher’s] 25 years of local government representation in rural northwest Georgia, [Justice Fletcher] observed a strong spirit of cooperation between school boards, cities, counties and authorities, with the ultimate beneficiary of such cooperation being the local citizens. Government in metropolitan areas would do well to emulate such cooperation.

(Citations omitted.) DeKalb, supra at 882.

Because this case was not a proper action for declaratory judgment, we vacate the order of the trial court and remand the case for further consideration consistent with this opinion.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ., concur.

Sutherland, Asbill & Brennan, Judith A. O’Brien, Howard P. Slomka, for appellee.

        Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999).

        Solid Rock Baptist Church v. Freight Terminals, 184 Ga. App. 111, 112 (361 SE2d 200) (1987).

        DeKalb County School Dist. v. DeKalb County, 263 Ga. 879 (440 SE2d 185) (1994).

        Russell v. Fletcher, 244 Ga. 854 (262 SE2d 138) (1979).


author: Johnson, Chief Judge.

text:
    A00A1791.
    METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. ZELLER.
    (541 SE2d 433)
   Johnson, Chief Judge.

Norman Kile Zeller leased a Pontiac Bonneville automobile from General Motors Acceptance Corporation (GMAC). He arranged for Metropolitan Property & Casualty Insurance Company to issue an automobile liability insurance policy on the car. On May 6, 1993, Metropolitan cancelled the policy for nonpayment of premiums. Six weeks later, Zeller’s son was involved in a collision, and the car was a total loss. GMAC sued Zeller to recover the balance due under the lease. Zeller initiated a third-party complaint against Metropolitan, claiming that the loss was covered under the insurance policy. The trial court granted Zeller’s motion for summary judgment, and Metropolitan appeals. For the reasons set forth below, we affirm.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”

In order to be effective, an insurer’s cancellation of an automobile insurance policy must comply with OCGA § 33-24-44. Subsection (d) thereof provides that

[w]hen a policy is canceled for failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums for a policy . . . the notice requirements of this Code section may be satisfied by delivering or mailing written notice to the named insured and any lienholder, where applicable, at least ten days prior to the effective date of cancellation. . . .

The record indicates that Metropolitan mailed a notice of policy cancellation to Zeller on April 22, 1993. Metropolitan does not contend that it gave a cancellation notice to GMAC at least ten days before the effective date of cancellation.

Metropolitan argues that GMAC was an owner and lessor, and not a lienholder, and that the trial court erred in finding that it had a statutory duty to notify GMAC of the policy cancellation. The record nevertheless supports a finding that GMAC was a lienholder. Although the certificate of title to the automobile lists GMAC as owner, the Georgia title also lists GMAC as the “1st lien holder.” GMAC is listed in the coverage sheet of the insurance policy as the “lien/loss payee” as well as “lessor/additional insured.” And while GMAC may hold title to the car, the roles of lessor and secured party are not mutually exclusive. Regardless of how the interests created under the lease agreement might be classified as between GMAC and Zeller, Metropolitan has designated GMAC in its policy as having the equivalent of a lienholder’s interest in the insured automobile, and, there being no claims of fraud, Metropolitan is estopped from varying the terms of the policy as written.

Citing Ponderosa Collections v. Frady, Metropolitan also argues that the policy lapsed and the notification provisions of OCGA § 33-24-44 do not apply. However, the record shows the policy was purportedly cancelled for nonpayment and did not simply expire as scheduled.

We hold that in these circumstances, GMAC was entitled to prior notice of policy cancellation as a “lienholder” under OCGA § 33-24-44 (d).

Inasmuch as Metropolitan makes no contention that it gave GMAC notice of the policy cancellation at least ten days before the effective date of the cancellation, and there are no other impediments to coverage presented by Metropolitan, we affirm the trial court’s grant of Zeller’s motion for summary judgment.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided November 2, 2000

Downey & Cleveland, William C. Anderson, Sean L. Hynes, for appellant.

Constance McManus, for appellee.

       Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

       OCGA § 9-11-56 (c).

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

       (Emphasis supplied.)

         C & S Equip. Leasing v. Atlanta Fed. Sav. &c. Assn., 144 Ga. App. 800, 805 (3) (243 SE2d 243) (1978).

       See Christian v. Allstate Ins. Co., 239 Ga. 850, 853 (239 SE2d 328) (1977).

       216 Ga. App. 619 (455 SE2d 346) (1995).

       See also Maddox v. Allstate Ins. Co., 164 Ga. App. 21, 22 (1) (296 SE2d 84) (1982) (implying that lessor entitled to statutory notice of insurance policy cancellation).


text:
    A00A1902.
    FOWLER v. THE STATE.
    (541 SE2d 447)
   Johnson, Chief Judge.

Mitchell Fowler was convicted of burglary, theft by taking and obstructing a law enforcement officer. He appeals, claiming that evidence of his presence near the crime scene and possession of the items stolen in the burglary is not sufficient to support the convictions. Contrary to Fowler’s claim, there is sufficient evidence to support the convictions.

Around 8:00 on a January night in 1998, a sheriff’s deputy was driving on the South Dalton Bypass when he saw Fowler walking on the side of the road. The deputy stopped his car, got out and approached Fowler, who had his hand in his jacket pocket. The deputy asked Fowler to remove his hand from the pocket. When Fowler took his hand out of the pocket, he was holding a black object. Fowler then turned and fled from the deputy, throwing down objects as he ran up an embankment and over the bypass. The deputy called for backup and then chased and caught Fowler. A short time later, a backup deputy arrived and helped place Fowler in custody.

• The deputies searched Fowler and the area of the chase. In Fowler’s jacket pockets, they found jewelry, a jewelry box, broken glass, gloves and a flashlight. On a nearby embankment, they found a black pouch containing personal papers belonging to a family by the name of Caldwell.

While the deputies were searching the area, they received a call that the home of Herman Caldwell, located about 100 yards from the area where the deputy first encountered Fowler, had been burglarized. The burglar had entered the Caldwell residence by breaking a glass storm door and had stolen the jewelry, personal papers and black pouch that were later found on or near Fowler. The broken glass found in Fowler’s jacket matched the glass from the broken door at the Caldwell home.

Fowler denied that he burglarized the Caldwell home, claiming that he had found the stolen items on the side of the road. He explained that while walking on the bypass he saw another person walking ahead of him drop a paper bag. Fowler said that he picked up the bag and put its contents in his coat pocket. The sheriff then arrived, and Fowler fled because he was scared.

Decided November 2, 2000.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

On appeal, the evidence is viewed in the light most favorable to support the verdict, and the appellant is no longer presumed innocent; moreover, an appellate court determines the sufficiency of the evidence and does not weigh the evidence or determine witness credibility. Here, Fowler’s presence near the burglary scene, his flight from the sheriff, his possession of the items stolen in the burglary, his possession of burglary tools — gloves and a flashlight, his possession of glass from the broken door at the crime scene and his inability to give a plausible explanation for his presence on the bypass or his possession of the stolen property are all evidence of his guilt. Having reviewed the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Fowler guilty beyond a reasonable doubt of burglary, theft and obstruction.

Judgment affirmed.

Smith, P. J., and Phipps, J, concur.

        Flanders v. State, 230 Ga. App. 316 (496 SE2d 344) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 242 Ga. App. 357, 358-359 (1) (529 SE2d 644) (2000); Willis v. State, 241 Ga. App. 813-815 (1) (527 SE2d 895) (2000).


text:
    A00A2292.
    WALKER v. HAMMOCK et al.
    (541 SE2d 439)
   Johnson, Chief Judge.

Warren Walker’s sister-in-law, Melinda Walker, pushed him off the back porch of the residence of Leslie Hammock and Renee Sullivan, and he severely dislocated his ankle in the fall. Warren Walker sued his sister-in-law, Hammock and Sullivan for damages. The trial court granted Hammock and Sullivan’s motion for summary judgment, and Warren Walker appeals. We affirm because when Melinda Walker intentionally pushed her brother-in-law off the porch, her actions became the sole proximate cause of his injuries.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any genuine question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”

Warren Walker and his girlfriend attended the Buggy Day Parade in Barnesville on the afternoon of September 21, 1999. Warren Walker encountered Hammock after the parade, and Hammock invited him and his date to attend a social gathering at Hammock’s home. Warren Walker arrived at the Hammock and Sullivan residence near dusk. After drinking a few beers from the keg provided for the guests, he began a conversation with Dexter Burnette on the back porch. The porch was constructed several feet above the ground and had no guardrails or handrails or other barrier on its perimeter. Burnette told Warren Walker that Melinda Walker had pushed him off the steps on the side of the house. Warren Walker told Burnette that his sister-in-law would not push him. After making this statement, however, Warren Walker felt an impact to his body, caught his balance and turned to see Melinda Walker. She shoved him a second time, and, as a direct result, Warren Walker fell off the porch. He landed on some rocks and dislocated his ankle.

The uncontroverted testimony of Hammock and Sullivan is that neither one knew that Melinda Walker had pushed Burnette until they discovered that she had also pushed Warren Walker.

1. Warren Walker tries to present this case as a “slip and fall.” He claims that the porch, with its lack of guardrails, posed an unreasonable risk to Hammock and Sullivan’s guests. As our Supreme Court noted in Robinson v. Kroger Co., “the ‘routine’ issues of premises liability . . . are generally not susceptible of summary adjudication.” However, we are presented with what would be more accurately described as a “push and fall.”

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

Similarly,

An intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.

We need not analyze this case under the rubric of premises liability because the sole proximate cause of Warren Walker’s injury was that he was pushed by his sister-in-law. Her actions were both intentional and unforeseeable by the defendants. We find no authority for the proposition that, because Hammock and Sullivan served alcohol at their party, they would have reason to anticipate Melinda Walker’s actions. We are also unpersuaded by Warren Walker’s attempts to classify the push as a roughhouse or jest and unintentional in nature. There is no question here of an incidental or unintended quality to Melinda Walker’s conduct. She shoved Warren Walker, not once, but twice, using both hands, and only succeeded in dislodging him from the porch the second time. And as between the defendants and Warren Walker, the evidence shows that Warren Walker at least had some advance warning of his sister-in-law’s conduct, while there is no evidence that the defendants knew or should have known that Melinda Walker posed any danger to their guests.

2. Warren Walker argues that Hammock and Sullivan are liable to him as joint tortfeasors with Melinda Walker. In order to establish a joint tortfeasor relationship, Warren Walker must show that the defendants’ act combined naturally and directly to produce his injury. However, as discussed in Division 1 above, Melinda Walker’s intentional and unforeseeable act prevents any alleged negligence by Hammock and Sullivan from acting as a proximate cause of Warren Walker’s injury. Accordingly, neither Hammock nor Sullivan can be said to have acted jointly with Melinda Walker.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided November 2, 2000.

William A. Adams, Jr., for appellant.

Beck, Owen & Murray, Samuel A. Murray, William M. Dallas III, Alan W. Connell, for appellees.

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

       OCGA § 9-11-56 (c).

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

       268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

       (Citation and punctuation omitted.) Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987).

       (Citation and punctuation omitted.) Alexander v. Sportslife, 232 Ga. App. 538, 540 (502 SE2d 280) (1998).

       See Levangie, supra (Even where patrons were allowed to consume alcoholic beverages on the premises without a permit and the guests were inadequately supervised, defendant “had no duty to protect [plaintiff] against such an intervening cause as a fellow party-goer walking up to and shaking him”).

        Aldridge v. Tillman, 237 Ga. App. 600, 605-606 (3) (516 SE2d 303) (1999) (plaintiff and defendant had equal knowledge that plaintiff’s stepgrandfather might attack him).

       See Johnson v. Landing, 157 Ga. App. 313, 317 (2) (277 SE2d 307) (1981).


author: Barnes, Judge.

text:
    A00A1394.
    CLEMMONS v. SMITH.
    (540 SE2d 623)
   Barnes, Judge.

Joseph Clemmons appeals a defense verdict in favor of Nickie Smith, whom Clemmons sued for injuries he received when he jumped from a bridge to avoid being hit by a car. Clemmons contends the trial court erred in excluding collateral source evidence, in charging the jury on assumption of the risk, and in refusing to charge the jury on the driver’s duty to maintain a proper lookout. For the following reasons, we affirm.

Viewed in the light most favorable to support the jury’s verdict, the evidence shows that at about 8:45 a.m. on March 21, 1997, Clemmons was driving along Highway 247, a six-lane highway divided by a grassy median, when he saw several tires fall off the back of a pickup truck and into the far left lane of southbound lanes of travel. Clemmons stopped his car, picked up the tires, and then drove ahead to where the driver of the truck had stopped. According to the pickup truck driver, Daniel Henderson, and an investigating police officer, Henderson parked his truck on the left shoulder of the southbound side of the highway. Clemmons, however, parked his car in the middle of the left lane. Clemmons testified that he stopped there because Henderson’s truck was protruding into and blocking the roadway, and because he wanted to protect Henderson from being hit by oncoming traffic. Henderson testified, however, that he was not blocking the left lane and that no tires remained in the roadway. Although the evidence on this point was disputed, the jury was authorized to infer that nothing prevented Clemmons from parking completely off the roadway.

Both Henderson and Clemmons stopped their vehicles on the Tobesofkee Creek Bridge. As drivers approach the bridge at the posted speed limit of 55 mph, sight distance is limited because the bridge is concealed behind a curve in the road until drivers are about 200 yards away from the bridge. As Clemmons was helping Henderson secure the tires in his pickup truck, several cars came around the curve in the road. Driver Andrea Burney saw Clemmons’ car, braked suddenly, skidded, and swerved from the left lane into the center lane to avoid Clemmons’ car. Donna Hawkins, who had been behind Burney, also braked hard, causing her car to fishtail. Niekie Smith, who was in the center lane into which Burney skidded, moved to the left lane, not realizing that Hawkins was also braking. Smith bumped the back of Hawkins’ car, which sent it careening toward the guardrail on the left side of the bridge.

Clemmons testified that he watched as Hawkins lost control of her car about 100 feet away. However, instead of retreating to safety at that point, he testified: “I stood there and watched her, didn’t feel like I was in any threat at that time, because I felt like she was able to bring her car under control within the distance she had.” Only when Hawkins’ car actually hit the bridge 25 feet from where Clemmons was standing, sending metal flying past him, did he decide to jump off the bridge. Hawkins’ car then collided with Clemmons’ car, totaling it. Clemmons landed on granite rocks eight to ten feet below the bridge and injured his knee. In the time it took him to climb back onto the bridge, Clemmons claimed that Henderson must have moved his truck because it was then out of the roadway.

1. Clemmons argues the trial court erred in giving a charge on assumption of the risk. However, “when there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to the issue.” (Citation and punctuation omitted.) Russell v. Superior K-9 Svc., 242 Ga. App. 896, 898 (2) (531 SE2d 770) (2000). As the Supreme Court recently reiterated, the doctrine of assumption of the risk applies when the evidence supports a finding that

a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

(Punctuation, footnotes and emphasis omitted.) Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999).

Under the peculiar circumstances of this case, the evidence was sufficient for the jury to find that Clemmons chose to park his car in the left lane of a busy highway, on a bridge, following a blind curve, in order to protect another stopped vehicle and its driver from what he recognized as the specific risk of being hit by oncoming traffic. Further, when he saw Hawkins’ car fishtailing as it approached the bridge, Clemmons chose to wait, assuming Hawkins would regain control of her car, instead of safely retreating from the roadway when he had the opportunity. Given these unusual facts, the evidence was sufficient to raise a jury question on assumption of the risk, and the charge was proper. See Russell, supra, 242 Ga. App. at 898; Newman v. Collins, 186 Ga. App. 595, 597 (1) (a) (367 SE2d 866) (1988) (physical precedent only).

2. Clemmons also argues that the court erred in refusing to give a charge on a driver’s duty to maintain a proper lookout. “In order for a refusal to charge to be error, the request must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Ogles v. State, 218 Ga. App. 92, 93 (1) (c) (460 SE2d 866) (1995). Because this principle of law was substantially covered by jury charges on a person’s duty to drive a vehicle at a reasonable and prudent speed with regard to actual and potential hazards; not to follow another vehicle more closely than is reasonable and prudent; not to stop, slow, or swerve without adequate warning of his intention to do so; and not to collide with the vehicle in front, we find no error.

3. Clemmons sought to introduce evidence that his medical expenses were not completely covered by insurance in order to dispel what he speculated was the jury’s “reasonable surmise” that those expenses had already been paid.

We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice. The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations.

(Citations, punctuation and emphasis omitted.) Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 176 (1) (421 SE2d 767) (1992).

As with any piece of evidence, in order to meet his threshold burden of establishing relevance, Clemmons had to show how the collateral source evidence tended to logically prove or disprove a material fact that was at issue. See, e.g., Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). What a juror might generally believe is not a material fact at issue. Further, although a plaintiff’s damages are material, Clemmons did not argue how or why his insurance coverage evidence was clearly relevant to his proof of damages or that it was necessary to rebut anything raised by the defense. Because Clemmons failed to make the requisite threshold showing of relevance, the trial court did not err in denying his motion to introduce inherently prejudicial collateral source evidence. Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (3) (472 SE2d 116) (1996).

Decided October 12, 2000

Reconsideration denied November 3, 2000

Dozier & Sikes, Lester Z. Dozier, Jr., Reynolds & McArthur, Charles M. Cork III, for appellant.

Lane & Jarriel, Thomas F. Jarriel, Sherman E. Moody III, Daniel Bullard IV, Jon-Selby R. Hawk, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Mikell, Judge.

text:
    A00A1939.
    APONTE v. CITY OF COLUMBUS.
    (540 SE2d 617)
   Mikell, Judge.

In a prior action concerning the real property at issue in this case, we held that the legislature had not endowed the Columbus Airport Commission with the authority to condemn property for airport purposes. In so holding, however, we noted that Columbus, a consolidated city-county government, has the constitutional right to exercise the power of eminent domain. Columbus then filed a declaratory judgment action against the owners, Antonio Lopez Aponte and Catherine E. Lopez, seeking access to the property in order to conduct a pre-condemnation survey and appraisal. Columbus had passed a resolution on July 30, 1996, declaring the need to condemn 21 trees on the subject property and to condemn an easement for avigation and noise in the airspace over it. The resolution reflected that the property had been surveyed and that $2,750 was the estimated just and adequate compensation.

Defendant Aponte was served on September 17,1999. Ms. Lopez, a nonresident, was never served with process. Aponte served discovery requests upon Columbus five days later. On October 13, 1999, he filed an answer, demand for jury trial, counterclaim, motion for continuance, and motion to dismiss on the ground that Columbus failed to join an indispensable party. Columbus filed discovery responses on October 22, and a hearing was held on November 12.

At the hearing, the primary issue was the extent of the interference with Aponte’s quiet enjoyment of his property necessary to complete the survey and appraisal. To that end, Columbus’s appraiser testified that he would be required to spend no more than 45 minutes inside Aponte’s home. The surveyor testified that he needed to spend no more than a day on the land, measuring the trees. Based on this testimony and argument of counsel, the trial court granted Columbus’s petition. In so doing, the court dismissed Aponte’s counterclaim and denied his motions to dismiss and for a continuance. Aponte filed an alternative motion for judgment notwithstanding the verdict or new trial. The motion was denied.

Aponte appealed to the Supreme Court, which transferred the appeal to this Court, citing Oglethorpe Power Corp. v. Goss. Finding that case dispositive, we affirm.

1. Aponte contends that the trial court erred in granting a declaratory judgment to Columbus because no public necessity exists for Columbus’s condemnation of an avigation easement over his land.

In Goss, the Supreme Court held that a prospective condemnor “has the right, incidental to its power of eminent domain, to enter private property in order to survey, inspect, and appraise the property.” The Court also held that a prospective condemnor does not have to institute condemnation proceedings or compensate owners as a prerequisite to entering their property to conduct a preliminary survey or appraisal, although the entity is responsible for any damages which may occur during the process. Finally, the Court held that because the prospective condemnor had the right to enter the owner’s property, the trial court erred in inquiring into the necessity of the purpose of the ultimate condemnation. Accordingly, the necessity for the contemplated taking was not a proper subject of inquiry in this case, and the trial court did not err in refusing to consider it. Under Goss, Columbus has the right to enter Aponte’s property to conduct a survey and appraisal.

Aponte argues that Goss and Walker v. City of Warner Robins are distinguishable because in those cases, the prospective condemnors needed to perform surveys in order to determine whether, and to what extent, to condemn the properties at issue. In the case sub judice, Aponte argues, Columbus has no legitimate right of access because in 1994, it surveyed his property, defined the trees needed for the easement, and set the amount of compensation for the anticipated taking. However, contrary to Aponte’s argument, the surveyor testified that the information obtained six years earlier was stale. The trial court found that a survey and appraisal were necessary so that Columbus could accurately quantify the nature and extent of the potential acquisition and to determine adequate and just compensation. “In the absence of legal error, an appellate court is without jurisdiction to interfere with a judgment supported by some evidence.”

2. Aponte next contends that the trial court erred in dismissing his counterclaim. We disagree.

Aponte’s counterclaim alleges that (1) Columbus is liable for abusive litigation damages because it failed to show legal necessity for an avigation easement; (2) Columbus has violated his constitutional rights by failing to seek rezoning of his property as a prerequisite to seeking condemnation; and (3) Columbus has conspired to deprive him of his rights, privileges, and immunity under 42 USC §§ 1983 and 1985 (3).

The counterclaim fails for several reasons. First, the counterclaim is premature because Columbus has not instituted condemnation proceedings. Second, as we held in Division 1, supra, legal necessity for the prospective condemnation is not at issue. Columbus seeks only the right of entry to which Goss held a prospective condemnor is entitled. Third, even if this were a condemnation action, damages for alleged federal civil rights violations are not recoverable in a condemnation action brought under OCGA § 32-3-1 et seq. A claim of bad faith may be asserted only defensively in a condemnation action. Accordingly, the trial court did not err in dismissing Aponte’s counterclaim.

3. Appellant next complains that the court denied him a thorough and sifting cross-examination of the appraiser and surveyor. We disagree. The trial court properly limited Aponte’s cross-examination to the issue of the extent of the intrusion upon Aponte’s quiet enjoyment of his property that would be occasioned by the survey and appraisal. “The scope of cross examination ... is largely within the discretion of the trial judge. After examining the parts of the record cited by [Aponte] in this regard, we find no abuse of discretion by the trial court in limiting cross examination.”

4. We also conclude that the trial court did not err in declining to grant Aponte’s request for a jury trial. “The right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and jury trial has not been waived. OCGA §§ 9-4-5; 9-4-6.” Pretermitting whether Aponte waived his demand for trial by jury by failing to reassert it at the hearing, Aponte set forth no disputed facts, either at trial or on appeal, which required submission to a jury. Indeed, at the hearing, the judge asked defense counsel to explain any facts which were in dispute, but counsel declined to do so. Moreover, the trial court stated that it accepted defense counsel’s version of the facts as true and based its decision on those facts. The trial court merely declined to accept the conclusions defense counsel drew from the facts. Accordingly, this enumeration is meritless.

5. Aponte’s contention that he was denied his constitutional right to procedural due process is likewise without merit.

“The due-process clause . . . (does) not guarantee to the citizen of the State any particular form or method of State procedure. Its requirements are satisfied if he has reasonable notice and opportunity to be heard, and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. . . . Due process requires no more.”

A declaratory judgment action is intended “to afford a speedy and inexpensive method of adjudicating legal disputes.” Thus, it “may be tried at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial.” Here, nearly two months elapsed between service upon Aponte (September 17) and the date of the hearing (November 12). Accordingly, Aponte had reasonable notice.

Moreover, the transcript reflects that the trial court provided Aponte ample opportunity to be heard. Judgment was not granted sua sponte, contrary to Aponte’s contention. The court heard argument of counsel prior to determining whether a right of entry existed. The court then called the appraiser and surveyor as its own witnesses, permitting defense counsel to explore the issue of the intrusiveness of the process.

We next consider Aponte’s argument that the trial court precluded him from presenting evidence at the hearing. The record shows that Aponte wished to proceed to trial on the issue of the necessity of the taking. As this was not a proper subject of inquiry, see Division 1, supra, Aponte was not entitled to pursue it. Moreover, the record does not show that counsel made a proffer of any evidence or testimony which the trial judge allegedly excluded. Accordingly, Aponte has failed to show error affirmatively by the record.

6. Aponte next complains that the trial court erred in failing to grant him a continuance to depose the appraiser and surveyor.

The grant or denial of a continuance is a matter within the discretion of the trial judge and unless clearly abused will not be interfered with. ... A continuance is not required ... to permit fishing expeditions. . . . Rather the movant must satisfy the court that if given a continuance beneficial objectives of pretrial discovery will be achieved.

Aponte has failed to articulate any benefit he might have derived from deposing Columbus’s experts. Neither can Aponte demonstrate prejudice or unfair surprise based on their trial testimony. Finally, we note that although the hearing was initially set for October 24, 1999, it was not held until November 12, and Aponte filed no notice of deposition in the interim. Accordingly, Aponte is precluded from claiming that he had insufficient opportunity to depose these witnesses. The trial court did not abuse its discretion in declining to grant a continuance.

7. Finally, Aponte contends the trial court erred in denying his motion to dismiss this action based on Columbus’s failure to join Lopez, who also holds an interest in the real property at issue, as an indispensable party defendant.

Decided October 6, 2000

Reconsideration denied November 3, 2000

James D. Patrick, Jr., for appellant.

Jacob Beil, for appellee.

Joinder is mandatory pursuant to OCGA § 9-11-19 (a) (2) only if the disposition of the action in the absence of the interested party “may ... [a] s a practical matter impair or impede [her] ability to protect [her] interest.” Additionally, “[i]n determining if a party is indispensable, it is essential to consider whether relief can be afforded the plaintiff without the presence of the other party, and whether the case can be decided on its merits without prejudicing the rights of the other party. . . .”

Lopez’s participation is not required to grant Columbus the relief sought — a right of entry to the property to perform a survey and appraisal. Lopez resides outside Georgia, as a failed attempt at personal service indicates. Aponte owns an undivided interest in the whole property and is the sole occupant. A judgment granting Columbus access to the property to perform a survey and appraisal affects only the person in possession. As there is no evidence of Lopez’s possession of the premises, there can be no interference with her quiet enjoyment therein that could be affected by this judgment. In any event, we fail to see how Lopez’s absence harmed Aponte. Therefore, we hold that Lopez is not an indispensable party to this proceeding.

Judgment affirmed.

Pope, P J., and Miller, J, concur.

        Lopez-Aponte v. Columbus Airport Comm., 221 Ga. App. 840, 842-843 (1) (473 SE2d 196) (1996).

       Id. at 843 (2); see also Ga. Const. 1983, Art. IX, Sec. II, Par. V.

       253 Ga. 644 (322 SE2d 887) (1985); accord Walker v. City of Warner Robins, 262 Ga. 551 (422 SE2d 555) (1992).

        Goss, supra at 644 (1).

       Id.

       (Citations and punctuation omitted.) Progressive Preferred Ins. Co. v. Aguilera, 243 Ga. App. 442, 446 (2) (533 SE2d 448) (2000).

       See Fountain v. MARTA, 147 Ga. App. 465, 466 (1) (249 SE2d 296) (1978).

        Brooks v. Dept. of Transp., 254 Ga. 60, 62 (3) (327 SE2d 175) (1985); see also Dept. of Transp. v. Fina Oil &c. Co., 194 Ga. App. 185 (390 SE2d 99) (1990).

        Brooks, supra.

       (Citation and punctuation omitted.) Fountain, supra at 468 (4).

       (Citation and punctuation omitted.) Adams v. City of lla, 221 Ga. App. 372 (1) (471 SE2d 310) (1996).

       See, e.g., Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998); accord Plaza Properties v. Prime Business Investments, 240 Ga. App. 639, 640 (1) (524 SE2d 306) (1999).

        Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 739 (4) (a) (285 SE2d 913) (1982).

       (Punctuation omitted.) James B. Beam Distilling Co. v. State, 263 Ga. 609, 613 (5) (437 SE2d 782) (1993), quoting Clein v. Kaplan, 201 Ga. 396, 404 (40 SE2d 133) (1946).

       OCGA § 9-4-5.

       Compare Smith v. Ticor Title Ins. Co. &c., 200 Ga. App. 534, 535 (1) (408 SE2d 833) (1991).

        Zone Enterprises v. George L. Smith II Ga. &c. Auth., 234 Ga. App. 238 (506 SE2d 424) (1998).

       (Citation and punctuation omitted.) Summers v. Deutsche Seereederei Rostok GmbH, 220 Ga. App. 125, 126-127 (2) (469 SE2d 289) (1996), citing Gray v. Gober, 185 Ga. App. 624, 627-628 (365 SE2d 279) (1988).

        Hall v. Trubey, 269 Ga. 197, 200 (2) (498 SE2d 258) (1998).


author: Ellington, Judge.

text:
    A00A1442.
    YOUNG v. THE STATE.
    (541 SE2d 670)
   Ellington, Judge.

A Gwinnett County jury convicted James Lee Young of armed robbery, OCGA § 16-8-41. Following the denial of his motion for new trial, Young appeals, challenging the trial court’s charge to the jury and response to a jury question.

Viewed in the light most favorable to the verdict, the evidence showed that on November 17, 1996, Young was driving his car while Theon Finney, Desmond Washington and Rodney Smith were passengers. Young knew Finney had a stun gun, and they intended to use it to rob people that night. After driving around for awhile looking for victims, they drove into an apartment complex. Finney pointed at a woman getting out of a car in front of an apartment and told Young to pull over. Young pulled into a parking space and watched and listened as Finney approached the victim, demanded her money, threatened her with the stun gun, took her briefcase, returned to the car and told Young to drive away. Finney gave the briefcase to Washington who searched it for money. Washington passed the victim’s credit cards to Young. Young still had the credit cards when he was arrested later that day.

1. Young contends the trial court erred in failing to charge the jury on theft by receiving as a lesser included offense of the indicted offense of armed robbery. OCGA § 16-8-41 provides:

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-7 provides: “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” With respect to Young’s contention that the court should have charged on theft by receiving stolen property,

that crime is not a lesser included offense of armed robbery, but is a separate offense proved by an entirely different set of facts. A defendant is not entitled to an instruction on an offense for which he has not been charged that is not a lesser included charge. As [Young] was not charged with receiving stolen property, the trial court did not err in refusing to charge on such offense.

(Citations and punctuation omitted.) Hemphill v. State, 242 Ga. App. 751, 752-753 (2) (a) (531 SE2d 150) (2000).

Young contends that, because the trial court accepted guilty pleas to theft by receiving from Washington and Smith, the trial court “had previously concluded that theft by receiving was a lesser-included offense for all other defendants who were charged as ‘parties.’ ” Young argues the trial court was required to charge theft by receiving as a lesser included offense in his trial to avoid an “indefensibly inconsistent result” among the co-defendants. Young failed to support this argument with any legal authority, and we have found none. Indeed, the plea bargaining process commonly involves a reduction of charges and a more lenient sentence. Allen v. State, 193 Ga. App. 670-671 (388 SE2d 889) (1989). See generally Daniel, Ga. Criminal Trial Practice (1999), pp. 549-555, §§ 15-1 — 15-5; Uniform Superior Court Rules 33.3 (B) (2) (during plea negotiations, prosecutor may agree to dismiss the offense charged in exchange for a plea of guilty to “another offense reasonably related to defendant’s conduct”); 33.6 (A) (grounds for leniency in sentencing after a guilty plea).

2. Young contends the trial court erred in failing to reread his custodial statement to the jury in response to a question they submitted during their deliberations. Young’s statement was read to the jury during the testimony of Officer Brady. During their deliberations, the jury sent the following question to the court: “We request to have the testimony of Officer Brady reread, specifically the portion where he read James Young’s statement.” The trial court responded to the jury as follows:

[T]here is not a transcript available for rereading the testimony of the witnesses. And the testimony of the witnesses will be as you have heard it and as you collectively remember [and] recall it. . . . [Ylou are authorized and compelled to take the evidence in its totality . . . and to determine the facts from that evidence, whatever you determine them to be, and apply the law as given you in this charge to those facts and reach a verdict that speaks the truth, whatever that verdict may be.

Young contends the trial court should have read his allegedly exculpatory statement to the jury or given the jury the written statement to review.

“Whether the trial court will require the court reporter to read former testimony is a matter resting in its sound discretion.” Davis v. State, 266 Ga. 801, 802 (4) (471 SE2d 191) (1996); see also Pass v. State, 227 Ga. 730, 737 (13) (182 SE2d 779) (1971). It has long been the law in Georgia that a judgment will not be reversed because the trial court declines to aid the jury in recalling the evidence and refuses a request to have certain testimony read back. Byrd v. State, 237 Ga. 781, 782 (1) (229 SE2d 631) (1976); Compton v. State, 179 Ga. 560, 567 (6) (176 SE 764) (1934); Johnson v. State, 236 Ga. App. 356, 358 (3) (511 SE2d 921) (1999). The trial court in this case did not abuse its discretion in instructing the jury to rely on its collective recollection of the evidence.

Decided November 3, 2000

Rich & Smith, Randolph G. Rich, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.

       The cases cited by Young are inapposite as they relate to jury instructions on theft by taking, not theft by receiving stolen property. See OCGA § 16-8-2; Hensley v. State, 228 Ga. 501, 502-503 (2) (186 SE2d 729) (1972); King v. State, 214 Ga. App. 311, 312 (2) (447 SE2d 645) (1994); Wilson v. State, 211 Ga. App. 486, 488 (2) (439 SE2d 701) (1993); Teague v. State, 169 Ga. App. 285, 287 (3) (312 SE2d 818) (1983).