text:
    A95A0462.
    BURLINGTON AIR EXPRESS, INC. v. GEORGIA-PACIFIC CORPORATION et al.
    (457 SE2d 219)
   Smith, Judge.

This is the second appearance of this case before us. In Burlington Air Express v. Ga.-Pacific Corp., 211 Ga. App. 113 (438 SE2d 97) (1993) (Burlington I), this court affirmed a grant of partial summary judgment to Georgia-Pacific for compensatory damages for breach of contract, including pre-judgment interest. The issue of Burlington’s liability for attorney fees was reserved for determination at trial. Burlington now seeks review of the court’s final judgment, entered following a bench trial, awarding to Georgia-Pacific its litigation expenses and attorney fees in the amount of $25,295.35.

. Burlington contends the trial court erred by denying its motion for directed verdict on the claim for attorney fees under OCGA § 13-

6-11 and awarding attorney fees to Georgia-Pacific. Burlington argues its refusal to pay in excess of $500 for Georgia-Pacific’s claims was founded on a bona fide defense; it further maintains that the attorney fees award should be vacated because it was based on inadmissible evidence concerning settlement negotiations between the parties.

“ ‘The issue of attorney fees under OCGA § 13-6-11 is a question for the (factfinder) and an award will be upheld if any evidence is presented to support the award. (Cit.)’ [Cit.]” Leventhal v. Seiter, 208 Ga. App. 158, 164 (7) (430 SE2d 378) (1993). “OCGA § 13-6-11 provides for expenses of litigation ‘where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.’ ” McDonald v. Winn, 194 Ga. App. 459 (1) (390 SE2d 890) (1990). Bad faith warranting an award of attorney fees “must have arisen out of the transaction on which the cause of action is predicated.” Id. Moreover, we have noted that “there may be bad faith in carrying out the provisions of the contract sufficient to support the award.” Jordan Bridge Co. v. I. S. Bailey, Jr., Inc., 164 Ga. App. 124, 126 (5) (296 SE2d 107) (1982). Finally, “ [d] espite the existence of a bona fide controversy as to liability, a [factfinder] may find that defendant ‘acted in the most atrocious bad faith in his dealing with the plaintiff.’ [Cits.]” Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 63 (3) (390 SE2d 55) (1989).

The underlying litigation in this case arises from Burlington’s handling, as self-insurer, of claims by Georgia-Pacific and BTL Specialty Resins for the declared value of five lost shipments of scrap silver screen sent via Burlington Air Express to a refinery in Massachusetts to be refined and ultimately reused in the manufacture of formaldehyde. Despite having collected extra value charges for four of the five insured shipments, Burlington refused to pay their declared value on the basis of a tariff restriction in small print on the back of the airbills that limits the carrier’s liability for shipments of “precious metals” to $500. See Burlington I, supra at 114-115 (2). Georgia-Pacific and BTL were not made aware of the tariff restrictions before shipment and were not provided a copy of the tariff itself until well after Burlington had denied liability in excess of $500 on each claim. Id.

The small print on the back of the airbills also provided that shipments of manufactured articles or components containing precious metals with a functional rather than a decorative or ornamental use would be accepted with a maximum declared value of $25,000. The trial court found that Burlington exhibited bad faith when it attempted to limit to $500 its liability for Georgia-Pacific’s lost shipments of scrap silver screen as “precious metals” without reference to the possible applicability of this exception for nondecorative precious metals. The court also found Burlington caused Georgia-Pacific unnecessary trouble and expense in litigation, warranting the recovery of attorney fees, by continuing to rely on the tariff’s limitation of liability to less than the declared value of Georgia-Pacific’s shipments in the face of clear legal authority in the Eleventh Circuit prohibiting such limitations unless the shipper was made specifically aware the tariff restrictions were incorporated in the carrier contract.

Our review of the record reveals evidence supporting the trial court’s finding that Burlington exhibited bad faith by attempting to limit its liability for each of the five shipments to $500 under its tariff without disclosure of the tariff’s terms to the shipper. Although Burlington maintains the correspondence between it and Georgia-Pacific regarding the shipper’s attempt to recover the declared value of its lost cargo concerned settlement negotiations and was therefore inadmissible, the correspondence evidences the carrier’s bad faith in carrying out the terms of the carrier contract between the parties and is admissible for that purpose. See Ostroff v. Coyner, 187 Ga. App. 109, 116 (5) (369 SE2d 298) (1988). Since the record contains some evidence of bad faith, Burlington’s argument regarding the existence of a bona fide controversy is irrelevant. Kneller, supra.

Decided April 5, 1995

Reconsideration denied April 24, 1995

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

Parker, Johnson, Cook & Dunlevie, Everett W. Gee III, G. William Long III, for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A93A1897.
    THE STATE v. ESPINOZA.
    (455 SE2d 857)
    Decided April 24, 1995.

      Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.
      Steve T. Woodman, for appellee.
   Beasley, Chief Judge.

In State v. Espinoza, 212 Ga. App. 814 (442 SE2d 911) (1994), a majority of this court reversed the trial court’s grant of Lorenzo Espinoza’s motion to suppress. That judgment was reversed by the Supreme Court “on the ground that police officers discovered the evidence within the curtilage of the defendant’s apartment for which they did not have a search warrant.” Espinoza v. State, 265 Ga. 171 (454 SE2d 765) (1995). Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


author: Pope, Presiding Judge.

text:
    A95A0454.
    ZACH, INC. v. FULTON COUNTY et al.
    (457 SE2d 574)
   Pope, Presiding Judge.

Zach, Inc. is a private non-profit corporation which owns property used as a fraternity house on the Georgia Tech campus. Zach brought this action seeking (1) a judicial determination that its fraternity house is exempt from ad valorem property taxation, and (2) a refund of property taxes paid on the fraternity house since 1989. The trial court denied Zach’s motion for summary judgment, but certified its ruling for immediate review. We granted Zach’s application for interlocutory review and now affirm.

Pursuant to OCGA § 48-5-41 (a) (6), “[a]ll buildings erected for and used as a college” are exempt from ad valorem property taxation. In Alford v. Emory Univ., 216 Ga. 391, 395 (3) (116 SE2d 596) (1960), the Supreme Court held that fraternity houses owned by a university were “ ‘buildings erected for and used as a college’ ” for purposes of § 48-5-41 (a) (6), and thus were exempt from property taxation. The Court extended the Alford holding in Johnson v. Southern Greek Housing Corp., 251 Ga. 544 (307 SE2d 491) (1983), ruling that fraternity houses were exempt under this subsection even if they were not actually owned by the college, but were instead owned by a non-profit corporation created by the college as an “arm and extension” of the college. See id. at 545.

Zach argues that the use of the property as a fraternity house was the determinative factor in these cases, so that any non-profit corporation owning a fraternity house should be able to rely on OCGA § 48-5-41 (a) (6) for a property tax exemption, regardless of the corporation’s relationship or lack of relationship with the college or university. However, “[tjaxation ... is the rule, and exemption from taxation the exception. [Cits.] . . . Exemption, being the exception to the general rule, is not favored; but every exemption, to be valid, must be expressed in clear and unambiguous terms, and, when found to exist, the enactment by which it is given will not be enlarged by construction, but, on the contrary, will be strictly construed. [Cits.]” Mundy v. Van Hoose, 104 Ga. 292, 297 (30 SE 783) (1898). Johnson itself was a four-to-three decision over a vehemently persuasive dissent, and we believe it took the exemption for fraternity houses under OCGA § 48-5-41 (a) (6) to its limits. We therefore decline Zach’s invitation to extend the holdings of Alford and Johnson further. Although use of the property is crucial in determining whether an exemption applies, it is clear that not all properties used to lodge and feed students can be “buildings erected for and used as a college” within the meaning of OCGA § 48-5-41 (a) (6); ownership of the property by either the college or an “arm and extension” of the college is also crucial.

Decided April 11, 1995

Reconsideration denied April 25, 1995

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellant.

Bernard R. Thomas, Sr., Joiava Thomas, Webb & Daniel, Harold T. Daniel; Jr., Holland■ & Knight, Joseph D. Young, for appellees.

Contrary to Zach’s assertion, “arm and extension” of the college is not a meaningless phrase. Rather, the phrase describes an organization which, like the property owner in Johnson, was created by the college and is run by members of the college community. Zach, on the other hand, was created by the national fraternity and is run by a board comprised of individuals from outside the college community.

Accordingly, since Zach did not establish that it is an “arm or extension” of the college, evidence that it uses its property in the same way the property owner in Johnson used its property could not establish that it is tax exempt under OCGA § 48-5-41 (a) (6).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A95A0703.
    BURNS et al. v. REVES.
    (457 SE2d 178)
   Blackburn, Judge.

Appellants/defendants, Randy and Loma Burns, appeal orders of the trial court granting appellee/plaintiff, Betty Reves’ motion for summary judgment in the underlying dispossessory action against the Burnses as tenants holding over, denying their motion for summary judgment as to their counterclaim for breach of purchase option, and denying their motion to dismiss the dispossessory action.

The record reflects that the Burnses leased certain premises located in Bartow County for a term which commenced “on December 1990” and continued “until December 1993,” providing them an option to purchase the property during such time period. On Memorial Day 1993, Reves notified the Burnses that the lease would not be renewed and that they would have to move. In November 1993, Reves entered into a contract to sell the property to third parties. Thereafter, the Burnses notified Reves that they desired to exercise their option to purchase the property. On January 6, 1994, Reves gave the Burnses further notice by letter that the lease had expired and demanded that possession of the property be relinquished within 30 days.

The Burnses remained in possession of the premises and, in March 1994, Reves filed the instant action in the Bartow County Magistrate’s Court. The suit was transferred to the trial court upon the Burnses’ demand for jury trial.

1. The Burnses enumerate that the trial court erred in granting Reves’ motion for summary judgment as to breach of their option to purchase.

“In an option contract, it is necessary, in order to establish a breach on the part of the seller, that the purchaser tender the purchase price and request conveyance of the land to him, and that the seller fail to comply. [Cit.]” Carpenter v. Parsons, 186 Ga. App. 3, 4 (366 SE2d 367) (1988). Further, “ ‘[b]efore equity will decree specific performance of a contract for the sale of land, there must be an absolute and unconditional tender of the purchase-price. An offer to pay the purchase-price on delivery of a properly executed deed is not an unconditional tender. [Cits.]’ ” McLoon v. McLoon, 220 Ga. 18, 20 (136 SE2d 740) (1964).

The Burnses contend that the lease-option in the instant circumstances continued to December 31, 1993 and that their tender under the option was excused because Reves entered into a contract to sell the property to third parties in November 1993. Pretermitting these issues, however, the Burnses have only established that they notified Reves of an intention to purchase the property when their loan was secured. A date for closing the purchase of the property was never set, and purchase monies were not secured within the option period. While the law does not require actual tender as a condition precedent to entitlement to specific performance where rejection is deemed likely, id., we conclude that mere notice of intent to exercise an option to purchase real estate conditioned on obtaining necessary financing, as here, is insufficient to constitute the exercise of an option to purchase. The option to purchase under the contract was thus lost as not exercised. Moreover, even had the option to purchase been satisfactorily exercised in December 1993, it would nonetheless have been ineffective as beyond the term of the contract. In this regard, we conclude, as did the trial court, that the words “until December 1993,” are susceptible to the single construction that the contract was terminated at midnight, November 30, 1993. “It is not the province of the jury to construe unambiguous contracts. [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 301 (447 SE2d 666) (1994). Neither are we authorized to “make an unambiguous contract ambiguous by the introduction of parol evidence.” Houston v. Jefferson Standard Life Ins. Co., 119 Ga. App. 729, 732 (168 SE2d 843) (1969). Accordingly, the trial court’s grant of the motion for summary judgment was proper. Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (407 SE2d 64) (1991). (“The construction of a contract is a matter of law for the court . . . , peculiarly well suited for adjudication by summary judgment.”)

2. The Burnses further enumerate that the trial court erred by granting Reves’ motion for summary judgment as to her claim against them for holding over. In particular, the Burnses argue that Reves’ dispossessory action was flawed for failure to give timely notice of the termination of the tenancy or to make timely demand for possession.

OCGA § 44-7-7 requires that the landlord give 60 days’ notice of termination. In the instant circumstances, the contract expired on November 30, 1993, as above. On Memorial Day 1993, Reves told the Burnses that she would sell the house after they advised her of their inability to buy it. Shortly thereafter, Reves employed a realtor who placed a For Sale sign in the yard of the property. On these facts, we are satisfied that notice to quit was satisfactorily given the Burnses. It is sufficient if such notice gets to the tenant. Godfrey v. Walker, 42 Ga. 562, 570 (2) (1871).

Further, by the terms of the contract, the Burnses’ status in the premises was reduced to that of hold-overs in a month-to-month tenancy after December 1, 1993. Since the Burnses were in a hold-over status when Reves demanded possession of the property by her letter, dated January 6, 1994, we conclude that the said demand was timely made under OCGA § 44-7-50 (owner’s demand for possession proper where, among other things, tenant holds over beyond term for which premises rented). Accordingly, we deem this enumeration of error to be without merit.

3. In view of our disposition of Divisions 1 and 2, we do not reach appellants’ remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Decided March 10, 1995

Reconsideration denied April 25, 1995

McClain & Merritt, Albert J. Decusati, for appellants.

James F. Nowland, for appellee.

       The only arguable ambiguity as to the expiration date of the contract arises out of the conduct of the parties after December 1. Specifically, Reves accepted the Burnses’ tender of December’s rent and, in having her bank return the Burnses’ check attempting to pay rent for January 1994, the bank annotated the check “rental check for January rejected — lease is up Dec. 31, 1993 — not renewed.” In this regard, it is uncontroverted in the record that Reves instructed her bank to return such check, simply advising it that she believed the Burnses were to be out of the premises by December 31, and a landlord’s acceptance of rent after a dispossessory action has been instituted and before trial is not inconsistent with his demand for possession. Williams v. Clayton Park Mobile Home Court, 166 Ga. App. 359, 360 (304 SE2d 483) (1983).


author: Ruffin, Judge.

text:
    A95A0197.
    SULEJMAN et al. v. MARINELLO et al.
    (457 SE2d 251)
   Ruffin, Judge.

Farun and Linda Sulejman entered into a sales contract and construction agreement with Bruce Marinello and Dee Smith d/b/a Vantage Point Companies (“Vantage Point”). Under the contract, the Sulejmans agreed to purchase a tract of land and a residence to be constructed on the land from Vantage Point. The contract provided in part that upon its execution, the Sulejmans would pay Vantage Point “$12,500.00, as earnest money, which earnest money is to be applied as part of payment of purchase price of said property at the time sale is consummated. It is agreed by all parties to this contract that earnest money may be placed in [Vantage Point’s] account and be used toward construction cost or construction loan cost.” Accordingly, the Sulejmans paid Vantage Point $12,500 in earnest money at the time they executed the contract. Shortly thereafter, the Sulejmans presented Vantage Point with a new contract prepared by their attorney. When Vantage Point refused to execute the new contract and refund the Sulejmans’ earnest money, the Sulejmans filed the instant action.

In their complaint, which included a copy of the executed contract, the Sulejmans alleged they executed the contract and tendered the earnest money “with the full understanding between the parties that [they] would have their counsel review the contract and put in (sic) proper form.” The Sulejmans further alleged that Vantage Point refused their demand for return of the earnest money, and in their prayer for relief asked for judgment in the amount of the earnest money.

Prior to trial, the court granted Vantage Point’s motion in limine to exclude all parol evidence offered by the Sulejmans concerning “any oral agreements or stipulations that would alter, change or vary the terms of the written contract that was the subject matter of the lawsuit.” The court also excluded any evidence that the contract was unenforceable due to invalid subject matter and insufficient property description because neither of those issues were raised by the Sulejmans in their complaint or in the pre-trial order. After excluding the foregoing evidence from consideration, the court granted Vantage Point’s motion for judgment on the pleadings. The Sulejmans appeal from that order.

1. In their first enumeration of error, the Sulejmans assert the trial court erred in granting Vantage Point’s motion in limine. “However, this enumeration is not supported in [their] brief by citation of authority or argument, and is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). [Cit.]” BCS Financial Corp. v. Sorbo, 213 Ga. App. 259, 261 (2) (444 SE2d 85) (1994). Appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.

2. In their two remaining enumerations of error, the Sulejmans contend the trial court erred in granting Vantage Point’s motion for judgment on the pleadings. While we agree with the Sulejmans on this point, we note again their disregard for the rules of this court. Court of Appeals Rule 15 (c) (1) provides that “[t]he sequence of argument or arguments in the briefs shall follow [generally] the order of the enumeration of errors, and shall be numbered [correspondingly].” (Emphasis supplied.) In this case, the Sulejmans presented for review three enumerations of error by the trial court, one of which was ruled abandoned in Division 1. In disregard of the requirements of Rule 15 (c) (1), the arguments relating to the two remaining enumerations are not separately numbered to correspond to those enumerations. This rule is clear and there is no reason why an appellant cannot comply with it.

Turning to the merits of these enumerations, we find the court did err in granting Vantage Point’s motion for judgment on the pleadings. “[T]he question here is whether the undisputed facts appearing from the pleadings show [Vantage Point was] entitled to judgment as a matter of law. ... A complaint is not required to set forth a cause of action, but need only set forth a claim for relief. . . . If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of his motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. . . . The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.” (Citations and punctuation omitted.) Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978).

In this case, the Sulejmans filed a complaint seeking to recover their earnest money. “Generally the buyer, in order to recover earnest money as money had and received under a real estate contract, must show that the seller has breached the contract and that the buyer himself is not in default. He may then rescind the contract and recover the amount he has paid on the purchase price. [Cit.]” Goldberg v. Black, 156 Ga. App. 872, 873 (275 SE2d 810) (1981). While the complaint in this case did not properly set forth a cause of action showing Vantage Point breached the contract, Christner does not require such a showing. The complaint did set forth a claim for judgment due to Vantage Point’s alleged failure to return the earnest money. Although the allegation was not made in the complaint, if the Sulejmans can prove they were not in default and Vantage Point breached the contract, then they would be entitled to the relief they claimed. Accordingly, “[t]here are conceivable facts upon the proof of which the [Sulejmans] could recover, and we must reverse the judgment below.” Christner, supra at 140-141. See also Goldberg, supra.

Decided April 25, 1995.

Donald L. Mize, for appellants.

Schreeder, Wheeler & Flint, Debra A. Wilson, for appellees.

Judgment affirmed in part, reversed in part and remanded.

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


author: Birdsong, Presiding Judge.

text:
    A95A0347.
    YOUNG et al. v. FAULKNER et al.
    (457 SE2d 584)
   Birdsong, Presiding Judge.

Appellants/defendants appeal from the order of the superior court granting partial summary judgment on the issue of liability to appellees/plaintiffs in this suit for damages for trespass on real property by wrongful conversion of timber thereon. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. “The interpretation of the language in a deed is generally a question of law unless it is so ambiguous that the ordinary rules of construction cannot resolve the ambiguity. [Cit.] The cardinal rule of construction is to ascertain the intention of the parties.” Giddens v. Barrentine, 264 Ga. 510, 511 (1) (448 SE2d 441). The mere existence of two possible interpretations to a deed or contract does not automatically transform the issue into a jury question; the judicial responsibility of a court is higher than that of mere referee. Holcomb v. Word, 239 Ga. 847, 848 (238 SE2d 915). Construction of ambiguous deeds is the duty of the court, and only if ambiguity remains after application of the pertinent rules of construction will extrinsic evidence be admissible to explain the ambiguity. Id.

Examination of the chains of title of both appellants and appellees reveal unequivocally that appellees/plaintiffs are vested with legal title to the upper one-half of the original tract of land, which original tract was then described as consisting of five acres and was deeded in 1905 by Jacob McMillan to A. A. Stokes.

We also find appellants/defendants did not hold valid legal title to four acres of land within said original tract; rather, appellants’ chain of title establishes their predecessors in title were granted only the lower one-half — which survey reflects consists of only 2.48 acres — of the original tract.

3. Appellants, however, also claim title to the land at issue through prescription by adverse possession.

Both appellants’ and appellees’ properties can be traced back to a tract of land owned by Jacob McMillan; in 1905 McMillan conveyed the described five-acre tract to A. A. Stokes. In 1911, Stokes conveyed the south half, approximately two-and-one-half acres, of the tract to J. D. Raulerson who is one of the predecessors in appellants’ chain of title. In 1912, Stokes conveyed the north half, approximately two-and-one-half acres, of the tract to F. B. Bradley who is one of the predecessors in appellees’ chain of title. In 1916, Raulerson conveyed the (south) property acquired by him to Mrs. J. M. Williams; the deed was recorded in 1918. In 1922, the property through which appellants claim title was subject to a mortgage deed, executed by J. M. Williams and M. E. Williams (also known as Mrs. J. M. Williams), which erroneously described the acreage in the (south) tract as consisting of four acres; the mortgage was foreclosed in 1925 and bought by J. H. Gibbs; Gibbs conveyed the property to W. J. C. Brown and the deed was recorded in 1926. W. J. C. Brown died testate and willed a life estate in the premises to Carl Brown. In 1951 Carl Brown conveyed all his legal interest in the property to Dr. J. E. McMillan and in 1958, Dr. McMillan conveyed the same to appellant W. D. Young. Carl Brown died in 1972. In 1988, the children of Carl Brown initiated suit to obtain legal title in fee simple to certain family properties; the superior court entered an order which, inter alia, vested legal title in fee simple in the children as to that tract of land which originally constituted the south half of the original, described, five-acre tract of Jacob McMillan. However, the court in entering the legal description of the land in its order included the erroneous words, “one four-acre tract,” apparently being unaware of the deviation as to acreage description originating in the mortgage deed of said land in 1922. In September 1990, a public sale of this property occurred; appellant W. D. Young, to protect his legal interests, placed a bid and acquired ownership of this and other parcels of property from the Brown family. In October 1990, each of the five Brown children conveyed their one-fifth, undivided interest, in the property to W. D. Young who now held the property in fee simple. Appellant W. D. Young filed an affidavit attesting, inter alia, that “he has not cut timber on any property other than that property which he has claimed and possessed as his property openly, notoriously, and to the exclusion of all others, under a claim of right, ever since he acquired the same by deed from Dr. McMillan in June of 1958. At no time has affiant surrendered this property to the domain of any other person and has exercised all the rights and privileges thereon under color of title and claims right to the same.”

In addition to relying on a claim of prescription by means of adverse possession for a term of at least 20 years (see generally OCGA §§ 44-5-161 and 44-5-163), appellants also rely upon a claim of prescription based on possession, under color of written evidence of title, for a term of at least seven years (OCGA § 44-5-164). Specifically, appellants assert that their possession of the real property in question under written evidence of title (the deeds and other legal documents reflecting their ownership of a tract of four acres) for a continuous period of not less than seven years would confer good title by prescription as against appellees. Appellees attempt to refute this claim by asserting that possession will not run against anyone by the possession of property by a life tenant, and that appellants were vested only with a life estate in the property conveyed in 1958 to them by Dr. McMillan until they obtained fee simple title to the property in 1990 or until their predecessors in title, the children of Carl Brown, obtained fee simple title by means of the court order of 1988. Thus, according to appellees, appellants could not have held the land by means of adverse possession for even seven years. In support of this contention, appellees rely upon the holding in Ham v. Watkins, 227 Ga. 454 (3) (181 SE2d 490). Notwithstanding the emphasized language appearing in the appellees’ brief, the accurate quotation from Ham, supra at 457, is as follows: “Remaindermen have no right of possession until the death of the life tenant, and prescription does not run against them because of mere possession of the property by the life tenant.” (Emphasis supplied.) Accord Davis v. Fambro, 254 Ga. 737, 738 (334 SE2d 306) (adverse possession cannot run against remaindermen until their rights become vested). Ham, supra, and its progeny do not hold that a life tenant can never gain title against anyone by means of adverse possession but only that a life tenant generally cannot gain adverse possession against remaindermen until their rights vest through termination of the prior estate. See generally Ga. Real Est. Law, § 12-58 (4th ed.). Appellants did not stand in relationship to appellees as remaindermen; rather, appellees were the legal owners of the south half of the original tract. Accordingly, the fact appellants were vested with a life estate in property conveyed under a different chain of title would not prevent them from acquiring title by prescription to the land of appellees. See OCGA §§ 44-5-160; 44-5-161. While possession must be accompanied by a claim of right in order to obtain title by prescription (OCGA § 44-5-161 (a) (4)), “this does not mean that the possession must be accompanied by a claim of title out of some predecessor”; rather “it does mean that there must be some claim of title in the sense that the possessor claims the property as his own.” (Punctuation omitted.) Wisenbaker v. Warren, 196 Ga. App. 551, 553 (3) (396 SE2d 528).

“ ‘Adverse possession is usually a mixed question of law and fact — whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide.’ ” Barnett v. Holliday, 228 Ga. 361, 362 (2) (185 SE2d 397). However, in this case, appellees/plaintiffs in support of their motion for summary judgment provided evidence not only of their superior title to the upper half of the original tract consisting of approximately 2.48 acres, but also of their public, continuous, exclusive, uninterrupted, and peaceable possession of said property. Appellants do not attempt to rebut appellees’ claim of uninterrupted, peaceable possession of the upper half of the original tract by the Bradley/Paulkner family for a period of over 78 years, by establishing their dispossession of appellees; rather, appellants assert their own claim of possession of the property. Thus, the facts of record at the time of the superior court’s ruling (see Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741)) establish that both appellants and appellees were asserting right of possession over the property in question. “[W]here, as here, two persons enter onto property each claiming an interest therein, he who is the true owner or has the better title is deemed to be in possession thereof unless he is dispossessed by the other person. ‘Adverse possession, in order to ripen into title, must be exclusive. “Exclusive possession” means that the disseizor must show an exclusive dominion over the land and an appropriation of it to his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, and where two persons have entered upon land, he who has the better title will be deemed to be in possession thereof. It is therefore essential that the possession of one who claims adversely should establish . . . ouster of the true owner because in the absence of ouster, the title draws to itself the continuous possession of the property. Possession not amounting to disseizin is insufficient.’ [Cits.] ‘Where the rightful owner of real estate is in the actual occupancy of a part of his tract, he is in the constructive and legal possession and seisin of the whole, unless he is disseised by actual occupation and dispossession; and where the possession is mixed, the legal seisin is according to the legal title.’ ” (Emphasis supplied.) Carter v. Becton, 250 Ga. 617, 618 (4) (300 SE2d 152). No genuine issue of material fact exists as to appellants’ claim of title by prescription. Appellants’ various contentions in support of their enumeration of error are without merit. A grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61).

Decided April 25, 1995.

John T. Croley, Jr., for appellants.

Rogers & McCranie, Murphey Rogers, for appellees.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0426.
    PORCHE v. THE STATE.
    (457 SE2d 578)
   Ruffin, Judge.

Edward Porche appeals his convictions of possession of marijuana, driving under the influence of alcohol and making an improper U-turn.

The record shows that Porche was attempting to make a U-turn on railroad tracks when his car got stuck in an adjacent ditch. Porche and his companion got out of the car, and shortly thereafter the car was struck by an approaching train. A police officer arrived approximately 15 minutes later and found Porche with a strong odor of alcohol on his breath, glossy eyes and unsteady in his movements. The officer administered an alco-sensor test which was positive for alcohol, placed Porche under arrest and read to him his implied consent rights. Porche refused to submit to a blood alcohol test, and after being placed in the back seat of the patrol car, he began yelling “they’re trying to plant weed on me.” The officers looked in the back of the patrol car and found six individual packs of marijuana and loose marijuana leaves on the floorboard.

1. Porche asserts the trial court erred in excluding from evidence the alco-sensor test results. Porche contends he passed the test and that the results showing this should have been admitted. Since the record shows Porche tested positive for alcohol, we can only assume he is arguing the trial court should have admitted the quantitative result which measured .02 grams percent of alcohol.

“ ‘[A]lco-sensor results are not used as “evidence of the amount of alcohol or drug in a person’s blood.” (Cit.) Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol. (Cit.)’ [Cit.]” Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475) (1993). Since Porche was attempting to use the results to show the amount of alcohol in his blood and such results are not admissible for that purpose, the trial court did not err in excluding such evidence. See Mendoza v. State, 196 Ga. App. 627 (2) (396 SE2d 576) (1990).

Decided April 25, 1995.

Rodney M. Keys, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

2. Porche also asserts the trial court abused its discretion by questioning a witness in a manner which laid the proper foundation for the admission of evidence. We note initially that in violation of Court of Appeals Rule 15 (c) (3), Porche failed to cite to any portion of the record or transcripts where the alleged improper questioning could be found. While “[t]his court will not cull the record on behalf of either the State or appellants[,] [cit.]” Clayton v. State, 203 Ga. App. 843, 845 (4b) (418 SE2d 610) (1992), our review of the record revealed two instances where the trial judge questioned a State’s witness. In each instance, Porche “failed to object to the trial court’s examination of the witness at the trial, and the matter thus was not preserved for review by this court. [Cits.] Moreover, a trial court has the right to propound questions to develop the truth of the case, and the extent of the interrogation in this case was well within the discretion allowed the trial court. [Cit.]” Cooper v. State, 174 Ga. App. 464, 467 (5) (330 SE2d 402) (1985). Accordingly, we find no error.

Judgment affirmed.

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


text:
    A95A0702.
    BACK et al. v. CITY OF WARNER ROBINS.
    (457 SE2d 582)
   Pope, Presiding Judge.

The City of Warner Robins filed declarations of taking to secure the condemnees’ property for a roadway construction project. See OCGA § 32-3-4 et seq. The condemnees appeal the trial court’s denial of their petition to set aside, vacate and annul the declarations of taking pursuant to OCGA § 32-3-11, arguing that (1) the City was not entitled to utilize the procedure set forth in OCGA § 32-3-4 under the circumstances of this case, and (2) the City abused its discretion in failing to consider alternative roadway plans which would have been less burdensome for taxpayers as well as for the condemnees. We reject the condemnees’ arguments and affirm.

1. The condemnees argue that condemnors may take property through a declaration of taking pursuant to OCGA § 32-3-4 only if title to the property to be condemned is in question; otherwise, the condemnees contend, the condemnor must use the procedure set forth in OCGA § 22-2-1 et seq. OCGA § 32-3-4 (a) provides: “Whenever any . . . municipality desires to take or damage private property ... for public road purposes or for any other public transportation purposes and shall find or believe, concerning which the decision of the condemning authority shall be final and conclusive, that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete, or in controversy, ... or shall for any reason conclude that it is desirable to have a judicial ascertainment of any question connected with the matter, such . . . municipality, through any authorized representative, may file a proceeding in rem in the superior court.” (Emphasis supplied.) The condemnees cite rules of construction in support of their argument that the application of this Code section is limited to situations involving title defects. However, the language of the statute clearly allows the condemnor of property for transportation purposes to utilize OCGA § 32-3-4 et seq. if it desires a judicial determination of any question for any reason. Where statutory language is clear, judicial construction is forbidden. See Taco Mac v. City of Atlanta &c. Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986). We also note that we have reviewed numerous cases in which condemnors relied on OCGA § 32-3-4 et seq., and title problems do not appear in any of them. See, e.g., Dept. of Transp. v. City of Atlanta, 255 Ga. 124 (3) (b) (337 SE2d 327) (1985); West v. Dept. of Transp., 176 Ga. App. 806 (1) (338 SE2d 45) (1985); Dept. of Transp. v. Wright, 169 Ga. App. 332 (312 SE2d 824) (1983). Thus, when taking property for transportation purposes, a condemnor may choose to use either the procedures set forth in OCGA § 22-2-1 et seq. or those set forth in OCGA § 32-3-4 et seq. “So long as the procedure used to take the condemnee’s property is in accordance with the law, he has no ground of complaint because another procedure, also authorized by law, was not used.” State Hwy. Dept. v. Respess, 111 Ga. App. 421 (2) (142 SE2d 73) (1965). Accordingly, the condemnees’ first enumeration of error is without merit.

2. Citing Dept. of Transp. v. Hudson, 179 Ga. App. 842 (34 SE2d 106) (1986), the condemnees contend that the City abused its discretion in failing to consider less burdensome alternatives. Unlike the trial court in Hudson, however, the trial court here found that the City had considered alternatives, and this finding is supported by the evidence: Even though the mayor and city council members could not remember the alternatives, city engineers and planners testified that the project was the result of many years of planning and that numerous alternatives were considered. See also Habersham Downs &c. Assn. v. Dept. of Transp., 212 Ga. App. 686, 687 (442 SE2d 868) (1994) (trial court’s finding is accepted if it is supported by any evidence). Thus, the trial court did not err in refusing to set aside, vacate and annul the declarations of taking on this ground.

Decided April 25, 1995.

Hulbert, Daniel & Lawson, Tom W. Daniel, for appellants.

James E. Elliott, Jr., for appellee.

3. Though not explicitly enumerating it as error, the condemnees also suggest the taking is improper because it will primarily benefit private businesses in and around a shopping mall. As a general rule, a condemnor’s determination that it needs property for public road purposes is not subject to review in the absence of fraud or bad faith. Coffee v. Atkinson County, 236 Ga. 248, 249 (223 SE2d 648) (1976). Moreover, even if only one person primarily benefits from a project, it is a public use as long as everyone who has occasion to use it may lawfully do so. Austin Enterprises u. DeKalb County, 222 Ga. 232 (1) (149 SE2d 461) (1966). The condemnees cite Brannen v. Bulloch County, 193 Ga. App. 151 (387 SE2d 395) (1989) for the proposition that we can look beyond the condemnor’s statement that the project is for a public purpose. However, Brannen was an extreme case in which “the evidence established] [that the project] was undertaken with the improper intent to benefit one private, powerful entity,” id. at 156, and its holding is limited to its extreme facts. All public improvements will benefit some segments of the public more than others, and roads which benefit the public by allowing them to shop more easily will inevitably benefit the shopkeepers. There is no evidence of improper intent in this case. Instead, the evidence showed that the purpose of the project was to relieve traffic congestion and reduce the number of accidents. See City of Atlanta v. Petkas, 253 Ga. 447 (321 SE2d 725) (1984).

4. The condemnees’ motion to expedite is rendered moot by our conclusions, and is therefore dismissed.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0864.
    LOCKETT v. THE STATE.
    (457 SE2d 579)
   Birdsong, Presiding Judge.

Terry Lockett appeals his judgment of conviction of the kidnapping of Dorothy Williams, possession of a firearm by a convicted felon, and simple battery. He enumerates four errors. Held:

1. Appellant’s first enumeration asserts a claim of insufficiency of the evidence. Appellant argues in part that “this case is basically a swearing match, with appellant’s testimony being contradicted by [the victim,] Dorothy Williams.”

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from: which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Pursuant to OCGA § 16-5-40 “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” Moreover, as to the asportation element of kidnapping, “only the slightest movement of the victim is required to establish that element.” Robinson v. State, 210 Ga. App. 175, 176 (1) (435 SE2d 466). Further, “kidnapping is not a continuous crime; it is completed when the victim has been seized and asported to some degree.” Id. at 176 (2). The credibility of Dorothy Williams’ testimony and the degree of corroboration, if any, that other witnesses’ testimony supplied were matters for jury determination. The jury could find, within the standards of Jackson v. Virginia, supra, that the kidnapping offense was completed before the victim obtained access to the rifle in appellant’s car. Appellant’s enumeration is, as to each offense of which appellant was convicted, without merit.

2. Appellant contends the trial court erred in not admitting evidence regarding the motive of the álleged victim for her prosecution of appellant. Specifically, appellant asserts that the alleged victim stated in the presence of appellant, his counsel, and an assistant district attorney that she did not want to prosecute appellant and further, that the alleged victim told appellant one day before the trial that she felt she was being coerced by personnel in the district attorney’s office to testify against appellant.

The admissibility of evidence is a matter resting largely within the discretion of the trial court (Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428)), and in the absence of an abuse of judicial discretion this court will not interfere with the trial court’s ruling (Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411)). The question of relevancy of evidence is a question of law for the court. See Palmer v. State, 186 Ga. App. 892, 898 (369 SE2d 38). OCGA § 24-9-68 provides that “[t]he state of a witness’s feelings towards the parties and his relationship to them may always be proved for the consideration of the jury.” Thus, evidence of a witness’ feelings to the parties, interest in the result of trial, bias, prejudice, or intent or motive generally is admissible at trial. However, OCGA § 24-2-1 provides that “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” These two statutes should be considered in pari materia; thus, even if the testimony sought to be admitted does relate to the feelings a witness has toward a party, if that particular feeling would have no relevance to the questions being tried by the jury, then such evidence may be excluded in the sound discretion of the trial court. See GMC v. Moseley, 213 Ga. App. 875, 883 (5) (447 SE2d 302). We find that the trial court did not abuse its discretion in refusing to admit evidence that the victim did not want to prosecute appellant and that she perceived she was being coerced into so testifying; it was within the trial court’s discretion to find this particular evidence irrelevant. Compare Curry v. State, 162 Ga. App. 71 (2) (290 SE2d 179) and cases cited therein.

Assuming arguendo the trial court erred in excluding such evidence, applying the high probability test of Johnson v. State, 238 Ga. 59 (230 SE2d 869), we are satisfied that had such error occurred as enumerated it would not have contributed to the jury’s verdict. “ ‘Errors in admission or exclusion of evidence which would in no event alter or affect the outcome of the case are harmless and do not require reversal.’ ” Powers Ferry Constr. v. Commerce Builders, 191 Ga. App. 327, 329 (2) (381 SE2d 755).

3. Appellant contends the trial court erred in not directing a verdict of not guilty to the charge of kidnapping Dorothy Williams as the jury found appellant not guilty of kidnapping her son. This enumeration is without merit; the inconsistent verdict rule has been abolished in Georgia. Pratt v. State, 211 Ga. App. 711, 712 (1) (440 SE2d 485).

4. Appellant asserts that the trial court erred in failing to merge the simple battery conviction into the kidnapping conviction. Dorothy Williams testified that she was at the home of appellant’s sister when appellant drove up in a car. He forced her and her minor son to get into the car by grabbing her arm, pushing her out the door, grabbing the back of her neck so tightly it choked her, and pushing her into the car. Appellant drove off with Dorothy Williams who was trying to get out of the car. At one point, Dorothy Williams grabbed a loaded rifle from the back seat of appellant’s car and unloaded the weapon without attempting to use it as a means of getting out of the car. Neither did the victim leave the car as it stopped several times at stop signs or red lights. During the course of the incident, a third-party witness drove by and observed appellant repeatedly hit Williams with the back of his hand every time she would attempt to get out of the car; the witness called the police on his car phone. Finally, the victim was able to jump out when the car slowed down, and the police immediately pulled up and apprehended appellant.

Decided April 25, 1995.

Robert M. Bearden, Jr., for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

The kidnapping offense clearly was completed when appellant grabbed the victim, forced her into the car against her will by grabbing her neck and pushing her, and started driving away with her, as asportation however slight suffices. Compare Robinson, supra at 176. Thus, in this instance, the subsequent striking of the victim as she attempted to exit the moving automobile constituted separate crimes of assault, both in fact and law, from the kidnapping charge. “ ‘Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act.’ ” Id. at 176-177 (2).

Judgment affirmed.

Smith, J., concurs. Johnson, J., concurs fully in Divisions 1, 3, 4, and concurs in judgment only in Division 2.


author: Smith, Judge. McMurbay, Presiding Judge,

text:
    A94A1957.
    BENTON EXPRESS, INC. v. ROYAL INSURANCE COMPANY OF AMERICA et al.
    (457 SE2d 566)
   Smith, Judge.

Benton Express, Inc. brought a multi-count action against its insurers, Royal Insurance Company of America and Royal Indemnity Company (collectively called “Royal”), seeking a declaration of its liability for additional premiums under its insurance policies and asserting claims for relief based on breach of contract, negligence, breach of the duty of good faith, and violation of the covenant of good faith and fair dealing. Benton sought compensatory and punitive damages. Royal answered and counterclaimed against Benton for breach of contract and bad faith. At the hearing on the motion, the trial court granted Royal’s motion for summary judgment from the bench. In a nunc pro tunc order entered several days later, the trial court corrected the amount of the judgment. Benton appeals.

Royal provided insurance coverage for Benton, a trucking company, for many years. During the time period relevant to this appeal, Royal provided workers’ compensation and truckers’ commercial liability insurance coverage to Benton for claims up to $100,000 under retrospective premium insurance policies. Under such policies, the insurer adjusts and handles claims against the insured and later charges the insured a premium based upon the claims actually adjusted and paid. All claims over $100,000 were covered under traditional liability policies. To calculate the premium, Royal estimated the value of the claim and Benton’s potential liability and established a “reserve” in that amount. It then charged Benton the amount of the reserve. In addition, it charged Benton 14 percent of the established reserve and a premium tax based on the amount of the reserve. If a claim was ultimately concluded for an amount less than the reserve, Royal credited or refunded the difference. The additional charges were not refunded. If, on the other hand, the reserve needed to be increased, Royal would bill Benton for the additional reserve and the requisite charges based on that additional reserve.

In this suit, Benton contended Royal did not properly investigate or handle claims, that it settled claims unreasonably, overpaying claimants, and that it systematically “over-reserved,” resulting in excessive unrefunded charges to Benton. In Count 1, the complaint as amended sought a declaration of the rights and duties of the parties. Count 2 alleged breach of contract; Count 3 alleged negligence; Counts 4 and 5 alleged bad faith; Count 6 alleged wilful misconduct and fraud and sought punitive damages; and Count 6 sought an accounting. The trial court granted summary judgment on all claims. We conclude the trial court correctly granted summary judgment to Royal on all counts except Count 2.

1. This appeal presents an issue of first impression in Georgia regarding an insurer’s duty of acting in good faith in dealing with retrospective premium policies.

This type of underwriting has both advantages and disadvantages to the insurer. A disadvantage is that if the insured is displeased with the retrospective premium requested, as occurred in this case, the insured may cancel coverage and use its refusal to pay ongoing retrospective premiums as leverage to force the insurer to lower the premiums, knowing that the insurer must still handle the claims made against the insurer. On the other hand, potential exists for the insurer to overcharge the insured.

Although no Georgia cases have addressed an insurer’s duty to deal with the insured in this situation in good faith, several other jurisdictions have imposed such a duty on the insurer. See, e.g., Nat. Surety Corp. v. Fast Motor Svc., 572 NE2d 1083 (Ill. App. 1991); Deerfield Plastics Co. v. The Hartford Ins. Co., 536 NE2d 322 (Mass. 1989); Transit Cas. Co. v. Topeka Transp. Co., 663 P2d 308 (Kan. App. 1983); Ins. Co. of North America v. Binnings Constr. Co., 288 S2d 359 (La. App. 1974). We are persuaded by the reasoning of these cases that because of the potential for conflict of interest, in dealing with retrospective premium policies, a duty is imposed upon the insurer to act reasonably and in good faith.

2. A majority of jurisdictions that have addressed this issue also place the burden upon the insurer to show that it acted in good faith. We agree with Benton and with the view of the majority of jurisdictions that because the insurer is in possession of the documents relating to premium calculation and the settlement of claims, the burden should be placed upon the insurer to show that in setting the retrospective premiums, it complied with its duty to act reasonably and in good faith. Compare The Austin Co. &c. v. Royal Ins. Co., 842 SW2d 608 (Tenn. App. 1992) (duty of good faith exists but burden is on insured to show insurer acted in bad faith).

3. Nevertheless, a review of the record also persuades us that the trial court properly granted summary judgment to Royal in this case on Counts 4, 5 and 6.

Benton originally claimed lack of good faith in settling a large number of cases, and 57 files were originally requested in discovery. By the time of the hearing on Royal’s motion for summary judgment, Benton had reduced its allegations of bad faith to eight cases, all but one of which are workers’ compensation cases. Royal satisfied its burden to show that it acted reasonably and in good faith in these cases through evidence presented in affidavits and deposition testimony. In support of its motion for summary judgment, Royal produced the affidavits of various Royal personnel, including experienced regional claims managers and a senior casualty specialist. This evidence established that these persons were knowledgeable regarding settlement of the particular disputed claims and the setting of reserves. They also testified concerning the factors considered by Royal in setting reserves. Good faith was also demonstrated by Royal’s various efforts on Benton’s behalf to contain costs. Royal also showed it had waived certain challenges to coverage and cancellation penalties and accepted payments from Benton in installments. Regarding the allegation of “over-reserving,” Royal showed it assigned claims to adjusters based upon the severity and complexity of the case, with the most complex cases assigned to the adjusters with the most experience.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Because Royal satisfied its burden of showing good faith, Benton was then required to come forward with specific evidence rebutting that showing by demonstrating lack of good faith. Benton attempted to do this with the testimony of Don Hammonds, its Vice President of Maintenance and Safety, and an outside expert, Robert Sullivan. A review of this evidence, however, reveals that it was insufficient to rebut Royal’s evidence of good faith.

Among other deficiencies, Hammonds has never been employed in the insurance industry and has no underwriting or adjusting experience. He admitted he does not understand how retrospective premiums are calculated. He was unfamiliar with several of the claims. Sullivan is an expert in underwriting, but not in claims management from the insurer’s perspective. His deposition reveals that when questioned about the merits of the particular claims or reserves in dispute, he consistently testified that he would need more information than was provided him in order to form an opinion. On cross-examination regarding the eight claims in dispute, Sullivan agreed that they did not adversely affect the experience modifier. He further had no idea how much of the premium charged Benton did not owe. He later supplemented this testimony with another affidavit, after further reviewing the files. More importantly, however, none of the testimony of these experts rebuts Royal’s showing.

We agree with the trial court that, at best, Royal’s evidence on these counts “could be described as evidence that [Royal] did not bring to bear on the individual case claims that level and degree of expertise that [Benton’s] witnesses feel are warranted by the claims. This evidence of disagreement does not give rise to the requisite level of evidence creating a genuine issue of material fact requiring submission to a jury.” Accordingly, Royal having pierced allegations essential to Benton’s theories of recovery, and Benton having failed to rebut Royal’s evidence, summary judgment was properly awarded to Royal on these counts.

4. Although earlier cases support Royal’s argument that an insured has no cause of action against its insurer for negligent failure to settle claims, see Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 388 (217 SE2d 620) (1975); Cotton States Mut. Ins. Co. v. Fields, 106 Ga. App. 740 (128 SE2d 358) (1962), recent cases seem to suggest the contrary, at least in excess judgment cases. See Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (1992); McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1) (310 SE2d 513) (1984). Assuming, without deciding, that such a cause of action exists in the context of retrospective premium policies such as the ones in issue here, we nevertheless agree with the trial court that summary judgment was proper in favor of Royal on Benton’s negligence claim.

Royal presented evidence piercing Benton’s allegations of negligence and demonstrating its care in handling Benton’s premiums and claims. Benton’s evidence in response does not rebut this evidence. Accordingly, under Lau’s, supra, summary judgment was proper on this claim as well.

5. The trial court found that Benton’s breach of contract claim rested on its allegations of “over-reserving.” In this regard, Sullivan’s second affidavit contains some evidence that meets Royal’s assertions that its calculations — and the amounts it sought as retroactive premiums — were correct. For instance, Sullivan states that certain items in workers’ compensation claims for “rehabilitation” that were charged to claims paid either were incorrect or should have been charged to allocated expenses. According to Sullivan, charging these items to allocated expenses would have reduced the amount of Benton’s retrospective premiums by reducing the additional amounts charged Benton on the reserve amounts.

This evidence creates a genuine issue of material fact as to the breach of contract claim; the trial court erred in granting summary judgment in favor of Royal on this count of the complaint.

6. We agree with the trial court that an accounting is unnecessary in this case, where discovery was extensive.

Judgment affirmed in part and reversed in part.

Beasley, C. J., Birdsong, P. J., Andrews, - Johnson and Ruffin, JJ., concur. McMurray, P. J., Pope, P. J., and Blackburn, J., concur in part and dissent in part.

McMurbay, Presiding Judge,

concurring in part and dissenting in part.

There are at least two aspects to the defendants’ handling of claims against plaintiff which are the basis of allegations that defendants have failed to perform in conformity with a good faith standard resulting in a financial detriment to plaintiff. First, plaintiff maintains that defendants have overpaid on certain claims. Since plaintiff’s premium obligation on the insurance policies directly corresponds to the actual claims experience, overpayment of claims would add to plaintiffs financial burden for insurance premiums.

Secondly, plaintiff maintained that defendants created excess reserves for claims. When claims were filed a reserve was created by defendants to meet the anticipated costs of the claim. The determination of the amount of the reserve is a subjective decision, more in the nature of an art than science, based on the infinite variables which may affect the value of the claim. Under the policy terms, defendants charged and plaintiff was to pay a charge based on a percentage (14 percent) of the reserve established, plus a premium tax also based on the amount of the reserve. There was also provision for upward adjustment of reserves which also incurred the charge and premium tax. If the claim was resolved for less than the amount of the reserve, plaintiff was credited with the balance but there was no rebate of the charges on reserves. It is thus readily apparent that the creation of reserves larger than the final value of claims would be disadvantageous to plaintiff while more profitable to defendants.

While I agree with the majority’s conclusion that defendants satisfied their burden of showing good faith and concur with Division 5 of the majority opinion reversing the grant of summary judgment in favor of defendants as to plaintiff’s breach of contract claim, I cannot join the remainder of the majority opinion. Many additional jury issues are created by the conflicts between defendants’ evidence and the opinions of plaintiff’s experts. Therefore, I respectfully dissent to the partial affirmance of the grant of summary judgment against plaintiff and in favor of defendants.

To support its claims and to oppose defendants’ motion for summary judgment, plaintiff presented the affidavits of two experts who reviewed the records of the claims at issue and opined that they found consistent patterns of overpayment on claims and of creation of excess reserves on claims. Defendants attacked plaintiff’s experts on several fronts, challenging the admissibility of their affidavits by questioning their qualifications, impugning their credibility via depositions showing gaps in their knowledge or in the data they reviewed, and by the presentation of the opposing opinions of other experts. Defendants have reasserted on appeal their arguments against the admissibility of the affidavits of plaintiff’s experts. However, in my view the affidavits were properly considered since the circumstances raised by defendants and adopted by the majority as a basis for refusing to consider the opinions of plaintiff’s experts would affect credibility rather than admissibility. Krause v. Vance, 207 Ga. App. 615, 616 (1) (428 SE2d 595); Morrison v. Koornick, 201 Ga. App. 367, 368 (1), 370 (411 SE2d 105); Southern R. Co. v. Montgomery, 192 Ga. App. 308, 310 (2), 311 (384 SE2d 907).

To the extent that there was some disagreement between the experts as to the reasonableness of the reserve amounts set by defendants or as to other aspects of defendants’ handling of the claims against plaintiff, this alone did not present a genuine issue of material fact in regard to whether defendants had exercised good faith in the handling of the claims. Bad judgment or negligence without more does not amount to bad faith. Bad faith involves actual or constructive fraud, a design to mislead or deceive another, or a neglect or refusal to fulfill some duty, not prompted by honest mistake, but by some interested or sinister motive. Michaels v. Gordon, 211 Ga. App. 470, 473 (2) (b) (439 SE2d 722).

Decided March 31, 1995

Reconsideration denied April 27, 1995

Carr, Tabb & Pope, W. Pitts Carr, David H. Pope, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellees.

The primary declaration from plaintiff’s experts suggesting bad faith is their assertion that the claims records show a consistent pattern of conduct by defendants in creating excessive reserves or otherwise mishandling the claims against plaintiff by overpaying. A pattern of conduct of some duration may support inferences which may hot reasonably be drawn from a single incident. Thus, the repetition of a result detrimental to plaintiff and beneficial to defendants might suggest a dishonest purpose or conscious wrongdoing under the circumstances at issue in the case sub judice.

Nonetheless, after having its experts review defendants’ records of many claims during discovery, plaintiff continually reduced the number of claims upon which it relied to support its position in this litigation. This process continued until at the motion hearing, plaintiff’s counsel announced that plaintiff was relying upon only ten or fewer claims from among the hundreds of claims against plaintiff handled by defendants during the relevant period of time. Although this group of claims was not randomly selected and is small in size, I am unable to conclude that it is insufficient as a matter of law to support plaintiff’s position. Thus, I would hold that the state court erred in concluding that plaintiff lacked proof of bad faith on the part of defendants.

I am authorized to state that Presiding Judge Pope and Judge Blackburn join in this opinion.

       Benton later amended the complaint to seek an accounting.

       Royal later amended the counterclaim to add a claim for relief in quantum meruit.


text:
    A95A0378.
    ASHTON v. THE STATE.
    (457 SE2d 226)
   Beasley, Chief Judge.

Ashton was convicted of certain misdemeanor offenses. After being incarcerated for part of his sentence, he was placed on probation but it was revoked. He was placed in a work release program and ordered to reside in a diversion center, which he allegedly left and failed to return to as required. He was charged with the felony offense of escape, OCGA § 16-10-52 (a) (3).

Ashton filed a special demurrer to the indictment and a motion to dismiss under the authority of Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988). The question in Chandler was whether a probationer participating in an alternative incarceration program, having failed to return to a diversion center from which he had been given permission to leave, was subject to prosecution for the felony offense of escape or merely to revocation of his probation. The Court held that it was uncertain which penalty was applicable and therefore the accused was entitled to have the lesser of the two sanctions administered, i.e., probation revocation.

Decided April 6, 1995

Reconsideration dismissed April 27, 1995.

White & Bloodworth, Michael M. White, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

In 1989, after Chandler, the General Assembly amended OCGA § 16-10-52 by adding paragraph (a.l): “Revocation of probation for conduct in violation of any provision of subsection (a) of this Code section shall not preclude an independent criminal prosecution under this Code section based on the same conduct.” The superior court denied Ashton’s motion to dismiss the indictment, holding that Chandler is no longer controlling precedent due to the amendment. Ashton was then convicted of escape in a bench trial.

On appeal he argues that the amendment deprives him of his constitutional right to equal protection of the law. That argument was rejected by the Supreme Court, to which this case was originally appealed and from which it was transferred to this court. “ ‘The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious. [Cit.]’ [Cit.]” Turner v. State of Ga., 213 Ga. App. 309, 310 (1) (444 SE2d 372) (1994). Thus, as in Turner, the challenge to the constitutionality of OCGA § 16-10-52 (a.l) must be deemed to lack merit.

That is reason enough to affirm the conviction, but in addition, this case is distinguishable from Chandler. At the time of Ashton’s escape he was not residing in the diversion center as a condition of probation. Rather, he was residing there in service of misdemeanor sentencing after his probation had been revoked. Revocation of probation was not available to the State as an alternative response to Ashton’s behavior.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A0520.
    STATE OF GEORGIA v. MONTFORD.
    (457 SE2d 229)
   Smith, Judge.

This is an appeal by the State of Georgia from the adverse judgment of the superior court on its complaint for forfeiture of an automobile and other personal property. The items were seized after the discovery of marijuana and cocaine within the vehicle during a traffic stop. OCGA § 16-13-49 et seq.

Pursuant to OCGA § 16-13-49 (n), the State first filed a “notice of seizure of personal property valued at $25,000 or less.” The property, which was taken from the possession of appellee Vernon C. Montford, included a 1986 Acura Legend and $715 in cash. Montford filed a notice of claim to the property on May 20, 1994. The State responded by filing a complaint seeking forfeiture of the car and cash, as well as a cellular phone and a pistol. The State then successfully moved to join Montford as a party defendant. Montford answered and a bench trial followed.

The court ruled in favor of Montford, concluding probable cause did not exist to search the vehicle. See OCGA § 16-13-49 (s) (1). This appeal followed.

Montford incorporated the police report into his answer and essentially stipulated the facts contained therein at trial. Moreover, Montford did not argue at trial that he was stopped or detained illegally prior to the time at which a drug dog was walked around his vehicle. Our inquiry therefore does not turn on conflicts in the evidence or the validity of the stop, but simply whether the facts before the court did or did not establish probable cause authorizing a warrantless search of the vehicle. See OCGA § 24-4-24 (b) (7).

Officer Johnny Burnette of the Chamblee Police Department’s canine unit pulled Montford over after observing his vehicle cross over the lane divider several times. Burnette asked for Montford’s driver’s license and proof of insurance. Montford complied, but the insurance card produced belonged to another vehicle. Montford explained that he had just purchased the vehicle and provided papers documenting his purchase of the 1986 Acura Legend a week earlier for $4,500 cash. As Burnette spoke with Montford, Montford became increasingly nervous. Burnette then told Montford he was going to check Montford’s driver’s license. Burnette walked back to his police unit, where he told a fellow officer, Klerlein, that he believed there were narcotics in the car.

As the two officers stood talking, Montford exited his vehicle and approached them. Officer Klerlein inquired about the bulge in Montford’s pocket, and Montford produced from his pocket a cellular phone. Officer Burnette asked Montford if he had drugs on him, and Montford replied negatively. Burnette then asked if Montford “minded emptying his pockets on the hood of my car,” and Montford replied that “he had no problem doing so.” Burnette told Montford he did not have to comply, but Montford responded that he “had nothing to hide.” Montford then produced from his pockets $715 in “folded up money” and some change. Burnette also observed that Montford was wearing a beeper on his belt or pocket, “a ring on almost all his fingers,” and necklaces. Burnette then asked if Montford had any weapons or anything else in his pockets and performed a pat-down to confirm that Montford had no weapons on his person.

At this point, Burnette returned Montford’s driver’s license and other documentation to him. Burnette then asked Montford whether he could search his vehicle for narcotics. Montford replied he preferred that Burnette not do so because he only wanted to go home. Burnette responded that Montford indeed “had every right to deny a search of his vehicle.” Burnette advised Montford he intended “to walk a drug dog around his vehicle to check for narcotics.” Montford replied that Burnette should “go ahead and do his job.” Burnette then asked if there were narcotics in the vehicle, and Montford replied negatively. Burnette then walked a drug dog around the vehicle, and the dog alerted on the “driver’s side passenger door.”

At this time, Burnette informed Montford that he was going to “put [the dog] inside the vehicle.” Montford asserted that such action would require a search warrant, but Burnette informed him that a warrant was not required “due to the K-9 alert.” The search led to the discovery of the pistol at issue, five bags of marijuana, and a bag of powder cocaine. Montford was arrested, and the property at issue here was seized.

1. We find no violation of Montford’s constitutional rights occurred at any point in his encounter with Officer Burnette. We may safely accept Montford’s contention that the large quantity of cash he was carrying, the unusual amount of jewelry he was wearing, the fact that he was carrying a beeper and cellular phone on his person, the fact that the encounter took place at approximately 1:40 a.m., and the undisputed fact that Montford was “extremely nervous” during the encounter were not in themselves factors establishing probable cause to search his vehicle.

Taken together, however, these indicia were clearly sufficient to establish a reasonable suspicion that Montford was transporting illegal drugs in his vehicle. Under such circumstances, Burnette was authorized to at least walk the drug dog around Montford’s vehicle to see whether the dog detected drug odors emanating from the vehicle. See generally O’Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d 406) (1988) (“[U]se of a trained drug detection dog, in a location where he is entitled to be, to sniff the exterior of a container, is not an unreasonable search within the meaning of the Fourth Amendment of the U. S. Constitution or Art. I, Sec. I, Par. XIII, of the Georgia Constitution of 1983.”). When the dog alerted for drugs, that factor, combined with the factors prompting the use of the drug dog in the first instance, established probable cause for Officer Burnette to believe Montford was in possession of illegal drugs within his vehicle, authorizing the subsequent search of its interior. See, e.g., Roundtree v. State, 213 Ga. App. 793, 794-795 (446 SE2d 204) (1994).

Decided April 11, 1995

Reconsideration denied April 27, 1995

J. Tom Morgan, District Attorney, Robert W. Gurd, Gregory J. Lohmeier, Desiree S. Peagler, Assistant District Attorneys, for appellant.

William T. Payne, for appellee.

The trial court’s decision cannot be reconciled with O’Keefe and Roundtree, supra, and must therefore be reversed.

2. In light of our holding in Division 1, we find it unnecessary to address the State’s remaining enumerations.

Judgment reversed.

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

       “We don’t dispute the facts in the police report. We agree 100 percent with those facts as stated by Officer Burnette in his incident report. So we simply incorporated those facts into the answer.”

       As noted above, Montford does not contend that he was being unlawfully detained prior to the time the drug dog was walked around the vehicle; he argues only that during the traffic stop his vehicle was unlawfully searched.


text:
    A95A0861.
    DEPARTMENT OF LABOR v. JOHNSON.
    (457 SE2d 242)
   Smith, Judge.

We granted the Georgia Department of Labor’s application for discretionary appeal from the superior court’s reversal of the State Personnel Board’s refusal to take jurisdiction of William R. Johnson Ill’s grievance of his January 1990 separation from employment with the department.

1. Johnson’s motion to dismiss this appeal is denied.

2. This matter has been litigated extensively. Johnson was terminated based on his failure to report to work after being reassigned. After Johnson appealed the decision, he was advised the department would rescind its previous decision if he would report to work. He refused and filed an administrative grievance. The hearing officer upheld the decision of the department, finding that any error that may have arisen from Johnson’s belief he was on annual leave when he failed to report to work was cured when the department’s offer to reinstate him was refused. Johnson v. Rogers, 214 Ga. App. 557, 558 (448 SE2d 710) (1994).

Decided April 14, 1995

Reconsideration denied April 27, 1995

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Susan L. Rutherford, Senior Assistant Attorneys General, for appellant.

McKee & Barge, Christopher J. Ramig, for appellee.

In Johnson, this court affirmed the trial court’s grant of summary judgment to the department in Johnson’s suit arising from the separation. We held in Johnson that the department presented direct evidence refuting Johnson’s claims of constructive demotion and retaliatory transfer. Id. at 559 (4).

The “new evidence” relating to whether Johnson was on annual leave is irrelevant under the holding of this court that Johnson abandoned his position when he refused the department’s subsequent offer of reinstatement. Johnson may not relitigate these issues forever. The holdings in that case are res judicata, and they control the issues in this case. The trial court’s judgment reversing the decision of the State Personnel Board and remanding the matter to that Board therefore is reversed.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A95A0080.
    BRAGG v. THE STATE.
    (457 SE2d 262)
   McMurray, Presiding Judge.

Defendant Bragg appeals his convictions of two counts of aggravated child molestation, seven counts of child molestation, and two counts of enticing a child for indecent purposes. Held:

1. The first enumeration of error attacks defendant’s conviction of two counts of enticing a child for indecent purposes on the theory that the state has failed to prove the asportation element of the crime. See OCGA § 16-6-5. Any asportation, however slight, is sufficient to show this element. Morris v. State, 179 Ga. App. 228, 229 (4) (345 SE2d 686). “[T]he ‘asportation’ element of the offense is satisfied whether the ‘taking’ involves physical force, enticement, or persuasion.” Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335). “Accordingly, in the absence of sufficient probative evidence that appellant himself enticed the victims onto the premises with the present intention to commit acts of indecency or child molestation after they had been enticed there, his convictions for violating OCGA § 16-6-5 cannot stand. Sanders v. State, 145 Ga. App. 73 (243 SE2d 274) (1978).” Lasseter v. State, 197 Ga. App. 498 (1) (399 SE2d 85).

The relevant counts of the indictment alleged that defendant enticed the named children to a certain room for the purpose of showing a pornographic film. The evidence at trial was that defendant did show a videotape of such a film to the children named but is entirely silent as to how the children came to be in the room and before the television. The State argues that the required asportation is satisfied by evidence that defendant threatened to punish the children if they left or attempted to leave during the movie. However, no authority is cited and we are unable to find any which supports this theory. The concept of asportation relates to movement and there is no evidence that defendant caused the children to move towards the place from which they would view the movies. Therefore, we hold that there was no evidence authorizing defendant’s convictions on the two counts of enticing a child for indecent purposes. Lasseter v. State, 197 Ga. App. 498 (1), supra.

2. The remaining enumeration of error questions the sufficiency of the evidence to authorize defendant’s convictions on four counts (Counts 7, 8, 9 and 11) of child molestation involving the touching of the children’s genital areas or breasts through their clothing. Defendant argues that these contacts with the children occurred inadvertently in the course of his wrestling and playing with the children and that no rational trier of fact could have found proof of child molestation beyond a reasonable doubt. We disagree, and find the evidence sufficient to authorize defendant’s conviction on all four of these counts of child molestation. Any hypothesis of innocent conduct on the part of defendant is contradicted by the recurring and continuing incidents of touching the three victims of these four crimes, and by the evidence of similar conduct which illustrated defendant’s state of mind and pattern of conduct. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find defendant guilty beyond a reasonable doubt of four counts (7, 8, 9, and 11) of the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ramsey v. State, 214 Ga. App. 743, 744 (1) (448 SE2d 790).

Judgment affirmed in part and reversed in part.

Andrews and Blackburn, JJ., concur.

Decided April 27, 1995.

Bennett & Hamilton, L. Hamilton Bennett III, for appellant.

Ralph Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A95A0207.
    MAYNARD v. STATE OF GEORGIA.
    (457 SE2d 253)
   Andrews, Judge.

The State filed a complaint instituting in rem forfeiture proceedings pursuant to OCGA § 16-13-49 against approximately four acres of real property known as 217 Shiloh Road located in Butts County titled in the name of Diane Maynard. The forfeiture proceedings were instituted after a May 1994 search of the house and appurtenances located on the property produced 187 pieces of crack cocaine. The warrant for the search of the property issued as a result of a law enforcement investigation into alleged illegal drug activities of Robert Blackmon.

Blackmon purchased the property in 1989, constructed a house on it in 1990, and occupied the property as his residence until he was arrested after the May 1994 search. Although Blackmon continued to use the property as his residence after he constructed the house, he conveyed title to the property in April 1990 by a gift deed to his sister, Maynard, who lived in Atlanta. In response to the forfeiture complaint, Maynard filed an answer asserting that the property was not subject to forfeiture because she was the “innocent owner” of the property pursuant to the provisions of OCGA § 16-13-49 (e).

The trial court entered an order finding that the property was being used to facilitate the storage, sale and possession of more than one ounce of cocaine, and that the property was forfeited to the State. Maynard appeals from the order of forfeiture.

Maynard contended that she was the owner of the property pursuant to the gift deed, and that the property was protected from forfeiture under the “innocent owner” provisions of OCGA § 16-13-49 (e), which provide that: “A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder:

“(1) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur;

“(2) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm’s length commercial transaction;

“(3) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture;

“(4) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction; and

“(5) Acquired the interest:

“(A) Before the completion of the conduct giving rise to its forfeiture, and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

“(B) After the completion of the conduct giving rise to its forfeiture:

“(i) As a bona fide purchaser for value without knowingly taking part in an illegal transaction;

“(ii) Before the filing of a lien on it and before the effective date of a notice of pending forfeiture relating to it and without notice of its seizure for forfeiture under this article; and

“(iii) At the time the interest was acquired, was reasonably without cause to believe that the property was subject to forfeiture or likely to become subject to forfeiture under this article.

“A property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.”

1. In her first enumeration of error, Maynard contends that the innocent owner provisions of OCGA § 16-13-49 (e), enacted by Ga. L. 1991, p. 886, effective July 1, 1991, are unconstitutional when applied retroactively to the interest she acquired in the property in April 1990. See Ga. Const, of 1983, Art. I, Sec. I, Par. X. Although the Supreme Court has jurisdiction when the constitutionality of a state law has been properly raised, we are not divested of jurisdiction in this case. Because the constitutional challenge was not raised in the trial court, this enumeration of error presents nothing for appellate review. Archie v. Scott, 190 Ga. App. 145, 146 (378 SE2d 182) (1989); Morton v. State, 206 Ga. App. 413, 414 (425 SE2d 336) (1992).

2. Secondly, Maynard contends that the trial court erred by failing to conclude that the property was not subject to forfeiture because she was an innocent owner under the provisions of OCGA § 16-13-49 (e).

Although the order of forfeiture does not specifically address Maynard’s innocent owner defense, it is implicit in the order that the court found Maynard failed to carry her burden to establish by a preponderance of the evidence that she was an innocent owner under the provisions of OCGA § 16-13-49 (e). See State of Ga. v. Jackson, 197 Ga. App. 619, 623 (399 SE2d 88) (1990). In a bench trial the trial judge sits as the trier of fact and his “[findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” OCGA § 9-11-52 (a). “The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (394 SE2d 411) (1990).

The transcript of the forfeiture hearing shows that, at the conclusion of the hearing, the trial court concluded Maynard failed to show that, when she acquired title to the property from Blackmon, she acquired it as a bona fide purchaser for value, as set forth by the provisions of OCGA § 16-13-49 (e) (4). The trial court concluded that Maynard failed to show that she gave any “value” in return for the property. The trial court did not conclude that Maynard was connected to, consented to, knew about, or should have known about the conduct giving rise to the forfeiture, nor did the court conclude that Maynard acquired or stood to acquire any proceeds from such conduct. See OCGA § 16-13-49 (e) (1) and (2).

There was evidence to support the conclusion that illegal drug activity by Blackmon at the subject property was the conduct which gave rise to the forfeiture of the property. Under OCGA § 16-13-49 (e) (4), if the owner or interest holder acquired the property interest through any person whose conduct gave rise to its forfeiture, the owner or interest holder must establish that he or she was “a bona fide purchaser for value without knowingly taking part in an illegal transaction.” Even if Maynard did not knowingly take part in any illegal transaction, she was still required to show that she was “a bona fide purchaser for value” from her brother, Blackmon, in order to carry her burden of proof.

We conclude that there was evidence to support the conclusion that Maynard was not a bona fide purchaser for value, and that the property was subject to forfeiture. The evidence showed that Blackmon gift-deeded the property to Maynard in April 1990 at about the time the house was constructed on the property. Maynard, who resided in Atlanta, paid no money for the property and never resided there. The gift deed recites that the consideration was Blackmon’s natural love and affection for Maynard. Blackmon continued to use the property as his residence and he paid the mortgage on the house, all utility bills, and all property taxes. Both Blackmon and Maynard testified that the gift deed was given pursuant to an oral agreement between them that, if Blackmon died, Maynard would take the property and raise his two minor children. However, the lawyer who prepared the April 1990 gift deed at Blackmon’s request testified, with Blackmon’s permission, that Blackmon told him he wanted to take the property out of his name and put it into his sister’s name because “there was a threatening federal tax lien.” Other evidence showed that a Georgia Bureau of Investigation informant made a controlled buy of cocaine from Blackmon at the property in January 1991, and that in 1989, before he bought the property in Butts County in 1990, Blackmon sold cocaine to a narcotics officer in Atlanta.

Decided April 27, 1995.

Buford & Buford, Floyd M. Buford, Jr., Alfred D. Fears, Sr., William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

Generally, a person gives “value” for rights if he acquires them “in return for any consideration sufficient to support a simple contract.” OCGA § 11-1-201 (44) (d). “Considerations are distinguished into ‘good’ and ‘valuable.’ A good consideration is such as is founded on natural duty and affection or on a strong moral obligation. A valuable consideration is founded on money or something convertible into money or having a value in money. . . .” OCGA § 13-3-41. Although there was various evidence regarding the consideration for the gift deed from Blackmon to Maynard, there was evidence to support the conclusion that Maynard was not a bona fide purchaser for value. Accordingly, the trial court did not err by ordering that the property be forfeited to the State.

Judgment affirmed.

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