author: Judge Harold R. Banke.

text:
    A96A0493.
    MORRIS v. ATLANTA LEGAL AID SOCIETY, INC. et al.
    (473 SE2d 501)
   Judge Harold R. Banke.

Eddie Lou Morris sued Atlanta Legal Aid Society, Inc. (“Legal Aid”) and Bernard S. Dempsey, Jr., a Legal Aid attorney, for negligence, breach of contract, breach of fiduciary duties, and fraud. Morris asserted that judgments entered in her favor became uncollectible due to Legal Aid and Dempsey’s wrongdoing. The trial court found that Morris’ claims were in large part time-barred and where not time-barred, were barred by inadequacies in the expert affidavit required under OCGA § 9-11-9.1. Morris appeals the trial court’s summary judgment against her on all counts.

After Morris was the apparent victim of a fraudulent real estate transaction, Legal Aid undertook her representation on October 15, 1987. Legal Aid worked on behalf of Morris in several legal proceedings relating to the alleged real estate scam, representing her successfully in a dispossessory action, successfully in a federal Truth in Lending Act case, but withdrawing with the court’s approval before the completion of the superior court action. An August 1990 bankruptcy filing of James Crow, the principal defendant in both cases, thwarted collection of the $6,725 federal judgment entered on May 15, 1990. Ahead of Morris were creditors holding perfected tax and judgment liens in excess of $200,000.

In February 1988, when Legal Aid attorney Alsee McDaniel, Dempsey’s predecessor, filed the superior court complaint, he failed to provide proper notice to the Georgia Real Estate Commission pursuant to OCGA § 43-40-22 to ensure possible recovery by Morris from the recovery fund. Although McDaniel knew that there was a notice problem precluding any recovery from this fund, he did not dismiss and refile the superior court complaint in order that timely notice could be provided to the Commission.

The superior court action encountered many delays including those occasioned by Crow’s bankruptcy filing and later Crow’s death. Dempsey moved for relief from the automatic stay in the bankruptcy action to allow the superior court case to proceed. Although the bankruptcy court granted the motion, it expressly ordered Morris not to collect any judgment until further court order. Dempsey testified that he later made a tactical decision to delay prosecution because he was concerned that if he proceeded, other judgment creditors with superior rights might be alerted to the possible fraudulent transfer of assets from Nexus, Crow’s corporation, to a corporation owned by Crow’s son.

Dissatisfied with the lack of progress in the resolution of her suits, and believing she was entitled to millions of dollars in damages, Morris began seeking other legal counsel in the spring of 1990. In February 1994, Morris retained her present counsel who obtained a substantial judgment in the superior court case.

Morris’ action against Legal Aid and Dempsey, filed on March 11, 1994, is founded on an alleged impairment of her rights and remedies in the superior court and federal cases. Morris claimed inter alia that Legal Aid’s performance fell below the applicable standard of care in several instances including: 1) the failure to provide the requisite notice to the Georgia Real Estate Commission as required by OCGA § 43-40-22 (d) (1); 2) the failure to diligently prosecute the superior court case and protect Morris’ interests in a potential recovery; 3) concealment of the problem with the real estate recovery fund; and 4) the failure to set aside the fraudulent transfer. Held:

1. Morris failed to establish fraudulent concealment of the problem with the recovery fund so as to toll the statute of limitation on her fraud claim. A claim for malpractice sounding in tort must be brought within two years. OCGA § 9-3-33; Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1986). To avoid the apparent untimeliness of her fraud claim, Morris seeks to use OCGA § 9-3-96. This statute requires that Morris show that she was debarred or deterred from taking action by Legal Aid’s alleged fraud. Coleman v. Hicks, 209 Ga. App. 467, 469 (4) (433 SE2d 621) (1993).

Morris failed to present any evidence that she was debarred or deterred from taking action within the applicable statute of limitation period which began to run from February 1988, the date when McDaniel filed the superior court action without notifying the Georgia Real Estate Commission. Hyman v. Jordan, 201 Ga. App. 852, 853 (1) (412 SE2d 615) (1991). Morris admitted that she actively sought new counsel in order to sue Legal Aid as early as the spring of 1990. Moreover, McDaniel testified that before he left Legal Aid in August 1989, he fully informed Morris about the problem with the recovery fund. Even assuming arguendo that Legal Aid or Dempsey deterred Morris from taking alternative action, from the point where Morris sought the advice of another attorney, she was no longer deterred from finding out the true facts. See Padgett v. Klaus, 201 Ga. App. 399, 400 (1) (411 SE2d 126) (1991). Morris admitted that over the ensuing months she consulted with eight to ten other attorneys. Morris’ failure to establish the essential elements of OCGA § 9-3-96, and to show that she was debarred or deterred, entitled Legal Aid and Dempsey to summary judgment as a matter of law on the fraud claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Coleman, 209 Ga. App. at 470 (4); Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980).

2. Turning to Morris’ professional malpractice claims, although the trial court erred in determining that Morris’ expert affidavit was legally insufficient, this error is not outcome determinative. See Division 4. OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The statute contains none of the requirements imposed by the trial court. Whether the expert resided in Georgia or was a licensed member of the Bar at the time of the alleged negligence is not indicative of competency. The correct standard is whether at the time of testifying the expert has knowledge of the applicable standard of care on at least one matter on which the malpractice claim is based. Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992).

3. Morris’ contract-based claims are not time-barred and must be considered on their merits. “ ‘[A] cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. . . . (Cits.)’ [Cits.]” (Emphasis omitted.) Ballard, 179 Ga. App. at 459 (3). “ ‘[A]n action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney’s breach of duty, that is, from the date of the alleged negligent or unskillful act.’ [Cits.]” Long v. Wallace, 214 Ga. App. 466, 467 (2) (448 SE2d 229) (1994). Legal Aid’s representation continued until the trial court granted its motion to withdraw in June 1993. Morris filed suit on March 11, 1994; consequently, any alleged negligent acts or omissions occurring in the four years preceding the filing date were viable.

4. Legal Aid and Dempsey were entitled to summary judgment on the remaining claims.

As to Morris’ claims predicated on the delays in collecting the federal judgment, Legal Aid and Dempsey were entitled to summary judgment as a matter of law because the expert affidavit fails to state the particular way(s) in which Legal Aid and Dempsey allegedly deviated from applicable minimum professional standards in handling that case. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 66 (397 SE2d 576) (1990).

As to Morris’ claims based on the superior court action, the claim based on the real estate recovery fund is time-barred. See Division 1. As to the remaining claims, a client may recover for legal malpractice only if the negligence of the attorney proximately caused damage to the client. Crowley v. Trust Co. Bank &c., 219 Ga. App. 531, 532 (466 SE2d 24) (1996). To establish her damages, Morris had the burden of proving not only that a judgment would have been obtained in her favor, but also that the judgment could have been collected. Young v. Jones, 149 Ga. App. 819, 823 (256 SE2d 58) (1979); McDow v. Dixon, 138 Ga. App. 338, 340 (226 SE2d 145) (1976). Although Morris satisfied prong one by obtaining the $850,519.21 judgment, Morris failed to satisfy prong two by providing evidence that if the judgment had been obtained earlier it could have been collected. Id. at 339. In the absence of any evidence that the judgment was collectible in some amount, Legal Aid and Dempsey were entitled to summary judgment as a matter of law. A summary judgment which is right for any reason must be affirmed regardless of the stated reasons. Precise v. City of Rossville, 261 Ga. 210, 211 (403 SE2d 47) (1991).

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Decided June 5, 1996

Reconsideration denied July 2, 1996

Warren R. Hinds, for appellant.

Sutherland, Asbill & Brennan, Elizabeth V. Tanis, Robert J. Neis, for appellees.

       The breach of contract claim was lodged against Legal Aid only.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A0557.
    HUNT v. THE STATE.
    (473 SE2d 157)
   Pope, Presiding Judge.

Thomas Jefferson Hunt, with co-defendants Mark Rodgers and Steve Jinks, was charged with manufacturing marijuana and with possession of more than one ounce of marijuana. The case was previously before this Court in State v. Hunt, 201 Ga. App. 327 (411 SE2d 273) (1991), in which the trial court’s grant of the defendants’ special demurrers was reversed. Thereafter, Hunt was tried, convicted and appeals. After reviewing his 44 enumerations of error, we affirm.

Viewing the evidence in the light most favorable to the verdict, on June 8, 1989, GBI agent Don Robertson learned that drug agents performing aerial searches had seen marijuana growing in a field on Old Macon Road in Griffin, Spalding County. The property identified by the helicopters was owned by appellant’s father. There were two residences on the large tract of property, which were connected by a horseshoe-shaped trail. Appellant Hunt lived at 1768 Old Macon Road and the other residence, 1766 Old Macon Road, had previously been rented to Mark Rodgers. The residences were 50 to 100 yards apart.

After receiving the information from the aerial observers, Officer Robertson went to the specified field and observed marijuana seedlings growing under a wooden frame with a screen. The trail to the seedling bed was 10 to 15 feet off the horseshoe trail connecting the two residences. Robertson recalled that the helicopters were audible during his investigation.

After investigating the seedling bed, Robertson stood outside of the 1768 house and saw a man, later identified as Hunt, walking towards the house, and away from the seedling field bn the trail. As Hunt approached, he threw a camouflage shirt on the ground. Hunt was sweating profusely, seemed out of breath and had fresh scratches on his arms and hands. Hunt told the officers that he had lost his dog. On the basis of the marijuana discovery, Robertson advised Hunt of his rights.

Immediately after talking to Hunt, Robertson returned to the seed beds and discovered that the plants had been removed from the wooden box and were not in the immediate vicinity. Robertson placed Hunt under arrest for manufacturing marijuana. The seedlings were later found less than 100 yards from Hunt’s house in a wooded area behind a barn.

After arresting Hunt, the helicopter observers directed Robertson to four more plots of growing marijuana plants. Each field was about 100 by 50 feet and was well cultivated. Spots of Castrol brand motor oil were found on one of the fields, as well as empty bags of fertilizer and lime. The officers found 369 marijuana plants in the first field; the second field contained 190 plants; the third had two plants and there were fresh holes in the dirt from where other plants had been recently removed; and the fourth field had 746 growing plants. New chicken wire surrounded one field. The fourth field was 2/10 of a mile down a dirt road away from 1768 and then off a trail. The second field was a couple of hundred yards from the 1768 house; a break in the woods where vehicles traveled indicated the path to the field. The officers found no evidence of drugs in Hunt’s home. In the barn behind Hunt’s house, the searching officers found a roll of new chicken wire and a bag of lawn lime — both of the same type which was found on the marijuana fields. Milk cartons similar to those found on the seedling bed were found behind the barn. Many types of cultivation instruments were in the barn and Castrol motor oil also was found. A pump house located near Hunt’s residence, the utility bill for which was in Hunt’s name, had a hose which could reach to the seedling bed.

The officers obtained a search warrant for the rental residence at 1766 Old Macon Road. When the officers entered the residence, music was playing and the kitchen light was on. Nonetheless, no one was in the residence. In the ensuing search, the officers found four bales of marijuana in a cardboard box addressed to Christie Harris. The marijuana weighed about 70 pounds. The officers also found scales, pipes, and several different plastic baggies with marijuana and marijuana seeds around the house.

The officers learned that Rodgers, the most recent tenant, was staying at a Dixieland Motel in Commerce, Georgia. The officers drove an hour and forty-five minutes to the motel and saw Rodgers leaning into a car driven by Steve Jinks. Jinks denied knowing Rodgers.

Items found in the search of the 1766 house were taken to the crime lab for fingerprint analysis. Although none of Hunt’s fingerprints were found, co-defendant Jinks’ fingerprints were detected.

Phone records showed various calls between Jinks, Rodgers and Hunt. Jinks had also called Christie Harris’ husband between 20 and 25 times in June 1989. There was also evidence that Jinks and Hunt went fishing together frequently.

Rodgers’ defense was that he moved from 1766 several months before the June search. There was evidence that Rodgers found a job in Commerce in March 1989, and was still working there as of June 1989. In fact, in a subsequent eviction proceeding, the magistrate court found that Rodgers had abandoned the 1766 property as of November 1988 — seven months before the June search.

Despite Rodgers’ absence from the property, the 1766 property was being used in June 1989. At the time of the search, the refrigerator was operating and contained some unspoiled food. Moreover, telephone records showed that two calls from Jinks’ number were accepted at 1766 on the search date.

The jury returned a verdict of guilty on both counts against Hunt; acquitted Rodgers of both charges; and found Jinks guilty of possession, but not guilty of manufacturing.

1. In several enumerations, Hunt argues that the verdict was contrary to the law, the weight of the evidence, and that his motion for a directed verdict of acquittal was improperly denied. We disagree. This court’s review is limited to the sufficiency, not the weight, of the evidence. Jenkins v. State, 216 Ga. App. 433 (1) (454 SE2d 543) (1995). After reviewing the record, we find that a rational trier of fact could find from the evidence adduced at trial proof of Hunt’s guilt of the crimes of manufacturing marijuana and possession of more than one ounce of marijuana beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Hunt’s motion for directed verdict was also properly denied, since the standard for review of this denial is that of Jackson v. Virginia; see Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994).

Specifically, with respect to manufacturing, there was sufficient evidence linking Hunt to the marijuana growing in the fields to authorize his conviction. Hunt’s appearance when approaching the officers at his house and the disarray of the seedling plants after the officers’ initial search, along with the cultivating materials found in the barn, the evidence in the barn which corresponded to items in the fields, the number of marijuana plots, and the proximity of the fields to Hunt’s home constituted ample evidence of his guilt. Moreover, “[t]he beaten path doctrine allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband.” (Citation and punctuation omitted.) Holland v. State, 205 Ga. App. 695, 696 (1) (423 SE2d 694) (1992).

The evidence adduced was also sufficient to convict Hunt on the possession charge. Circumstantial evidence established that Rodgers had vacated the 1766 address, and that Hunt was using the property. These facts, combined with the harvested marijuana found in the house, are sufficient under Jackson v. Virginia. Moreover, the jury was charged both on conspiracy to commit a crime and on being a party to a crime, and Hunt’s guilt could also be established under these theories. See generally OCGA § 16-2-20.

2. Hunt argues that the court erred in sentencing him on both the manufacturing and possession counts since the offenses merged. “OCGA § 16-1-7 (a) (1) pertinently provides: ‘When the same conduct of an accused may establish the commission of more than one crime, the accused . . . may not, however, be convicted of more than one crime if: (1) One crime is included in the other.’ (Emphasis supplied.) OCGA § 16-1-6 (1) contains the standards for determining whether an offense is lesser included as a matter of fact; the second subsection of this Code provision sets out the standards for determining whether the offense is lesser included as a matter of law. . . . OCGA § 16-1-6 (1) provides that an offense can be a lesser included offense, as a matter of fact, when: ‘(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.’ ‘That portion of OCGA § 16-1-6 (1) pertaining to a proof of the same facts test is but a variant application of the “uses up all the evidence” test. . . .’” Hancock v. State, 210 Ga. App. 528, 531-532 (3) (b) (437 SE2d 610) (1993).

The crimes of manufacturing marijuana and possession of more than one ounce of the drug did not merge as a matter of law. OCGA § 16-13-21 (15), which proscribes the manufacture of marijuana, applies to the cultivation or planting of marijuana. State v. Hunt, 201 Ga. App. at 327. “Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law, within the meaning of OCGA § 16-1-6.” Galbreath v. State, 213 Ga. App. 80, 81 (1) (443 SE2d 664) (1994). Similarly, possession of more than one ounce of marijuana is not, as a matter of law, a lesser included offense of manufacturing marijuana.

Thus, the issue is whether the crimes merged as a matter of fact, i.e., whether the manufacturing count “used up” all of the evidence for the possession count. “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial.” (Citation and punctuation omitted.) Fonseca v. State, 212 Ga. App. 463 (1) (441 SE2d 912) (1994). Here, the evidence presented regarding the growing marijuana plants established the manufacturing count. The evidence supporting the possession count was the marijuana found in the rental house. Although the harvested marijuana could be used as circumstantial evidence of manufacturing, see Holland v. State, 205 Ga. App. at 698, in this case the marijuana in the rental house gave rise to a separate charge against Hunt. Because the evidence required to establish the manufacture charge was not required to prove possession, the crimes did not merge. Compare Hancock v. State, 210 Ga. App. at 533 (3). Further, the separateness of the evidence used to prove the two crimes is demonstrated by the jury’s acquittal of Jinks on the manufacture charge, and conviction on the possession count.

For the reasons set forth above, Hunt’s argument that the State should have been required to elect between the two charges is without merit.

3. The court imposed a sentence against Hunt of eight years to serve and seven years on probation, including a requirement of eight hours a week of community service. Additionally, the court imposed a $7,500 fine and restitution in the amount of $15, stating: “payments are $15 monthly probation fee to be paid thru assigned probation office beginning 30 days after release from custody. Remaining monies to be paid to the Griffin Probation Office at rate of $180.00 per month beginning 30 days after release from custody.”

Here, Hunt claims that the fine imposed was improper because no evidence was presented regarding his ability to pay. This argument is without merit. See generally Reid v. State, 204 Ga. App. 358, 361 (4) (419 SE2d 321) (1992). “Under Bearden v. Georgia, 461 U. S. 660, 672 (103 SC 2064, 76 LE2d 221) (1983), if a court determines that a fine or restitution is the appropriate and adequate penalty for a crime, it may not imprison a person solely because he lacks the resources to pay it. A Bearden hearing as to defendant’s ability to pay is required only when a fine is made a condition precedent of probation or probation is about to be revoked for failure to pay a fine. Since neither is the case here, with respect to the complained-of [fine], Bearden does not apply. Appellant did not at the time sentence was imposed, and does not in the future under the terms of the sentence, face imprisonment if he is unable to repay the county. . . . For that reason, Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), is also inapplicable because in that case, incarceration in jail was the result of defendant’s non-wilful failure to pay a fine at the outset. The court had determined that probation was an appropriate sentence but required that the fine be paid first. Here, the obligation is a condition of probation. Appellant [will enter] probation with an opportunity to pay in the future; probation was not withheld nor did incarceration follow any non-payment of financial obligations.” Penaherrera v. State, 211 Ga. App. 162, 164-165 (2) (438 SE2d 661) (1993).

4. Citing State v. Stamey, 211 Ga. App. 837 (440 SE2d 725) (1994), Hunt argues that the indictment on its face was insufficient in that the specific amount of marijuana was not alleged. Regardless of whether Hunt properly preserved this argument for review, it is without merit. See, e.g., Latimer v. State, 134 Ga. App. 372 (4) (214 SE2d 390) (1975).

Decided May 23, 1996

Reconsideration denied July 2, 1996

Mullins & Whalen, Nancy A. Bradford, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

5. Hunt argues that the court failed to charge the jury on impeachment as requested and that the court did not properly charge the jury on intent and conspiracy. We have reviewed the record and find these arguments without merit.

6. In contrast to Hunt’s arguments, we conclude that the trial court did not improperly comment on the evidence. Further, the court did not err in preventing Hunt’s attorney from asking certain questions on redirect.

7. The court did not err in denying Hunt’s motion for mistrial. We also reject Hunt’s argument that the court prevented him from perfecting the record with respect to this motion.

8. Hunt argues that his motions for mistrial, continuance and change of venue based on misleading newspaper coverage were improperly denied, since the circulation rate of the paper was so high that it precluded a fair trial. Voir dire was not transcribed and we find this argument without merit.

9. Many of Hunt’s other enumerations of error can be summarily resolved. To the extent that Hunt’s arguments regarding various evidentiary matters were properly preserved and are properly argued, they are without merit. Similarly, to the extent that Hunt’s remaining enumerations of error can be deemed not to have been abandoned, see Court of Appeals Rule 27 (c) (2), we find them without merit. We also reject Hunt’s arguments which contend that the court improperly admitted certain harmful, irrelevant testimony.

Judgment affirmed.

Andrews and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A96A0662.
    MOORE et al. v. SELF.
    (473 SE2d 507)
   Andrews, Judge.

Catherine J. Moore and her daughter, Nancy Moore Self, jointly opened two bank accounts and one stock investment account and jointly purchased certain real property. The accounts were opened and title in the real property was taken by Ms. Moore and Ms. Self in joint tenancies with rights of survivorship. The accounts were funded and the real property was purchased with funds provided by Ms. Moore. Ms. Moore was subsequently declared an incapacitated adult, and Ms. Self was appointed guardian of the person and property of Ms. Moore. After Ms. Moore died on July 9, 1994, Robert S. Moore and Steiner J. Moore, the surviving sons of Ms. Moore, brought the subject action against their sister, Ms. Self. The action alleged that, upon the death of their mother, Ms. Moore, any title to property held in the joint tenancies in which Ms. Self claimed survivorship rights should be impressed with a constructive trust in favor of Ms. Moore’s estate.

The Moore brothers and Ms. Self filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Ms. Self and denied the Moore brothers’ motion for summary judgment. Robert and Steiner Moore appeal.

1. In their first enumeration of error, the Moore brothers claim the trial court erred by denying their motion for summary judgment and by granting summary judgment to Ms. Self because the joint tenancies in the accounts and real property terminated in March 1994, prior to Ms. Moore’s death, when Ms. Moore was declared an incapacitated adult and a guardian was appointed over her person and property. Accordingly, the Moore brothers claim Ms. Self had no joint tenant rights of survivorship in the property at issue, and the accounts and real property, which were funded and purchased solely by Ms. Moore, became part of Ms. Moore’s estate upon her death.

It is undisputed that Ms. Moore was declared an incapacitated adult due to her advanced age and memory deficits and that Ms. Self was appointed guardian of Ms. Moore’s person and property on March 24, 1994 by the Probate Court of DeKalb County. We find no merit in the Moore brothers’ claim that the joint tenancies in the accounts (see OCGA §§ 7-1-813; 14-5-8) and in the real property (see OCGA § 44-6-190) terminated as a matter of law when Ms. Moore was declared incapacitated and a guardian was appointed for her person and property pursuant to OCGA § 29-5-1 et seq. Assuming Ms. Self would otherwise have been entitled to the balance of the joint accounts and the jointly held real property after the death of Ms. Moore, the fact that Ms. Moore was declared incapacitated and a guardian was appointed did not terminate the joint tenancies and thereby destroy the survivorship rights of Ms. Self. See Annotation: Effect of Incompetency of Joint Depositor Upon Status and Ownership of Bank Account, 62 ALR2d 1091, 1100, § 5. The appointment of a guardian for Ms. Moore did not divest her of legal interest in the joint tenancies. “A guardian, unlike a trustee, has no beneficial title in the ward’s estate. A guardian is merely a custodian or manager. The possession of the guardian is deemed to be the possession of the ward.” Donehoo v. Commercial Bank &c. Co., 124 Ga. App. 588, 589 (184 SE2d 690) (1971).

Accordingly, the trial court did not err by denying the Moore brothers’ motion for summary judgment on this ground.

2. We agree with the Moore brothers, however, that the trial court erred by granting summary judgment in favor of Ms. Self as to her survivorship rights in the property at issue. Ms. Self filed the petition seeking to have herself appointed as guardian of the person and property of her mother, Ms. Moore. In the petition, Ms. Self listed the jointly opened accounts and the jointly purchased real property as property belonging to the proposed ward, Ms. Moore. There was no indication in the petition that Ms. Moore actually held this property in joint tenancies with rights of survivorship with Ms. Self, individually, and no indication in the record that Ms. Self otherwise revealed this fact to the Probate Court or to her brothers.

A guardian owes a duty of undivided loyalty to his ward and must not place himself in a position where his individual interests conflict or may conflict with the interests of the ward. Dowdy v. Jordan, 128 Ga. App. 200, 204-205 (196 SE2d 160) (1973). The purpose of the loyalty rule is to insure that the acts of the guardian are above suspicion and that the ward receives the guardian’s unbiased and uninfluenced judgment. Id. “[I]t is generally, if not always, humanly impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. Consciously or unconsciously he will favor one side as against the other, where there is or may be a conflict of interest. If one of the interests involved is that of the [guardian] personally, selfishness is apt to lead him to give himself an advantage. If permitted to represent antagonistic interests the [guardian] is placed under temptation and is apt in many cases to yield to the natural prompting to give himself the benefit of all doubts. . . . The principal object of the administration of the rule is preventative, that is, to make the disobedience of the [guardian] to the rule so prejudicial to him that he and all other [guardians] will be induced to keep away from disloyal transactions in the future. . . . It is not necessary that the [guardian] shall have gained from the transaction, in order to find that [he] is disloyal. If the dealing presented conflict of interest and consequent temptation to the [guardian, equity will provide a remedy at the option of the ward or his estate] regardless of gain or loss to the [guardian].” (Citations and punctuation omitted.) Id. at 205-206.

In this case, there has been no allegation and there is no evidence that Ms. Self, as guardian, misused any jointly held property for her individual purposes or that she took any other action calculated to preserve the value of the jointly held accounts and real property to benefit her individual survivorship rights. Nevertheless, “since the guardian, [Ms. Self], as an individual, was joint tenant with [her] ward with right of survivorship as to the [accounts and real property], there can be no doubt that [she] occupied a conflict-of-interest position and was thus in violation of [her] duty of loyalty, as [she] stood to gain personally by preserving [the accounts and real property] and taking the balance as the survivor.” Id. at 208. Although the record shows that, after Ms. Self undertook the duties of guardian, she partially eliminated the conflict of interest by placing a small portion of the jointly held accounts in a guardianship account beyond her individual reach, the large majority of the property at issue remained in the joint tenancies with rights of survivor-ship while she acted as guardian. As we held under similar circumstances in Dowdy, supra at 209, if Ms. Self intended to claim title to the jointly held accounts and real property as the survivor after her mother’s death, she should not have applied for and accepted the guardianship.

Ms. Self, without qualification, listed the accounts and real property at issue as the property of the ward with full knowledge of her own individual joint tenancy interest. Thus, she knowingly placed herself in violation of her duty as guardian to give undivided loyalty to her ward. Although Ms. Self’s violation of the loyalty rule did not result in termination of the joint tenancies as a matter of law, she is estopped under principles of fiduciary law from asserting any claim to the property at issue as a joint tenancy survivor adverse to Ms. Moore’s estate, regardless of the legal viability of the joint tenancies and any claim she would otherwise have had to survivorship rights. Dowdy, supra at 209-211; see Scott v. Haddock, 11 Ga. 258 (1852); Scoggins v. Strickland, 265 Ga. 417 (456 SE2d 208) (1995); compare Jordan v. Stephens, 221 Ga. App. 8 (470 SE2d 733) (1996). This does not preclude Ms. Self from otherwise claiming an interest in the property from her mother’s estate as an heir at law or as a legatee or devisee under a valid will. See Parnelle v. Cavanaugh, 191 Ga. 464, 465-466 (12 SE2d 877) (1941).

Decided June 7, 1996

Reconsideration denied July 2, 1996

Anthony Kirkland, Christopher J. McFadden, for appellants.

McCurdy & Candler, Donald C. Suessmith, Jr., for appellee.

3. Under the circumstances, the applicable statute of limitation began to run when Ms. Self, after listing the subject property as the property of the ward with full knowledge of her own individual interest in the property, assumed the duties of guardian and later asserted a claim to the property adverse to title in the ward’s estate after Ms. Moore’s death. See Scott, supra; Grant v. Hart, 192 Ga. 153, 163-165 (14 SE2d 860) (1941); Phillips v. Jordan, 250 Ga. 19 (295 SE2d 327) (1982); OCGA § 9-3-27. Contrary to Ms. Self’s contention, the Moore brothers’ claim, brought about a month and a half after the death of Ms. Moore, was well within any applicable statute of limitation.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.

       Since Self has not raised any question as to the Moore brothers’ standing to seek imposition of a constructive trust in favor of Ms. Moore’s estate, we do not address this issue. See Dorsey Heating &c. Co. v. Gordon, 162 Ga. App. 608, 610 (292 SE2d 452) (1982).

       Although this appears to be an entirely different claim from the allegations made in the complaint, and the Moore brothers did not attempt to amend their complaint prior to summary judgment, Self does not claim surprise, and it appears the parties argued the merits of this claim before the trial court on summary judgment. Accordingly, we address it. Compare Allen v. Bergman, 201 Ga. App. 781, 783-784 (412 SE2d 549) (1991).

       Of course, a guardian’s authority over property held by the ward in a joint tenancy with rights of survivorship is not equal to the personal authority which was possessed by the ward prior to the declaration of incapacity, but would be limited to use of the property to the extent authorized by the powers and duties of the guardian with respect to the person and property of the ward. See OCGA §§ 29-5-3; 29-5-4.

       In light of this conclusion, we need not address the issues raised in the Moore brothers’ second enumeration of error concerning whether Ms. Self could otherwise exercise a joint tenant survivorship claim in the property.


text:
    A96A0737.
    McCANTS v. THE STATE.
    (473 SE2d 514)
   Pope, Presiding Judge.

Shannon McCants, along with the co-defendants, Drwan and Delwin Smith (who were brothers), was charged with murder, felony murder and aggravated assault. He entered a guilty plea to voluntary manslaughter and now appeals the entry of that plea. For the reasons set forth below, we affirm.

Before proceeding with the substantive merits of this matter, we address a jurisdictional issue. On February 21, 1995, the court conducted a hearing at which McCants entered a guilty plea to voluntary manslaughter and was sentenced to 20 years to serve. The plea and sentence were stamped filed on February 28, 1995. On the same day, McCants filed a motion to withdraw his plea. The court held a hearing on the motion on April 17, 1995, and denied the motion orally. McCants filed his notice of appeal on April 28, 1995. The court entered its order denying McCants’ motion to withdraw the plea on December 4, 1995. The case was docketed in this Court on December 14, 1995.

The question presented is whether this appeal is properly before us given that McCants’ notice of appeal was filed more than seven months before the entry of the order denying his motion to withdraw his guilty plea. Based on this Court’s recent decision in Livingston v. State, 221 Ga. App. 563 (472 SE2d 317) (1996), we conclude that McCants’ notice of appeal invoked this Court’s jurisdiction. See Hendrick v. State, 257 Ga. 514, n. 1 (361 SE2d 169) (1987). As in Livingston, here “[t]he early notices and later entered judgments present no appellate delay at all, much less delay prejudicial to the State.” Livingston at 567.

With respect to the substantive arguments, the record before us shows that McCants entered his plea on February 21, 1995. The court read McCants the charges against him, stated the terms of the plea, and explained that McCants could be sentenced for up to 20 years and that the State was going to recommend a 20-year sentence. On the record, McCants stated that he wanted additional time to talk with his attorney, although he indicated that he had spoken with the attorney earlier that day. The court then explained McCants’ rights to him, including the right to .call witnesses; the right to take the witness stand and testify; the right to remain silent; and the State’s burden of proof. McCants denied that he was under the influence of drugs or alcohol and stated that no one had threatened him to enter the plea. McCants then affirmed that he was giving the plea freely and voluntarily and that it was what he wanted to do. The record indicates that McCants signed the plea and it was entered. After the State presented its factual basis for the plea, McCants stated that he was entering the plea since he did not “stand a chance of going to trial and winning.” When McCants stated that he was “forced” to take a plea of guilty, the court again explained that no one was forcing McCants to plead guilty; that he had an absolute right to plead not guilty and to go to trial. McCants then stated that he would take the guilty plea and again affirmed that he understood that he had the right to plead not guilty. He reiterated that he was entering the plea of his own free will. McCants then affirmed that he was satisfied with the services of his attorney and that he did not think his attorney had left undone anything which he should have done. The court found that there was a factual basis for the plea and that it had been entered freely, voluntarily and intelligently.

1. McCants argues that his guilty plea was not freely and voluntarily given, as it was based upon the tainted advice of an ineffective counsel. He argues that his trial counsel, Charles Hawk, was ineffective for his failure to interview and subpoena witnesses, failure to read the State’s discovery, and failure to prepare for trial. McCants claims that the testimony of Delwin Smith’s counsel established this ineffectiveness.

At the hearing on the motion to withdraw the guilty plea, Hawk testified that he met with McCants several times, had weekly teleconferences with him, and spoke frequently about the matter with McCants’ stepfather. Hawk also testified that he reviewed discovery, visited the crime scene, and contacted or tried to contact witnesses. Hawk testified that he advised McCants of the charges against him, the penalty that could be imposed and his possible defenses, and that he also advised McCants of likely results if he pled guilty. Hawk recalled that he met with McCants for more than an hour the morning of the hearing and reviewed the available options with McCants several times. Hawk recalled that he also reviewed the options with McCants’ stepfather and that McCants and his stepfather had the opportunity to talk. Hawk stated that the decision regarding whether to enter a plea was ultimately McCants’ decision.

Hawk testified that on the eve of trial he learned that co-defendant Drwan Smith would be entering a guilty plea to murder and would be a witness against McCants. Smith’s attorney testified that Drwan Smith indicated that he would testify that McCants shot the victim.

McCants presented the testimony of co-defendant Delwin Smith’s attorney that Hawk was not prepared for trial and that his conduct constituted ineffective assistance of counsel. Drwan Smith’s counsel testified that Hawk appeared apprehensive and that he indicated he had not reviewed discovery and that he needed a continuance. McCants testified that Hawk was not prepared and that because of Hawk’s unpreparedness, he was forced to plead guilty.. He stated that he would have gone to trial had it not been for Hawk’s ineffectiveness.

“Before a guilty plea is accepted by a trial court, the court must determine that the plea is voluntarily made and that the defendant intelligently and understanding^ waives his constitutional rights with an understanding of the nature of the charges against him and the consequences of the plea. [Cit.] However, where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases. (Cit.) Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985). In challenging the competency of an attorney in a claim of ineffective assistance, a criminal defendant must show that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). In Hill, supra, the Supreme Court held that this two-prong test enunciated in Strickland is applicable to challenges to guilty pleas based upon counsel’s ineffectiveness. Nevertheless, in order to satisfy the second prong of the Strickland test, that is, to meet the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, supra at 59. Georgia appellate courts have recognized the Hill test in determining the effectiveness of counsel in the context of guilty pleas. [Cits.]” (Punctuation omitted.) Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634) (1993); see also King v. State, 215 Ga. App. 139, 141 (2) (449 SE2d 870) (1994). Although Hawk was retained and not appointed counsel, the above standard applies equally to retained and appointed counsel. See Spence v. State, 163 Ga. App. 198 (1) (292 SE2d 908) (1982).

We are unconvinced that Hawk’s performance fell below an objective standard of reasonableness. Considering the action taken by counsel in preparation of his defense, and the conflict in testimony provided at the hearing, we cannot conclude that the trial court was clearly erroneous in denying McCants’ motion to withdraw his plea on this basis. See Hall v. State, 210 Ga. App. at 794. Moreover, as discussed in Division 2 below, McCants’ plea was intelligently and voluntarily entered.

2. McCants argues that the plea was not intelligently and voluntarily entered, but was the product of coercion resulting from pressure from the trial judge in addition to his counsel’s unpreparedness. To the extent that this argument differs from that above, we find it also without merit.

The transcript of the plea hearing reveals that the trial court read the charges against McCants; stated the charge to which he was entering a guilty plea and the possible sentence; explained in detail the rights which McCants would be giving up if he pled guilty and the other consequences of such a plea; inquired into the voluntariness of the plea; and inquired into whether McCants understood the consequences of entering such a plea. Although McCants originally indicated that he wanted to talk more with his attorney, he later said that he was satisfied with Hawk’s services. Moreover, McCants consistently stated that he wished to plead guilty to the charges, although he stated that he did not in fact commit the crimes. See Green v. State, 265 Ga. 263 (1) (454 SE2d 466) (1995). As discussed in Division 3 below, there was a factual basis in the record for the plea.

Given the facts in this record, we find that the court properly denied the motion to withdraw the plea and properly concluded that McCants freely and voluntarily entered the plea with an understanding of both the nature of the charges against him and the consequences of his plea.

3. McCants argues that there was no factual basis in the record for a plea to manslaughter.

Uniform Superior Court Rule 33.9 provides: “[njotwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.” At the transcribed plea hearing, the prosecutor stated that he expected the evidence at trial would have shown the following. The victim was walking on Lenox Road towards his residence on Canter Road, when he was killed. Several witnesses heard four to five gunshots. Immediately after hearing the shots, one witness looked out of his window and saw a car, which he partially described to police, parked on Canter Road. This witness recalled that after the gunshots sounded, the brake lights on the car came on and the car sped down Lenox Road.

David Thompson, Delwin and Drwan Smith’s father, gave a statement indicating that on the evening of the incident, McCants picked up Delwin Smith and they left in McCants’ car. Thompson said that his son Drwan Smith had admitted shooting the victim. Thompson also told a co-worker that he thought both of his sons were involved in the shooting.

After the police took out a warrant, McCants turned himself in and gave a statement. In the first statement, he denied knowing anything about the shooting. He later gave a second statement in which he admitted that he had picked up Delwin and Drwan Smith on the evening of the murder and that they were riding on Lenox Road when Drwan asked him to pull over. McCants complied, and Drwan got out of the car. McCants recalled that he waited in the driver’s seat with Delwin, who was seated in the passenger seat. McCants said he had no idea why Drwan had left the car. McCants said that Drwan came back to the car about five minutes later, said that he had shot someone, and they rode off. According to McCants’ statement, he did not question Drwan any further about who he shot or what had happened. McCants gave several different accounts of where the car was parked and of what he was doing during the time Drwan was out of the car. McCants then took the police to a lake in DeKalb County and showed them where the gun (which ballistically matched the victim’s wound) had been disposed.

Decided June 11, 1996

Reconsideration denied July 2, 1996

Charlotte Y. Kelly, for appellant.

Lewis R. Slaton, District Attorney, Alfred D. Dixon, Juliette O. W. Scales, Assistant District Attorneys, for appellee.

The court ascertained that there was a factual basis for the plea. We agree, conclude that the requirements of USCR 33.9 were met, and find this enumeration without merit. See State v. Evans, 265 Ga. 332; see also Green v. State, 265 Ga. 263 (2).

Judgment affirmed.

Andrews and Smith, JJ, concur.

       In State v. Evans, 265 Ga. 332, 335 (2), fn. 1 (454 SE2d 468) (1995), our Supreme Court stated that “the best method for establishing a factual basis” for the plea would be through a colloquy with the defendant, though the Court concluded that this was not necessary.


text:
    A96A0400.
    BLACK v. THE STATE.
    (473 SE2d 186)
   Judge Harold R. Banke.

William Douglas Black was convicted of two counts of aggravated assault, two counts of interference with government property, driving while intoxicated, reckless driving, attempting to elude, no proof of insurance, and driving without a valid license. On appeal, he enumerates four errors challenging his convictions for aggravated assault, interference with government property, and driving while intoxicated.

This case arose after a Chattanooga, Tennessee police officer observed Black’s car parked under the awning of a closed gas station just before midnight. After the officer noticed that Black possessed beer cans, slurred his speech, and smelled strongly of alcohol, he asked for identification and called for backup. As the backup car arrived, Black cranked his car and fled toward Georgia. The backup pursued Black and officers from other jurisdictions were dispatched. Black sped into Georgia, ignoring traffic signals and weaving through traffic and onto sidewalks in heavy rain. Officer Mark Stan-field testified that he saw Black attempt several times to ram a police car which had pulled alongside his car as part of a rolling roadblock. After Black turned left and then attempted to whip his car around in the opposite direction, he sideswiped the right front fender of a City of Lafayette Police Department patrol car participating in the chase, but continued his turn. Black then hit another patrol car and slid down an embankment. The officer driving the second car Black hit testified that just prior to impact it appeared Black was in full control of his car. Held:

1. The evidence was sufficient to support the verdicts on aggravated assault and interference with government property. Viewed in the light most favorable to the verdicts, a rational trier of fact could find all the essential elements of these crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

A conviction based on the offense of aggravated assault requires proof of two essential elements: (1) an assault, as defined in OCGA § 16-5-20, and (2) aggravation by use of a deadly weapon. King v. State, 213 Ga. App. 268 (444 SE2d 381) (1994). The relevant elements of assault under OCGA § 16-5-20 are (1) an attempt to commit a violent injury to the person of another or (2) commission of an act which places another in reasonable apprehension of immediately receiving a violent injury. “A person commits the offense of interference with government property when he destroys, damages, or defaces government property. . . OCGA § 16-7-24 (a).

The evidence that Black hit the patrol cars while making a U-turn and appeared to be in full control of his vehicle just prior to impact was sufficient for the jury to find that he attempted to commit a violent injury to another’s person and interfered with government property. Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990); see Fields v. State, 167 Ga. App. 400, 401 (2) (306 SE2d 695) (1983). Black does not dispute that a car can be a deadly weapon. Payne, 195 Ga. App. at 525 (4). Instead, he maintains that he lost control after one of the patrol cars rear-ended his vehicle and therefore lacked the intent required for aggravated assault or interference with a government vehicle. However, skid marks at the scene showing Black’s collision with the two patrol cars did not corroborate Black’s contention. Moreover, the investigating officer testified that he observed no damage to the rear of Black’s car. In addition, the officer who followed Black during the chase testified that his car had an airbag which would have inflated with any frontal impact such as that caused by rear-ending Black’s car. The evidence was sufficient to support the verdicts notwithstanding Black’s argument, which goes to the weight of the evidence and credibility of the witnesses, issues not reviewable on appeal. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

2. The court did not err in refusing to give the instruction requested. The pattern instruction for accident and OCGA § 16-2-2 both confirm that guilt cannot be predicated on a crime committed by misfortune or accident where it satisfactorily appears there was “no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2; Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 23 (1991). The requested instruction omitted the final phrase, “criminal negligence,” rendering it an incomplete statement of the law. Lewis v. State, 212 Ga. App. 310, 313 (5) (441 SE2d 851) (1994). Nor, under these facts, was an accident charge required even in the absence of a correct request. Helton v. State, 216 Ga. App. 748 (455 SE2d 848) (1995); see Lawson v. State, 214 Ga. App. 464, 465 (2) (448 SE2d 14) (1994). Inasmuch as Black admitted that he continued his attempt to elude the police, even as they strove to implement a rolling roadblock to stop his reckless charge down the highway, no evidence authorizes a finding that the collisions occurred absent a “criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2; see Campbell v. State, 263 Ga. 824, 825-826 (3) (440 SE2d 5) (1994). On the contrary, at best, the evidence shows that at the time of the collision Black was engaging in conduct of such a reckless and wanton character “as to show utter disregard for the safety of others who might reasonably be expected to be injured thereby.” Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975) (defining criminal negligence).

3. We reject Black’s contention that the trial court erred in failing to instruct the jury on the implied consent warnings which must be provided to an accused prior to the introduction of evidence of his refusal to take an intoximeter test. The record shows that Black failed to move to suppress testimony that he refused to take the test, failed to object to such testimony, and failed to request such an instruction orally or in writing. Under these circumstances, the failure to give the charge was not preserved for appellate review. Reagin v. State, 218 Ga. App. 733, 735 (2) (463 SE2d 39) (1995).

4. We reject Black’s contention that the trial court committed reversible error by characterizing its recharge to the jury on aggravated assault and interference with government property as a “reconstruction.” Black maintains that this characterization, particularly in the absence of an accompanying recharge on the burden of proof, permitted the jury to use these counts in lieu of the entire charge. The record shows that the trial court’s recharge was a correct statement of the law and it concluded with the following statement: “And by giving this reconstruction, this recharge, I’m not emphasizing it over the rest of the charge. You need to take it all as a whole and apply it to the evidence.” “ ‘[T]he necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. . . . Our review is limited to determining whether that discretion was abused, taking into account the sensitive nature of the judge’s responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations.’ [Cit.]” Payne v. State, 219 Ga. App. 318 (1) (b) (464 SE2d 884) (1995). Having considered the statement in context, we conclude that the trial court did not abuse its discretion.

Decided June 18, 1996

Reconsideration denied July 3, 1996

William D. Hentz, for appellant.

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

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A96A1231.
    HARRIS v. THE STATE.
    (473 SE2d 245)
   Birdsong, Presiding Judge.

Jeffery Alan Harris was convicted of obstruction of a law enforcement officer. The State’s evidence showed that around 3:00 a.m. on September 14, 1994, Officer Joe Burge was dispatched to a trailer park in response to a complaint about loud music. Upon his arrival, a woman informed Officer Burge that the loud music was coming from appellant’s trailer. Officer Burge knocked on the door of appellant’s trailer several times, indicating he was from the sheriff’s office. Appellant, who was “highly intoxicated,” eventually opened the trailer door only long enough to address Burge with profanity before closing and locking the door. Officer Burge again knocked on appellant’s door, stating that he needed to talk with him about the music. This time, appellant responded by saying, “I’ll go back here and get my rod in the back and I’ll kill all of you son of a bitches.” After Trooper Sturdivan arrived to assist Burge, the trailer door again opened and closed, briefly revealing appellant with a long, thin object in his hand. Lieutenant Farrar then reached the scene and knocked on appellant’s door. Appellant, holding a long metal rod, opened the door and stepped back inside the trailer. After several requests by Farrar, appellant dropped the rod but continued to describe with profanity what he was going to do to the police, and he refused to leave the trailer to discuss turning down the music. To subdue appellant, Farrar finally sprayed him with Cap-Stun (cayenne pepper spray). After a struggle, the officers were able to handcuff appellant.

Appellant enumerates two errors on appeal. Held:

1. In his first enumeration appellant contends the trial court erred in permitting evidence of a similar transaction. Before evidence of an independent offense or act may be admitted into evidence, the State must make three affirmative showings: First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649). Applying this standard, we find the trial court did not err in granting the State’s motion to admit evidence of a similar transaction.

The similar transaction evidence in question concerns an occurrence in August 1992. Deputy Derwin Potts was dispatched to a small tire store in reference to a civilian disturbance. Upon arrival, Deputy Potts saw appellant, holding a knife, in a standoff with several people wielding tire irons and sticks. Appellant, who seemed to be under the influence of alcohol, was the center of the controversy. Upon Potts’ request, appellant dropped the knife and was placed in Potts’ patrol car. Potts then placed appellant under arrest for disorderly conduct. Appellant greeted this news by kicking the doors of the patrol car and then kicking Potts in the chin and mouth. In order to subdue appellant, Potts sprayed him with Cap-Stun. Once restrained, Potts charged appellant with obstruction of a law enforcement officer.

In this case, appellant is again charged with obstructing a law enforcement officer. Appellant asserts that the requisite similarity between these two events is lacking. This assertion is without merit. Similar transactions need not be identical to be admitted into evidence. Martin v. State, 219 Ga. App. 277 (464 SE2d 872). Rather, the evidence must show sufficient similarity between the crime charged and the prior crime such that proof of the former tends to prove the latter. Boyd v. State, 217 Ga. App. 668, 669 (458 SE2d 692). Here, in both instances: (1) a civilian complained about appellant’s behavior, (2) an officer was dispatched to appellant’s location, (3) appellant was intoxicated, (4) appellant had a weapon, (5) appellant resisted officers when they attempted to restrain him, and (6) appellant had to be Cap-Stunned to be subdued.

Appellant’s emphasis of immaterial differences between the two events is misplaced in this place. In determining the admissibility of similar transaction evidence, the court should focus on the similarities, not the differences, of the two occurrences. Farley v. State, 265 Ga. 622 (458 SE2d 643). There is a sufficient similarity between the 1992 and 1994 incidents so that proof of the former tends to prove the latter. Additionally, the record sufficiently indicates appellant did commit the former act; and, since evidence of the former act is relevant to show identity, motive, plan, scheme, bent of mind and course of conduct, the trial court did not err in admitting evidence of the 1992 occurrence.

Decided July 3, 1996.

Michael A. Corbin, for appellant.

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

■2. In his second enumeration, appellant contends there was insufficient evidence to convict. 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 in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the misdemeanor of obstructing or hindering law enforcement officers. OCGA § 16-10-24; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Testimony from police officers called to the scene illustrates that appellant verbally threatened the officers and, while holding a weapon, refused to leave the trailer to discuss turning down the stereo. Testimony further indicates the police officers had to Cap-Stun appellant to subdue him. This evidence is additionally bolstered by testimony concerning a similar occurrence in which appellant obstructed a police officer from carrying out his lawful duties. Accordingly, we affirm the jury’s conviction.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs in judgment only.


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0040.
    MINTON et al. v. RAYTHEON COMPANY.
    (473 SE2d 177)
   Birdsong, Presiding Judge.

Appellants/plaintiffs Robert J. Minton and Kathleen Minton appeal from the order and judgment entered in a declaratory judgment action suit. In 1987, appellee/defendant Raytheon Company loaned appellants $104,000 to aid them in the purchase of a home after appellant Robert J. Minton accepted employment with a Raytheon subsidiary and relocated to Chicago. The loan was secured by a promissory note and by an instrument captioned “MORTGAGE” on a home which appellants own in Atlanta; the note was executed on October 10, 1987; and the mortgage was executed on October 16, 1987, and recorded on January 21, 1988. Appellants did not satisfy the note and mortgage, and appellee elected not to commence any action to foreclose on the subject property. Subsequently, appellants brought suit for declaratory judgment seeking to clear title to the property, although no other legal action currently was pending against the property. Appellants averred inter alia that as neither the note nor the mortgage was under seal, the applicable statute of limitation had expired and the instruments were no longer legally enforceable, and, because appellee continued to assert that the property was subject to an enforceable mortgage, a cloud on title wrongfully existed. Appellee asserted that the mortgage was in fact an enforceable deed to secure debt and therefore appellants were not entitled to declaratory judgment.

Appellants moved for summary judgment. Appellee conceded that the statute of limitation had run on the promissory note. The trial court subsequently granted partial summary judgment to appellants as to appellee’s claim based on the promissory note but denied appellants summary judgment “as to any interest in the property held by or debt owed to [appellee/]defendant.”

Thereafter, the trial court entered an order and judgment which held inter alia that the enforcement of the promissory note, including appellee/defendant’s counterclaim thereon, is barred by the applicable statute of limitation; appellee’s claims for conversion, money had and received, and unjust enrichment are barred by the applicable statutes of limitation; and the enforcement of the mortgage instrument covering the property therein described and securing the promissory note is not barred by any applicable statute of limitation.

Appellants enumerate that the trial court erred in denying their motion for summary judgment as to enforcement of the mortgage on their property, and erred in declaring that the mortgage was not barred by the applicable statute of limitation and in declining to enter declaratory judgment in favor of appellants as to this issue. Appellee asserts that, although the promissory note cannot be enforced because of the expiration of the applicable six-year statute of limitation, as the mortgage instrument in fact is a deed to secure debt, it has 20 years (OCGA §§ 44-14-80, 44-14-83) to foreclose thereon. Held:

The trial court did not err as enumerated by appellants; although the promissory note cannot be enforced because of expiration of the applicable statute of limitation, the so-called mortgage instrument in fact is a deed to secure debt and appellee has 20 years to foreclose thereon pursuant to OCGA §§ 44-14-80, 44-14-83.

The instrument at issue provides its purpose is to “sell and convey” the property to Raytheon Company “with all rights and appurtenances to said property belonging; to have and to hold . . . forever.” It further indicates that it is a “conveyance . . . made to secure the payment of [the] debt.” In the construction of inconsistent clauses, if any, in a deed “the intention of the parties should, if possible, be ascertained from the whole instrument and carried into effect.” OCGA § 44-5-34. Although the instrument contains a clause therein which might be construed as a defeasance clause, examining the instrument in its totality, it is apparent that the true intent of the parties was that the instrument constitute a deed to secure debt and not a mere mortgage. Compare Hill v. Smith, 163 Ga. 71 (135 SE 423) with Burckhalter v. Planters Loan &c. Bank, 100 Ga. 428 (28 SE 236); Camp v. Teal, 44 Ga. App. 829 (163 SE 233); and Ga. Real Estate Law (4th ed.), §§ 20-1, 20-3, 20-3 n. 7, 20-14, 21-4 and 21-38. Moreover, the instrument was properly recorded. By the unambiguous language of the instrument, title to the land to the extent of its interest was conveyed to Raytheon Company where it remains, and the trial court correctly denied the Mintons’ motion for summary judgment. Although the lender is foreclosed from collecting on the underlying promissory note due to the expiration of the statute of limitation, it retains its rights pursuant to its ownership interest under the deed to secure debt on the subject property.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J, concurs and concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the opinion but wish to point out why we have exercised jurisdiction in this case.

The Supreme Court has exclusive jurisdiction over “Cases involving title to land.” Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (1). Assuring our own jurisdiction is always a threshold duty. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230) (1992). As the Supreme Court pointed out in focusing on its own jurisdiction in Graham v. Tallent, 235 Ga. 47, 48 (218 SE2d 799) (1975), “[D]eciding cases on their merits simply because they are docketed in this court, and without regard to the division of jurisdiction as between this court and the Court of Appeals, constitutes a disservice to litigants, lawyers and appellate judges in future cases. A decision of this case on its merits would stand as a physical precedent that this court had jurisdiction, when under our Constitution it does not.”

The primary question in the case is whether the document under the spotlight is a mortgage or a deed to secure debt. The Supreme Court has fairly narrowly construed the constitutional designation of its jurisdiction over “all cases respecting title to land.” In Graham, supra at 49, it surveyed the historical development of the Court’s construction and application of this category. It accepted the definition: “ ‘actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.’” According to our current Constitution, which was adopted after Graham, the wording is now “Cases involving title to land.” It would not seem that the word changes reflect an intention to change meaning. We impliedly detected none, when we decided Cole v. Cole, supra. See generally Thompson v. Talmadge, 201 Ga. 867, 885 (41 SE2d 883) (1947).

Decided June 18, 1996

Reconsideration denied July 5, 1996

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellants.

Doffermyre, Shields, Canfield & Knowles, Everette Doffermyre, Jr., Robert H. Brown III, for appellee.

I have found no discussion of this wording in the Transcripts of Meetings of the Select Committee on Constitutional Revision, State of Georgia, 1977-1981. The Constitution does retain the wording “Cases respecting titles to land” in the provision on venue and “cases respecting title to land” in the provision on jurisdiction of superior courts. Ga. Const. 1983, Art. VI, Sec. II, Par. II and Art. VI, Sec. IV, Par. I.

Applying the Supreme Court’s definition to the Mintons’ action, one must conclude that it does not involve title to land as a matter of law. It seeks a judicial declaration that the note and “mortgage” are barred by the statute of limitation and that the latter does not encumber and is not enforceable against the Mintons nor the property. It is not an action of ejectment or a statutory substitute, and it does not seek recovery of the land. Thus, this Court has jurisdiction of the case.


text:
    A96A0171.
    BUTLER v. BIVEN SOFTWARE, INC. et al.
    (473 SE2d 168)
   Birdsong, Presiding Judge.

Michael B. Butler is the defendant in this legal malpractice suit. Plaintiffs seek more than $9,000,000. The trial court gave default judgment against Butler for abuse of discovery and struck his counterclaims. The record contains more than 3,175 pages. On appeal Butler contends he repeatedly and timely produced all discovery demanded and ordered, and that he was deposed five times and did not refuse to make himself available to be deposed again.

After his former clients (plaintiffs) hired new counsel in the underlying lawsuits, Butler filed a lien for $181,537.50 on the proceeds of that suit. New counsel settled that suit in April 1993 and this malpractice suit was filed one month later, upon a malpractice affidavit filed by plaintiffs’ new counsel. Extensive discovery ensued. Butler produced more than 5,000 documents. Nevertheless, plaintiffs filed eight discovery motions.

In November 1994 the trial court ordered, “Absent good cause shown, all motions, except motions in limine, shall be filed on or before January 23, 1995.” (Emphasis supplied.) In December 1994 Butler moved for partial summary judgment, saying plaintiffs could not recover against him for their “low” settlement, for their damage was caused by the voluntary settlement entered for them by new counsel, who is also the expert affiant in this malpractice suit. See Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392). The trial court ruled Butler’s motion was filed too late.

In a letter to the court, Butler contended the judge’s refusal to consider his summary judgment motion was based on an “erroneous representation by Robert Goldstucker, counsel for plaintiffs, that the court had signed an order [requiring] all motions, including motions for summary judgment, to be filed by October 30, 1994.” The court issued an order saying the court’s November 1994 order requiring the parties to file all motions on or before January 23, 1995 “applied to all motions other than the summary judgment motion, as that motion had been specifically addressed in the status conference of June 1994 [where all parties agreed the motion] would be filed by October 30, 1994.” The court then denied Butler’s motion for partial summary judgment. Butler’s former counsel, however, wrote a letter to the judge refuting that any October 30,1994 deadline for Butler’s motion for summary judgment was ever discussed as stated by the judge.

Butler filed a motion to recuse the judge, saying he had learned of a “secret oral order allegedly prepared by Robert Goldstucker” which set an October 30, 1994 deadline for Butler’s motion for summary judgment, that no record of such order exists and that any such oral order “is the product of an ex parte, extra-judicial interaction between [the judge] and Robert Goldstucker, in violation of [USCR] Rule 4.1 [and] OCGA § 9-11-7 (b) (1).”

Plaintiffs then filed notices for four depositions, including one of Butler’s wife, and subpoenaed Butler for “the original of all documents produced by you [numbered] 00001 through 05240.”

On March 2, 1995 the judge denied the motion to recuse on grounds that he had no ex parte communication with Goldstucker and that therefore Butler’s recusal affidavit was insufficient. In March 1995 Butler filed notice of bankruptcy. In June 1995 the trial court granted default judgment and struck Butler’s counterclaims, leaving the amount of damages for jury trial. Held:

1. Appellant’s motion for summary judgment was peremptorily denied because of the alleged existence of an order setting an October 30, 1994 deadline for that motion. Appellant’s affidavit accompanying his motion for recusal raises in question the existence of such an alleged order, which would contradict the trial court’s November 1994 order setting a deadline of January 23, 1995 for all motions except motions in limine. An order setting an October 30, 1994 deadline is not in the record and appellant alleges it was unknown to him, and was either a “secret” order or one issued ex parte. These are not mere conclusions and opinions of bias and prejudice such as would render appellant’s affidavit insufficient. See Stephens v. Ivey, 212 Ga. App. 407, 408 (442 SE2d 248). They are allegations of fact and of factual inference which may be made from the facts and circumstances asserted in appellant’s motion to recuse and affidavit. If an order setting an October 30, 1994 deadline for appellant’s summary judgment motion existed and was not known to him, the trier of fact may conclude, as did appellant, either that the order was a “secret” order or was issued ex parte, or that some other impropriety occurred. These are factual conclusions, and are not the sort of “ ‘bare conclusions and opinions’” (Stephens, supra) as to bias and partiality which render an affidavit insufficient. The trial judge’s ruling that this affidavit was insufficient merely because it contained “conclusions” may itself, in the circumstances of this case, “ ‘give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ [Cit.]” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67); Stephens, supra. Butler’s recusal affidavit raises genuine questions of fact involving the trial judge’s own actions, and this trial judge could not sit as trier of fact on allegations concerning his own actions.

The judge’s duty on a motion to recuse is to determine the timeliness and legal sufficiency of the movant’s affidavit and to determine whether the facts alleged, if true, would warrant recusal. State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207). He is not allowed to pass on the truth of the allegations in the affidavit. Id. The affidavit in this case sets forth circumstances which, if true, give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment, and recusal of this trial judge in this case may be required. The trial court erred in denying appellant’s motion to recuse on the basis of insufficiency of appellant’s recusal affidavit.

2. Where an affidavit is filed giving fair support to the charge of a bent of mind that may prevent or impede impartiality in the case, the trial judge must “ ‘cease to act’ ” in the case (State v. Fleming, supra at 702), as he must when he asserts his own partiality and recuses himself or when he is recused by another judge. By the nature of his recusal, any actions following his recusal or after he should have recused himself are naturally void. The default judgment in this case is therefore void.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the holding that the judgment cannot stand, but I do not agree with all that is written.

1. First, the order denying defendant’s motion to recuse the trial judge was entered on March 3, 1995, after the defendant had filed a notice of the filing of his bankruptcy petition on March 2, and before the automatic stay was lifted on April 20. Thus the court did not have authority to enter the order when it did. 11 USC § 362 (a); Breeze v. Columbus Bank &c. Co., 214 Ga. App. 534 (448 SE2d 276) (1994). No reversible error occurred on this point, however, because there is no indication, and the parties do not suggest, that the court would have ruled otherwise after April 20.

2. Although the notice of appeal states only that it is from the order of June 30, 1995, granting default judgment as to liability and striking defendant Butler’s pleadings, the enumeration of error which challenges the earlier order of March 3 denying Butler’s motion to recuse is properly before us. OCGA § 5-6-34 (d). Direct appeal of this default judgment, which leaves pending the issue of the amount of damages, is permitted because the trial court invoked the finality provision of OCGA § 9-11-54 (b). Determination of finality under this latter section satisfies the finality requirement of OCGA § 5-6-34 (a) (1). Thompson v. Clarkson Power Flow, 149 Ga. App. 284 (254 SE2d 401) (1979), aff’d Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9) (1979). Thus we have jurisdiction of this direct appeal, which is in a sense interlocutory.

3. Butler had filed the motion to recuse pro se on February 20. With its 13 exhibits, it constitutes 100 pages of the record. Defendant Butler’s affidavit is detailed, in eight pages. The contents of the motion, its timing, the proceeding for its disposition and the procedure for the case thereafter, are governed by USCR 25.

The time requirements for such a motion, set out in USCR 25.1, were not expressly ruled on by the court when it denied the motion on March 3. Thus it is assumed that the court determined the motion was timely. See USCR 25.3. Timeliness was not made an issue.

The court did rule, however, that the affidavit failed to meet the content requirements of USCR 25.2, in that it was “legally insufficient to warrant recusal.” This was based on its finding that defendant’s “allegations of a secret ‘oral order’ and withheld orders are merely conclusions and suppositions, not facts.” That is the question before us, because USCR 25.2 warns that “Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.” The uniform rule is very specific about what such a serious affidavit must contain, because it accuses the trial judge of personal bias or prejudice such as would “impede or prevent impartiality” in the action.

In his affidavit, defendant recites a number of instances of rulings which, in his view, “evidence a lack of impartiality,” but these were not subjected to the test in the ruling made by the trial court, and we do not review their sufficiency here. Whether they constitute merely complaints about adverse legal rulings which are within the court’s authority, as they seem to do or, on the other hand, are evidence of lack of impartiality, is a question to be addressed on remand. The affidavit must show facts which indicate “the judge’s personal (rather than judicial) bias.” Stevens v. Morris Communications Corp., 170 Ga. App. 612, 613 (317 SE2d 652) (1984). It cites United States v. Bray, 546 F2d 851 (10th Cir. 1976), as applicable because the Supreme Court had adopted the federal rule on motions to recuse in State v. Fleming, 245 Ga. 700, 702 (1) (267 SE2d 207) (1980).

The federal rule, as construed in federal cases, has been institutionalized in Georgia with some modification in USCR 25. The essence is the same. Thus, “[t]o warrant disqualification of a trial judge the affidavit supporting the recusal motion ‘must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ Berger v. United States, 255 U. S. 22, 33-34 (41 SC 230, 65 LE 481) (1921).” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981). Although Jones preceded the adoption of the uniform rules, the test it took from the United States Supreme Court is in concert with the more explicit requirement of the Georgia recusal rule.

Affiant claims that the court’s ruling that his motion for partial summary judgment was too late in that all such motions were to be filed by October 30, 1994, indicates bias and prejudice because there was no order setting that deadline. The court did not state there was such an order, and indeed, there is none in the record. It was apparently plaintiffs’ counsel who erroneously represented that such an order existed. Instead, the court’s basis for denying the summary judgment motion because it was late, and its not reaching the merits, was that at the status conference the previous June (1994), “it was agreed by all parties that the anticipated Motion for Summary Judgment would be filed by October 30, 1994.” At the time of its ruling, the court did not have the letter of counsel who represented Butler at that pretrial conference, with respect to his recollection of what transpired at that unrecorded conference some eight months earlier. Counsel's letter was filed shortly thereafter and said that October 30 was given as an estimate by the parties when the court asked for target dates for filing motions. He also recollected that the court had said it would not “ ‘hold our feet to the fire.’ ”

The court did have this letter (unsworn presumably because the former counsel submitted it as an officer of the court) when it ruled on defendant’s motion for recusal; in fact, a copy of it was also an exhibit submitted by defendant with his motion to recuse. It is evident that the court’s recollection differed. And in the order denying the motion to recuse for lack of legal sufficiency of defendant Butler’s affidavit, the court responded to his allegations of a secret oral order regarding the deadline for summary judgment motions by stating that “[i]n fact, there was ‘no extra-judicial, ex-parte communication between the Court and [plaintiffs’ attorney] nor is there any evidence to support this supposition by Mr. Butler.”

The problem is that this response constitutes evidence, not a legal ruling on whether defendant’s assertions consisted of fact and reasons for the belief of bias or prejudice or merely bare conclusions and opinions, as called for by USCR 25.2. “ ^Neither the truth of the [movant’s] allegations nor the good faith of the pleader may be questioned, regardless of the judge’s personal knowledge to the contrary. [Cits.] The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists. [Cits.]’ [Cit.]” (Emphasis in original.) State v. Fleming, supra. The rule now expressly provides that the duty of the trial judge, when presented with a motion to recuse, is to simply “make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted.” USCR 25.3. If so, then another judge “shall be assigned to hear the motion to recuse. The allegations of the motion shall stand denied automatically. The trial judge shall not otherwise oppose the motion.” Ibid. Nor may he “pass upon the truth of [the affidavit’s] statements.” Fleming, supra at 702.

The movant stated that he believed there was a “secret” or ex-parte oral order because there was no written order in the record setting the deadline for summary judgment motions at October 30, and the recollection of his attorney at the time of the status conference in June is that no such oral order or requirement or agreement had been made. Yet the court had refused to consider the merits of his summary judgment motion because it was filed after October 30, a date the court stated in its denial order “was agreed by all parties” at the status conference so that the summary judgment motion was not subject to the court’s November 8 order setting January 23, 1995, as the deadline for motions. Whether the judge or the defendant is mistaken about the results of the June status conference, and whether, if the judge is mistaken, his refusal to consider the summary judgment motion constitutes personal bias or prejudice either alone, or together with other facts alleged in the affidavit so as to constitute “a systematic pattern of prejudicial conduct” as contemplated by USCR 25.2, is for the factfinder to determine. USCR 25.6.

Decided June 7, 1996

Reconsideration denied July 5, 1996.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Kelly E. Malone, for appellees.

Impartiality of the judge is the bedrock of fairness in our judicial system. Where it might reasonably be questioned, the judge should disqualify or be recused. Houston v. Cavanagh, 199 Ga. App. 387, 388 (405 SE2d 105) (1991). Even the appearance of the lack of impartiality, if based on a reasonable belief supported by fact, mandates that another judge try the case. USCR 25 implements the high standard of Canon 3 of the Code of Judicial Conduct and must be scrupulously adhered to.

Of course, it should not be lightly required, as it disrupts the administration of justice without cause. It is as much the duty of a judge not to grant the motion to recuse as it is to recuse when the motion is meritorious, a “well-settled rule” as noted in Fleming, supra at 702. The judge in this case has dealt with it for nearly three years, shepherding it in an orderly fashion to trial, which he set for the end of January 1995 and March at the latest, and exhibiting enormous patience with numerous discovery motions on both sides: motions to compel, motions for protective orders, motions for sanctions, all exhibiting unseemly and unprofessional rancor between and among the parties and counsel. It is past time for the case to be concluded.

The judgment granting default and striking defendant’s pleadings must be vacated, the order on the recusal motion must be vacated, and the case must be remanded with direction that another judge be assigned to rule on the recusal motion.


text:
    A96A0097.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY, INC. v. MILLER et al.
    (473 SE2d 189)
   Pope, Presiding Judge.

Defendant Georgia Farm Bureau Mutual Insurance Company, Inc. appeals the trial court’s denial of its motion for judgment notwithstanding the verdict.

In August 1988, a 1984 Volkswagen Rabbit GTI automobile insured by Georgia Farm Bureau was stolen. Georgia Farm Bureau paid its insured the value of the vehicle, and applied to the Department of Motor Vehicles (DMV) for a stolen/unrecovered title to the vehicle. The DMV advised Georgia Farm Bureau that its records indicated the car was stolen, and advised Georgia Farm Bureau to contact the reporting authority to remove the stop/stolen flag. The car was recovered in February 1989, and Georgia Farm sold the car, through a salvage company, to defendant BMVW, Inc. Georgia Farm Bureau did not attempt to obtain a clear title and did not notify the DMV that the vehicle had been recovered prior to selling it to BMVW.

In mid-April 1989, plaintiffs/appellees Donald and Matthew Miller (father and son) purchased the car from defendant BMVW. Plaintiffs knew the car had been stolen and recovered and that the serial plate under the dash (VIN number) was missing. Although plaintiffs expressed concern about the missing VIN number, they went forward with the purchase of the car after reviewing documents referencing a complete VIN number for the car, and receiving assurances from the owner of BMVW that everything was in order. Donald Miller paid for the car by check, and then he and Matthew obtained a loan from a local bank for the purchase amount. The bank retained the documentation on the car, and informed plaintiffs it would take the necessary steps to obtain the tag and title.

Approximately five months later, on September 8, 1989, Matthew was stopped while driving the vehicle to work and ticketed for driving the car without a tag. Matthew was stopped again that evening while on his way home from work, and after a police check showed the car as stolen, was charged and arrested for possession of a vehicle with removed/altered identification numbers. Matthew was handcuffed and taken to jail where he remained for approximately eight hours before posting bail. After months of negotiations with the prosecuting attorney, the charges against Matthew were nolle prossed.

Plaintiffs initially filed suit against BMVW seeking compensatory and punitive damages, attorney fees and expenses of litigation based on claims of negligence, negligence per se, gross negligence, alleged violations of Georgia’s Fair Business Practices Act and fraud. BMVW answered and filed a counter complaint against Georgia Farm Bureau, and Georgia Farm Bureau was later added as a third-party defendant. Plaintiffs also filed a separate complaint against Georgia Farm Bureau, alleging negligence, negligence per se, gross negligence, and fraud and seeking compensatory and punitive damages, attorney fees and expenses of litigation.

The case proceeded to trial. During the proceedings the trial court granted Georgia Farm Bureau’s motion for directed verdict on the fraud, negligence per se and stubborn litigiousness claims, and granted BMVW’s motion for directed verdict on plaintiffs’ claims under the Fair Business Practices Act and their fraud claim. The jury found in favor of plaintiffs against both defendants, awarding Matthew Miller $8,000 in compensatory damages and $7,200 in attorney fees and Donald Miller $2,000 in compensatory damages and $800 in attorney fees. The jury also awarded Matthew Miller $9,000 in punitive damages from Georgia Farm Bureau and $1,000 in punitive damages from BMVW. The jury found against Georgia Farm Bureau on BMVW’s third-party complaint, and awarded BMVW $9,300 plus interest. Georgia Farm Bureau filed a motion for j.n.o.v., and following the denial of its motion, filed the present appeal to this Court.

1. (a) Georgia Farm Bureau contends the trial court erred in failing to bifurcate the trial on punitive damages, arguing that OCGA § 51-12-5.1 (d) requires bifurcation unless waived by the parties. We agree with Georgia Farm Bureau that this Code section required the trial court to bifurcate the trial on the punitive damages claim from the main trial, and that the trial court erred in failing to conduct the proceedings according to OCGA § 51-12-5.1 (d). McClure v. Gower, 259 Ga. 678, 684 (3) (385 SE2d 271) (1989); City of Monroe v. Jordan, 201 Ga. App. 332, 334 (3) (411 SE2d 511) (1991).

(b) Moreover, we also find merit to Georgia Farm Bureau’s contention that the evidence did not authorize an award of punitive damages in this case.

Pursuant to OCGA § 51-12-5.1 (b), punitive damages are authorized in tort cases only when “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “ ‘The latter expression relates to an intentional disregard of the rights of another knowingly or wilfully disregarding such rights.’ [Cit.]” Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188, 189 (1) (232 SE2d 62) (1977). “ ‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .’ (Punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (408 SE2d 811) (1991)” Ralston v. Etowah Bank, 207 Ga. App. 775, 777 (3) (429 SE2d 102) (1993). “Negligence, even gross negligence, is inadequate to support a punitive damage award. [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827) (1988). Although, construed in plaintiffs’ favor, the evidence presented authorized the jury to conclude that Georgia Farm Bureau was negligent, given the evidence presented at trial concerning industry customs and procedures, and applying the clear and convincing standard, we cannot say that a knowing or wilful disregard of plaintiffs’ rights was shown. Fulton v. Anchor Savings Bank, 215 Ga. App. 456, 468 (6) (452 SE2d 208) (1994). It follows that the punitive damages award must be reversed.

Decided June 20, 1996

Reconsideration denied July 8, 1996

Fain, Major & Wiley, Charles A. Wiley, Jr., Robert G. Mikell, for appellant.

Mottern & Van Gelderen, Leon A. Van Gelderen, Eric D. Miller, for appellees.

2. We have examined Georgia Farm Bureau’s remaining enumerations of error and find them to be without merit.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Andrews and Smith, JJ, concur.