text:
    A89A1831.
    WARD v. THE STATE.
    (387 SE2d 150)
   Banke, Presiding Judge.

The appellant brings this appeal from his conviction of trafficking in cocaine.

Captain Jerry Wolfe of the Milledgeville Police Department testified that while turning his patrol car around in a parking lot he observed the appellant seated in a parked car engaged in a discussion with two other individuals who were standing next to his car. Wolfe stated that he exited his patrol car, walked up to the trio, and stood there for a while listening to their conversation, until he heard the appellant, whom he had known for years, tell the other two, “ ‘I’ve got to go. ... I will see you later,’ or something like that.” Wolfe then said to the appellant, “Wait a minute, I want to talk to you,” and the appellant, who had just started his car, turned off his ignition. Wolfe testified that he then told the appellant he had heard reports he was dealing in drugs and advised him that, if he was, he needed to stop. He stated that the appellant denied he was dealing drugs, whereupon he asked the appellant, “Do you have any drugs on you now?” He said the appellant answered, “About a joint,” and that he (Wolfe) responded by telling the appellant he “was going to let him throw it away and he could leave.”

Following that exchange, according to the officer, the appellant took two paper bags out of his car, dumped the contents of one of them into some weeds, threw the other onto a pile of debris at the edge of the pavement, and asked, “Can I go?” Wolfe stated that he responded in the affirmative and that the appellant then drove away. Wolfe testified that he immediately examined the discarded items and observed that the bag left on the pile of debris contained a white powdery substance, while the material dumped on the ground consisted of “little bitty baggies”, of a type which, in his experience, were used to package crack cocaine. The white powdery substance was delivered to the State Crime Lab for analysis and was revealed to be almost nine ounces of 65 percent pure cocaine. The appellant was apprehended and taken into custody several hours after the seizure of the cocaine, pursuant to an arrest warrant.

The appellant’s account of his confrontation with Captain Wolfe was somewhat different from the latter’s. While he acknowledged that Wolfe had questioned him about drugs in the parking lot, he denied that Wolfe had asked him whether he was in possession of any drugs or that he had told him he was. He also denied having thrown anything out of the car or having had any cocaine in his possession. Held:

1. The appellant contends that the seizure of the cocaine was the product of an unlawful arrest and that the trial court accordingly erred in denying his motion to suppress the contraband. We disagree. “ ‘(A) person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Moran v. State, 170 Ga. App. 837, 840 (318 SE2d 716) (1984), quoting from United States v. Mendenhall, 446 U. S. 544, 553 (100 SC 1870, 64 LE2d 497) (1980). There was no indication that Captain Wolfe made any intimidating display of force or authority to the appellant or anyone else on the scene prior to telling him he wished to speak to him. Rather, the officer’s testimony was that upon approaching the appellant and the other two individuals with whom the appellant was engaged in conversation he had simply stood silently waiting for them to finish their conversation. From the officer’s account of the confrontation, which in this regard did not conflict significantly with the appellant’s, the trial court was authorized to conclude that the appellant had no reason to believe he was not free to leave up until the moment he confessed to being in possession of a “joint.” (Of course, after he admitted to being in possession of a “joint,” probable cause existed for his arrest for possession of marijuana.)

“On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].” State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974). As the evidence in the present case did not demand a finding that a reasonable person in the appellant’s position would have believed he was not free to leave at the time he was asked if he had any drugs in his possession, we hold that the trial court did not err in denying his motion to suppress. We do not consider this court’s decision in State v. Smith, 137 Ga. App. 101 (223 SE2d 30) (1975), to be authority for a contrary holding, inasmuch as the appeal in that case was from the grant of a motion to suppress. In this case, as in Smith, we have declined to interfere with the trial court’s determination regarding whether a detention occurred, based on our conclusion that there was evidence to support the court’s determination in this regard.

2. The trial court did not err in permitting Captain Wolfe to testify that he told the appellant he had heard reports that the appellant was dealing in drugs. While this statement certainly constituted hearsay and would not have been admissible as evidence that the appellant was in fact dealing in drugs, it was nevertheless relevant and admissible to establish the events leading to the discovery of the cocaine and to the appellant’s subsequent arrest. “Testimony of the arresting officer with reference to the legal investigation and circumstances surrounding the arrest is authorized as original evidence under OCGA § 24-3-2. . . .” Moses v. State, 166 Ga. App. 425 (2) (304 SE2d 528) (1983). Accord Cleveland v. State, 155 Ga. App. 267 (2) (270 SE2d 687) (1980). The appellant’s reliance upon Little v. State, 165 Ga. App. 389 (3) (300 SE2d 540) (1983), as contrary authority is misplaced, in that the hearsay evidence at issue there, unlike the testimony at issue in the present case, had no relevance to the circumstances surrounding the defendant’s arrest. Rather, its only purpose was to explain why the arresting officer had approached the defendant seeking to purchase drugs.

3. The appellant contends the trial court erred in allowing Captain Wolfe to testify that, on the only other occasion or occasions when he had seen small plastic baggies such as the ones seized in the present case, they were being used to store “crack,” a derivative of cocaine. However, the witness made this assertion twice before the appellant interposed any objection to it, and the appellant made no subsequent motion to strike that testimony. “In this [S]tate it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have.” Bridgers v. State, 183 Ga. App. 98, 99 (357 SE2d 894) (1987). Consequently, this enumeration of error presents nothing for review.

4. The appellant contends that the trial court erred in allowing the State to introduce testimony and present argument to the jury that the cocaine seizure in this case was the largest in the history of Baldwin County, Georgia. While we agree with the appellant that this testimony had no relevance to the issues being tried, we conclude that in the context of the issues being tried its admission was harmless. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). The central question before the jury was whether the appellant was in possession of the cocaine in question. If so, then he was guilty of trafficking in cocaine, without regard to the relative magnitude of the seizure. See generally OCGA § 16-13-31 (a) (1). If, on the other hand, the jury believed that he was not in possession of the cocaine, then the evidence and argument concerning the relative magnitude of the seizure could not have prejudiced him.

5. The appellant contends that the trial court erred in allowing the State’s attorney to characterize him during closing argument as “[a] man who’s willing to do, to sell this kind of stuff to our young people here in this community. ...” The appellant asserts that this argument was improper because there was no evidence that he was selling cocaine to anyone, much less to young people. However, it was clearly inferable, both from the amount of cocaine seized and from the appellant’s possession of numerous, extremely small zip-lock bags, that the cocaine was slated for distribution in smaller quantities. Moreover, we believe that the level of general public awareness concerning this nation’s cocaine problem has reached a point where it is common knowledge that a large part of the market for this drug is created by young people. “ ‘While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable or even absurd is a matter for reply by adverse counsel and not rebuke by the court.’ (Cits.)” Ladson v. State, 248 Ga. 470, 476 (285 SE2d 508) (1981). For these reasons, we find this enumeration of error to be without merit.

6. The appellant contends that the trial court erroneously allowed the State’s attorney to place his character in issue by asking him on cross-examination whether he had ever seen small plastic bags of the type seized in this case. As we do not agree that this question placed the appellant’s character in issue, we conclude that this enumeration of error is also without merit.

7. The appellant contends that the trial court erred during voir dire in allowing the State’s attorney to ask several prospective jurors such questions as whether they had ever served on a jury before, what jury they had served on, and whether they had served as foreman. While we recognize that “it has been held not to be error for the court to refuse to allow defense counsel to ask prospective jurors concerning their service as jurors in other cases, [cits.],” Henderson v. State, 251 Ga. 398, 401 (306 SE2d 645) (1983), it certainly does not follow that a trial judge may never permit such questioning. As the appellant has not suggested how this line of questioning could have been prejudicial to him, we hold that this enumeration of error establishes no ground for reversal.

8. The appellant contends that the trial court erred in refusing to strike for cause a prospective juror who had taught a course for the Georgia State Patrol on the evils of alcohol and drugs and who made certain statements during voir dire indicating that he had such strong feelings against drug users that he would be more inclined to accept the State’s evidence in a drug case than he would in some other type of case. However, on further questioning by the State’s attorney and by the court, this juror asserted that he would be able to base his decision solely on the evidence presented in court and that he would not require “less evidence” to convict the appellant in the present case than he would to convict a defendant facing trial on, for example, a bad check charge. “A juror is not disqualified if he can lay aside whatever opinions or impressions he may have had and decide the case based upon the evidence presented in court.” Spivey v. State, 253 Ga. 187, 196 (319 SE2d 420) (1984). Based on the prospective juror’s retraction or clarification of his original statements during voir dire, the trial court did not abuse his discretion in refusing to disqualify him for cause. Accord Devier v. State, 253 Ga. 604, 608 (323 SE2d 150) (1984).

Decided September 28, 1989

Rehearing denied October 10, 1989

Milton F. Gardner, Jr., for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Assistant District Attorney, for appellee.

9. The appellant contends that the evidence was insufficient to support the jury’s verdict, arguing that “the State’s contention that [he] voluntarily threw down 243 Y¡ grams of cocaine onto the ground while a policeman watched and then was allowed to drive away by the police officer and made good an escape before the policeman could walk seven or eight feet to pick up the cocaine is utterly fantastic and not credible.” The jury, of course, is the final arbiter of the credibility of the witnesses. See generally Branch v. State, 175 Ga. App. 696, 697 (334 SE2d 24) (1985). From the evidence as a whole, we hold that a rational trier of fact could reasonably have concluded beyond a reasonable doubt that the appellant was guilty of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A0865.
    BOATWRIGHT v. THE STATE.
    (387 SE2d 386)
   Benham, Judge.

Appellant filed this appeal from his 1987 conviction for trafficking in cocaine after the trial court granted him leave to file an out-of-time appeal.

1. Appellant initially questions whether the evidence presented by the State was sufficient to convict him of trafficking in cocaine.

The State presented evidence that appellant’s brother was selling cocaine at the brother’s home in north Georgia. Pursuant to a GBI? FBI investigation, the law enforcement officers arranged for an informant, wearing a tape-recording device, to make purchases from appellant’s brother on three separate occasions. During each pre-arranged meeting, the agents observed a cream or beige Chrysler Cordoba, occupied by a white male, sitting on the nearby interstate’s northbound exit ramp to the road on which appellant’s brother’s home was located. On two occasions, appellant was observed with his brother, at the brother’s home, shortly before the pre-arranged drug transaction was to take place. Each time, appellant drove away in a cream-colored Cordoba shortly before the buyer’s arrival, parked the Cordoba on the interstate exit ramp, raised the hood, and sat in the car. On the day the agents raided the site of the sale, the home of appellant’s brother, shortly after appellant’s brother had sold the informant 151 grams of a mixture that was 64 percent cocaine, appellant drove up to his brother’s house in the cream-colored Cordoba from the direction of the interstate and stopped in front of the residence where he was identified and arrested.

“The question of the existence of a conspiracy is ultimately for the jury to determine. (Cit.) The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. [Cit.] It may be shown by conduct as well as by direct proof or express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose. [Cit.]. . . . ‘(I)t is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all.’ [Cit.]” Brown v. State, 177 Ga. App. 284 (9) (339 SE2d 332) (1985). “ ‘The “actual possession” required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the [distribution] of such substances so as to be a party to the crime of trafficking.’ [Cit.] The evidence at trial was sufficient to authorize a rational trier of fact to find appellant guilty . . . beyond a reasonable doubt [of trafficking in cocaine]. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]” Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988).

2. Appellant next contends that the trial court erred in admitting evidence that all of the individuals involved in the investigation which resulted in appellant’s indictment, except appellant, his co-defendant, and two fugitives, had pleaded guilty. The conviction of appellant’s co-defendant was reversed due to the admission of this evidence. Mindock v. State, 187 Ga. App. 508 (2) (370 SE2d 670) (1988). Although appellant failed to object to the admission of the evidence at trial and did not expressly adopt the objection of his co-defendant, usually resulting in a waiver of that objection (Barnes v. State, 168 Ga. App. 925 (2) (310 SE2d 777) (1983)), we recognize that “ ‘ “[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” ’ [Cits.]” Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). We so view the error involved herein, especially in light of the fact that the man with whom appellant was tried had his conviction reversed due to the admission of the testimony of which appellant now complains. Mindock v. State, supra. Accordingly, we conclude that appellant’s conviction must be reversed due to the admission of testimony concerning the guilty pleas by others arrested with appellant.

3. Appellant also contends the trial court erred by charging the jury on conspiracy as well as the substantive offenses with which appellant was charged. “[W]e find that [appellant] has nonetheless waived his right to raise this issue on appeal. Following its charge, the trial court inquired of counsel whether there were any exceptions to the charge. [Appellant’s trial] counsel responded there were none on behalf of [appellant]. ‘ “In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), and approved in White [v. State, 243 Ga. 250 (253 SE2d 694) (1979)], of reserving his right to object on motion for new trial or on appeal. Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, [appellant] has waived the right to raise the issue on appeal.” [Cits.]’ ” Wadley v. State, 257 Ga. 280 (2) (357 SE2d 588) (1987). Even if appellant had preserved the objection for appeal, it was not error to have given the charge, for “it is well settled that where the evidence in a criminal case shows that two or more persons, acting in concert, were concerned in the commission of an alleged crime, it is not harmful error to charge the jury on the law of conspiracy [cit.], for a conspiracy may be proved even though not alleged in an indictment. [Cit.]” Hamilton v. State, 162 Ga. App. 620 (4) (292 SE2d 473) (1982).

4. Appellant maintains that the sentence imposed upon him (25 years’ incarceration and a $250,000 fine) was illegal. He contends that OCGA §§ 16-13-31 (a) (1) (A) and 16-13-31 (f) provide two separate sentences for the same conduct and that he should be afforded that construction which is “most favorable to his life, liberty and happiness.” We do not agree with appellant’s statutory interpretation. “It is clear that OCGA § 16-13-31 (a) (l)-(3) establish the specific mandatory minimum sentences which are to be imposed for trafficking in cocaine and that the relation of OCGA § 16-13-31 (f) to that scheme is merely to provide for a general maximum as to any sentence which is otherwise imposed for trafficking. Appellant was indicted for trafficking in a quantity of cocaine in excess of [28] grams. He was thus sufficiently apprised that, if convicted, he would receive a sentence which, under then existing law, would consist of at least [25] years but no more than 30 years of imprisonment and the payment of a fine [not to exceed $500,000]. Former OCGA § 16-13-31 (a) (3), (f).” Recoba v. State, 179 Ga. App. 31, 34 (345 SE2d 81) (1986). Thus, the sentence imposed upon appellant was not illegal.

5. “Appellant did not raise as error the trial court’s charge on the element of possession. However, a review of the record reveals that after defining actual and constructive possession, the trial court instructed the jury that it would be authorized to convict the defendant if it found ‘beyond a reasonable doubt that the defendant knowingly had actual or constructive possession either alone or jointly with others.’ . . . [A]t the time of the alleged offense in the case at bar, OCGA § 16-13-31 (a) (1) required ‘actual’ possession. Consequently, the appellate courts of this state have held that a charge such as the one given in the case at bar constitutes reversible error because there is a substantial likelihood that the instruction could have been interpreted by the jury as authorizing a conviction for trafficking in cocaine on a finding of mere constructive possession. [Cits.] Inasmuch as the instruction was substantially in error and harmful as a matter of law, [appellant’s] conviction for the offense of trafficking in cocaine must be reversed. OCGA § 5-5-24 (c); [Cits.]” Riley v. State, 191 Ga. App. 781 (383 SE2d 172) (1989). See also Christopher v. State, 190 Ga. App. 393 (379 SE2d 205) (1989). But see Green v. State, 187 Ga. App. 373, 375 (370 SE2d 348) (1988).

Decided October 10, 1989.

William D. Hentz, for appellant.

Ralph Van Pelt, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.


author: Beasley, Judge.

text:
    A89A0903.
    POWELL v. ESKINS.
    (387 SE2d 389)
   Beasley, Judge.

We granted defendant Powell interlocutory appeal from the trial court’s denial of her motion to open and set aside default in this negligence action by Eskins stemming from an automobile collision between the parties in which Eskins was allegedly injured.

The following facts about the default are undisputed. Eskins filed suit on June 13, 1988. On June 16, service was perfected on Illinois resident Powell by service on the Georgia Secretary of State, pursuant to OCGA §§ 40-12-1; 40-12-2. The next day, a copy of the documents was forwarded by registered mail to Powell’s Illinois address. The summons and complaint were received at Powell’s home on June 27. The next day, Powell’s mother delivered the summons and complaint by hand to Jones, an employee of Powell’s insurer, Allstate Insurance Company. The mother explained to Jones how the summons and complaint had been received and asked her to handle the matter including expeditious defense of the case.

Jones began an investigation of the circumstances surrounding the incident and discovered that a question existed as to whether liability insurance was in force at the time of the mishap. By error and oversight, Allstate did not forward the delivered summons and complaint to defense counsel in Atlanta until August 19.

On August 23, defense counsel filed an “Entry of Appearance by Counsel, Notification that Defendant Places Damages in Issue and Demand for a Jury Trial by a Twelve Person Jury.” Then after determining the reason for the default, on September 27 Powell filed responsive pleadings and a motion to open and set aside the default pursuant to OCGA § 9-11-55 (b), supported by the affidavits of her mother and Jones. Prior to filing defensive pleadings, defendant paid the court costs as certified October 7.

After a hearing on November 29 the trial court denied the motion to open and set aside the default.

OCGA § 9-11-55 (b) “allows a prejudgment default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. [Cits.]” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984).

Powell met the four conditions. The filed appearance, as required by Uniform State Court Rule 4.2, indicated that Powell was ready to plead and proceed with adjudication of the case, court costs were paid, and a meritorious defense was set up. The remaining question was whether or not the facts made out a case for opening default under the statute.

“[T]he question of whether to open a default on one of the three grounds . . . rests within the discretion of the trial judge.” Id. at 401-402. However, here as in Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) (1984); American Erectors v. Hanie, 157 Ga. App. 687 (1) (278 SE2d 196) (1981); and Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977), “ ‘there was good cause for the defendant to believe that the suit was being defended by an insurance company. Under the facts here, any neglect by [Powell] in following the progress of the case was excusable.’ [Cits.] ‘The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal. Likewise, a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow, particularly when no innocent party will suffer if the default is opened. The purpose of (OCGA § 9-11-55 (b)) ... is to furnish relief when, as here, there was an understandable misunderstanding.’ [Cits.]” Sears, Roebuck & Co., supra at 875. Compare U. S. Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886 (357 SE2d 322) (1987), where the neglect was the defendant’s and not the insurer’s.

Decided October 10, 1989.

Chambers, Mabry, McClelland & Brooks, Edwin L. Hamilton, E. Speer Mabry III, for appellant.

Morse & Ontal, Jack 0. Morse, for appellee.

Moreover, the law favors reaching the merits of disputes. Houston v. Lowes of Savannah, 136 Ga. App. 781, 785 (2) (222 SE2d 209) (1975).

The uncontroverted evidence demanded a finding of excusable neglect and, in consequence, the grant of Powell’s motion to open default.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A89A1011.
    MITCHELL v. THE STATE.
    (387 SE2d 390)
   McMurray, Presiding Judge.

Defendant was charged in two counts for rape and burglary. The case was tried before a jury and defendant was found guilty of burglary, but the jury was unable to reach a verdict on the rape charge. A mistrial was declared and a new trial was ordered on the rape charge. Upon retrial, the jury found defendant guilty of the lesser included offense of simple battery. This appeal followed. Held:

In his sole enumeration, defendant asserts the general grounds.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another . . . .” OCGA § 16-7-1 (a).

At the first jury trial, the victim testified that defendant forcibly entered her apartment, beat her and forced her to have intercourse. The victim’s mother testified that she saw defendant outside the victim’s home on the day of the burglary; that she noticed that the door of the victim’s apartment had been forcibly entered and that the victim had been “beat up so bad in the face [that] her eyes [were] closed . . . .” This evidence was more than sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Powell v. State, 170 Ga. App. 360, 361 (317 SE2d 338).

“A person commits the offense of simply battery when he either . . . [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another, or . . . [intentionally causes physical harm to another.” OCGA § 16-5-23 (a).

Decided October 10, 1989.

M. Muffy Blue, A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, William L. Hawthorne III, Assistant District Attorneys, for appellee.

At the second jury trial, the victim testified that after breaking into her apartment and beating her, defendant had intercourse with her and then “took [a] broom and stuck it up [her] vagina.” This testimony was corroborated by scientific evidence showing that “sperm” was present on “the [top] end of [a] broom handle” that was found in the victim’s apartment. This evidence was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of simple battery. Jackson v. Virginia, supra.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A1233.
    CHAPMAN v. AVCO FINANCIAL SERVICES LEASING COMPANY.
    (387 SE2d 391)
   Pope, Judge.

Decorative Designs, Inc., entered into an agreement, referred to throughout as a lease, with the predecessor in interest to plaintiff Avco Financial Services Leasing Company for the rental of business equipment. Defendant Paul Chapman signed a personal guarantee of performance by lessee Decorative Designs, Inc. When the lessee defaulted in rental payments plaintiff brought suit against defendant to collect the unpaid balance of payments due under the lease. Defendant appeals the judgment entered in favor of plaintiff pursuant to a bench trial.

1. Plaintiff called defendant as a witness and relied upon his testimony to establish a prima facie showing of the amount due under the agreement and that defendant was guarantor of the agreement. Plaintiff did not subpoena defendant and did not rely upon a representation that defendant would be called to trial by the defense because no pre-trial order was entered in the case. The record shows defendant did attend trial but absented himself from the courtroom before plaintiff called him as a witness. Defendant’s attorney argued his client could not be compelled to testify since he was not subpoenaed by plaintiff and because, at the time he was called, he had voluntarily waived his right to be present at trial. The record further shows that the defendant was just outside the courtroom in the hall of the courthouse and the trial judge ordered him to return to the courtroom to testify. Defendant argues the trial court erred in compelling him to testify and without defendant’s own testimony he was entitled to judgment in his favor for plaintiff’s failure to present evidence of his prima facie case.

It is true that a party in a civil action may choose not to be present at the trial of the case and to be represented solely by counsel. See Burkhalter v. Durrence, 93 Ga. App. 374 (91 SE2d 774) (1956). However, in this case defendant did exercise his right to be present by appearing with his counsel in the courtroom at the trial. “During the course of a proceeding no one except the judge may excuse from the courtroom a party, a witness (including one who has testified), or counsel.” Uniform State Court Rule 10.4. The judge properly exercised his authority in ordering defendant to return to the courtroom. Once back inside, he asserted no valid privilege against testifying and was properly compelled to testify as a witness called by plaintiff.

2. The trial court based its judgment upon a finding that the written agreement was a true lease. We reject defendant’s argument that the court erred in failing to find that the agreement was actually a disguised security agreement for the sale of the equipment.

“Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ .... Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” OCGA § 11-1-201 (37). In this case the terms of the lease did reserve title in the lessor and acknowledged the lessee’s option to purchase the equipment at the end of the lease in that it required the lessee to give written notice of its “desire to negotiate a purchase of the equipment” at least 60 days before the expiration of the lease. However, the written lease did not provide for ownership at the expiration of the lease for no additional consideration or for nominal consideration. Consequently, the lease was not as a matter of law a security agreement.

Defendant testified he was told by a representative of the lessor that the equipment could be purchased for a nominal sum at the expiration of the lease. However, the written lease did not provide for ownership for nominal consideration. Instead it granted lessee the option “to negotiate a purchase . . . .” We interpret this language to mean the equipment would be sold at the lessee’s option at a negotiated market value. The lease contained a stipulation that the document constituted the entire agreement between the parties. Consequently, defendant’s testimony was ineffectual, as parole evidence, to vary the terms of the written agreement. See Cleghorn v. Shields, 165 Ga. 362 (2) (141 SE 55) (1927).

Decided October 10, 1989.

Tobin & Hoffspiegel, Thomas W. Tobin, Valerie G. Tobin, for appellant.

Charles L. Dunn, for appellee.

In this case, the lessor was not in the equipment business but purchased the equipment from a supplier. The lease required the lessee to maintain insurance and to be responsible for taxes and necessary repairs. These factors are indicative of a conditional sale. See Litton Indus. Credit Corp. v. Lunceford, 175 Ga. App. 445 (2) (333 SE2d 373) (1985); Ford Motor Credit Co. v. Dowdy, 159 Ga. App. 666 (284 SE2d 679) (1981). On the other hand, a disclaimer of warranties, as contained in the lease in question, is indicative of a true lease. Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858 (338 SE2d 63) (1985). Moreover, “ ‘the best test [of whether an agreement is a true lease or a conditional sale] is a comparison of the option [to purchase] price with the market value of the equipment at the time the option is to be exercised. Such a comparison shows whether the lessee is paying actual value or acquiring the property at a substantially lower price.’ ” (Citation and punctuation omitted.) Ford Motor Credit Co., supra at 667. As noted above, the agreement here did not stipulate a purchase price but indicated an intent to negotiate a purchase price. Otherwise, the lease would continue on a month to month basis with rental payments due as before. Consequently, we hold that the evidence did not demand a finding that the agreement was actually a conditional sale and, instead, sufficient evidence exists to support the trial court’s finding that the agreement was a true lease.

3. Because the trial court did not err in finding the agreement to be a true lease, neither did it err in finding the defendant was not discharged from the obligation as guarantor by plaintiff’s failure to perfect a security interest in the equipment as required by OCGA § 11-9-302. A lease is subject to the provisions of Article 9 of the UCC only if it is intended to create a security interest in the equipment. See OCGA § 11-9-102 (2).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1271.
    LIVINGSTON et al. v. KNIGHT & KNIGHT OF LaGrange, Inc.
    (387 SE2d 393)
   Pope, Judge.

In August 1985 defendants Ira L. and Mary G. Livingston entered into a contract with Knight & Knight of LaGrange, Inc., for the construction of a new house. The contract contained an arbitration clause whereby any and all disputes or controversies arising out of the performance of the contract could be submitted to arbitration by the demand of either party submitted in writing within five days after a controversy arose. The owners moved into the house in early 1986 and over the next year and a half made numerous complaints to the contractor concerning alleged construction deficiencies. The record shows the contractor performed certain work on the house in response to the owners’ complaints. Finally, on October 6, 1988, the owners delivered to the contractor a written claim for damages prepared by an attorney. On October 11, 1988, the contractor delivered to the owners a written demand for arbitration of the matters raised in the demand letter. A copy of the demand letter was also served by certified mail on October 19. In the interim the owners rejected the demand for arbitration and the contractor filed an application to compel arbitration. The owners appeal the trial court’s order compelling arbitration.

We reject the owners’ argument that the contractor’s right to arbitration is barred by waiver or laches because it failed to make the demand at an earlier time. The owners argue that a dispute and a controversy arose between the parties months earlier than the October date when the demand for arbitration was finally made. However, the evidence presented at the hearing on the application showed that the parties met and conferred over the preceding months in an effort to resolve the owners’ complaints. The evidence supports the trial court’s finding that for purposes of interpreting the arbitration clause the “controversy” arose when the letter setting forth a claim for damages was sent by the owners’ attorney to the contractor. The contractor’s written demand for arbitration was thus made within five days after the controversy arose.

Initially the written demand was hand delivered within the five-day period stipulated by the arbitration clause of the contract. Later the demand was served by certified mail as required by the applicable statute, OCGA § 9-9-84 (c) (1) (prior to amendment in 1988 by Ga. L. 1988, p. 903, § 1). The statute does not require the certified mail service to be made within any specific time period. Under the facts of this case the service of the demand was not insufficient because it satisfied the requirements of both the contractual provisions and the applicable statute.

“The arbitration agreement contained in the construction contract ... is clearly valid and enforceable pursuant to the relevant statutory provisions.” Freeman v. C. W. Redfern Enterprises, 182 Ga. App. 205, 207 (355 SE2d 79) (1987). Consequently, the trial court did not err in enforcing the arbitration clause.

Decided October 10, 1989.

Brian D. Lockerbie, for appellants.

Daniel, Hadden & Meadors, A. E. Daniel III, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A89A1320.
    BRANNEN et al. v. BULLOCH COUNTY.
    (387 SE2d 395)
   Sognier, Judge.

Bulloch County condemned property owned by various members of the Brannen family in order to reroute a county dirt road from its existing route crossing property owned by Sheppard Lumber Company to a new route around the lumber company, requiring the taking of 1.45 acres of the Brannens’ property. The Brannens petitioned the Superior Court of Bulloch County to set aside the declaration of taking solely on the basis of OCGA § 32-3-11 (b). The superior court denied the petition and the Brannens appeal.

The evidence adduced at the hearing on appellants’ petition reveals that the existing dirt road, which consisted of a forty foot right of way owned and maintained by appellee, extended across property owned by appellants before it entered property owned by Sheppard Lumber Company. The county road actually divided the plant operations of the lumber company, with an elevated conveyor belt at one point spanning the dirt road to connect two lumber company buildings. The county road then crossed property owned by third parties and intersected with a state highway. The evidence is uncontroverted that during rainy periods, the section of the county road dividing the lumber company operations would become very muddy and virtually impassable to regular vehicular traffic.

Robert T. Cox, a Bulloch County commissioner, testified that to alleviate the hazard to the motoring public, there was “no alternative but to relocate that road,” and accordingly the route circumventing the lumber company property was chosen and condemned.

The hazard to the public which was the public purpose for condemning appellants’ property and rerouting the road was the condition of the lumber company section of the road during wet weather. (We note that the witnesses referred to the increased safety of implementing a new intersection with the state highway, but as that intersection lay on third parties’ property and did not require the condemnation of any property owned by appellants to effect, it has no relevance to the issues raised here.) Cox acknowledged that many if not most of the other county dirt roads were likewise prone to become muddy during rainy periods. Notwithstanding the similar conditions, the hazard on those other roads had been alleviated by the construction of drainage ditches. The record reflects, however, that no drainage ditches were maintained in the hazardous area in issue here.

The record also reflects that while the lack of drainage during wet weather was a problem, the hazard was compounded, and the impassable nature of the road was created, by the unrestricted access to the road by lumber company vehicles, especially heavy equipment like forklifts and log trucks, which churned up the dirt road all along this stretch so that, in combination with the absence of drainage ditches, when it rained the road was turned into a rutted, bogged out mud path.

The record established that there were three reasons why appellee did not alleviate this hazardous condition by maintaining drainage ditches along the stretch of road between the lumber company operations. First, in order to dig the ditches deep enough to drain the water, appellee would have had to require the lumber company to move those water pipes and electrical lines servicing the lumber company which encroached upon appellee’s right of way to the extent that they interfered with the ditch construction. Second, digging the ditches would have limited the access of lumber company vehicles to those places where culverts were installed, which (while acknowledging that restricting the access would minimize the damage to the road caused by the vehicles), Cox testified “was not practical” because the lumber company operations were “too intermingled” with the road in that area.

Third, appellee would have had to compel the lumber company to stop piling sawdust and tree bark on appellee’s right of way. Evidence established that earlier attempts to drain water from the roadway into a ditch in a section of the road approaching the affected area had been unsuccessful because the ditch would clog every time with sawdust and tree bark carried by the rain from the piles of such debris. Cox acknowledged that appellee had ordered the lumber company in the past to get the debris off the road, and photographs admitted at trial showed that the lumber company continued to place these piles of tree bark so that they encroached on the road. As to debris properly on lumber company property, evidence was adduced that similar piles of debris were maintained near the proposed road but that reassurances had been made by the lumber company to John Akins, appellee’s road maintenance supervisor, that a fence would be constructed to keep such debris from clogging the ditches servicing the proposed road. Akins testified a fence could not be placed alongside the current road because there were “too many crossings there” for lumber mill vehicles.

Cox testified that there was no alternative but to relocate the road what “with all of the conglomeration that Mr. Sheppard had down there.”

Cox also testified that Sheppard (the owner of the lumber company) asked him “about closing the road to keep the hazards that he had,” but that Cox told Sheppard “the only way that [Cox] would condemn property to change the road or make it different from what it was . . . would have to be at no expense to the County taxpayers.” Cox acknowledged that he would not have condemned appellants’ property had it not been for Sheppard paying for the matter. An agreement between Sheppard and appellee’s Board of Commissioners, admitted into evidence, provided that “because of the operation of heavy logging equipment and trucks incidental to the saw mill activities carried on by [Sheppard Lumber Mill] the present location of [the county road in issue] is deemed by [appellee] to constitute a hazard to the public; and . . . [w]hereas, in order to reroute the public road it will be necessary for [appellee] to condemn certain property . . . [appellee] shall institute condemnation proceedings to acquire [appellants’ property] . . . [and appellee] shall take such action as necessary, upon completion of the proposed roadway ... to close [the preexisting road through the lumber mill]. ... All costs, including acquisition cost, attorneys fees, court costs, and other expenses incurred by [appellee] in the condemnation and acquisition of [appellants’ property] shall be reimbursed to [appellee] by [the lumber mill] .... It is specifically understood between all of the parties hereto that all cost incurred by [appellee] incidental to the performance of the respective obligations as provided herein shall be the responsibility of [the lumber mill.]”

Appellant Wilbur Brannen testified that prior to the condemnation Sheppard had attempted to buy the property condemned by appellee, but that appellants had refused to sell it to him.

We reverse.

“The validity of the public purpose for which property is condemned normally is not open to question so long as the property will be available for use by the public as a matter of right, and so long as the decision to condemn has not been made fraudulently or in bad faith. [Cits.]” (Emphasis supplied.) Dougherty County v. Burt, 168 Ga. App. 166, 169 (3) (308 SE2d 395) (1983). “A court should not interfere with an exercise of the discretion of a condemning authority determining the necessity of taking land for public purposes and selecting the location and amount of land reasonably necessary unless the condemning authority abused its discretion or exceeded its authority.” (Footnote omitted.) City of Atlanta v. First Nat. Bank, 246 Ga. 424 (271 SE2d 821) (1980). This principle has often been stated in terms of “bad faith,” which has been sharply distinguished from negligence or bad judgment, id., in that it “contemplates a state of mind affirmatively operating with a furtive design or some motive of interest or ill will,” Vickers v. Motte, 109 Ga. App. 615, 620 (137 SE2d 77) (1964), and has been “equated with conscious wrongdoing motivated by improper interest or by ill will.” City of Atlanta, supra at 424-425. See also Earth Mgmt. v. Heard County, 248 Ga. 442, 447 (283 SE2d 455) (1981).

The record contains no indication that appellee condemned appellants’ property out of any ill will harbored against appellants. What the record does contain is pervasive and undenied evidence that appellants’ property was condemned to avoid inconveniencing the lumber company. A public hazard existed, a hazard uncontrovertedly caused by the lumber company. Unlike the cases cited to us by both parties, appellee was not deciding which of two parcels to condemn, or the location, quantity or quality of the property interest involved. Compare, e.g., Miller v. Ga. Power Co., 222 Ga. 239, 241 (149 SE2d 479) (1966); City of Atlanta, supra; Concept Capital Corp. v. DeKalb County, 255 Ga. 452, 454 (5) (339 SE2d 583) (1986). The road here already existed. It was within appellee’s power to alleviate the hazard created by the lumber company on that road merely by maintaining the pre-existing road as it did other county dirt roads. But to maintain its road meant inconveniencing the lumber company: the encroaching utilities would have to be shifted; the debris piles moved; and the free access of heavy lumber company vehicles restricted to culvert crossings over the ditches. All of appellee’s witnesses stressed how difficult it would be for the lumber company operations if appellee maintained the road. Cox’s testimony established that while appellee initially took some steps towards reducing the public hazard, it never considered carrying out those steps in a manner which would have effectively alleviated the hazard because such action would have interfered with the lumber company operations creating that hazard. When Sheppard Lumber Company offered to underwrite all expenses involved in condemning the property appellants had refused to sell, appellee felt it had no reason to refuse.

The Supreme Court, as early as 1851 in Parham v. Justices, &c. Decatur County, 9 Ga. 341, 354 (1851), recognized two “restraints” on the abusive use of the power of eminent domain by a condemning authority: the citizens whose taxes would pay for the property taken and the courts, whose authority in these matters was subsequently codified in OCGA § 32-3-11. Sheppard Lumber Company, the private entity benefiting from the deal, eliminated the first restraint by agreeing to pay all expenses involved in the condemnation. Appellee argues that because the express purpose of the condemnation is to benefit the public and because no one denies that the new road will be freely accessible to the public, the courts also should not interfere as a restraint on its power of eminent domain.

The Supreme Court “has been reluctant to find bad faith on the part of a condemnor in its determination of public purpose in the exercise of the right of eminent domain. [Cits.]” City of Atlanta v. Petkas, 253 Ga. 447, 448 (321 SE2d 725) (1984). Indeed, very rarely in the past twenty years has the Supreme Court held that a condemnor, when challenged by a citizen of this state rather than another governmental entity, abused its authority in exercising that power. While it is argued that Supreme Court decisions have handed condemning authorities carte blanche by requiring, in effect, that private citizens establish the existence of fraud with demonstrative evidence before accepting that an abuse of the condemnor’s discretion occurred, we cannot read those cases as eviscerating OCGA § 32-3-11, a statute which demonstrates the Legislature’s recognition of the very real potential for abuse that exists in the exercise of the power of eminent domain.

This case presents a dilemma similar to that in Earth Mgmt., supra: on the one hand, there is no evidence that the land condemned will be used for any purpose other than that of a public road. On the other hand, there is overwhelming evidence that even though the land may be put to this use after condemnation, the “real reason,” id. at 447, for its taking was to benefit the lumber company, either by returning to the mill the property dividing its operations or to avoid inconveniencing the mill by implementing the steps necessary to remove the hazardous condition to the public caused by the mill. Although Earth Mgmt. has since been restricted by the Supreme Court to situations where one condemning authority seeks to utilize its eminent domain power to restrict another condemnor’s authority, see Petkas, supra at 448-449, the case sub judice presents a unique set of facts. A decision had to be made to eliminate an acknowledged public hazard. While “ [t]he general rule to be followed is that a court will not substitute its judgment for that of a condemning authority,” Carroll County v. City of Bremen, 256 Ga. 281, 282 (347 SE2d 598) (1986), it is not substituting our opinion for appellee’s to recognize that appellee determined what choices were available to it and made its decision based solely on what best benefited the interests of a private entity.

“There is conferred upon the governmental subdivisions the right to exercise the power of eminent domain in acquiring the necessary properties for the carrying out of the. undertakings authorized, and always the power of eminent domain is to be exercised only for the benefit of the public generally, or for public use, and not for private purposes. [Cit.]” (Emphasis supplied.) Beazley v. DeKalb County, 210 Ga. 41, 47 (77 SE2d 740) (1953). A condemnor “can not exercise the power of eminent domain to acquire private property to serve a mere private use. [Cits.]” Bradley v. Lithonia &c. R. Co., 141 Ga. 741, 742 (2) (82 SE 138) (1914).

Decided October 10, 1989.

Edenfield, Stone & Cox, Gerald M. Edenfield, Susan W. Cox, for appellants.

Regardless of the ultimate outcome of this case, this court cannot countenance an exercise of the power of eminent domain, which the evidence establishes was undertaken with the improper intent to benefit one private, powerful entity, merely because appellee proclaimed it exercised that power for a “public purpose.” “Even fully considering the evidence relied upon by [appellee], the inescapable conclusion is that although a public [road] is a legitimate public use for real estate, the appropriation of this land for that purpose was not the true reason for the institution of the condemnation proceeding here. We can only conclude that [appellee] instituted the condemnation proceeding for the obvious purpose of [avoiding the inconvenience to the lumber company that properly maintaining the existing road would involve.] Such action is beyond the power conferred upon the county by law and amounts to bad faith.” Earth Mgmt., supra at 448.

“The damages to an individual in the assumption of his land for a highway, may be small, and in most instances are small; . . . There are cases, though, where they may be great. But the question is not one of relative pecuniary loss and gain alone — it is one of fundamental principle. The question really is, whether property is held by rules which Courts are compelled to enforce, or at the will of [condemnors]? If by the will of [condemnors], then what security is there for property? It may be said, that the security is found in the limitation of the power to works of necessity and utility, and that although [condemnors] may judge, in the first instance, of the necessity and utility, yet their judgment is subject to the corrective judgment of the Courts. If [condemnors] should [act] to transfer the property of A to B, under pretext of public necessity and utility, when no such necessity or utility exists in fact, there can be no doubt but that it would be the right and duty of the Judiciary to set it aside. [Cits.]” Parham, supra at 353-354 (4). See also City of Atlanta v. Fulton County, 210 Ga. 784, 785 (2) (a) (82 SE2d 850) (1954). The superior court erred by not setting aside the declaration of taking on the basis of appellee’s bad faith exercise of its power of eminent domain. OCGA § 32-3-11.

Judgment reversed.

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

Franklin & Taulbee, James B. Franklin, Richard S. Thompson, for appellee.


author: Banke, Presiding Judge.

text:
    A89A1679.
    METRO LEASING, INC. v. HEALTH, EDUCATION & RESEARCH SERVICES, INC.
    (387 SE2d 399)
   Banke, Presiding Judge.

The appellant sued the appellee to recover damages for its alleged breach of an equipment lease pertaining to a copier, and the appellee counterclaimed on the basis of allegations that “[t]he equipment was misrepresented and [appellant] committed fraud in presenting the equipment.” Notwithstanding the latter allegations, the appellee further asserted in its counterclaim that it had not executed the lease and was not a party to it. A jury trial ensued; and at the close of the appellant’s evidence, the trial court directed a verdict in favor of the appellee with respect to the complaint, due to the appellant’s failure to produce any evidence that the lease had been signed on the appellee’s behalf by an authorized corporate agent. The court subsequently entered a written order dismissing the complaint on the basis of that ruling, while simultaneously dismissing the counterclaim “for failure to prove damages.” This appeal followed.

Although the appellee was identified as the lessee in the heading of the lease, its name was omitted from the signature line, which was signed as follows: “By Brenda E. Jones, Treas.” The appellant received one payment for the copier following the execution of the lease, in the form of a check from an entity identified thereon as “Health Education and Research Service.” Like the lease, this check was signed by Brenda E. Jones; however, this time there was no indication that she was signing in a representative capacity. Moreover, her name, along with that of one David Rohe, was printed on the check directly below the name, “Health Education and Research Service,” thus suggesting that the latter was a trade name rather than the name of a corporation.

During the trial, the appellant’s sole witness, who had not been involved in the transaction but testified on the basis of his familiarity with the appellant’s business records, was allowed to state without objection that according to those records, “the equipment was actually delivered to the [appellee].” Held:

Where a person assumes, without actual authority, to act as agent of a corporation in executing a contract, and the corporation thereafter retains the fruit of the contract and applies it to corporate use, the corporation may be held liable on the contract under the theory that it has ratified the unauthorized acts of its purported agent. See Build ers Homes of Ga. v. Wallace Pump &c. Co., 128 Ga. App. 779, 782 (5) (197 SE2d 839) (1973); Campbell Coal Co. v. Manchester Baptist Church, 46 Ga. App. 729 (169 SE 59) (1933). Assuming arguendo that the testimony of the appellant’s witness in this case would not have supported an inference that the appellee accepted and used the copier following the execution of the lease, we believe the jury could have concluded that the appellee had admitted being a party to the lease by filing a counterclaim in the present action claiming to have been defrauded in the transaction. “ ‘Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleading of the other.’ [OCGA § 24-3-30] . . . ‘Where matter is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in his favor.’ (Cit.)” Taylor v. Crawford, 119 Ga. App. 262, 264 (3) (167 SE2d 404) (1969). Accordingly, we hold that the trial court erred in granting the appellee’s motion for directed verdict.

Decided October 10, 1989.

Hofstadter & Stevenson, Bruce M. Hofstadter, for appellant.

Jesse Copelan, Jr., for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0805.
    MADDOX v. BROWN et al.
    (387 SE2d 584)
   McMurray, Presiding Judge.

John Thomas Brown and Pamela Hawkins Brown (plaintiffs) brought an action against Frank Maddox, d/b/a Frank Maddox Construction Company (defendant) and alleged defendant constructed a house for them on a “cost plus” basis and that defendant breached the construction contract by failing to complete the house. Plaintiffs also alleged defendant did not construct the house in a “workmanlike manner” and that defendant deceitfully administered the contract by failing to disclose information regarding cost of construction. Defendant denied the material allegations of the complaint and counterclaimed, seeking general and punitive damages for abusive litigation and seeking to recover for plaintiffs’ alleged failure to pay for extra work performed on the construction project.

Plaintiffs filed a motion for partial summary judgment and, in support thereof, filed defendant’s two-volume deposition. The trial court considered only one volume of the deposition before entering summary judgment for plaintiffs. Defendant appealed and this court reversed and directed “the trial court [to] consider [defendant’s entire deposition] and all pertinent documents and proof before determining whether [plaintiffs’] motion should be granted.” Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222). Upon remand, the trial court considered both volumes of the deposition and entered summary judgment for plaintiffs on the counterclaim, specifically striking defendant’s claim for punitive damages. This appeal followed. Held:

1. Defendant contends the trial court erred in entering summary judgment for plaintiffs on his claim for extra services performed on the construction project.

“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479).” Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515). It is from this perspective that we view defendant’s deposition testimony.

In the case sub judice, defendant testified that he contracted with plaintiffs to build a house for $81,169 and that the house was to be constructed according to plans and specifications provided by plaintiffs. Defendant further testified that plaintiffs requested additions after he began construction which were not contemplated in the original plans and specifications; that he performed these changes; that plaintiffs failed to pay for the additional services and that, as a consequence, plaintiffs are indebted to him for over $10,000. Plaintiffs’ attorney then questioned defendant about a builder’s affidavit, wherein defendant deposed “that all . . . repairs or improvements have been completed [on plaintiffs’ house and] that there are not. . . any outstanding bills, either for services, labor or materials on account of any such improvements or repairs placed upon said property . . . .” Plaintiffs’ attorney also questioned defendant about a memorandum defendant executed wherein defendant acknowledged full payment for services rendered in building plaintiffs’ house. Defendant explained that he executed these documents in exchange for plaintiff John Thomas Brown’s promise not to pursue complaints plaintiffs had in connection with defendant’s performance in building the house. Defendant further explained that he is now pursuing his claim for the additional services because plaintiffs refused to comply with the parties’ settlement agreement.

There is no question that defendant’s testimony regarding the additions he made to plaintiffs’ house supports his claim that plaintiffs are indebted to him for additional services rendered. However, plaintiffs cite Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28 (348 SE2d 554), and argue that this testimony was properly disregarded in light of defendant’s contradictory statements in the builder’s affidavit and the memorandum. This argument is without merit.

In Nolan, this Court held “that where a party directly contradicts himself, the conflict will be resolved against him unless a reasonable explanation is offered. See Prophecy Corp. v. Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). See also Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226) (1980).” Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28, 29, supra. However, this rule applies only where a party-witness offers conflicting “testimony ... in response to a motion for summary judgment.” Gentile v. Miller, Stevenson & Steinichen, 257 Ga. 583 (361 SE2d 383). In the case sub judice, defendant did not offer the builder’s affidavit or the memorandum in response to plaintiffs’ motion for summary judgment. He simply relied on the evidence of his deposition which supported his claim. Consequently, since defendant’s deposition testimony refutes plaintiffs’ evidence that they are not indebted to defendant for the extra services rendered, genuine issues of material fact remain and the trial court erred in entering summary judgment for plaintiffs on this aspect of defendant’s counterclaim.

2. Next, defendant contends the trial court erred in granting summary judgment for plaintiffs on his claim for “general and punitive damages as claimed under the guidelines set forth in Yost v. Torok, [256 Ga. 92 (344 SE2d 414)].”

“ ‘Any party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.’ Yost [v. Torok, 256 Ga. 92, 95 (13), 96, supra.)]Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (4), 796 (359 SE2d 920).

In the case sub judice, plaintiffs submitted no evidence to substantiate their claims against defendant. The only evidence in the record is defendant’s deposition and it primarily supports defendant’s claim that he properly executed the construction contract; that he constructed the house in a workmanlike manner; that plaintiffs failed to pay the full contract price for their home and that plaintiffs did not pay for additional services defendant rendered while building plaintiffs’ house. This evidence and evidence indicating that plaintiffs breached a settlement agreement not to sue defendant for claims arising from the construction project was sufficient to authorize a recovery under Yost v. Torok, supra. See Whitley v. Bank South, 185 Ga. App. 896, 899 (4), 901 (366 SE2d 182). Consequently, the trial court erred in granting plaintiffs’ motion for summary judgment on defendant’s counterclaim for abusive litigation. However, the trial court did not err in striking defendant’s request for punitive damages as the same are not recoverable in such an action for abusive litigation. Yost v. Torok, 256 Ga. 92, 95 (n. 3), supra.

Decided October 11, 1989.

W. Ron Bryan, for appellant.

Brown & Romeo, Robert T. Romeo, for appellees.

3. The contentions of defendant’s remaining enumerations have either been resolved in Divisions 1 and 2 or they present nothing for review.

Judgment reversed in part and affirmed in part.

Carley, C. J., concurs. Beasley, J., concurs in Divisions 2 and 3 and in the judgment.


text:
    A89A1411.
    WINTERCHASE TOWNHOMES, INC. et al. v. KOETHER et al.
    (387 SE2d 361)
   Sognier, Judge.

Carl and Bonnie Koether brought suit against Winterchase Townhomes, Inc., Carlsgate Properties, Inc., Carl E. Jones Development, Inc., and Carl E. Jones for breach of contract, fraud, and conversion arising out of a contract for purchase of a townhouse. The trial court granted the Koethers’ motion for summary judgment and denied Carl Jones’ motion to dismiss, and the defendants filed this appeal.

The record reveals that on October 23, 1985, appellees entered into a contract for the purchase of a townhouse owned by Winterchase Townhomes, Inc. (hereinafter “Winterchase”), built by Carl E. Jones Development, Inc. (hereinafter “Jones Development”), and marketed by Carlsgate Properties, Inc. (hereinafter “Carlsgate”). At all times material to this action Carl E. Jones has been president and chief executive officer of Winterchase, Jones Development, and Carlsgate. Appellees paid an earnest money deposit of $2,000 to Carlsgate as broker, which Jones deposited in a personal trust account. The contract provided that appellees were to take possession of the townhouse on December 1st upon making a down payment of $29,750 to Winterchase, and that the sale of the property would be closed three days after closing of the FHA mortgage that the parties had agreed Jones would obtain individually and allow appellees to assume. The contract also contained a provision stating that “should the Improvements to the Property be destroyed or substantially damaged before the closing, thén at the election of [appellees]: (a) this Contract may be cancelled; or (b) [appellees] may consummate the Contract and receive such insurance as is paid on the claim of loss. Such election by [appellees] is to be exercised within ten (10) days after the amount of the damage to the Property is determined.”

Appellees did move into the townhouse on December 1, 1985 after making the down payment specified in the contract (which at Jones’ direction they paid to Jones Development rather than to Winterchase), and in lieu of rent paid the monthly interest on Winterchase’s construction loan as required by the contract. On April 3, 1985, one day before the scheduled closing, the townhouse was destroyed by fire. Appellees testified by deposition and affidavit that they met with Jones on April 7th and demanded that the contract be cancelled and their money refunded, but Jones refused to repay the funds. They further stated that Jones later offered to rebuild the townhouse, but they did not agree to his proposal. Although in an affidavit Jones stated that appellees did not mention cancelling the contract or demand return of their payments, in both a prior deposition and a subsequent affidavit Jones acknowledged that appellees stated at the April 7th meeting they wanted to cancel the contract, but that he did not agree because he wanted to rebuild the townhouse and salvage the sale. The townhouse was rebuilt and sold to another party, but appellees’ earnest money and down payment were not refunded. The trial court held that appellees were entitled to summary judgment against Winterchase and Carlsgate on their breach of contract claim and against Jones Development and Jones individually on the conversion claim, and awarded damages as follows: against Winterchase for the amount of the down payment and earnest money and the value of improvements appellees made to the townhouse; against Jones Development for the down payment; against Carlsgate for the amount paid as earnest money; and against Jones individually for the down payment and earnest money.

1. Appellants first contend the trial court erred by granting appellees’ motion for summary judgment because a fact question remains regarding whether appellees validly exercised their option to cancel the contract. We do not agree, as Jones admitted that appellees sought to cancel the contract pursuant to the contract terms. His consent or lack thereof is irrelevant because by its terms the contract provides for cancellation at appellees’ election, and does not require the consent of Winterchase or any other person or entity. As the parties agree the townhouse was completely destroyed by the fire, there is no dispute that appellees timely exercised their option to cancel the contract, but Winterchase and Carlsgate refused to honor appellees’ contractual remedy. See generally McKoy v. Blalock, 120 Ga. App. 180, 183-184 (3, 4) (169 SE2d 640) (1969). Accordingly, we find the trial court properly granted summary judgment to appellees against Winterchase and Carlsgate. See generally Tuttle v. America First Ins. Co., 187 Ga. App. 68 (369 SE2d 342) (1988).

2. Appellants next contend that the trial court erred by holding that their retention of appellees’ down payment and earnest money was “wrongful.” As we held in Division 1, supra, that appellees validly exercised their right to cancel the contract, there was no breach of the contract by appellees so as to entitle Winterchase to exercise its contractual right to retain the money paid by appellees as liquidated damages. Compare McGuire v. Norris, 180 Ga. App. 383-384 (1) (349 SE2d 261) (1986). Accordingly, we find no error in the trial court’s decision.

3. We do agree with appellants Jones and Jones Development that the grant of summary judgment against them on the conversion claim was error. “Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” (Punctuation and citations omitted.) Mitzner v. Hyman, 175 Ga. App. 311, 312 (1) (333 SE2d 182) (1985). Once appellees made the payments they were contractually obligated to pay, the funds were no longer their personal property and their ownership interest ceased to exist. The evidence is undisputed that Jones, as president of all three corporate appellants, was authorized to direct disbursement of the funds owed to Winterchase. Even assuming, without deciding, that Jones was not authorized to deposit the earnest money check into his personal account, any claim for trover and conversion would lie with Winterchase, the party to whom the payment was due, not appellees. Accordingly, appellees did not establish as a matter of law that Jones and Jones Development acted in derogation of appellees’ rights of property ownership, see generally id. at 312-313 (1), and thus we reverse the trial court’s award of summary judgment against them.

4. Appellant Jones also contends that the trial court erred by denying his motion to dismiss made on the ground that he acted solely in the capacity of officer and agent of the appellant corporations, and thus could not be held individually liable.

As matters outside the pleadings were presented to and considered by the trial court, Jones’ motion to dismiss must be considered as a summary judgment motion. OCGA § 9-11-12 (b). Construed in favor of appellees as the respondents on Jones’ motion, the undisputed evidence reveals that Jones was not a party to the sales contract between appellees and Winterchase, and thus cannot be liable for its breach. Jones cannot be held individually liable for the acts of the corporate appellants, as the record is devoid of any evidence of fraud or abuse of the corporate form, and Jones’ testimony that he acted solely in his capacity as a corporate officer is uncontroverted. See Amason v. Whitehead, 186 Ga. App. 320 (367 SE2d 107) (1988). As we found in Division 3 that no conversion of appellees’ payments occurred, there is no evidence to support appellees’ conversion claim against Jones.

“When the (defendant-)movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.” (Citations and punctuation omitted.) West End Investments of Atlanta v. Hills, 188 Ga. App. 274, 277 (372 SE2d 665) (1988). Appellant Jones having pierced appellees’ allegations against him and appellees having failed “to come forward with at least an allegation from which appellant’s liability on some other basis . . . could be maintained,” id., we find the trial court erred by denying appellant Jones’ motion for summary judgment. See generally id.

5. In the remaining enumeration of error Winterchase contends the trial court erred by awarding appellees damages for the value of improvements they made to the townhouse before the fire. This enumeration is without merit. While under the doctrine of equitable conversion the purchaser bears the loss when the seller is willing and able to consummate the sale but a substantial portion of the realty is destroyed before the closing, Bleckley v. Langston, 112 Ga. App. 63 (143 SE2d 671) (1965), here the parties by contractual agreement shifted the risk of loss to the seller. See Phillips v. Bacon, 245 Ga. 814, 816 (267 SE2d 249) (1980). As the contract allowed appellees to choose between accepting the insurance proceeds or cancelling the contract (thereby permitting Winterchase to receive the insurance proceeds), if the contract was cancelled appellees were entitled to be restored to their original position by recovering the value of improvements they made to the property. See generally Pepper v. Flanagan, 204 Ga. 265 (49 SE2d 525) (1948).

Judgment affirmed in part and reversed in part.

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

Decided September 28, 1989

Rehearings denied October 12, 1989

Michael M. Mantegna, for appellants.

J. Arthur Lee, Jr., Guy E. Davis, Jr., for appellees.


text:
    A89A1437.
    KERR et al. v. THE STATE.
    (387 SE2d 355)
   Sognier, Judge.

Fred F. Kerr and Brenda Roberts were tried jointly and each was convicted of two counts of criminal trespass. In addition, Kerr was convicted of two counts and Roberts was convicted of one count of unlawful assembly. Both appeal.

Construed to support the verdict, the evidence adduced at trial showed that on August 3, 1988, appellants took part in a demonstration at a medical clinic located at the intersection of 14th and Curran Streets in Atlanta, a licensed ambulatory surgical treatment center providing certain medical services to women, including abortion. When the center’s personnel arrived at work that morning, they found a number of demonstrators blocking the two main entrances to the clinic, a stairway located on 14th Street and steps alongside a driveway on Curran Street. During the entire demonstration appellant Roberts sat on the stairway on the 14th Street side. Appellant Kerr first sat on the sidewalk next to appellant Roberts on the 14th Street side and leaned on the adjacent stairway, but later moved to the driveway on the Curran Street side, joining a group of people standing across the entrance. Clients were able to enter the clinic only after being lifted by staff over the demonstrators blocking the entrances. Approximately forty to sixty people picketed across the street, but did not approach the clinic or block access to it. Lynn Thornguson, the clinic administrator, identified herself, informing the demonstrators at each entrance that they were on private property, and requesting that they leave the premises. The demonstrators, including appellants, did not comply. Sergeant C. S. Purdom of the Atlanta Police Department also identified himself and informed the demonstrators they would be arrested if they did not leave the premises. Appellants were among those demonstrators who continued to block access to the clinic, and they were arrested.

1. Appellants contend that comments made by the prosecutor during closing argument concerning appellants’ failure to testify violated their federal and state constitutional rights against self-incrimination as well as OCGA § 24-9-20. “To reverse for improper comment by the prosecutor, we must find one of two things: that ‘the prosecutor’s manifest intention was to comment upon the accused’s failure to testify’ or that the remark was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ [Cits.]” United States v. Rochan, 563 F2d 1246, 1249 (5th Cir. 1977). Quoting Rochan, the Georgia Supreme Court has held that “ ‘[w]e cannot find that the prosecutor manifestly intended to comment on the defendants’ failure to testify, if some other explanation for his remark is equally plausible.’ ” Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982).

In the case at bar, appellants rejected the assistance of counsel and presented no evidence in their defense, although at one point during the direct, examination of a State witness, appellant Kerr did attempt to display to the jury, without permission of the court and behind the prosecutor’s back, demonstrative evidence which had not been admitted at trial. He took no steps to introduce this evidence properly later in the trial. In her closing argument, appellant Roberts tried to testify, but was admonished by the court. Thereafter, in his closing argument, the prosecutor explained to the jury that anything appellant Roberts had said in her closing argument was not evidence, and anything appellant Kerr might say in his closing argument, which would take place after that of the State, would not be evidence: “He had a chance to get on the stand where I would have a chance to cross-examine him. He presented no evidence as his defense.” Considering appellants’ actions which preceded the prosecutor’s comments, we find the comments were not made with the manifest intention of commenting upon the accuseds’ failure to testify, nor would the jury necessarily have construed them as a comment on appellants’ silence. Rather, we find equally plausible that the comments were directed at the lack of evidence adduced by appellants in contrast to that presented by the State, and were intended as a response to the improper closing argument made by Roberts. In view also of the fact that the trial court instructed the jury that “[t]he defendants have an absolute right to remain silent and from the exercise of the defendants’ right to remain silent you’re not permitted to draw any inference of guilt,” we hold that the prosecutor’s comment does not require reversal. Ranger, supra at 320 (3).

2. Appellant Kerr challenges the sufficiency of the evidence to support his conviction on either count of criminal trespass because he was not actually on the clinic’s property. We do not agree. It is immaterial under OCGA § 16-7-21 (a), which prohibits knowing interference with the use of another’s property, whether he was actually on the clinic’s property. Both Lynn Thornguson and Officer Purdom testified that Kerr was interfering with access to the property and it is clear from the videotape evidence shown to the jury that he was doing so. As to appellant Kerr’s conviction pursuant to OCGA § 16-7-21 (b) (3), which prohibits knowingly remaining on the premises of another after receiving notice to depart from an authorized representative, although the videotape was inconclusive as to whether appellant Kerr was standing on the clinic’s private driveway or on a public sidewalk when he moved to the Curran Street side of the property, photographs of appellant Kerr before he moved show him leaning on the 14th Street steps, which are clearly clinic property. We find no merit in appellant Kerr’s argument that he was not warned by Thornguson to leave after he changed locations, because in her warning Thornguson demanded that he leave the premises, not just the 14th Street location. Accordingly, we find the evidence was sufficient to enable a rational trier of fact to find appellant Kerr guilty of both counts of criminal trespass beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellants contend it was error to convict them of two counts each of criminal trespass when they engaged in only one activity. OCGA § 16-1-7 (a) (1) provides that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other.” Under OCGA § 16-1-6, which sets forth the rules for determining whether a crime is included in another either as a matter of fact or as a matter of law, it is clear that the two counts of criminal trespass in issue here are not included as a matter of law because each requires proof of different elements. Appellants argue, however, that the State proved only one “act” for each person, that of engaging in a peaceful demonstration against the clinic, and those same facts were used to convict appellants of two crimes.

We disagree with appellants’ construction of the facts, particularly their characterization of their behavior as one “act” of peacefully demonstrating. Contrary to appellants’ argument, their actions were not a simple expression of first amendment rights (particularly in light of the fact that numerous other people, who were actually exercising their right to demonstrate peacefully, were not arrested) nor was it only one act. Appellants interfered with the clinic’s use of its property by making ingress to and egress from the clinic difficult, thereby violating OCGA § 16-7-21 (a). The State did not “use up” all its evidence proving this offense, see Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982), but also showed that appellants were on the clinic property and that they refused to leave after being told to do so by the properly identified authorized representative of the owner of the property. This conduct violated OCGA § 16-7-21 (b) (3). Accordingly, the two counts of criminal trespass did not merge, and appellants were properly convicted of both counts. See generally Millines v. State, 188 Ga. App. 655, 656-657 (1) (373 SE2d 838) (1988); compare Haynes, supra at 120-121 (2).

4. The accusations also charged appellants with violating OCGA § 16-11-33 (1) by knowingly participating “in the assembly of more than two persons for the purpose of committing the unlawful act of [c]riminal [trespass and failing] to withdraw from the assembly on being lawfully commanded to do so by a police officer.” We find that appellants’ convictions on these charges must be reversed.

OCGA § 16-11-33 (1) prohibits “[t]he assembly of two or more persons for the purpose of committing an unlawful act and the failure to withdraw from the assembly on being lawfully commanded to do so by a peace officer and before any member of the assembly has inflicted injury to the person or property of another.” (Emphasis supplied.) We are not free to ignore the emphasized portion of the statute. “ ‘(A)ll the words of the legislature . . . ought to be preserved, and effect given to the whole, if it can be done. No doubt courts could sometimes better legislation by rejecting some of the words delivered to them by the legislature for construction; but to do this courts have no power’ . . . [Cit.]” Butterworth v. Butterworth, 227 Ga. 301, 304 (180 SE2d 549) (1971). OCGA § 16-11-33 thus prohibits remaining assembled with the intention and purpose of committing a crime when commanded to disperse by the police, provided that no crime has yet been committed by a member of the assembled group. Although we have found no authority on this issue, and neither appellants nor the State have cited us to any, we find analogous the prohibition explicitly stated in OCGA § 16-4-2 with regard to criminal attempt: “A person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime.” Our reading of OCGA § 16-11-33 (1), and particularly the emphasized last portion, thus persuades us that no conviction for unlawful assembly may be had where the accused (or, indeed, any member of the assembled group) is also convicted of a completed crime against the person or property of another, where that completed crime was the purpose of the assembly, and we hold that unlawful assembly for the purpose of committing criminal trespass is therefore included in the crime of criminal trespass. Because we have decided in Division 2, supra, that appellants were properly convicted of two counts of criminal trespass, we hold that their convictions for unlawful assembly for the purpose of committing criminal trespass merged into those convictions. See generally Haynes, supra at 120-121 (2).

5. Appellant Kerr was also accused and convicted of violating OCGA § 16-11-33 (1) by knowingly participating “in the assembly of more than two persons for the purpose of committing the unlawful act of obstructing a street and other public passage and failing] to withdraw from the assembly on being lawfully commanded to do so by a peace officer.” We have carefully reviewed the evidence adduced and find no indication, either in the testimony or the videotape, which would authorize a rational trier of fact to conclude that it was appellant Kerr’s purpose to obstruct a sidewalk or street. Rather, all evidence indicates his sole purpose was to block access to the clinic. Accordingly, under the standard set forth in Jackson v. Virginia, supra, this conviction must be reversed.

Decided September 27, 1989

Rehearings denied October 12, 1989

Matthew S. Coles, Devin M. Ehrlich, Rawlins & Mobley, David D. Rawlins, for appellants.

James L. Webb, Solicitor, Lee R. O’Brien, Helen A. Roan, Assistant Solicitors, for appellee.

6. Appellants contend the trial court erred by indefinitely banishing them from certain abortion clinics as a condition for suspending their sentences. The State concedes this ruling was error. Although banishment from certain places is lawful, the time designated must be reasonable and bear a logical relationship to the rehabilitative scheme of the sentence. State v. Collett, 232 Ga. 668, 670-671 (208 SE2d 472) (1974). We agree that the indefinite banishment is improper and remand this case to the trial court for resentencing.

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

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


text:
    A89A1519.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. JAH et al.
    (387 SE2d 447)
   Sognier, Judge.

Georgia Farm Bureau Mutual Insurance Company (GFBMIC) sought a declaration of its obligations under a policy of automobile insurance it issued to Fatou Jah in regard to claims made by the insured’s brother, Alhagi Jah, and cousin for no-fault benefits. The trial court granted Alhagi Jah’s motion for summary judgment and denied the motion made by GFBMIC. The insurance company appeals.

We affirm. The record in this case reveals that appellee’s sister was the named insured in an automobile policy issued by appellant and that appellee was a resident in the insured’s home at the time of the automobile accident on March 17, 1987. Thus, under OCGA § 33-34-2 (5), appellee was “insured” for purposes of the no-fault statute. Furthermore, under OCGA § 33-34-2 (5) it is not relevant whether the vehicle appellee was occupying at the time of the accident, a Honda owned by the insured and driven by appellee with her permission, was insured at that time or whether appellee’s sister had cancelled the coverage and transferred the policy coverage to her newly purchased Nissan automobile prior to the accident, since the statute provides that “[t]he term [“insured”] shall also include the named insured, . . . and any resident relative while . . . occupying ... a motor vehicle when such motor vehicle is not similarly insured as required by [OCGA § 33-34-4 (a) (2).]” Even assuming the Honda did not have the minimum coverages (i.e., was not “similarly insured”) as required by OCGA § 33-34-4, under OCGA § 33-34-7 (a) (1) appellant was nevertheless required to pay appellee basic no-fault benefits for the “[accidental bodily injury sustained” by appellee, the relative of the insured and a resident of the insured’s household, “while occupying any motor vehicle . . . .” (Emphasis supplied.)

The only exceptions to appellant’s responsibilities to pay no-fault benefits in a case such as this are set forth in OCGA § 33-34-7 (b), which provides “[b]asic no-fault benefits shall not be payable to or on behalf of any person who sustains accidental bodily injury: (1) While voluntarily occupying a motor vehicle known by him to be stolen; (2) While occupying a motor vehicle owned by such person which is not insured for the benefits required by this chapter; (3) Due to war . . .; or (4) Resulting from the explosion of any nuclear device.” The record is uncontroverted that appellee was occupying a motor vehicle owned by his sister and driven by him with her permission, which was involved in a routine automobile accident unrelated to war or nuclear explosion. Thus no question of fact exists that none of the exceptions in the Georgia Motor Vehicle Accident Reparations Act absolving an insurer such as appellant from the payment of no-fault benefits to a relative of an insured residing in the insured’s household is applicable in the case sub judice, and appellee was entitled to summary judgment as a matter of law.

Although the four enumerated exceptions in OCGA § 33-34-7 (b) provide appellant with no grounds to deny appellee’s claim, appellant argues that a fifth exception can be deduced from the language in OCGA § 33-34-12, and that this court should judicially engraft this fifth exception upon OCGA § 33-34-7 (b) either because the Legislature intended but inadvertently failed to include this proposed exception therein or because public policy grounds demand it be so added. Relying upon our creation of this new exception, appellant argues material questions of fact remain whether appellee knew that the automobile he was driving was uninsured.

Appellant’s proposed exception is derived from language in OCGA § 33-34-12 which makes it a crime for “any person” knowingly to operate a motor vehicle lacking effective insurance under the Act. Appellant argues that because one part of the Act imposes criminal penalties on “any” person who knowingly operates an uninsured vehicle, the four exceptions in OCGA § 33-34-7 (b) detailing those persons “penalized” by the circumstances detailed therein from recovering no-fault benefits must be expanded to absolve an insurer from paying such benefits to “any” person knowingly occupying an uninsured vehicle, regardless whether or not that person owns the uninsured vehicle, as provided in OCGA § 33-34-7 (b) (2).

Decided September 29, 1989

Rehearing denied October 12, 1989

Fain, Major & Wiley, Charles A. Wiley, Jr., John K. Miles, for appellant.

It is well established that where the language of an act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. Dixie Constr. Prods. v. Southeastern Council &c. Ins., 183 Ga. App. 101, 102 (357 SE2d 831) (1987). The meaning, purpose, and intent of the Legislature in enacting OCGA § 33-34-7 (b), setting forth the four exceptions under which an insurer like appellant is absolved from paying no-fault benefits to an insured, could not be plainer or more unambiguous. It does not follow from the fact that the Legislature made it a misdemeanor for any person knowingly to operate an uninsured motor vehicle that the Legislature likewise intended to eliminate from entitlement to no-fault benefits all those persons who operate uninsured motor vehicles not owned by them and who are thus not responsible for the absence of the required coverage. We will not construe these statutes to be inconsistent or in conflict with each other. See generally Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980). It thus appears that appellant’s proposed exception cannot be engrafted upon the plain language of the Act under an application of any rule of statutory construction. Further, appellant’s invitation to this court to create that exception judicially must be declined as such matters are better addressed to the Legislature. It therefore follows that we need not address appellant’s argument that questions of fact exist whether appellee knew the automobile he was driving at the time of the accident was uninsured.

Accordingly, appellee was entitled to summary judgment, and we find no error in the trial court’s grant of summary judgment in favor of appellee and the denial of appellant’s motion. See generally Cole v. New Hampshire Ins. Co., 188 Ga. App. 327, 330 (373 SE2d 36) (1988).

Judgment affirmed.

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

Smith & Polstra, Keith A. McIntyre, for appellees.