author: Judge Harold R. Banke.

text:
    A99A0426.
    BIBB DISTRIBUTING COMPANY et al. v. STEWART et al.
    (519 SE2d 455)
   Judge Harold R. Banke.

Winburn Stewart, Sr. (“Stewart”), and his wife Mary Stewart, as trustee of an irrevocable life insurance trust, brought this tort and contract action against Bibb Distributing Company and Winburn Stewart, Jr. (known as “Brother”). In its verdict, the jury determined the contractual rights and obligations of the parties and awarded the Stewarts tort damages, both actual and punitive, as well as attorney fees and litigation expenses. Bibb and Brother appeal.

Stewart founded Bibb Distributing Company in 1956, became its sole owner, and caused the company to prosper. Brother, who is Stewart’s oldest son, later became employed by Bibb. In 1979, Stewart gave Brother all of the company’s common stock, while retaining majority voting control.

In 1988, Stewart agreed to cede complete ownership and control of the company to Brother in consideration of Bibb’s payment of $4,600,000 to Stewart over a ten-year period and its provision of a $6,868,782 death benefit to Stewart’s three other children through purchase of an insurance policy on Stewart’s life. The parties to this suit effectuated these transactions through a series of agreements entered into in 1988 (the “1988 agreements”). As a result of an investigation conducted by Bibb’s CPA Taylor, an insurance policy on Stewart’s life was obtained from Executive Life Insurance Company through payment of a $2,500,000 premium. Stewart established the life insurance trust with his wife as trustee to serve as owner of the policy. His other children were the beneficiaries.

The $6,868,782 death benefit payable to Stewart’s three other children was the face amount of the policy. The policy also contained a “Return of Premium Benefit Rider” in the amount of $2,500,000 to be used to return to Bibb its premium payment upon Stewart’s death. Under two of the 1988 agreements — a “split dollar insurance agreement” and “collateral assignment” agreement — the trustee was made the owner of the policy, Bibb agreed to pay the $2,500,000 premium, and the policy was assigned to Bibb as security for its premium payment. Importantly, these agreements also provided that the $2,500,000 premium payment would be returned to Bibb upon the death of Stewart prior to disbursement of the remaining funds to the trust beneficiaries.

After the Executive Life policy was acquired, Taylor forged the trustee’s name to a change-of-address form so that correspondence concerning the policy would be sent to him. He did this because Executive Life had paid a commission of over $900,000 on the sale of the policy; and unbeknownst to Stewart, Brother, or Wallace, Taylor’s brother-in-law was employed as the local insurance agent, received $400,000 in after-tax commissions, and provided Taylor with a $200,000 kickback. Taylor did not want his brother-in-law’s involvement to become known.

When the Executive Life policy was acquired, Stewart, his attorney Wallace, and Brother were under the impression that the total death benefit was being obtained through Bibb’s payment of a lump-sum premium. Insofar as Stewart was concerned, this was vital as he did not want the availability of the death benefit to his other children in any way dependent on the solvency of Bibb under Brother’s control. But neither Stewart nor Wallace read the policy and were thus unaware of a fact known by Taylor, to wit: the insurer was authorized to require payment of additional premiums if interest rates declined.

In 1990, that is precisely what happened. After Taylor advised Brother that Bibb was entitled to be reimbursed for all premium payments under the collateral assignment agreement, Brother instructed Bibb’s chief financial officer to pay the additional premiums pursuant to whatever instructions Taylor gave.

Executive Life was later declared insolvent and placed in conservatorship. Under a rehabilitation plan approved in 1993, the Executive Life policy was restructured so that the $2,500,000 return of premium rider was deleted and replaced with a return of accumulation account (“RAA”) providing a $456,739 death benefit, thereby resulting in a loss of approximately $2,000,000 in insurance coverage. Aurora National Life Assurance Company assumed the restructured policy (“Aurora I”). To replace the lost coverage until it could be reinstated by Aurora, Bibb paid for a $2,000,000 policy on Stewart’s life issued by Manulife.

In 1994, the trust was presented with the decision of whether to opt-in to Aurora I, or to opt-out in exchange for a payment in the approximate amount of $600,000 to the trust. The power to decide belonged to the trustee, but she agreed to leave the decision to Bibb with the understanding that it would take sole responsibility for maintenance of the existing insurance coverage. Bibb decided to opt-in, based at least in part on Taylor’s advice to Brother that this would provide the best chance for recovery of Bibb’s premium payments.

Aurora later informed Brother through Taylor and others that it would issue an additional $2,141,000 of permanent life insurance coverage on the life of Stewart to restore the death benefit that had been lost. After Aurora indicated that it would place ownership of the additional death benefit in whomever Bibb designated, Brother and Taylor secretly arranged to have the $2,141,000 death benefit converted into a separate policy on Stewart’s life with Brother named as sole owner and beneficiary. Brother accomplished this conversion by forging Stewart’s name to the insurance application. Through efforts of both Brother and Taylor, Brother’s ownership of the new policy (“Aurora II”) was kept secret. For his part, Taylor instructed the insurance agent that “under no circumstances” should Stewart “ever get any documentation on this.”

As a result of issuance of Aurora II, the $456,739 RAA was deleted from Aurora I. After Aurora II was issued, Bibb allowed the Manulife policy to lapse. Contrary to the parties’ agreements, all of this would have caused Bibb and Brother to receive approximately $4,650,000 in life insurance proceeds on Stewart’s death, thereby resulting in an approximate $2,150,000 loss to the trust beneficiaries. This was described as a “sweet deal” for Brother.

The complaint charged Brother with forgery, theft, and conversion. The Stewarts stipulated that their actual damages were $236,000, the cash value of the return of premium benefit rider when Brother’s forgery took place. In the liability phase of the trial, issues were presented to the jury as to whether there is an ambiguity in the 1988 agreements on the question of whether Bibb and/or Brother are required to keep the $6,868,782 policy in force by paying premiums due thereon, and whether the parties later entered into an oral agreement imposing such a requirement. The jury returned a verdict finding that Bibb and Brother are required to pay the additional premiums to keep Aurora I in effect; that Bibb is entitled to a return of premium payments on Aurora I, but not Aurora II or Manulife and not so as to reduce the net death benefit to the trust below $6,800,000; and that the Stewarts are entitled to actual damages of $236,000, punitive damages, and litigation expenses. In the punitive damages phase, the jury awarded the Stewarts $12,500,000. Held:

1. Bibb and Brother first contend that the trial court erred in denying their motion for directed verdict because (a) the 1988 agreements unambiguously provide that Bibb is only required to pay the initial $2,500,000 acquisition premium, and (b) there is insufficient evidence to support the claim that the parties entered into an enforceable oral modification agreement.

(a) Although the split dollar and collateral assignment agreements only make specific reference to the initial $2,500,000 premium required to acquire the Executive Life policy, they variously obligate Bibb to contribute the total premium, “the entire premium,” and “all of the premium” due. The term “premium” is defined as meaning the consideration paid for an insurance policy either through a lump-sum or periodic payments. See Webster’s Third New International Dictionary, p. 1789 (1981). Therefore, as used in the above agreements, the term is ambiguous and may be interpreted as referring to all premiums required to keep the policy in effect. Parol evidence, showing that it was the understanding of the parties that Bibb would be solely responsible for funding the policy, was properly considered by the jury in resolving the ambiguity. See Thomas v. American Global Ins. Co., 229 Ga. App. 107, 109 (2) (a) (493 SE2d 12) (1997).

(b) Moreover, the jury was authorized to find that, in deciding to opt into Aurora I, the parties entered into a subsequent oral agreement obligating Bibb to make the additional premium payments.

Consideration can be found in the trust’s waiver of its arguable right to immediate receipt of some part of the $600,000 payment if the opt-out option had been chosen, and in the delegation to Bibb of the trust’s authority to decide whether to opt into the policy (a grant of authority which benefitted Bibb by allowing it to maintain its security interest in the policy).

There is no merit in Bibb’s and Brother’s argument that any oral agreement would have been unenforceable under the Statute of Frauds because it was not to be performed within one year from its making. OCGA § 13-5-30 (5). The agreement could have been fully performed if Stewart had died within the one year period. This possibility was sufficient to remove the agreement from operation of the Statute. Brown v. Little, 217 Ga. App. 632, 634 (1) (458 SE2d 669) (1995). In addition, the trustee fully performed her part of the agreement by allowing Bibb to decide whether to opt in or out, and Bibb accepted this performance by opting in and making premium payments. The Statute of Frauds does not apply “[w]here there has been performance on one side, accepted by the other in accordance with the contract.” OCGA § 13-5-31 (2).

2. Bibb and Brother next contend that the trial court erred in denying their motion for directed verdict as the evidence showed that the trustee assumed the risk of loss resulting from Executive Life’s insolvency, and the court erred in barring them from litigating this issue.

Evidence showing that Executive Life’s insolvency resulted in the restructuring of the policy and its assumption by Aurora authorized the court in framing the issue as being whether Bibb was contractually obligated to pay additional premiums necessitated by these developments rather than whether the Stewarts had assumed a risk of loss. Bibb and Brother were not entitled to a directed verdict on the ground urged.

The court allowed Bibb and Brother to show that before the Executive Life policy was purchased, Taylor provided Stewart and Wallace with detailed information concerning Executive Life, and that the Executive Life policy was selected by the Stewarts and Wallace without involvement by Brother. The court refused to admit evidence concerning how selection was made. We find no abuse of discretion.

3. Bibb and Brother assert error in the court’s denial of their motion for remittitur or new trial on grounds that the punitive damages awarded by the jury violated their federal constitutional right to due process and were also excessive under Georgia law.

“ ‘Punitive damages are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. . . .’ [Cit.]” Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 164 (1) (e) (473 SE2d 256) (1996).

(a) BMW of North America v. Gore, 517 U. S. 559, 568 (116 SC 1589, 134 LE2d 809) (1996), nonetheless, holds that an award of punitive damages may violate due process if it is “ ‘grossly excessive’ ” in relation to a state’s “legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore sets forth three guideposts for determining federal excessiveness. One is the disparity between the harm “or potential harm” suffered by the plaintiff and the punitive damage award. 517 U. S. at 575.

The punitive damage award in this case was not excessive when viewed in relation to the harm which would have been suffered if the conversion had gone undiscovered.

(b) As a matter of state law,

[w]e do not look to a mechanical formula to establish the relationship between general and punitive damage awards. Rather, we look to the evidence to determine whether there was support for the jury’s verdict. ... “A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.” [Cit.] “(T)he notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the jury has been rejected in this state. However this relationship may be considered on the issue whether the punitive damage award is excessive due to undue passion and prejudice.” [Cit.]

(Emphasis in original.) Hotle, supra at 164, citing Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989), reinstated, 261 Ga. 613 (409 SE2d 501) (1991); but see Colonial Pipeline Co. v. Brown, 258 Ga. 115, 123 (6) (365 SE2d 827) (1988) (plurality opinion).

Here, the record in no way demands a finding that the punitive damage award was infected by undue passion and prejudice. The trial court did not abuse its discretion in denying the motion for remittitur or new trial.

4. Bibb and Brother claim that the court erred in allowing punitive damages exceeding $250,000 without the requisite proof of specific intent to cause harm. See OCGA § 51-12-5.1; Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804-805 (4) (418 SE2d 604) (1992).

They base this argument on testimony by both Brother and Taylor that when Aurora II was issued, they were unaware this would result in deletion of the RAA under Aurora I. But other evidence showed that Brother was made aware of the deletion of the RAA before the acquisition of Aurora II was completed. The jury was authorized to find from the evidence, including Brother’s strenuous efforts to keep his acquisition of Aurora II secret, that he intended to deprive other parties of insurance benefits to which they were contractually entitled.

5. Bibb and Brother contend that the trial court erred in refusing to charge the jury on dual agency.

Taylor and Stewart testified that after Bibb became Brother’s company, Taylor ceased acting as agent for the Stewarts, at least in regard to the matters which are the subject of this suit, although Stewart still assumed and expected him to do that which was in Stewart’s best interests. Although this evidence indicates that Taylor continued to have Stewart’s trust and confidence, it does not show that Stewart ever expressly or by implication authorized Taylor to act as his agent. Consequently, the requested charges were not authorized by the evidence. See OCGA § 10-6-1.

6. Bibb and Brother contend that the court erred in denying their motion for directed verdict, since Taylor was acting outside the scope of his authority when he forged the trustee’s name to the change-of-address form.

Even so, there was abundant evidence showing that Taylor was involved with Brother in a tortious conspiracy to deprive the insurance beneficiaries of monies which they were due. A directed verdict was not in order.

7. Bibb and Brother next assert that denial of their motion for new trial was error because of the possibility that the general verdict was returned on an improper theory of liability. Constr. Lender v. Sutter, 228 Ga. App. 405, 410 (3) (491 SE2d 853) (1997).

The verdict did not specify whether actual damages were awarded under the theory of forgery, theft, and/or conversion. Bibb and Brother argue that there can be no recovery for conversion, because the RAA was the property of Bibb rather than the trustee. This argument is without merit. The trustee owned the entire policy, and Bibb had a security interest in it to collateralize its premium payment. The jury was authorized to find that deletion of the RAA through Brother’s acquisition of Aurora II resulted in a conversion of the trust beneficiaries’ property, given the fact that under the 1988 agreements Bibb was entitled to reimbursement for its $2,500,000 premium payment before distribution of life insurance proceeds to anyone else. Cf. Trust Co. of Columbus v. Associated Grocers, 152 Ga. App. 701, 702 (263 SE2d 676) (1979).

8. Bibb and Brother also contest the court’s denial of (a) their motion in limine to exclude any evidence or comment concerning Brother’s financial status, spending habits, or wealth, and (b) their motion to sever an issue raised by the Stewarts as to whether Bibb’s corporate veil should be pierced.

Decided May 26, 1999

Reconsideration denied June 24, 1999 — Cert. applied for.

Alston & Bird, Elizabeth A. Price, Annette Teichert, Jay D. Bennett, for appellants.

King & Spalding, Frank C. Jones, Robert R. Ambler, Jr., O’Neal, Brown & Sizemore, Manley F. Brown, John C. Clark, for appellees.

(a) Although Bibb and Brother now complain of the introduction of evidence and presentation of argument concerning the fact that Brother received approximately $22,000,000 in cash benefits from Bibb between 1988 and the date of trial, their motion in limine sought to preclude the introduction of “any” evidence concerning his wealth. But to pierce the corporate veil, the Stewarts were required to show that Brother had used the corporation as a mere instrumentality for the transaction of his personal affairs. Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990). Certainly evidence of wealth accumulated by Brother as a result of Bibb’s payment of his personal expenses was relevant to that question. Therefore, the motion in limine was properly denied.

(b) The question of whether to sever the piercing-the-corporate-veil issue addressed itself to the discretion of the trial court, and to reverse we must find a clear and manifest abuse. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (2) (470 SE2d 724) (1996). We do not.

9. In their final enumeration, Bibb and Brother charge the court with error in allowing the jury to award the Stewarts attorney fees and litigation expenses. The award of damages for intentional tort of conversion supported the Stewarts’ claim for expenses under the “bad faith” prong of OCGA § 13-6-11. See Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga, App. 235, 236 (441 SE2d 464) (1994). Therefore, this enumeration is without merit.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A99A0768.
    STOVER et al. v. CANDLE CORPORATION OF AMERICA.
    (520 SE2d 7)
   Andrews, Judge.

John and Carolyn Stover, individually and d/b/a Stover Sales Associates (Stover), appeal from the trial court’s grant of Candle Corporation of America’s (CCA’s) motion for directed verdict. Finding no error, we affirm.

This case arose after Stover quit working as a sales representative for CCA. Stover claimed CCA did not pay him all the commissions due him within 30 days of the date of the termination of the employment agreement as required by OCGA § 10-1-702.

1. In Stover’s first enumeration of error he argues the trial court erred in granting CCA’s motion in limine to exclude a recorded telephone conversation between Stover and the Chief Financial Officer of CCA, Howard Rose. Stover argues that the tape of the conversation shows this was not an offer to settle a disputed amount, but rather, an independent admission of liability. We disagree.

OCGA § 24-3-37 provides that admissions or propositions made with a view to a compromise are not proper evidence. On the other hand, an unsolicited offer to settle for the full amount of the original claim is admissible. Houston v. Kinder-Care Learning Centers, 208 Ga. App. 235, 238 (430 SE2d 24) (1993).

Here, the transcript of the conversation shows that Rose called Stover and told him he was calling to discuss a settlement and asked Stover if he was “interested in having that discussion.” Stover told him to go ahead and that he would listen. Rose then said he did not know where Stover had come up with the figure of $250,000 and offered a settlement in the $50,000 “range.” Stover rejected the offer, saying they were “too far apart for that.”

Therefore, it is clear from the record that the offer was an effort to compromise a claim which was still being disputed. Computer Communications Specialists v. Hall, 188 Ga. App. 545, 546 (373 SE2d 630) (1988). The trial court did not err in granting CCA’s motion in limine to exclude this evidence.

2. The trial court correctly granted CCA’s motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test. Dept. of Human Resources v. Phillips, 268 Ga. 316 (486 SE2d 851) (1997). “A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a).” Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (416 SE2d 807) (1992).

Stover made several claims for amounts due, one of which concerned the reduction of his commission from five percent to two percent on his account with the Lowe’s stores. Stover argued that CCA’s proposal to retroactively reduce commission rates could not, without Stover’s acceptance, create a new agreement under Georgia law. While this may be true, Stover admitted at trial that the reduction in commissions was not retroactive and did not begin until after Stover was notified of the change. The evidence at trial showed that CCA decided to terminate Stover’s involvement with the Lowe’s account and take it “in-house.” Stover agreed that CCA had the right to take the Lowe’s account away from him and not pay him for it. But, he argues they did not have the right to reduce his commissions on the account without his consent.

CCA cites to numerous cases in which this Court has affirmed the right of an employer to vary the terms of an at-will employment because an at-will employment contract is unenforceable. See, e.g., Johnson v. MARTA, 207 Ga. App. 869, 870 (429 SE2d 285) (1993); Taylor v. AMISUB, Inc., 186 Ga. App. 834, 836 (368 SE2d 791) (1988). Stover claims, however, that his independent contractor status precludes applying the at-will doctrine in this case. Stover cites to no authority for this proposition, and we find none. Moreover, Stover admitted at trial that his agreement with CCA was an oral contract which either party could terminate at any time, thus making it identical to an at-will employment situation. Therefore, we conclude that under the at-will employment doctrine, CCA could vary the terms of its agreement with Stover and thus could change the commission rate paid to Stover without Stover’s consent.

Stover also claims CCA promised to reimburse the sales representatives a one percent commission if they exceeded their projected sales. Stover’s testimony at trial was that if CCA had “increases in sales and profits, that one percent would be given back.”

The trial court correctly granted a directed verdict on this claim. First, this claim fails because a promise to pay a bonus in the future is not enforceable under a terminable-at-will employment contract. Taylor, supra at 836; E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 360 (359 SE2d 148) (1987). Moreover, because there is no evidence to show what the condition meant, the promise was too indefinite to be enforceable. Transkey, Inc. v. Adkinson, 225 Ga. App. 457, 460 (484 SE2d 30) (1997).

Stover also claimed there were amounts that were improperly “charged back” against his commissions. Stover testified that the way he determined that the charge back was improper was to go through the paperwork and, if there was no documentation accompanying the charge back, he “assumed” it was not proper. But, when questioned on cross-examination, Stover admitted that CCA rarely sent backup documentation for charge backs.

Additionally, Stover testified that CCA had not paid him all amounts owed because CCA had made numerous accounting errors in determining his commissions.

Finally, Stover testified that CCA owed him $256,000. But, he admitted that he did not have separate figures for all of his claims, only the lump sum amount. For instance, he said he did not have a figure for the amount for the commission reduction from two percent to five percent because “it would take a long time to add all these

He also admitted he did not make a separate calculation of the one percent in additional commissions he claims he was promised. Likewise, in determining his damages, he said he went through the spreadsheets and raised all of the two, three and four percent commissions to five percent. As previously stated, his method of determining whether the charge back against his commission was incorrect was to go through the paperwork and if there was no documentation, he “assumed” it was not a proper charge back.

We have already concluded that Stover was not entitled to damages on his claim that his commission was improperly reduced and on his claim that he did not receive the one percent additional commission promised. As the trial court correctly concluded, this made it impossible for the jury to determine what amount, if any, was properly owed to Stover. Stover himself admitted at trial that he did not determine specific amounts for each claim because it would have taken too long to add the figures up. He also admitted that if the jury found he was not entitled to part of the claim, it would have no way of knowing what portion of the total claim it should disallow.

Therefore, while some portion of the claimed sum may have been recoverable, that portion cannot be determined from the lump sum evidence presented. Gen. Warranty Corp. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 437 (356 SE2d 83) (1987). “A jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork.” Id. Here, the data furnished consisted of over 2,300 pages of company records. To expect the average juror to go through these records and try to determine what damages, if any, were due Stover, when Stover himself, being familiar with the records, said it would take too long to determine certain amounts, was not reasonable.

Moreover, while Stover was not required to prove his damages to the exact dollar, he was required to provide some rational basis for the computation. Lawson v. B. P. Constr., 166 Ga. App. 754, 756 (305 SE2d 396) (1983). For example, to go through the paperwork and assume a commission was improperly charged back just because there was no documentation is too speculative to provide a basis for recovery. Id. Therefore, in light of this and for the reasons set out above, we conclude the trial court did not err in directing a verdict for CCA on Stover’s claim for unpaid commissions.

3. Stover also claims that even if the trial court correctly granted a directed verdict on some issues, it was error to direct a verdict on all the issues because CCA violated OCGA § 10-1-702 of the Wholesale Distribution Act and is therefore liable for attorney fees and exemplary damages. This Code section provides that when a contract between a principal and a sales representative is terminated, the principal shall pay all commissions due the representative within 30 days.

Decided June 2, 1999

Reconsideration denied June 24, 1999 — Cert. applied for.

Lawrence E. Newlin, for appellants.

Rogers & Hardin, Phillip S. McKinney, Rose D. Stewart, for appellee.

The evidence at trial was that Stover wrote CCA a letter on August 5, 1996, stating, “We are with this letter giving you a ninety day notice of this resignation.” Therefore, the plain language of the letter shows that Stover’s resignation became effective in early November and all commissions due were payable by sometime in early December.

Nevertheless, despite this clear testimony, Stover continues to argue on appeal that his resignation was effective on August 5 and checks paid in October, November and February were paid outside the 30 days allowed after termination. More importantly, however, Stover does not support this claim on appeal; instead, he makes conclusory statements such as: “Stover was not paid amounts owed within 30 days,” and “almost $100,000 was belatedly paid to Stover long after the expiration of the 30 day time frame,” and “[t]he undisputed evidence shows that CCA intentionally withheld commissions from Stover beyond the 30 day time limit. . . .”

A review of the record shows a $17,500 check paid to Stover by CCA in February, which appears to be the only one paid outside the statutory time frame. Stover admitted that the normal course of business between him and CCA was for CCA to pay him his commissions after shipment of the product. Stover also testified that the company continued to send him statements and checks for items shipped after he resigned as sales representative.

An appellant has the burden to show error affirmatively by the record, and this burden cannot be discharged by recitations of error in the brief. Speir v. Krieger, 235 Ga. App. 392, 394-395 (509 SE2d 684) (1998). Because Stover has not supported this claim with specific argument, citation to the record or to authority, we are unable to address it. Court of Appeals Rule 27. Therefore, for the reasons stated above, we conclude that the trial court correctly granted CCA’s motion for directed verdict.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A99A0477.
    SHEEHAN et al. v. DELANEY.
    (521 SE2d 585)
   Ruffin, Judge.

On November 5, 1996, an administrative law judge awarded workers’ compensation benefits to Robert Delaney, a truck driver who worked for American Trucking Company, Inc. (“American Trucking”). At the time Delaney was injured, American Trucking did not have workers’ compensation insurance. Therefore, the ALJ ordered American Trucking to pay Delaney’s workers’ compensation benefits.

In January 1997, American Trucking commenced bankruptcy proceedings. As American Trucking had not paid Delaney’s workers’ compensation benefits prior to declaring bankruptcy, Delaney filed a complaint in superior court seeking payment of benefits directly from Dennis Sheehan and his wife, Chris Sheehan, the sole shareholders of American Trucking. Delaney and the Sheehans filed cross-motions for summary judgment. The trial court denied the Sheehans’ motion for summary judgment and granted Delaney’s motions for summary judgment on both liability and damages. The Sheehans appeal, contending that the trial court erred in granting Delaney’s motions and in denying theirs. We affirm.

To prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review de novo the grant of summary judgment, “and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Taylor v. Gelfand, 233 Ga. App. 835-836 (505 SE2d 222) (1998). Here, the trial court’s grant of summary judgment in favor of Delaney was appropriate.

1. The Georgia Workers’ Compensation Act (the “Act”) applies, with limited exceptions, to all employers with three or more employees who are regularly in service. OCGA § 34-9-2 (a). The Act requires that employers insure the payment of workers’ compensation benefits to injured workers, either by procuring insurance or by qualifying as a self-insurer. See OCGA § 34-9-120 et seq.; Crawford v. Holt, 172 Ga. App. 326, 327 (1) (323 SE2d 245) (1984). If no insurance is obtained, the employer remains liable for payment of benefits. Id. If the employer becomes insolvent, then the agent of the employer responsible for procuring workers’ compensation benefits may be held personally liable for payment of such benefits. See Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981); Underwood v. Dunn, 221 Ga. App. 185, 186 (1) (470 SE2d 781) (1996). Before an injured worker can recover benefits from the employer’s agent, however, the worker must prove that (1) he has a valid workers’ compensation claim; (2) he has obtained a valid award from the State Board of Workers’ Compensation; and (3) the employer is insolvent. Id. If the worker meets these requirements, he may assert a claim against the agent for an amount equal to the award of the State Board of Workers’ Compensation. Boyette v. Elmer, 184 Ga. App. 108, 109 (1) (361 SE2d 3) (1987).

Here, the Sheehans do not contest the fact that Delaney has met the requirements set forth in Underwood, but they assert that there must be a showing of negligence or wrongdoing on their part before they can be held personally liable for payment of workers’ compensation benefits. According to the Sheehans, summary judgment is not appropriate because there is a genuine issue of material fact regarding whether they were negligent in failing to procure workers’ compensation insurance. We disagree.

The fundamental principle underlying the workers’ compensation system is that, in exchange for prompt payment of income and medical benefits to injured workers, employers are immune from tort liability. See Doss v. Food Lion, 267 Ga. 312-313 (1), (2) (477 SE2d 577) (1996); Samuel, supra at 72-73. In creating this quid pro quo system, the legislature has determined that both employers and employees are entitled to the benefits of the Act without regard to fault. Doss, supra at 313 (2).

In this case, because American Trucking was subject to the Act, the Sheehans are immune from tort claims brought by American Trucking employees. Samuel, supra at 73. Thus, Delaney has no remedy in tort against his former employer. Id. His only remedy is to attempt to collect the income and medical benefits awarded by the State Board of Workers’ Compensation. Id. at 72. As the Supreme Court noted in Samuel,

[i]t is not reasonable or just to hold that an employer’s agents may fail or refuse to perform duties imposed upon them by the statute and at the same time rely upon the statute to escape the consequences of their failure to act properly. This result would defeat the quid pro quo policy of the law.

Id. at 73-74.

The Sheehans quote Samuel for the proposition that the injured worker’s cause of action stemmed from the agent’s “negligent failure to provide workers’ compensation insurance.” We are unable to find this quote anywhere in the opinion. Moreover, we do not think this is an accurate interpretation of Samuel. Although the Supreme Court concluded in Samuel that the agent of the employer breached a duty by failing to obtain insurance, there was no discussion regarding whether the failure was negligent or wilful. Rather than focusing on the culpability of the agent, the Supreme Court focused on the policies behind the Act. Id. at 73. In this legislatively created quid pro quo system, the Supreme Court concluded that an agent who enjoys tort immunity can be held responsible for payment of benefits.

Decided June 24, 1999.

Smith, Wallis & Scott, Kenneth A. Smith, Christopher B. Scott, for appellants.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, H. Scott Gregory, Jr., for appellee.

As Delaney was entitled to judgment as a matter of law, the trial court did not err in granting his motions for summary judgment on the issues of liability and damages. See Boyette, supra; Underwood, supra at 186 (2).

2. In view of our holding in Division 1, we need not address the Sheehans’ remaining enumeration of error.

Judgment affirmed.

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

       The award of the Board, that was affirmed by the Appellate Division on January 17, 1997, is final and is no longer appealable.

       We note that in both Boyette, supra, and Myers v. Wilson, 167 Ga. App. 340, 341 (1) (306 SE2d 401) (1983), the cause of action is referred to as a “tort.” In fact, it is more akin to a suit to collect on a judgment. See Samuel, supra at 72, 74. In no event should the language in Boyette or Myers be construed as providing for a remedy outside the Act. Id. at 72.


text:
    A99A0653.
    RAGLAND v. THE STATE.
    (519 SE2d 757)
   Ruffin, Judge.

Larry Antoine Ragland was convicted of one count of selling cocaine and acquitted of a second count. On appeal, he argues that he is entitled to a new trial because the State failed to disclose an agreement between the State and a prosecution witness, as required by Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) and Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972). Because Ragland has not shown a reasonable probability that the outcome of the trial would have been different had the State disclosed the agreement, we affirm.

Under Brady, supra,

the State is required to disclose evidence favorable to the defendant when such evidence is material to guilt or punishment. This includes disclosure of impeachment evidence which could be used to show bias or interest on the part of a key State witness. Accordingly, the [S]tate is under a duty to reveal any agreement,- even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements of Brady, supra. Giglio, supra. In order to show that the State violated Brady by failing to reveal a deal with one of its witnesses, a defendant must show that the State possessed evidence of the deal; that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; that the State suppressed evidence of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different. Burgeson v. State, 267 Ga. 102, 104 (475 SE2d 580) (1996).

(Citations and punctuation omitted.) Ferguson v. State, 226 Ga. App. 681, 682-683 (487 SE2d 467) (1997). The burden is on the defendant to prove each of these elements. Zant v. Moon, 264 Ga. 93, 100 (440 SE2d 657) (1994).

Ragland was charged in two counts with selling cocaine on January 21,1997 and July 8,1997. With respect to the January 21 charge, Officer Edward Dalton of the City of Newnan Police Department testified that he sent a confidential informant, Glenn Rainey, to purchase crack cocaine from an individual known as Tony Ragland at a house at 70 Glenn Street in Newnan. Dalton gave Rainey three $10 bills to use in the purchase and saw Rainey enter and leave the house. After Rainey left the residence, he gave Dalton two $10 rocks of crack cocaine. Rainey testified at trial that he purchased the two rocks from Ragland, whom he knew as Tony Ragland. Rainey admitted that he had been arrested in December 1996 for possession of cocaine, and that the charges against him had been dismissed in exchange for his agreeing to act as a confidential informant. He stated that he probably would be in jail if he had not agreed to make drug buys for the police and agreed that he was motivated to help the police.

Officer Dalton also testified that on July 8,1997, he sent another confidential informant, Michelle Thomas, along with Deputy Renee Jones, an undercover officer with the Upson County Sheriff’s Department, to purchase drugs from Ragland at 70 Glenn Street. Jones testified that she and Thomas drove to the Glenn Street house. As they were sitting in their truck, Thomas asked a man to give her a “dime,” and an individual went inside the house. Jones asked Thomas who the man was, and Thomas said it was Tony Ragland. A few minutes later, the man came back outside, approached the passenger side window, and handed Thomas a rock of crack cocaine, and Thomas paid the man an undisclosed amount of money. Jones positively identified Ragland as the individual who sold them the cocaine, stating that she had a clear view of him during the transaction. Thomas also identified Ragland as the individual who sold her the drugs. She stated that she had known Ragland before the transaction, and that she knew him by the name Tony Ragland. Ragland’s attorney did not ask Thomas on cross-examination whether she was testifying pursuant to any agreement with the State.

The truck Jones and Thomas were in was equipped with a videotape recorder which monitored the transaction, and a videotape of the transaction was introduced into evidence at trial. The videotape briefly showed the suspect’s face and body as he was standing outside the passenger side window making the drug transaction. Officer Dalton testified that he knew Ragland and was positive that he was the individual on the video.

Ragland testified that he went by the name Larry Ragland, and that nobody called him Tony Ragland. He claimed that he had a cousin who was known as Tony Ragland, but said that his cousin refused to come to court. Ragland claimed that he was working at his uncle’s repair shop at the time of the January 21 incident and was in Atlanta during the July 8 incident. He testified that he did not know Thomas or Rainey.

The jury acquitted Ragland of selling cocaine to Rainey on January 21, but found him guilty of selling cocaine to Thomas and Jones on July 8. After trial, Ragland learned that Thomas had testified pursuant to an agreement that certain charges against her for possession of cocaine would be dismissed upon her testifying in this and certain other cases. Although the prosecutor who tried this case was not aware of the agreement, other members of the district attorney’s office, as well as Officer Dalton, were apparently aware of the agreement at the time of trial.

Ragland argues that, had he known of the State’s agreement with Thomas, he could have used it to impeach her credibility at trial. He points to the fact that the jury acquitted him of selling cocaine to Rainey, who admitted that he was testifying pursuant to an agreement with the State that charges against him be dismissed. Since the jury was apparently inclined to discredit Rainey’s testimony because of his agreement with the State, Ragland contends that it is substantially probable the jury also would have discredited Thomas’s testimony had it known of her agreement.

However, there are substantial differences between the evidence implicating Ragland in the January 21 transaction and the evidence implicating him in the July 8 transaction. The only direct evidence of Ragland’s involvement in the January 21 transaction was the testimony of Rainey, who admitted that he knew Ragland was one of the targets of the State’s investigation. The jury apparently concluded that, in light of Rainey’s admitted interest in cooperating with the State, his testimony was not, by itself, sufficient to establish Ragland’s guilt beyond a reasonable doubt.

Decided June 24, 1999.

James T. Barfield III, for appellant.

Peter J. Skandalakis, District Attorney, Hope F. Smelcer, Assistant District Attorney, for appellee.

With respect to the July 8 transaction, however, Thomas’s testimony was not the only evidence of Ragland’s guilt. Because the entire transaction was captured on videotape, the only question for the jury was whether Ragland was in fact the individual seen on the videotape. Although Thomas made an in-court identification of Ragland, this was not the only identification evidence presented. Deputy Jones, who was an eyewitness to and participant in the drug transaction, also positively identified Ragland at trial and testified that she was certain of her identification. In addition, Officer Howell testified that he knew Ragland and was certain that he was the individual on the tape. Moreover, the videotape itself briefly showed the man’s face and body, and the jurors were able to compare the picture on the videotape to their own observation of Ragland at trial. Finally, the videotape served to corroborate Thomas’s and Jones’s account of the transaction, thus lending credibility to their testimony. Under all of these circumstances, it is unlikely that the jury’s verdict would have been different if the jury had been aware of Thomas’s agreement with the State. Because Ragland has not carried his burden of showing a reasonable probability of a different outcome, the trial court did not err in denying his motion for new trial. See Bradley v. State, 193 Ga. App. 515, 516 (2) (388 SE2d 331) (1989).

Judgment affirmed.

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

       In light of our ruling above, it is unnecessary to consider whether Ragland could have discovered Thomas’s agreement with the State through the exercise of reasonable diligence (e.g., through cross-examination of Thomas).


author: McMurray, Presiding Judge.

text:
    A99A0403.
    GUAGLIARDO et al. v. JONES.
    (518 SE2d 925)
   McMurray, Presiding Judge.

Richard Guagliardo and his wife, Connie Guagliardo, filed a complaint for ejectment, trespass, and establishment of a boundary line against their neighbor, landowner G. W. Jones. Although the parties agree that the Guagliardos own an entire land lot in Stewart County, Georgia and that Jones owns an adjoining land lot, the dispute concerns the actual position of the properties’ common boundary. The Guagliardos allege that this boundary is marked by a more than 40-year-old fence that was put into place by Jones’ predecessor in title; that Jones erected another fence some 414.70 feet onto their property which runs parallel to the old boundary fence, and that this encroachment unlawfully usurps 28.88 acres of their property. Defendant denied fencing any part of the plaintiffs’ land and claimed adverse possession of the disputed property, alleging that his newer fence has been in place for more than 20 years. See OCGA § 44-5-163.

Although the parties proffered opposing expert testimony at a jury trial concerning the disputed boundary line, the trial court directed the jury to return a verdict designating Jones’ fence as the boundary between the adjacent properties. The trial court concluded, “I’m going to direct the verdict based on adverse possession for 20 years, and the fence[, Jones’ newer fence], hog fence, hog wire fence. I don’t know what more notorious possession would need than a hog wire fence.” This appeal followed entry of a judgment on this verdict. The Guagliardos contend the trial court erred in granting Jones’ motion for directed verdict. Held:

While courts delineate what facts are sufficient to constitute adverse possession, whether such facts exist is generally a jury question. 3AmJur2d, Adverse Possession, § 321. See KDS Properties v. Sims, 234 Ga. App. 395, 397 (2) (506 SE2d 903). A trial court is not justified in directing a verdict as to an adverse possession defense when there is some evidence or fact which could possibly support a jury’s findings as to the elements of prescription under OCGA § 44-5-161. See Ga. Power Co. v. Irvin, 267 Ga. 760, 761-762 (1) (482 SE2d 362). Compare Hearn v. Leverette, 213 Ga. 286 (99 SE2d 147). OCGA § 44-5-161 provides,

(a) In order for possession to be the foundation of prescriptive title, it: (1) Must be in the right of the possessor and not of another; (2) Must not have originated in fraud except as provided in Code Section 44-5-162; (3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) Must be accompanied by a claim of right.
(b) Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.

Jones’ motion for directed verdict was granted in the case sub judice because the trial court concluded, as a matter of law, that Jones’ “hog wire fence” satisfied this Code section’s notoriety and exclusivity requirements. This judgment was in error.

While OCGA § 44-5-165 provides that possession may be evidenced by structures such as Jones’ “hog wire fence,” this Code section does not diminish the rule that juries generally determine whether facts exist which constitute adverse possession — including issues concerning uninterrupted, exclusive and notorious possession. See Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (2), supra; see also McCrea v. Ga. Power Co., 179 Ga. 1, 14 (5) (174 SE 798); compare Friendship Baptist Church v. West, 265 Ga. 745 (462 SE2d 618). In the case sub judice, Jones alleged in his counterclaim that he erected a fence across the disputed property prior to 1964, but he testified at trial that he constructed the fence sometime during 1966. Jones also admitted at trial that the fence was in pretty bad shape; that there was at least one break in the fence, and that the Guagliardos’ predecessor in title did not know about (he did not tell them) or agree to his construction of the fence. The Guagliardos, on the other hand, proffered testimony indicating that Jones’ fence cut through a rarely traversed swamp, and they tendered into evidence an aerial photograph of the disputed area, taken in 1966, indicating that Jones’ “hog wire” fence did not then exist. This evidence and proof that the federal government acquired a deed to the disputed property via foreclosure in 1984, thereby interrupting Jones’ allegedly continuous 20-year possession of the land from 1966 (see Clark v. McBride, 256 Ga. 308, 310 (2) (348 SE2d 634); Redfield v. Parks, 132 U. S. 239 (10 SC 83, 33 LE 327)), would have authorized a jury’s finding that Jones did not have uninterrupted, exclusive and notorious possession of the disputed property for 20 years as required by OCGA §§ 44-5-161 and 44-5-163. The trial court therefore erred in granting Jones’ motion for directed verdict as to these issues. A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). See Hanover Credit Corp. v. Datamatx, 226 Ga. App. 12, 13 (485 SE2d 571).

Jones’ motion for imposition of frivolous appeal penalties pursuant to Court of Appeals Rule 15 (b) is denied.

Judgment reversed.

Andrews and Ruffin, JJ, concur.

Decided June 4, 1999

Reconsideration denied June 25, 1999 — Cert. applied for.

Bowles & Bowles, Jesse G. Bowles III, for appellants.

Worthington & Flournoy, Samuel W. Worthington III, for appellee.


author: Blackburn, Presiding Judge.

text:
    A99A0869.
    CARTHERN v. THE STATE.
    (519 SE2d 490)
   Blackburn, Presiding Judge.

Taylor Christopher Carthern appeals his convictions, following a jury trial, for possession of cocaine, possession of a firearm by a convicted felon, and criminal damage to property, contending the trial court erred by: (1) denying his motion to suppress a marijuana cigarette containing some cocaine found in Carthem’s home; (2) denying Carthern’s motion for directed verdict regarding the possession of cocaine charge; (3) denying his motion for directed verdict regarding the charge of possession of a firearm by a convicted felon because there was no competent evidence showing that Carthern was a convicted felon; and (4) denying his motion for directed verdict regarding the charge of criminal damage to property because there was no evidence that Carthern’s actions endangered human life. For the reasons set forth below, we affirm.

In the light most favorable to the verdict, the record shows that Carthern, in a crazed state, shot his way down a residential street, shot his way into Steve Watts’ home and then fired his weapon again once inside. Fortuitously, Watts was on vacation at the time, and there was no one home. Deputy Sheriff Chris Stevers arrested Carthern at the scene and placed him in the back of his patrol car. Carthern’s brother, Reverend James Carthern, then arrived, and he informed the officers that he believed that there could be other people still inside Carthern’s house. Reverend Carthern let the officers inside his brother’s home with keys that his brother had thrown onto the street. Although no one was found inside the home, a marijuana cigarette containing cocaine was discovered in an upstairs room.

1. In his first enumeration of error, Carthern argues that the trial court erred in failing to suppress the marijuana cigarette, contending that the warrantless search of his home was unlawful due to the lack of exigent circumstances.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

The United States Supreme Court has held that, even where probable cause exists, intrusion of a person’s home without a warrant is prohibited by the Fourth Amendment unless such intrusion is preceded by consent or exigent circumstances. Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981). Whether exigent circumstances were present in a given situation is a question of fact, and, “[a]lthough we review police actions from the standpoint of a hypothetical reasonable officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.” (Punctuation omitted.) State v. Brannan, 222 Ga. App. 372, 373 (1) (474 SE2d 267) (1996).

Deferring to the trial court’s determinations with regard to facts and credibility, as we must, we cannot say that the denial of Carthern’s motion to suppress was clearly erroneous. In this case, the officers entered Carthern’s home based on a reasonable belief that there could be wounded people inside. As such, sufficient exigent circumstances existed to support the warrantless search of Carthem’s home. See, e.g., Cates v. State, 232 Ga. App. 262 (501 SE2d 262) (1998).

2. In his second enumeration of error, Carthem contends that the trial court erred by denying his motion for directed verdict regarding the charge of possession of cocaine.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Carthern] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. However, a mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon. If such were the case, a person’s mere presence at the scene of the discovery of illegal drugs would authorize his conviction, and that plainly is not the law.

(Citations omitted.) Morris v. State, 161 Ga. App. 141, 143-144 (5) (288 SE2d 102) (1982).

In this case, the cocaine was found in Carthern’s home. As such, an inference can be made that the cocaine found therein belonged to him. Carthern’s arguments that there was some evidence that a female may have been in his house on the night in question does not change this outcome, as he could have been found to be in constructive joint possession of the cocaine. See, e.g., Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996).

3. In his third enumeration of error, Carthern contends that the trial court should have granted his motion for directed verdict with regard to the charge of possession of a firearm by a convicted felon because there was no competent evidence of his felon status. At trial, the State introduced Carthern’s prior guilty plea and sentence for possession of cocaine and possession of a firearm during the commission of a crime. In the typed portion of the documents, Carthern’s name was misspelled as “Cauthern.” Because of this scrivener’s error, Carthern now contends that the evidence was not sufficient to prove his status as a felon. However, the guilty plea contains Carthern’s signature, and Carthern admitted during trial that he had pled guilty to the prior charge of possession of cocaine. Accordingly, this enumeration lacks merit.

Decided June 16, 1999

Reconsideration denied June 25, 1999 — Cert. applied for.

Jones, Morrison & Womack, William A. Morrison, Paul S. Liston, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

4. In his fourth enumeration of error, Carthern contends that the trial court should have granted his motion for directed verdict with regard to the charge of criminal damage to property in the first degree because there was no endangerment to human life. We disagree.

OCGA § 16-7-22 (a) (1) provides that “[a] person commits the offense of criminal damage to property in the first degree when he [k]nowingly and without authority interferes with any property in a manner so as to endanger human life.” Our Supreme Court has held that “[a]s defined in OCGA § 16-7-22 (a) (1), criminal damage to property in the first degree is a felonious act which is inherently dangerous or life-threatening.” Waugh v. State, 263 Ga. 692 (2) (437 SE2d 297) (1993).

Carthern fired a gun at homes in a residential area. He shot the glass door out of one home, entered the home and fired shots inside the home. Such acts endanger the lives of others within the meaning of the statute.

Carthern’s reliance on Loethen v. State, 158 Ga. App. 469 (280 SE2d 878) (1981) is misplaced. There the defendant set fire to a mattress in his prison cell, and he also ignited his own hair and clothing. In reversing the defendant’s conviction for criminal damage to property in the first degree, this Court held that he had endangered only his own life.

Firing a weapon into a dwelling is an act which is inherently dangerous to the lives of others. Waugh, supra. We find the evidence here is sufficient to support the conviction. See Jackson v. Virginia, supra.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0009.
    LARSON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (520 SE2d 45)
   Ruffin, Judge.

Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) filed a declaratory judgment action against several parties, including Eric Larson, Holly Larson and its insured, William Usher. The trial court granted summary judgment to Georgia Farm, and the Larsons appeal. For reasons which follow, we affirm.

We conduct a de novo review of a trial court’s grant of summary judgment. Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 192 (489 SE2d 53) (1997). In so doing, we construe the evidence in favor of the nonmovant to determine if any genuine issue of material fact exists and if the movant is entitled to judgment as a matter of law. Id.

The record reveals that from 1987 through 1994, Usher, an electrical engineer, owned and operated Bushco, Inc., a machine shop and fabrication business. Bushco’s business consisted of machine work and building hydraulic and cable lifts for automobiles and motorcycles. Rick Trogett, who is not a party to this litigation, asked Usher to build a cable car system on Trogett’s property. Trogett agreed to pay Usher 20 percent over the construction costs for overseeing the project. According to Usher’s deposition testimony, he hired subcontractors to perform some of the work and he performed some of it himself. Usher testified that Bushco employees were involved in the fabrication of the cable car. Bushco bought the cable used for the project, and the workers were paid through Bushco’s account.

Trogett subsequently sold his property to Robert Berto. On September 14, 1996, Eric Larson, an invitee on Berto’s property, was injured when the cable car in which he was riding broke. Eric and Holly Larson filed suit against multiple parties, including Usher and Bushco, seeking damages for injuries sustained as a result of Usher’s negligent design, manufacture, and construction of the cable car system.

Usher never had an insurance policy for Bushco. He did, however, have a homeowner’s policy through Georgia Farm that insured Usher against suits brought against him for bodily injury. Usher sought coverage under this policy for the Larsons’ claims. Georgia Farm then brought this action for a declaratory judgment that the “business pursuits” exclusion rendered its policy inapplicable to the Larsons’ claims. The trial court granted summary judgment to Georgia Farm, holding that coverage was barred by the business pursuits exclusion. The Larsons appeal, contending that Usher did not manufacture the cable car system as part of his principal business and, thus, the exclusion should not apply. Contrary to the Larsons’ contentions, the trial court correctly granted summary judgment to Georgia Farm.

When the language in an insurance policy is clear, the “policy is interpreted according to its plain language and express terms, just as any other contract.” Alewine v. Horace Mann Ins. Co., 197 Ga. App. 479, 480 (398 SE2d 756) (1990). The words used in the policy are to be given their usual and common significance and are to be construed in their ordinary meaning. Nat. Union Fire Ins. Co. &c. v. Prestige Helicopters, 217 Ga. App. 375, 376-377 (457 SE2d 587) (1995).

In this case, the policy excludes from coverage any bodily injury or property damage “arising out of business pursuits of an insured.” Although the policy does not define “business pursuits,” it does define “business” to include “trade, profession or occupation.” In determining the meaning of these words,

[d]ictionaries supply the plain, ordinary, and popular sense. Webster’s New International Dictionary (3d ed.) provides these definitions: Trade is the business one practices or the work in which one engages regularly. Profession is a principal calling, vocation, or employment. Occupation means the principal business of one’s life. Business is defined in part as follows: . . . b: (1): a usual commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision . . . (4): transactions, dealings or intercourse of any nature . . . but now especially economic.

(Citation and punctuation omitted.) Brown v. Peninsular Fire Ins. Co., 171 Ga. App. 507, 508 (320 SE2d 208) (1984).

Appellants argue that Usher’s “business” consisted of building cable lifts for automobiles and motorcycles. Accordingly, appellants maintain that, in building the cable car system, Usher was not engaged in a business pursuit and, thus, the exclusion should not apply. We disagree.

Appellants define “business” too narrowly. Here, the record demonstrates that Usher, an engineer, owned and operated what he described as a “machine shop” and “fabrication business.” He primarily built lifts for motorcycles and automobiles. As there apparently is not a great demand for cable car systems, Usher built only one. However, he engineered the system, built it, and was paid for his efforts. At the time he did so, his principal vocation consisted of machine work and building lifts. Accordingly, Usher was engaged in business within the meaning of the policy when he built the cable car system.

The cases cited by appellants do not require a different result. In Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 763-764 (2) (131 SE2d 761) (1974), this Court concluded that a “business pursuits” exclusion in a homeowner’s policy did not apply to an incident arising from a mechanic’s part-time auto racing interest. Although the mechanic potentially could have earned prize money from his auto racing hobby, he was employed full-time elsewhere. Accordingly, this Court ruled that the underlying incident did not result from the insured’s business pursuits. Id.

Decided June 25, 1999.

Cole, Bryman, Clerke & Young, Michael A. Cole, David N. Bryman, for appellants.

Downey & Cleveland, Tara M. Waller, for appellee.

In Brown, supra, a real estate broker purchased property for development purposes and hired a contracting company to grade the property. The contracting company sued the broker for damage to its bulldozer, and the broker sought coverage under his homeowner’s policy. This Court concluded that the “business pursuits” exclusion in the broker’s homeowner’s policy did not bar coverage because, as a real estate salesman, the broker was not “customarily engaged in property development.” (Punctuation omitted.) Id. at 509. Thus, this Court focused on the nature of the policyholder’s usual business.

Here, Usher’s usual business consisted of constructing lifts. Although building a cable car lift may not be identical to building an automobile lift, there is a logical nexus between the two. If Bushco had built the cable car system, there would be no doubt that the business pursuits exclusion would bar coverage. We see no reason for a different result simply because Usher handled the project individually. The fact that Usher did not require a signed contract from Trogett, whom he described as a “good friend of a friend,” does not render the project either a hobby or a non-business pursuit. Furthermore, Bushco did play at least some role in building the cable car system. According to Usher, some of the checks issued by Trogett were made payable to Bushco. Additionally, Bushco employees assisted in the fabrication of the cable car itself. Accordingly, the trial court correctly concluded that the construction of the cable car system was a “business pursuit.”

Judgment affirmed.

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


text:
    A99A0153.
    JOHNSON v. THE STATE.
    (520 SE2d 221)
   Andrews, Judge.

Lucious L. Johnson, a/k/a Lucius Johnson, appeals from the denial of his motion for new trial following his conviction of three counts of aggravated assault and one count each of rape and false imprisonment.

1. The first and second enumerations challenge the legal sufficiency of the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As acknowledged by Johnson, on appeal this Court views the evidence in the light most favorable to the jury’s verdict and determines whether any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998).

“Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent, evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

Shabazz v. State, 229 Ga. App. 465, 466 (1) (494 SE2d 257) (1997).

So viewed, the evidence was that N. B., a long-time acquaintance of Johnson and a crack cocaine user, was walking in an area known as “Crack City” when she met Johnson around midnight on June 26, 1996. She and Johnson had done odd jobs together in the past, and he asked her to come by the house where he stayed to show her a job he wanted help with the next morning. As they walked, Johnson gave N. B. a dollar and asked her to buy him' a shot of liquor at a shot house, which she did. Johnson smelled of alcohol, and N. B. described him as “tipsy.”

They arrived at Clarence’s house, which Johnson shared. The portion of the house where Johnson lived had no electricity, and the only light came from a street light, making the interior dark. Johnson asked N. B. for sex, but she said no. He then offered her a rock of crack cocaine in exchange for sex, but she again refused. N. B. had smoked crack earlier in the day with another acquaintance. Her practice was to walk after taking a hit in order not to “get geek,” and it was during this walk that she encountered Johnson.

After she refused his offer of crack for sex, Johnson jerked her up off the couch where she was sitting and tore off her shorts and panties. Johnson had gotten a stick from inside the residence, and he struck her from the back, causing a cut and severe swelling and bruising on the left side of her face. Over the next several hours, Johnson refused to let her leave and had sex with her repeatedly, twice while she was on her back and twice while she was on her stomach.

N. B. did not resist Johnson because, in addition to his hitting her with the stick, he threatened her with some kind of silver object that she thought might have been a screwdriver. N. B. knew that Johnson kept a screwdriver and other tools to work with in his pocket. Additionally, N. B. was aware that Johnson had previously stabbed someone in the neck with a screwdriver. During the encounter, Johnson repeatedly said that he ought “to go on and do what he got to do” to her. A screwdriver and other tools were found in Johnson’s residence.

Around 6:00 a.m. the next morning, after Johnson had gone to sleep, N. B. slipped out of the house, taking the stick she had been assaulted with. She had an acquaintance take her to the police station and said she wanted to take out a warrant for Johnson’s arrest. When asked if she had been sexually assaulted, N. B. initially answered negatively, but looked down at the floor while doing so. The officer asked again, ánd she acknowledged that she had been raped.

Although no physical evidence of rape was found as a result of her medical examination, the nurse did notice blood in the crotch of her panties, although she could not tell if it was recent or old. N. B. suffered a broken nose in addition to the damage to her face and eye. The nurse also stated, based on her medical experience, that it was not uncommon for there to be no physical evidence of forcible rape found in women who had been sexually active.

After Johnson was picked up, he initially denied knowing the victim at all, then acknowledged knowing her but denied having seen her in years or doing odd jobs with her. Then, he said he had done odd jobs with her, but had not seen her or spoken with her that day. Finally, Johnson said that he had been awakened from sleep when someone entered his residence and he had struck that person with the stick. Then he said he had seen N. B. in his residence stealing from him and he “did knock hell out of her.” Told he might have to provide blood and hair samples, Johnson said he had had consensual sex with N. B. but it had been earlier in the day.

Determining which version of these events to believe was solely the province of the jury, and there was sufficient evidence to support their conclusions. Jackson, supra; Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

2. Johnson’s third, fourth, fifth, and sixth enumerations deal with the court’s admission of N. B.’s statement that she was aware that Johnson had previously “stuck a dude in the neck with a screwdriver.” All four enumerations are considered together because, in essence, they all deal with Johnson’s claim that the statement improperly placed his character in issue and was not otherwise admissible.

N. B. had testified that she was unsure what the silver object that Johnson used to threaten her was. Asked why she was afraid of this unidentified object, she made the statement. Immediately thereafter, in response to Johnson’s objection that it improperly placed his character in issue, the court instructed the jury that the statement was not to be considered for the truth of its content and that the jury was not concerned with whether such an event had in fact occurred. Rather, it was to be considered only as it related to the state of mind of N. B. as it related to her lack of resistance.

As reflected in Division 1, Johnson contended that sex with N. B. was consensual, and there was no medical evidence of trauma or force.

Under OCGA § 16-6-1 (a), “(a) person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” In State v. Collins, 270 Ga. 42 (508 SE2d 390) (1998) . . . , the Supreme Court of Georgia recently reiterated that the terms “forcibly” and “against her will” are two separate elements of proving rape. See also Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977). “The term ‘against her will’ means without consent; the term ‘forcibly’ means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. . . . (T)he state must prove the element of force as a factual matter in forcible rape cases. . . . Further, “ ‘(f)orce may be proved by direct or circumstantial evidence.’ [Cit.]” Gibbins v. State, 229 Ga. App. 896, 898 (1) (495 SE2d 46) (1997). “Lack of resistance, induced by fear, is force, and may be shown by the prosecutrix’[s] state of mind from her prior experience with appellant and subjective apprehension of danger from him.” (Citations and punctuation omitted; emphasis supplied.) Calloway v. State, 199 Ga. App. 272, 273 (1) (404 SE2d 811) (1991).

House v. State, 236 Ga. App. 405, 408 (1) (512 SE2d 287) (1999). See also Gibbins v. State, supra at 897-898 (1).

That this evidence, which was relevant and material to one of the required elements of rape, may have incidentally placed Johnson’s character in issue did not make it inadmissible. Mize v. State, 269 Ga. 646, 650 (3) (501 SE2d 219) (1998); Daniels v. State, 252 Ga. 30, 32 (6) (310 SE2d 904) (1984); Calloway v. State, 199 Ga. App. 272 (1) (404 SE2d 811) (1991). Further, the trial court’s immediate instruction to the jury of the limited purpose for which the evidence was being introduced was sufficient to correct any potential harm. Reid v. State, 171 Ga. App. 52, 53 (2) (318 SE2d 782) (1984).

3. The seventh enumeration claims error in the trial court’s granting of the State’s motion in limine, premised on the rape shield statute, regarding Johnson’s reference to N. B. as a “well known whore” in his statement to police. Johnson, relying on West v. State, 200 Ga. 566 (1) (37 SE2d 799) (1946), contends that, pursuant to OCGA § 24-3-38, if the State introduces part of an accused’s statement, then the accused is entitled to admit the remainder. West, however, involved a murder prosecution in which the improperly redacted portion of the statement dealt with justification, a legal defense. Here, even assuming the contested statement to be true, that is no defense to rape. Harris v. State, 257 Ga. 666, 668 (1) (362 SE2d 211) (1987).

There was no error. Snow v. State, 228 Ga. App. 649, 651 (4) (492 SE2d 564) (1997); Bates v. State, 216 Ga. App. 597 (454 SE2d 811) (1995); see Brown v. State, 214 Ga. App. 676 (2) (448 SE2d 723) (1994).

4. Johnson’s eighth enumeration of error was not the subject of an objection below and will not be considered here for the first time. Thomas v. State, 224 Ga. App. 816 (1) (482 SE2d 472) (1997).

5. Johnson contends that his statement to Officer Presley was improperly admitted because it was not shown by a preponderance of the evidence to have been freely and voluntarily given. The sole premise for this argument was the officer’s statement during his direct examination in the Jackson v. Denno hearing that he told Johnson “that this was a waiver of rights and he had to sign it saying that I had read him his rights and that he understood them.” (Emphasis supplied.)

Thereafter, however, on cross-examination and during his testimony before the jury, Officer Presley stated that he did not pressure, coerce or threaten Johnson, that Johnson said he understood his Miranda rights and the form and was willing to talk to him without an attorney. The one portion of the testimony emphasized by Johnson does not require the conclusion that Johnson had no choice but to sign.

Decided June 25, 1999.

Carolyn E. Moller, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

There was no error in concluding that the statement was voluntarily given. Wingfield v. State, 229 Ga. App. 75, 81 (4) (493 SE2d 235) (1997).

6. Finally, Johnson contends that the trial court’s “repeated comments” suggested that he was partial to the State.

There was no such objection made below, however, and we will not consider it here for the first time. Thomas, supra.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       One count each for assault with intent to rape, assault with a stick in a manner likely to cause serious bodily injury, and assault with a screwdriver in a manner likely to cause serious bodily injury.

       OCGA § 24-2-3.

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).


author: Smith, Judge.

text:
    A99A0207.
    GEORGIA ASSOCIATION OF EDUCATORS, INC. v. PARAGON PRODUCTIONS, INC.
    (520 SE2d 37)
   Smith, Judge.

The Georgia Association of Educators (“GAE”) brought this action against Paragon Productions seeking recovery of rent due under the terms of a lease. Paragon answered and counterclaimed, alleging GAE’s failure to repair and failure to provide exclusive possession and quiet enjoyment of the premises. At trial, the jury found in favor of GAE but awarded damages in the amount of zero dollars. The trial court denied GAE’s motion for new trial, and GAE appeals. Because the trial court, without applying the appropriate rules of contract construction to the lease agreement, erroneously instructed the jury that it should determine the intentions of the parties and that it could consider parol evidence in determining their intentions, we reverse the denial of GAE’s motion for new trial.

1. The trial court instructed the jury that “the cardinal rule for the interpretation of contracts is for you, the jury, to determine the intention of the parties” and that “where a contract incorporates ambiguous conditions, then parol testimony is admissible to aid in construing the contract.” GAE objected to both charges before they were given, noting that the jury determines the intent of the parties only if an ambiguity exists in the contract, that no ambiguity had been shown, and that parol evidence therefore was not admissible. GAE also preserved its objections after the charge.

In construing oral and written contracts, the court should apply the appropriate three-step process of contract construction. . . . First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. Thus, where the terms of the contract are clear and unambiguous, the court looks only to the contract to find the parties’ intent. Second, if the potential for ambiguity appears, the existence or non-existence of an ambiguity is itself a question of law for the court, unless an ambiguity remains even after the court has applied the pertinent rules of contract construction. Finally, issues of contract construction will be submitted to the jury only when there appears to be an ambiguity in the contract which cannot be resolved by the court’s application of the statutory rules of construction.

(Citations omitted.) Gill v. B & R Intl., 234 Ga. App. 528, 530 (1) (a) (507 SE2d 477) (1998). Here, the trial court never applied this process and never determined that any portion of the contract was ambiguous.

This court has consistently held that charging the jury on legal principles dealing with contract construction constitutes reversible error. Likewise, it was error in the instant case to give the jury the quoted charge on contract construction. It is not the province of the jury to construe unambiguous contracts.

(Citation and punctuation omitted.) Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 301 (1) (447 SE2d 666) (1994). The construction of a contract is a question of law to be decided by the trial court. OCGA § 13-2-1. The appellee has not pointed to any particular provision in the contract that it contends cannot be construed by the trial court. “When the trial court can apply statutory rules of construction to the express terms of the [contract] to reach only one legal meaning, no ambiguity exists.” Kobryn v. McGee, 232 Ga. App. 754, 756 (1) (503 SE2d 630) (1998). To the extent that the amount of rent established by the “special stipulations” to the contract is ambiguous, being stated both as dollars per month and dollars per square foot, the trial court should have applied the rule of contract construction that handwritten portions of a contract control when they appear to be in conflict with printed provisions. OCGA § 13-2-2 (7); Foshee v. Harris, 170 Ga. App. 394, 396 (317 SE2d 548) (1984).

Decided June 25, 1999.

Ellenherg & Associates, Tamara M. Ogier, for appellant.

Wallace, Shannon & Francis, Derrick L. Wallace, for appellee.

Moreover, “in the absence of any ambiguity, parol evidence was not admissible to add to, take from, or vary the terms of the written contract. [Cit.]” Stephens v. Crittenden Tractor Co., 187 Ga. App. 545, 548 (1) (b) (370 SE2d 757) (1988). The trial court accordingly erred in instructing the jury that it could construe the contract or consider parol evidence without first finding an ambiguity that could not be resolved by applying the rules of contract construction.

Under the facts of the case and in light of the jury’s verdict, we cannot say that the error was harmless, because an apparent but resolvable ambiguity in the contract was not addressed by the trial court and was improperly left for the jury to resolve. For this reason, GAE’s motion for new trial should have been granted.

2. GAE’s remaining enumerations of error are rendered moot by our finding of reversible error in Division 1.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       The trial court granted a directed verdict as to Paragon’s counterclaims, but Paragon did not cross-appeal.


text:
    A99A0285.
    THE STATE v. BURNS.
    (520 SE2d 39)
   Ruffin, Judge.

Michael Burns was charged with trafficking in cocaine and possession of marijuana after a traffic stop resulted in the discovery of contraband. The trial court granted Burns’s motion to suppress evidence resulting from the stop, and the State appeals. We affirm.

In reviewing a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment, and the court’s findings on disputed facts and credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997). However, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

In this case, the relevant facts are essentially undisputed. Deputy Scott Mauro testified that, on March 19, 1998, he saw an older model yellow or tan Monte Carlo driving on Washington Road. There appeared to be two occupants in the car, although the windows were tinted. Mauro testified that a “BOLO,” or “be on the lookout,” alert had been issued for an “older, yellow in color Monte Carlo driven by or occupied by two suspects, one unknown and one . . . believed to be a white man,” that had been involved in a purse snatching three days earlier at a Lowe’s store about two miles away. Mauro stopped the automobile because it matched the description in the BOLO alert and ran criminal checks on the two occupants, Burns and Tremayne Clark, who were both black males. These checks revealed no outstanding warrants.

Deputy Jason Redman, a narcotics officer with the canine unit, testified that he arrived at the scene after Mauro had stopped the car. Redman testified that he began asking questions to Burns and Clark and became suspicious when they gave inconsistent statements and appeared evasive. While waiting for the results of the criminal background checks, Redman had his drug dog perform a free air sniff around the outside of the car, and the dog gave a positive response near the front passenger door. Redman opened the passenger door, and the dog alerted on an air conditioning vent. Redman removed the vent cover and found a bag of crack cocaine.

Burns moved to suppress evidence resulting from the search, arguing that the police did not have articulable suspicion to stop the car. The trial court granted the motion to suppress, and the State appeals.

In determining the validity of an investigative stop, our Supreme Court has stated that

[a]lthough an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, [1880,] 20 LE2d 889) (1968). The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, [695,] 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme Court’s] Fourth Amendment jurisprudence.” Terry v. Ohio, supra at 21, n. 18.

(Citations omitted.) Vansant, supra at 320 (2).

In Vansant, relied on by Burns, an individual telephoned the police and said that he had seen the defendant, obviously intoxicated, get into a white GM van, back into a pickup truck, and drive away without stopping. This individual gave the police his name and location, a description of the incident, the name of the defendant, a description of the van by color and manufacturer, and the direction in which the van was headed. Id. at 319. A police officer saw a white van about a mile from the scene of the incident and followed it for a mile before stopping it. This officer knew only that he was on the lookout for a white van driven by a white male named John Vansant and testified that he would have stopped any white van. It was about 1:15 a.m. at the time of the stop, there were few vehicles on the road, and this was the only white van the officer saw. Id. at 319-321. Nevertheless, the Supreme Court held that the officer did not have a

particularized basis for suspecting the driver of this particular white van of criminal activity. He did not have a particularized description of the vehicle; he did not know the direction in which the vehicle had left the scene of the purported hit-and-run; he had not observed criminal activity on the part of the person stopped; he had no knowledge or suspicion that the vehicle had been involved in other similar criminal behavior. The officer’s lack of specific information resulted in an unreasonable governmental intrusion.

Id. at 321.

The State argues that Vansant is distinguishable because the officer in this case was working from a more particularized description of the automobile: i.e., an older model, yellow Monte Carlo with two occupants, one of whom was a white male. The State argues that Thomason v. State, 268 Ga. 298 (486 SE2d 861) (1997) is the more appropriate precedent. In Thomason, Jerry Self called police on his cellular phone to say that he saw an unfamiliar Oldsmobile Cutlass parked in his driveway. Two police officers drove to Self’s house to investigate. When they were about 100 yards from the house, they saw a light brown 1978 or 1979 Oldsmobile Cutlass, with a lighter brown top, approaching them from the direction of the house. It was raining heavily, and they noticed that the driver was a white male with brown curly hair wearing a black baseball cap. The officers proceeded to Self’s house, where they found Self lying dead on the ground from gunshot wounds. It appeared that the house had been burglarized. Id. at 299. Local police were alerted to be on the lookout for a brown 1978 or 1979 Oldsmobile Cutlass with a lighter brown top driven by a white male. Shortly thereafter, a vehicle and driver matching that description were seen leaving a convenience store in nearby Calhoun. A police officer stopped the vehicle and patted down the driver, who was soaking wet even though it had just started raining in Calhoun. The driver’s shirt appeared to have fresh blood on it, and, after consent to a vehicular search was given, bloodstained currency was found in the car. Id. at 299-300.

The Supreme Court held that the officer had reasonable suspicion for the initial stop. The Court noted that the description of the automobile and driver was much more detailed than in Vansant, including “the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver’s gender and race.” Thomason, supra at 301. This “specific and articulable information” was enough to give the officer “reasonable suspicion that the car and its driver were the subjects of the lookout request.” Id. at 301-302.

The State’s reliance on Thomason is misplaced, as the circumstances surrounding the stops in Thomason and in this case are quite different. For one thing, the description of the car in Thomason (1978 or 1979 brown Oldsmobile Cutlass with lighter brown top) was much more detailed and distinguishing than the description in this case (older model yellow Monte Carlo), thus making it more likely that a car matching the description would in fact be the car police were looking for. More fundamentally, the lookout request in Thomason was still fresh, while the lookout request in this case was issued three days before the stop. As the Supreme Court noted in Thomason, the relevant question is whether the officer has a reasonable suspicion that the car and driver in question are in fact the subjects of the lookout request. Id. If an alert is issued immediately after an incident, as in Thomason, a general description of the vehicle (e.g., by color, model, and year) may suffice to justify a stop, as it is more likely that a vehicle matching the general description, in the vicinity and near the time of the incident, is in fact the vehicle that the police are looking for. This is especially true where, as in Thomason, the vehicle itself is rather uncommon (a 13- or 14-year-old Cutlass with distinguishing colors). Where a lookout alert is several days old, however, it is much less likely that a car matching a general description is in fact the car that is being sought. In this case, we cannot say that the mere fact that an older model yellow Monte Carlo was seen three days after the issuance of an alert was sufficient to raise a reasonable suspicion that it was the same car involved in a purse snatching three days earlier at a location two miles away.

Since the police did not have reasonable suspicion to stop Burns’s vehicle in the first place, the free air search by the drug dog did not provide probable cause to search the vehicle. See Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996). Accordingly, the trial court did not err in granting the motion to suppress.

Decided June 25, 1999.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellant.

Raymond J. Doumar, for appellee.

Judgment affirmed.

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