text:
    A89A1895.
    SOUTHERN GUARANTY INSURANCE COMPANY v. NIXON.
    (390 SE2d 638)
   Banke, Presiding Judge.

This litigation commenced with the filing of an action by K & E, Ltd., which is not a party to this appeal, against the appellee, Clarence Nixon, d/b/a Nixon Construction Company, to recover for property damage allegedly sustained as the result of the latter’s alleged negligence in performing certain work called for under a construction contract with K & E. Nixon filed a third-party complaint against the appellant herein, Southern Guaranty Insurance Company, alleging that K & E’s claim was covered under a general liability insurance policy issued to him by the appellant. In a bifurcated trial, the same jury first returned a verdict for K & E against Nixon and then returned a verdict for Nixon against Southern Guaranty. Southern Guaranty appeals.

K & E had purchased an office building with a substantially incomplete interior with the intention of improving the interior space to suit prospective tenants. One such tenant, the Nicolon Corporation, leased 6,000 square feet of space in the building, following which K & E contracted with appellee Nixon for the completion of the space according to Nicolon’s specifications. Nicolon moved into the space on March 1, 1984, at which time the construction was substantially completed except for a “punch list” of items to be performed by Nixon. The Nicolon suite contained a small kitchen area over which a hot water heater had been installed in the ceiling. It was established without dispute that this appliance was not operational at the time Nicolon moved in, that it was a “punch list” item which remained for Nixon’s attention, and that K & E was withholding a portion of the contract price until such time as it was made operational. The work necessary to make the appliance functional was not attempted until July 22, 1984, almost five months after Nicolon had taken occupancy, at which time an electrician hired by Nixon replaced the heating element, resulting in the rupture of a pipe and approximately $47,400 in water damage. Held:

1. At the commencement of the trial, counsel for appellant Southern Guaranty moved the court to bifurcate the trial of the main claim from that of the third-party claim in order to remove the issue of insurance from the jury’s consideration during the negligence phase of the trial. That motion was granted, with the understanding and agreement that the same jury would decide both phases of the trial. However, at the commencement of the second phase of the trial, appellant’s counsel moved the court to empanel a second jury, arguing that the appellant would otherwise be denied a fair trial. The motion was denied, and the appellant contends on appeal that this ruling was prejudicial to it in that, having already rendered a verdict against Nixon, the jury was aware in deciding the coverage question that Nixon would be responsible for paying the damages should the insurance issue be decided against him.

While OCGA §§ 9-11-14 (a) and 9-11-42 (b) provide that a third-party claim may be tried separately from the main claim, “ [severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga. App. 532 (1) (307 SE2d 13) (1983). See also Sollek v. Laseter, 124 Ga. App. 131 (183 SE2d 86) (1971). In this case, the trial court exercised its discretion in favor of the appellant by granting its initial motion to bifurcate the trial and thereby preventing the triers of fact from considering the existence of the insurance during the negligence phase of the trial. The trial court’s refusal thereafter to empanel a second jury to try the insurance issue had the salutary effect of promoting judicial economy by avoiding the repetition of evidence. We find no abuse of discretion under the circumstances.

2. The appellant contends that the verdict against it on the coverage issue was contrary to a policy exclusion pertaining to “completed operations hazards.” This exclusion applied, by the terms of the policy, to “property damage [which] occurs after . . . operations have been completed or abandoned and [which] occurs away from premises owned by or rented to the named insured.” The policy further provided as follows: “ ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times: (1) When all operations to be performed by or on behalf of the named insured under the contract have been completed, (2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or (3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

In Southern Guaranty Ins. Co. v. Jeffares, 190 Ga. App. 449 (379 SE2d 167) (1989), we held that, notwithstanding the existence of an identical exclusion, an insured was entitled as a matter of law to coverage for damage caused by the faulty operation of a heating and air-conditioning system which had been approved by county inspectors three days earlier but which had not yet been charged and tested by the installer. In reaching this conclusion, we reasoned that since “remaining work was necessary for full performance of the contract requirements, . . . the operations to be performed by the insured under the contract at the job site were not completed when the [loss] occurred.” Id. at 450. In the present case, there was evidence from which the jury could have concluded that the work which remained to be performed on the hot water heater was installation work rather than repair work and that the appellee’s “operations” with respect to it consequently had not yet been completed. Compare Continental Ins. Co. v. Hawkins, 170 Ga. App. 274 (316 SE2d 596) (1984) (sprinkler system operational when loss occurred); Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420 (376 SE2d 373) (1988) (repairs to steam cooker completed two years prior to loss); Aetna Cas. &c. Co. v. Ammons, 125 Ga. App. 74 (186 SE2d 495) (1971) (fall of light fixture occurred months after installation completed). Accordingly, we hold that the trial court did not err in denying the appellee’s motions for directed verdict, for judgment notwithstanding the verdict, and for new trial on the general grounds.

Decided February 5, 1990.

Parkerson & Shelfer, William S. Shelfer, Jr., for appellant.

Chambers, Mabry, McClelland & Brooks, James T. Budd, Brunetti & Mazzetta, Alfred F. Brunetti, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A1953.
    GARMON v. THE STATE.
    (390 SE2d 882)
   Pope, Judge.

Defendant Tommy Lee Garmon was indicted for the offenses of trafficking in cocaine, possession of marijuana and possession of a firearm during the commission of a crime. The trial court directed a verdict on the firearm charge and the jury found defendant guilty of trafficking in cocaine and possession of marijuana. Held:

1. Defendant challenges the sufficiency of the evidence, contending that the State failed to show he was in actual possession of cocaine as was then required by OCGA § 16-13-31 (a). Construed so as to support the verdict, the record shows that defendant was stopped by Officer Spires of the Tifton Police Department on November 6, 1986, after Spires received information to be on the “look-out” for a car matching the description of the one defendant was driving. Spires asked defendant for his driver’s license and defendant responded he did not have one. Spires then informed defendant he was going to place him under arrest for driving without a license. Defendant informed the officer he was not going to jail and began running. Spires pursued defendant for approximately thirty-five feet (three to five seconds), but then returned to defendant’s vehicle and the passenger in it. Defendant was subsequently apprehended at his mother’s house. A search of the vehicle revealed a .38 caliber revolver located between the driver’s seat and front console, and substances subsequently identified as marijuana and cocaine located in the console.

Defendant testified at trial that the cocaine found in the car belonged to his passenger, who was tried prior to defendant and acquitted of the charges against him, and that he did not know the passenger had drugs in his possession Until shortly before they were stopped.

“ ‘The “actual possession” required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.’ Barrett v. State, 183 Ga. App. 729, 736 (2) (360 SE2d 400) (1987). See also Cochran v. State, 190 Ga. App. 884 (380 SE2d 319) (1989).” Riley v. State, 191 Ga. App. 781, 782 (383 SE2d 172) (1989). “[T]his court [has previously] held that the driver of an automobile in which contraband . . . [was] discovered was in joint actual possession of the contraband with the . . . passenger.” Ramirez v. State, 190 Ga. App. 889, 890 (380 SE2d 323) (1989) (referring to Cochran v. State, supra). Although defendant testified the contraband belonged to his passenger and that he had no knowledge that his passenger possessed contraband until shortly before they were stopped, “the weight of the evidence and credibility of witnesses are matters for determination by the jury. . . .” Howard v. State, 185 Ga. App. 215, 216 (1) (363 SE2d 621) (1987). See also Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988); Evans v. State, 167 Ga. App. 396, 397 (306 SE2d 691) (1983), overruled on other grounds, Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984). “Here the evidence, albeit largely circumstantial, was sufficient to find [defendant guilty of trafficking in cocaine].” Riley, supra at 782. See also Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988); Howard, supra at (1).

2. We have examined defendant’s contention that the trial court erred in charging the jury that possession of contraband could be inferred from possession, custody and control of the vehicle in which the contraband was found, and find it to be without merit. Howard v. State, supra at (2); see also Doe v. State, 189 Ga. App. 793 (377 SE2d 546) (1989).

3. Defendant next contends that the trial court erred in allowing the prosecutor to propound certain questions during cross-examination of the defendant, which defendant now contends impermissibly placed his character in issue. The basis of defendant’s objection at trial, however, was that the complained of questions were based on facts not in evidence. “‘[I]t is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. (Cits.)’ [Cit.].” Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891) (1988). Accord Napier v. State, 184 Ga. App. 770, 772 (3) (362 SE2d 501) (1987); Bryant v. State, 182 Ga. App. 609, 610 (1) (356 SE2d 698) (1987).

As to defendant’s contention that the prosecutor’s questions were an attempt to introduce facts not in evidence, the transcript shows that the trial court, following defendant’s objection, instructed the jury that the questions propounded by counsel were not to be considered as facts, and were to be disregarded by the jury in their deliberations. The record further shows that defendant did not renew his objection following the court’s instruction to the jury. Consequently, we find no merit to this enumeration. See Whisnant v. State, 178 Ga. App. 742 (2) (344 SE2d 536) (1986).

4. Defendant next contends the State failed to show, beyond a reasonable doubt, that the quantity of cocaine seized equaled 28 grams or more. At trial, contrary to defendant’s contentions on appeal, the State’s expert witness testified that she weighed each bag of cocaine and emptied several of the bags in order to ascertain the weight of the containers so she could subtract that amount from the overall figure. Using this method, she concluded that the contraband weighed 28.2 grams. Based on this evidence, as well as the witness’ testimony concerning the precision of the instruments used to weigh the contraband, we find the evidence was more than sufficient to authorize a reasonable juror to conclude that the contraband weighed 28 grams or more so as to authorize defendant’s conviction for trafficking in cocaine. See Newton v. State, 191 Ga. App. 664 (382 SE2d 432) (1989).

5. Defendant also assigns error to the admission of an alleged similar transaction which occurred several months after the incident giving rise to the charges in the case at bar. “Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that (the defendant) was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter. Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986). Kickery v. State, 185 Ga. App. 274, 276 (363 SE2d 805) (1987).” (Punctuation omitted.) Hattaway v. State, 191 Ga. App. 812 (383 SE2d 140) (1989).

Defendant does not dispute that he was the perpetrator of the similar offense, but contends that the State failed to show the requisite similarity. We disagree. As to the subsequent crime, the record shows that defendant was initially stopped for weaving, and that he attempted to flee the scene but was immediately apprehended. At the time he was apprehended, defendant was clutching a white napkin containing marijuana and was observed dropping a plastic bag containing cocaine , on the ground. Tucked inside defendant’s belt was a .38 caliber revolver. Based on this evidence, we have little difficulty in concluding that there are sufficient similarities between the similar offenses and the offenses charged in this case to warrant the admission of the complained of evidence. Roney v. State, 192 Ga. App. 760 (2) (386 SE2d 412) (1989); Hattaway, supra at (1); Lockett v. State, 188 Ga. App. 645 (373 SE2d 768) (1988). Consequently, we find no basis for reversal.

Decided February 5, 1990.

Morris & Webster, Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, for appellee.

6. We have examined defendant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

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

       “The legislature has since amended that section by deleting the word ‘actual’ preceding the word possession. However, ‘that amendment, effective March 28, 1988, is an ex post facto law insofar as our consideration of this appeal is concerned.’ Christopher v. State, 190 Ga. App. 393, 394 (379 SE2d 205) (1989).” Riley v. State, 191 Ga. App. 781, 782, n.1 (383 SE2d 172) (1989).


author: Beasley, Judge.

text:
    A89A2080.
    COLEMAN v. THE STATE.
    (391 SE2d 15)
   Beasley, Judge.

Defendant appeals his conviction of child molestation, OCGA § 16-6-4.

1. Although the testimony of the minor prosecuting witness was somewhat contradictory and there were conflicts with other evidence offered by the State, viewed in a light favorable to the verdict there was sufficient evidence to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense charged. Weeks v. State, 187 Ga. App. 307, 308 (1) (370 SE2d 344) (1988); Hicks v. State, 175 Ga. App. 243, 244 (4) (333 SE2d 113) (1985).

2. Defendant asserts error in permitting the jury, upon request, to view again a videotape of an interview between a police officer and the prosecuting witness.

“Whether or not to grant the jury’s request to rehear portions of the evidence is within the discretion of the trial judge.” Morris v. State, 254 Ga. 273, 274 (2) (328 SE2d 547) (1985). Defendant failed to carry his burden of showing an abuse of discretion in this instance. Lumpkin v. State, 182 Ga. App. 505, 506 (4) (356 SE2d 238) (1987); Haynes v. State, 180 Ga. App. 202 (2) (349 SE2d 208) (1986).

Judgment affirmed.

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

Decided February 5, 1990.

Hollingsworth & Richardson, W. Gene Richardson, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.


author: Sognier, Judge.

text:
    A89A2105.
    FORD MOTOR CREDIT COMPANY v. WILLIAMS.
    (390 SE2d 640)
   Sognier, Judge.

Ford Motor Credit Company (FMCC) brought an action against Carla Patrice Williams seeking to recover a deficiency balance outstanding after repossession and resale of an automobile purchased by Williams and financed by FMCC, and Williams counterclaimed. The trial court entered a consent order memorializing a settlement agreement between the parties, but the court subsequently notified the parties that the order was not dispositive of the litigation and set the case for trial. After FMCC failed to appear at the pretrial conference, the court dismissed the action pursuant to USCR 14. FMCC appeals.

The consent order agreed to by the parties and entered by the trial court provided that appellee would dismiss her counterclaim and would pay $2,000 to appellant in monthly installments of $50. The order further provided that if appellee defaulted on the payment of any installment and did not cure within ten days, appellant would “be entitled to take judgment against [appellee], without any additional notice, for the full amount sued for, less any payments made.” The court entered the order, but then notified the parties that the order did not finally dispose of the litigation and thus the court must proceed with trial of the case as required by USCR 8.1. Appellant objected to this conclusion, and argued in a letter and brief that the consent order was a final order. By letter, the court thereafter informed counsel that in the court’s opinion the consent order left the case open, and accordingly the case was scheduled for trial in two weeks. The court did suggest to counsel that as an alternative to trial, they could submit “a final judgment for the amount due and work out between [them] selves a stay of execution of the judgment conditioned upon the payment outlined in the [consent] order” so that the case would not remain “open for an additional two to three years.” The court dismissed the action two weeks later pursuant to USCR 14 because of appellant’s absence from the pretrial conference without legal excuse.

1. In five enumerations of error appellant contends the trial court’s characterization of the consent order as not dispositive of the action was improper because by its terms the order did resolve the case, and trial courts are required to accept settlements agreed to by the parties. While we agree with appellant that when parties to litigation have entered into a valid settlement agreement, the agreement must be accepted and entered by the trial court, DeKalb County v. Everhart, 242 Ga. 104, 105 (249 SE2d 571) (1978), that principle of law is not determinative of the case at bar because here the trial court did accept the settlement agreement. Compare Kapiloff v. Askin Stores, 202 Ga. 292 (42 SE2d 724) (1947). However, the court correctly concluded that the consent order presented by the parties was not a final judgment, as it did not provide either that the action was dismissed or that appellant received judgment but stayed execution pending compliance with the settlement agreement, and thus the case was not at an end. Consequently, the trial judge properly discharged his duty under USCR 8.1 to ensure that cases did not “languish” and to provide for the “orderly movement and disposition of all matters assigned to him” in proceeding with the disposition of the case by scheduling a pretrial conference and setting the case for trial. A trial court has broad discretion in regulating and prescribing the manner in which the business of the court will be conducted, see Scocca v. Wilt, 243 Ga. 2, 3 (252 SE2d 401) (1979), and we find no abuse of that discretion in the trial court’s actions here.

Decided February 5, 1990.

Daniel F. Bridgers, Henry R. Stringfellow, for appellant.

Brown, Phillips & Scoccimaro, Jimmie H. Brown, for appellee.

2. Appellant’s contention that the trial court erred by dismissing the action pursuant to USCR 14 is similarly without merit. Because we hold that the trial court’s scheduling of pretrial proceedings was proper, we find no error in the court’s dismissal of the action without prejudice pursuant to USCR 14 for appellant’s failure to appear for the pretrial conference without legal excuse. See Home Owners Warranty Corp. v. Pinewood Bldrs., 188 Ga. App. 324, 325 (1) (373 SE2d 34) (1988). We note that the record does not support appellant’s contention that the court previously had agreed to enter a dismissal only for the purpose of permitting an appeal on the issue of the finality of the consent order.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A2182.
    RUCKER v. ALLSTATE INSURANCE COMPANY et al.
    (390 SE2d 642)
   McMurray, Presiding Judge.

Allstate Insurance Company (“Allstate”) filed a declaratory judgment action to determine its obligations under an Allstate automobile insurance policy issued to Gloria Benton in regard to a personal injury action filed on behalf of Jonathan M. Rucker, a minor, and against Bobby Martin. Allstate moved for summary judgment arguing that it should be relieved of liability under its policy of insurance because “the insureds” failed to “promptly” notify it of the accident which gave rise to the underlying tort action. Allstate relied on the pleadings, two affidavits and admissions of the parties to support its motion for summary judgment. No evidentiary material was filed in opposition to the motion. The undisputed facts revealed the following:

Allstate insured a 1983 Buick Electra automobile which was owned by Benton. The insurance policy provided, in pertinent part, as follows: “If a person insured has an auto accident, [Allstate] must be promptly notified of all details.” On May 14, 1986, Martin was driving Benton’s Buick when he collided with a bicycle that was being operated by Rucker. Immediately after the collision, Martin informed Benton of the collision “and about [an] injury to Jonathan M. Rucker.” On March 9, 1987, a lawsuit was filed against Martin in the Superior Court of Fulton County on behalf of Rucker for injuries the child allegedly sustained in the collision. On May 5, 1987, Allstate learned of the collision and the lawsuit. This declaratory judgment action followed.

The trial court granted Allstate’s motion for summary judgment, finding that the insured’s “delay in notifying [Allstate] of the accident was unjustified and unreasonable.” This appeal followed. Held:

It is first argued that the trial court erred in granting Allstate’s motion for summary judgment because prompt notice of the accident was not a “condition precedent” to coverage under the policy. This argument is without merit because the undisputed evidence shows that the policy requires prompt notice of any accident which may give rise to liability under the policy. Alternatively, however, it is argued that a jury question exists as to whether the delay in notification was reasonable and justified.

“The time limitations in policies of insurance requiring a report of incident [promptly] are subject to a factual determination. ‘The questions of the sufficiency of the excuse offered, and the diligence of the beneficiary in giving the notice after the removal of the disability, are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.’ [Cits.]” Norfolk & Dedham &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198 (2) (196 SE2d 167).

In the case sub judice, Allstate presented no evidence as to the reason for the insureds’ delay in giving notice of the collision. Allstate only showed that it received notice almost 12 months after the collision and that the insured (Martin) and the policyholder (Benton) were aware that Rucker was injured. There is no evidence showing that Benton or Martin were aware of the extent of Rucker’s injuries or that the child required medical attention for his injuries. Nor is there evidence showing the extent of damage, if any, to Benton’s vehicle so as to apprise the policyholder of the severity of the collision. Under these circumstances, we cannot say as a matter of law that Allstate met its burden of showing that the insureds’ delay in giving notice of the collision “was unjustified and unreasonable.” See Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429). Consequently, giving the non-moving parties the benefit of every reasonable doubt, we find that genuine issues of material fact remain as to the sufficiency of the insureds’ excuse for the delay in reporting the collision to Allstate and of their diligence in giving notice of the accident after the removal of any disability. See Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 581 (1), 582 (251 SE2d 823). Compare Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245), where undisputed evidence presented on summary judgment showed that the insured was aware at the time of the collision of damages which were covered under the policy of insurance. The trial court erred in granting Allstate’s motion for summary judgment.

Judgment reversed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

It should be noted, first of all, that the provision quoted from the policy includes a second sentence: “If a person insured is sued as the result of an auto accident [Allstate] must be notified immediately.” That is, there are two requirements for prompt notification.

1. By substituting the word “promptly” for the words “as soon as practicable” in the citation from Norfolk & Dedham &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198 (2) (196 SE2d 167) (1973), we are equating the two. Because “as soon as practicable” has been construed in that and other cases to allow for reasonable excuses and reasonable delays without penalizing the insured with non-coverage, these same factors are being carried into the concept of promptness. It is as though the condition precedent required that the insurer be promptly notified unless there is a reasonable excuse and notification within a reasonable time after knowledge of the accident and resulting injuries and damages. Strictly as written, the policy requires prompt notification after the accident happens, period, leaving no room for excuses for delay and excluding lack of knowledge of injuries and property damages as justification for lack of promptness.

Decided February 5, 1990.

Nall, Miller, Owens, Hocutt & Howard, Kelly D. Eulenfeld, for appellant.

Allen F. Harris, Fain, Major & Wiley, Charles A. Wiley, Jr., Arthur B. Seymour, Brian R. Neary, for appellees.

2. The underlying lawsuit for which coverage is sought is against only the driver Martin, who was an additional insured under the policy. It is undisputed that he knew of his collision with the bicycle at the time it occurred and that the child was injured. He told the car owner sometime thereafter. He received a traffic summons due to the collision. The case was dismissed not on the facts but because the witness did not appear. He gave no notice to the insurer whose contract with the car owner he now wishes to invoke the coverage of. The insurer was not notified of the collision until almost one year after-wards. It was not notified at all by Martin or the named insured.

No reason is given for the failure to comply with the policy requirements other than the owner’s judgment of triviality, so there is a question of fact with regard to whether the reasons were justified. Of course, “trustification for failure to give notice as soon as practicable, . . . may not include the insured’s conclusion ‘that he was free of fault and that there was no liability to the other party. That is the very issue which the company must have reasonable opportunity to investigate with promptness, and which requires a prompt notice of the occurrence.’ Bituminous Cas. Corp. v. J. B. Forrest &c., Inc., 132 Ga. App. 714, 717 (209 SE2d 6).” Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245) (1976).

Whether the terms of the policy have been complied with so that the additional insured Martin can elect coverage, has not been foreclosed as a matter of law. See, regarding additional insureds, Hicks v. Continental Ins. Co., 146 Ga. App. 124 (245 SE2d 482) (1978); Leventhal v. American Bankers Ins. Co., 159 Ga. App. 104, 105 (3) (283 SE2d 3) (1981).

       E.g., Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 582 (1) (251 SE2d 823) (1978); Richmond u. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 220 (2) (231 SE2d 245) (1976); Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261, 262 (358 SE2d 611) (1987).


author: Banke, Presiding Judge.

text:
    A90A0007.
    WILBURN v. THE STATE.
    (390 SE2d 645)
   Banke, Presiding Judge.

The appellant and a co-defendant, Gary Ross, were jointly indicted and tried on charges of burglary (three counts), attempted burglary, and possession of burglary tools. Also named in the indictment were two accomplices who pled guilty and testified for the state at trial. The appellant was convicted on each of the above charges, while Ross was convicted on all but that of possessing burglary tools. The appellant brings this appeal from the denial of his motion for new trial. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. During the trial, the state presented to the jury the substance of two incriminatory statements the appellant had made while in custody. The appellant contends that the trial court erred in directing the state to delete the word “we” where it had been used in these statements and to substitute for it the word “I.” The appellant did not testify, and the purpose of this procedure was to prevent co-defendant Ross’s Sixth Amendment right of confrontation from being violated by the use of the statements. See generally Brown v. State, 164 Ga. App. 505 (2) (296 SE2d 215) (1982). The appellant complains that the statements were unduly prejudicial to him in their edited form because they overemphasized his involvement in the offenses for which he was on trial, to the exclusion of his accomplices. However, inasmuch as the two co-indictees who testified for the state admitted their involvement, and inasmuch as co-defendant Ross was found guilty on every count except that of possession of burglary tools, we find this argument to be without merit.

3. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” Crawford v. State, 245 Ga. 89, 90-1 (263 SE2d 131) (1980). The trial court was authorized to conclude from the evidence presented at the Jackson v. Denno hearing that the appellant made his in-custody statements freely and voluntarily, after being advised of his Miranda rights.

4. The appellant contends that the trial court erred in refusing to grant a mistrial after one of the co-indictees who testified for the state responded as follows upon being asked what had been done with some quarters which had been stolen during one of the burglaries: “I think it was spent on drugs. They split them and gave me about $5.00 worth.”

“The decision to grant or deny a motion for a mistrial is necessarily a matter within the discretion of the trial court, and the court’s exercise of that discretion will not be disturbed on appeal unless it is apparent that a mistrial is essential to preserve the defendant’s right to a fair trial. [Cit.]” Culbreath v. State, 258 Ga. 373, 376 (369 SE2d 29) (1988). Because the testimony at issue was, at worst, merely cumulative of other evidence indicating that property stolen during the burglaries had been exchanged for cocaine (see Division 6, infra), we conclude without hesitation that the trial court did not abuse its discretion in refusing to declare a mistrial on the basis of it.

Decided February 5, 1990.

N. David Wages, for appellant.

5. The appellant contends that the court erred in allowing the burglary tools into evidence because they were “immaterial and impermissibly place[d his] character in issue.” We are at a loss to understand the contention that the tools were “immaterial,” since they were the tools the appellant was charged with having possessed and used during the commission of the offenses for which he was on trial. We note that the objection which the appellant made to this evidence at trial was not that it was irrelevant or that it improperly placed his character in issue but that it was the fruit of an illegal arrest. However, the tools were not seized from the appellant’s person or home but from the trunk of an automobile belonging to one of his co-indictees. “The right to object to an unreasonable search and seizure is a privilege which is personal to those whose rights have been infringed, and the appellant here was not entitled to object to the search of an automobile which was not his property or in which he had no right of exclusive possession.” Dutton v. State, 228 Ga. 850, 851 (188 SE2d 794) (1972). Accord Howard v. State, 187 Ga. App. 74, 76 (4) (369 SE2d 271) (1988).

6. The appellant contends that the trial court erred in refusing to declare a mistrial in response to testimony by one of the state’s witnesses to the effect that he (the witness) had received information “from one of [the suspects] that . . . the cigarettes that were stolen [during one of the burglaries] were . . . exchanged for cocaine.” An examination of the transcript reveals that no objection was made to this testimony at the time it was offered. Moreover, the appellant’s subsequent motion for mistrial was not based upon the introduction of this testimony but was a renewal of his previous motion for mistrial dealing with the admission of the edited version of his custodial statements. Accordingly, this enumeration of error presents nothing for review.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Timothy G. Madison, District Attorney, for appellee.


text:
    A89A2149.
    WEST v. SOUTHERN GUARANTY INSURANCE COMPANY.
    (390 SE2d 619)
   Sognier, Judge.

Brenda Faye West brought suit against Southern Guaranty Insurance Company, alleging claims for fraud, conspiracy to defraud, and money had and received arising from Southern Guaranty’s subrogation of an automobile collision insurance claim made by West. She also moved for certification of the lawsuit as a class action. The trial court granted Southern Guaranty’s motion to deny class action certification and dismiss the class action allegations and its motion for summary judgment on West’s claims, and she appeals.

The material facts are not in dispute. On February 1, 1983, appellant completed a two-page application for automobile insurance to be issued by appellee. The first page contained brief descriptions of various coverage options and adjacent boxes to be checked indicating the coverage desired by the applicant. In section E of the form, which addressed collision coverage and provided a choice of deductible amounts ranging from none to $250, appellant checked “$100 Ded Collision.” She did not check section K, “Loss of Use.” The second page of the form includes the statement that “[t]he No-Fault Coverages listed in Section 33-34-5 (a) are as follows: Optional PIP, Full Coverage Comprehensive, Full Coverage Collision, Loss of Use. THE OPTIONAL NO-FAULT COVERAGES LISTED ABOVE HAVE BEEN EXPLAINED TO ME.” Appellant’s signature appears on the “Applicant’s Signature” line directly below this statement. The policy issued to appellant that day provides the following collision coverage: “Coverage E — Collision: [Appellee agrees] [t]o pay for loss caused by collision to the owned automobile . . . only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto.”

Appellant was involved in an automobile accident on February 10, 1983, and submitted to appellee a sworn proof of loss statement indicating that her car, which had a cash value of $3,995, was a total loss. Appellee paid .this claim (less the $100 deductible) in exchange for appellant’s execution of a loan receipt authorizing appellee to pursue her claims against the tortfeasor. Appellee subsequently asserted a subrogation claim against the tortfeasor’s insurer and recovered $3,150.

1. Appellant contends the trial court’s grant of summary judgment to appellee was erroneous because appellant purchased optional no-fault collision coverage offered pursuant to OCGA § 33-34-5 (a) rather than traditional collision coverage, and thus appellee was not entitled to subrogation. Appellee responds that it issued traditional collision coverage as described in Carter v. Banks, 254 Ga. 550 (330 SE2d 866) (1985), and accordingly was not barred from subrogating appellant’s claim. Thus, as in Georgia Farm &c. Ins. Co. v. Fowler, 189 Ga. App. 368 (375 SE2d 666) (1988), the issue is whether appellant purchased traditional collision coverage or optional no-fault property damage coverage.

As the Carter court recognized, long before enactment of the no-fault law insurers issued collision insurance as “a specific form of general property insurance.” Carter, supra at 552 (1). The Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., provides that insurers must offer to applicants certain optional no-fault coverage, including, inter alia, “[compensation without regard to fault for damage to the insured motor vehicle not to exceed the actual cash value of the vehicle at the time of the loss, including up to $10.00 per day with a maximum of $300.00 for the loss of use of the motor vehicle, provided that [such] benefits . . . may be subject to deductibles at the request of the policyholder.” OCGA § 33-34-5 (a) (3). This no-fault property damage coverage is a separate coverage from collision, Carter, supra at 554, and under OCGA § 33-34-3 (d) (1) as it existed in 1983 insurers were not entitled to subrogate claims made under no-fault property damage coverage as they could do for traditional collision coverage. Carter, supra at 553-554; Fowler, supra at 369. To determine whether insurance coverage falls under the no-fault law, “the court looks to the nature of the coverage.” Allstate Ins. Co. v. Bohannon, 258 Ga. 131, 133 (365 SE2d 838) (1988).

In the case at bar, review of the application and policy in the record persuades us that appellant was issued traditional collision coverage. The policy issued to appellant obligates appellee to pay “for loss caused by collision to [appellant’s] automobile.” It does not include the loss of use coverage specified as part of the optional no-fault property damage coverage that must be offered pursuant to OCGA § 33-34-5 (a) (3), and the application form reveals that appellant did not select loss of use coverage. As the policy does not provide the coverage described in OCGA § 33-34-5 (a) (3), we conclude appellant did not purchase no-fault property damage coverage. See Roberts v. Cotton States &c. Ins. Co., 186 Ga. App. 371 (367 SE2d 272) (1988); compare Bohannon, supra at 134 & n. 6. Further, contrary to appellant’s argument, the explanation of the optional no-fault coverages on page two of the application did satisfy the requirements of OCGA § 33-34-5 (b), compare Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257 (379 SE2d 778) (1989), and thus appellant’s signature following that statement indicates that she rejected the optional no-fault coverages, including no-fault property damage coverage. Consequently, appellee was entitled to subrogation, and the trial court properly awarded summary judgment to appellee. Roberts, supra at 372.

Decided January 25, 1990

Rehearing denied February 6, 1990

Burnside, Wall & Daniel, Thomas R. Burnside, Jr., James W. Ellison, Lucas & Bond, Kenneth E. Lucas, for appellant.

Darroch & Obenshain, Robert M. Darroch, C. David Vaughan, for appellee.

2. We find no error in the trial court’s decision on appellee’s motion to deny class certification and dismiss the class action allegations because the issue presented must be resolved on a “contract-by-contract basis,” Bohannon, supra at 134 (1), and “ ‘[w]here the resolution of individual questions plays such an integral part in the determination of liability, a class action suit is inappropriate.’ [Cit.]” Winfrey v. Southwest &c. Hosp., 184 Ga. App. 383, 384 (1) (361 SE2d 522) (1987).

Judgment affirmed.

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


text:
    A89A2298.
    CHAVARRIA v. JACKSON.
    (390 SE2d 613)
   Sognier, Judge.

Gary Jackson and Lynn Murray Chavarria were divorced in Georgia on October 1, 1984. On December 20, 1988, Jackson filed a motion for contempt, alleging that Chavarria had wilfully violated the visitation provisions in the divorce decree. The motion was personally served on Chavarria in Georgia. On February 7, 1989, after a hearing, the trial court entered an order finding Chavarria in contempt and ordering her incarcerated for twenty days, but allowing her to purge herself by complying with the visitation provisions of the divorce decree and certain other conditions. Chavarria was thereupon released from incarceration the afternoon following the hearing. On May 11, 1989, Jackson filed an “Application to Enforce Contempt Order” alleging noncompliance with the contempt order, serving Chavarria by mailing a copy to her counsel. Chavarria entered a special appearance to contest the court’s in personam jurisdiction. The trial court found that it had jurisdiction, but granted Chavarria a certificate of immediate review. We granted Chavarria’s application for interlocutory review and we now reverse.

Appellant contends appellee’s May 11th motion was a new action for contempt, requiring personal service, see Connell v. Connell, 221 Ga. 379, 380 (144 SE2d 722) (1965), and thus the trial court erred by denying her motion to dismiss for insufficiency of service of process. In opposition to appellant’s motion, appellee argued both below and before this court that the first contempt action remained pending in the trial court until appellant either purged herself or completed the term of incarceration imposed. The trial court agreed and denied appellant’s motion, citing Harrell v. Peteet, 134 Ga. App. 210 (214 SE2d 5) (1975). We cannot agree that Harrell is applicable here, as in Harrell no fine or imprisonment was imposed, and the trial court had specifically retained jurisdiction to render punishment, if necessary. That case has been interpreted as supporting the proposition that a contempt action remains pending in the trial court until a finding of contempt is made and punishment is imposed. See, e.g., Payne v. Presley, 169 Ga. App. 36 (311 SE2d 849) (1983); In re Crudup, 149 Ga. App. 214 (253 SE2d 802) (1979). To hold otherwise would prevent most domestic relations contempt actions from being finalized for many years — sometimes, as in the case at bar, during the entire minority of the children of the marriage.

Decided January 24, 1990

Rehearing denied February 6, 1990.

Davis, Price & Young, Robert E. Price, for appellant.

Rainwater & Christy, Gary C. Christy, David A. Forehand, Jr., for appellee.

In the case sub judice, appellant clearly and emphatically was found to be in contempt, and punishment terms were set forth. We find that “[t]he first contempt action was concluded when the trial court entered its order of [February 7, 1989], finding appellant in wilful contempt of [the divorce decree]. This was a final adjudication of the first motion for contempt. Thus, the second motion was not filed in a pending action and service upon [appellant’s] attorney . . . was insufficient. [Cit.]” Davis v. Hutto, 253 Ga. 538, 539-540 (322 SE2d 277) (1984). The trial court erred by denying appellant’s motion to dismiss.

Judgment reversed.

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


text:
    A89A2328.
    JORDAN et al. v. THE STATE.
    (390 SE2d 614)
   Sognier, Judge.

Thirteen people were each charged by consecutively numbered accusations with misdemeanor theft from their common employer during a seven-month period. Each filed a motion requesting that all motions filed by any of them be adopted as motions made by all. No written order was entered on the motions to adopt. In Peek v. State, 189 Ga. App. 584 (377 SE2d 8) (1988) this court addressed an appeal by the thirteen individuals from the trial court’s denial of their motion for acquittal predicated on the State’s failure to bring them to trial in the term within which their demands for trial pursuant to OCGA § 17-7-170 had been made or the next succeeding term.

The trial court had found “ ‘that the thirteen Defendants (met) all the requirements of acquittal with one exception,’ but denied defendants’ motion on the sole ground that the filing of nineteen . . . motions for each . . . was an affirmative act which waived their right to a speedy trial” pursuant to State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985). Peek, supra at 585. In Peek, this court found the trial court’s reliance on McNeil erroneous, and reversed the trial court’s denial of the plea in bar of prosecution made by Mary Peek, who was the defendant with the lowest numbered accusation, and on whose behalf a demand for trial pursuant to OCGA § 17-7-170 had been filed. As to the other twelve defendants, however, who had not filed separate demands for trial but had instead moved the court “ ‘to [a]dopt [a] 11 [m]otions and [p]leadings in [companion [c]ases,’ ” Peek, supra at 586, this court held that “in view of the numerous defendants and of the possibility of terminal sanctions resulting from the filing of a demand for trial and particularly in the absence of the permission of the trial court, by appropriate order, [the remaining defendants’ motions to adopt pleadings] were insufficient to invoke the extreme sanction of acquittal as to each of these 12 defendants. Although the trial court denied each of these 12 defendants’ motion to acquit [solely] in reliance upon an apparent misreading of our decision in [McNeil], supra, the trial court did not err in the denial of each of these 12 defendants’ motion to acquit.” Peek, supra at 586.

Following the remittitur in Peek, the remaining defendants renewed their motions for acquittal, which the trial court denied. Nine of the remaining twelve individuals now appeal, contending the trial court erred by denying their renewed motions for acquittal. Appellants argue their renewed motions should have been granted because the record now shows that at a hearing on those motions the trial court agreed that it had always treated all thirteen individuals similarly, although only Peek had actually filed a proper demand for trial, and that failure to obtain an order granting appellants’ motion to adopt Peek’s demand for trial was, essentially, an oversight.

We agree with appellants that the record clearly shows that all the parties to this action intended to have the Peek motions apply to all, but that as the result of an unfortunate oversight no order was entered granting appellants’ motions to adopt the Peek demand for trial. However, the record as it existed when this court decided Peek, supra, indicated correctly that no such order had been entered, and that appellants had not filed demands for trial pursuant to OCGA § 17-7-170. The record in this appeal does nothing to negate that indication, notwithstanding the admission by the trial judge that it was his intention at all times to grant appellants’ motion to adopt the Peek demand, because in fact this record indicates affirmatively that no such order was entered. We note that no contention is made here that the oversight was attributable solely to a clerical error by a court official. Compare Klinetob v. State, 194 Ga. App. 52 (389 SE2d 551) (1989).

Decided January 24, 1990

Rehearing denied February 6, 1990

Louis K. Polonsky, Jane E. Strell, for appellants.

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

“The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. [Cit.]” Head v. State, 189 Ga. App. 111 (375 SE2d 46) (1988). Accord Day v. State, 187 Ga. App. 175, 176 (2) (369 SE2d 796) (1988); Matthews v. State, 181 Ga. App. 819, 820 (1) (354 SE2d 175) (1987). As appellants obviously did not comply with the statute, we are constrained to affirm the trial court’s denial of appellants’ renewed plea in bar of prosecution.

Judgment affirmed.

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


text:
    A89A2348, A89A2349.
    RIBERGLASS, INC. v. ECO CHEMICAL SPECIALTIES, INC.; and vice versa.
    (390 SE2d 616)
   Sognier, Judge.

ECO Chemical Specialties, Inc. (ECO) brought suit on an account against Riberglass, Inc., a distributor, seeking recovery of $104,549.09 plus interest allegedly owed as payment for the purchase by Riberglass of large quantities of an acetone substitute cleaning solution known as Res-Off. ECO filed, inter alia, requests for admission, which Riberglass failed to answer within the statutory time period. After Riberglass filed late answers to the requests for admission, denying two requests previously admitted by operation of law, ECO filed a motion for summary judgment based solely upon the admissions deemed admitted by Riberglass. Riberglass then filed a motion to withdraw admissions. A hearing on both motions (and others) was held, and the trial court entered an order denying Riberglass’ motion to withdraw the admissions and granting ECO’s motion for summary judgment. Riberglass appeals from these orders, and ECO cross appeals from the trial court’s use of 7 percent as the rate of interest on attorney fees awarded.

The admissions appellant sought to deny stated that “[appellee] is entitled to recover from [appellant] the amount prayed for in the [c]omplaint” and that “[t]he denials and defenses raised in [appellant’s] [a]nswer have been interposed for the purpose of harassment, delay and to avoid payment of [appellee’s] just claim.”

1. Appellant contends the trial court abused its discretion by denying its motion to withdraw the admissions. The propriety of the trial court’s failure to grant the motion to withdraw admissions must be determined by consideration of whether “the presentation of the merits of the action [would have been] subserved thereby” and whether appellee “failfed] to satisfy the court that withdrawal or amendment [would] prejudice [it] in maintaining [its] action or defense on the merits.” OCGA § 9-11-36 (b).

(a) The meaning of the phrase “the presentation of the merits of the action will be subserved thereby” was clarified by the Supreme Court in Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198) (1982), when it expressly adopted Justice Hill’s special concurring opinion in Cielock v. Munn, 244 Ga. 810, 813 (262 SE2d 114) (1979): “If the burden of proof as to the subject matter of the request will be on the defaulting movant, then movant should be required to show that the proffered denial of the request can be proved by admissible evidence having a modicum of credibility, and that the denial is not offered solely for the purpose of delay.”

In the action sub judice, since both parties admit the purchase and the price, the issues in the case are raised by appellant’s defenses, as to which it would have the burden of proof at trial. Thus, to satisfy that criterion for allowing withdrawal of the admissions, in addition to showing that it was not seeking to deny the request for admission solely for the purpose of delay appellant was required to show that its defenses were provable “by admissible evidence having a modicum of credibility.” The record reveals that appellant’s primary defense was its allegation of a failure of consideration, which, if proved, is sufficient to defeat an action on a contract. See generally OCGA § 13-5-9; Jones v. Dixie O’Brien Div., 174 Ga. App. 67, 68 (329 SE2d 256) (1985).

Specifically, appellant’s defense was that the product did not perform in the manner appellee represented it would; that contrary to appellee’s representations, it irritated the user’s hands; that appellant was induced to purchase greater quantities of Res-Off than it desired by appellee’s agent’s fraudulent misrepresentations that a purchase in those amounts was a prerequisite to establishment of an exclusive distributorship; and that appellee failed to provide the support services it promised. In support of the motion to withdraw the admissions, appellant relied on its answers to appellee’s interrogatories, sworn to by Mark R. Long, appellant’s secretary/treasurer, and the affidavits of Long and Frank Riberlin, appellant’s president. The affidavits stated specifically that withdrawal of the admissions was not being requested solely for delay, and further showed that appellant could prove by the testimony of Long and Riberlin that they personally received complaints from customers that the Res-Off irritated their hands and caused skin rashes and that, contrary to appellee’s representations, the product was inferior to acetone as a cleaning solution. In addition, the affidavits showed that Don Shipman, appellee’s agent, represented to the affiants that appellant would have to purchase three truckloads of the product in order to obtain an exclusive dealership; that appellant would not have purchased that quantity had it not been for Shipman’s representation; that as a result of customer dissatisfaction with Res-Off, appellant was unable to sell the product; and that affiants were subsequently informed by J. W. Evans, appellee’s agent, that there was no minimum order necessary to establish an exclusive dealership. The record also contains letters written by Riberlin to appellee seeking to return the product.

Contrary to appellee’s argument, even though the Riberlin affidavit was not submitted contemporaneously with the motion to withdraw admissions, it was submitted over three months before the hearing on the motions, thus preventing any surprise to appellee, unlike the affidavit in Big Canoe Corp. v. Williamson, 168 Ga. App. 179 (308 SE2d 440) (1983), cited by appellee, which was filed the same day as the order entering summary judgment. Moreover, the requirement of simultaneous filing in OCGA § 9-11-6 (d) is not absolute, and the trial court is authorized to extend the period for filing the movant’s affidavits. Wall v. C & S Bank, 145 Ga. App. 76, 78 (243 SE2d 271) (1978). In the case sub judice, it is apparent that the trial court so extended the period, as the judgment recites that the trial court considered “all supplemental briefs, [a]ffidavits and argument of the parties.” Because the supplemental affidavit was filed so far in advance of the hearing and gave a reason for its delay, and because, in the absence of evidence in the record to the contrary, we must presume the trial court acted correctly, see Cox v. City of Lawrenceville, 168 Ga. App. 119-120 (1) (308 SE2d 224) (1983), we decline to find that the trial court improperly considered it. We note, however, that based on the above evidence proffered by appellant, and even without considering the Riberlin affidavit, we find that appellant made a sufficient showing to meet the first prong of the test set forth in Cielock, supra.

(b) For withdrawal to be permitted, appellant also must show that appellee would not be prejudiced thereby in trying the merits of the case. OCGA § 9-11-36 (b). Contrary to appellee’s argument, the fact that it relied on the admissions and expended time and resources on what appeared to be a well advised motion for summary judgment and would now have to try the case on the merits is insufficient prejudice to warrant denying the motion. Rather, we perceive no difference between this argument and that advanced and rejected in Battle v. Strother, 171 Ga. App. 418, 419-420 (3) (319 SE2d 887) (1984). “ ‘(A)ny party is certainly “prejudiced” by being forced to try a case rather than take (, in effect,) a default, but he is not prejudiced in trying the merits of the case, which is the question at issue.’ . . . [Cit.]” Id. at 420 (3). Although in Battle the question was whether withdrawal of the admissions should be allowed in the face of a motion for a directed verdict based on the admissions, we find the reasoning applies as well to the case sub judice, where the issue is whether admissions should be withdrawn in the face of a motion for summary judgment. Appellee failed to satisfy the court that withdrawal would prejudice it in maintaining its action on the merits.

Decided January 24, 1990

Rehearings denied February 6, 1990

Oxendine & Associates, John W. Oxendine, for appellant.

Boyce, Thompson & O’Brien, J. Patrick O’Brien, William M. Coolidge III, for appellee.

As both prongs of the standard have been met, the trial court abused its discretion by denying appellant’s motion to withdraw the admissions, thereby preventing a trial on the merits.

2. It follows from our ruling in Division 1 that summary judgment was erroneously granted to appellee.

3. Because of our reversal of the award of summary judgment, it is unnecessary that we address appellee’s cross-appeal, in which it challenges the trial court’s use of a 7 percent per annum rate for prejudgment interest as part of the award of summary judgment, and accordingly the cross-appeal is dismissed.

Judgment reversed in Case No. A89A2348; appeal dismissed in Case No. A89A2349.

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


author: Cooper, Judge.

text:
    A89A1807.
    DUVALL v. THE STATE.
    (390 SE2d 647)
   Cooper, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute, and of possession of a firearm. On appeal, appellant contends that the trial court erred in denying his motion to suppress. As the arresting officer was talking to the driver of a car stopped for not having a license tag, appellant, who was following in his car with a female passenger, parked his car in the lot of a nearby building, approached the officer, and informed him that the stopped car belonged to appellant. The officer asked appellant for a driver’s license and proof of insurance for both cars, at which time appellant returned to the car he was driving to look for those items. Upon not being able to produce his driver’s license or proof of insurance after returning a second time to his car, appellant was arrested for driving without a license and insurance. The officer then impounded the car and conducted an inventory search, during which a gun and a bag containing drug paraphernalia and cocaine were found in the passenger compartment.

Appellant contends that the impoundment of his car was invalid, therefore making the inventory search unlawful. “It is well settled that a police officer is authorized to make an inventory of the contents of a vehicle that has been impounded.” State v. Gilchrist, 174 Ga. App. 499 (1) (330 SE2d 430) (1985). Appellant argues that since his car was legally parked, it was unnecessary to remove it, and that an alternative to impoundment existed because appellant’s female companion could have driven the car. “[T]he ultimate test for the validity of the police’s conduct [in impounding a vehicle] is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” Jones v. State, 187 Ga. App. 421, 424 (370 SE2d 784) (1988). We find that it was reasonable for the officer to impound the car since there was potential liability involved in allowing the car to remain unattended in a parking lot of a business. See Jones, supra. Also, it was not unreasonable for the officer to refuse to allow appellant’s female companion to drive the car, since there was no proof of any insurance on the car. Appellant’s reliance on Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983), is misplaced because in Strobhert the vehicle was unconnected to the arrest. Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986).

Finally, we find that the search of appellant’s car was reasonable as a search incident to a lawful arrest. At the time of the search, appellant was under arrest for driving without a license and no proof of insurance. “A policeman who has made a lawful custodial arrest of the occupant of an automobile may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [Cit.]” Jones v. State, supra at 423. Accordingly, the trial court did not err in denying the motion to suppress.

Decided February 6, 1990.

Vernon S. Pitts, Jr., Penny A. Penn, appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Joyce M. Averils, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Appellant was arrested on July 9, 1988. A jury returned a guilty verdict on May 4, 1989, and sentence was entered on May 5, 1989. A notice of appeal was filed on May 10, 1989. The case was docketed on June 26, 1989. Appellant’s brief was filed on July 17, 1989, and the State’s brief was filed on August 7, 1989. The case was submitted in September 1989.


author: Birdsong, Judge.

text:
    A89A1833, A89A1834.
    DEPARTMENT OF TRANSPORTATION v. SHUGART et al.; and vice versa.
    (392 SE2d 576)
    Decided February 6, 1990.

      Weiner, Dwyer & Yancey, James S. S. Howell, Michael J. Bowers, Attorney General, for appellant.

      Peek & Whaley, J. Corbett Peek, Jr., James Garland Peek, for appellees.
   Birdsong, Judge.

The Department of Transportation appeals from the denial of its motion for new trial in this condemnation suit. Appellees have cross-appealed from the order of the trial court vacating and setting aside the judgment of the trial court. Held:

The parties agree these appeals are governed by our decision in Department of Transp. v. Petkas, 189 Ga. App. 633 (377 SE2d 166) (whole court), cert. den. Accordingly, the main appeal and cross-appeal are dismissed and remanded to the trial court with direction to reinstate the original judgment as of May 20, 1988, the date entered, and to take such other corrective action as thereafter may be required.

Appeals dismissed and cases remanded with direction.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1970.
    SINGLETON v. THE STATE.
    (390 SE2d 648)
   Cooper, Judge.

After a bench trial, appellant was convicted on two counts of felony obstruction of an officer. (OCGA § 16-10-24 (b).) The evidence adduced at trial authorized the court to find: that three police officers responded to a call about a disorderly person with a gun; that the first officer to arrive observed appellant with his hands in his pockets, acting in a disorderly manner; that appellant refused to take his hands from his pockets upon being requested to do so by the officer; that the second officer to arrive informed the first officer, in the presence of appellant, that a radio transmission had confirmed the existence of outstanding warrants for appellant’s arrest; that appellant then ran into the house followed by the officers; that a struggle began when the officers attempted to apprehend appellant; that during the struggle a third officer arrived on the scene; that appellant struggled violently with the three officers, refusing to let them handcuff him; and that as a result of appellant’s struggle two of the officers were injured.

1. A person is guilty of felony obstruction when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person. . . .” OCGA § 16-10-24 (b). Appellant first contends that since the officers were not in possession of the warrants for his arrest, they were not in the lawful discharge of their duties. We do not agree. The officers were in the lawful discharge of their duties when they responded to the disorderly person call. The radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest appellant. See Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981). Since the officer had probable cause to arrest appellant, and the officer and appellant were made aware of the outstanding warrants for appellant’s arrest, the court was authorized to find that appellant obstructed the officers in the lawful discharge of their duties.

2. In his second enumeration of error, appellant contends that since he was mistaken about whether there were warrants for his arrest, under OCGA § 16-3-5 he should not have been convicted. It is clear from appellant’s argument that his concern was whether the officers had the lawful authority to arrest him. This was not a misapprehension of fact as contemplated by OCGA § 16-3-5 but was instead a misapprehension of law. Brown v. State, 163 Ga. App. 209 (3) (294 SE2d 305) (1982). “[It] is axiomatic that ‘(i)gnorance of the law excuses no one.’ [Cit.]” Jenga v. State, 166 Ga. App. 36 (2) (303 SE2d 170) (1983).

3. All three of the officers testified about the violent nature of appellant’s struggle during their attempt to arrest him. Accordingly, we find the evidence sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 6, 1990.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

4. Appellant’s fourth enumeration of error is that the trial court erred in not ordering a forensic evaluation of his competency to stand trial and his competency at the time of the crime. Prior to the start of the trial, appellant’s attorney moved to withdraw due to appellant’s lack of cooperation. The trial court denied the motion, but agreed to closely monitor the evidence and entertain a motion for mistrial should the evidence warrant such a motion. Appellant testified at trial, and the court had an opportunity to observe his demeanor throughout the trial. Appellant’s attorney did not move the court for a hearing on appellant’s competency to stand trial, and did not move for a mistrial at anytime during the proceedings. “Absent a special plea of insanity, there is no mandatory duty on the trial judge to impanel a special jury to determine that issue.” Ricks v. State, 240 Ga. 853 (1) (242 SE2d 604) (1978); Dowdy v. State, 169 Ga. App. 14 (1) (311 SE2d 184) (1983). Furthermore, since no evidence of incompetence manifested itself during the proceedings, the trial court had no constitutional duty to inquire into the issue of competency. Harris v. State, 256 Ga. 350 (2) (349 SE2d 374) (1986).

5. In appellant’s final enumeration of error he contends that the evidence of a similar transaction should not have been admitted. At trial, the State introduced evidence of appellant’s prior conviction for obstruction of an officer that resulted from a violent struggle he had with two police officers attempting to arrest him. Appellant admits that he was the perpetrator of the prior offense, but argues that there was not sufficient similarity between the two offenses. We disagree. Both offenses, which occurred within nine months of each other, involved appellant’s uncooperative and violent behavior toward police officers when they attempted to arrest him. “[T]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986). We find that the trial court properly admitted into evidence the similar transaction.

Judgment affirmed.

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


text:
    A89A2356.
    THE STATE v. DESHON.
    (390 SE2d 651)
   Banke, Presiding Judge.

The defendant is charged with possessing cocaine, methamphetamine, diazepam, and marijuana in violation of the Controlled Substances Act. The state brings this appeal from an brder granting his motion to suppress certain alleged contraband seized from his automobile. See OCGA § 5-7-1 (4).

Based upon information received from a confidential informant, Detective Raiford of the Henry County Sheriff’s Department applied for and obtained a warrant to search the defendant’s residence for certain firearms, specified by serial number, which had been reported stolen in various burglaries committed in Henry and Spalding Counties. Detective Raiford, the sole witness at the suppression hearing, testified that while he and other officers were proceeding to the defendant’s residence in an unmarked patrol car to execute the warrant, the defendant drove past them going in the opposite direction. The officers immediately turned around to pursue him, simultaneously activating the flashing blue lights on the grill and visor of their vehicle. Raiford testified that during the ensuing chase the defendant accelerated to speeds well in excess of the posted 25-mile-per-hour limit and threw an object from his car which emitted a “powder” upon hitting the ground. The officers ultimately stopped the defendant by shooting one of his tires, whereupon, after placing him in the patrol car, they conducted a search of his vehicle. During this search, they discovered and seized a cigarette package containing suspected cocaine. The trial court granted the defendant’s motion to suppress this substance and also suppressed certain alleged contraband later seized from his residence; however, the latter portion of the court’s ruling is not challenged in this appeal. Held:

“[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U. S. 1, 22 (88 SC 1868, 20 LE2d 889) (1968). We hold that under the circumstances of the present case, the officers were justified in pursuing and detaining the defendant for the purpose of effecting an investigative Terry stop. We further find that their reasonable suspicion that the defendant might be engaged in criminal activity matured into probable cause for an arrest when the defendant attempted to flee, simultaneously throwing what appeared to be contraband from his car. “Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. [Cits.]. . . . [F]light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. [Cits.]” Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975). See also State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989). We accordingly hold that the trial court erred in granting the defendant’s motion to suppress the alleged contraband seized from his vehicle.

Decided February 6, 1990.

Robert E. Keller, District Attorney, Daniel J. Cahill, Assistant District Attorney, for appellant.

Steven E. Lister, for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A1296.
    GUNNIN et al. v. PARKER et al.
    (390 SE2d 596)
   Deen, Presiding Judge.

This appeal arises from a plaintiffs’ verdict in a suit by the purchasers of a house (appellees) against the developer/sellers of the house (appellants). The issues appellants raise on appeal all concern the propriety of an award of expenses of litigation.

1. In this case, the appellees purchased the house in question for $112,000. After purchasing the house, the appellees proceeded to remove and discard the steel support posts in the basement; further, they removed a substantial quantity of dirt away from the rear footings of the house, and had a swimming pool contractor install a pool behind the house, necessitating driving bulldozers and concrete trucks on the driveway. There was expert testimony that these actions likely caused the cracking in the structure ultimately complained about by the appellees.

When the appellees communicated their complaints to the appellants, at one point the appellants offered either (1) to repair the structure at the appellants’ expense, (2) to pay the appellees the estimated cost of repairs, or (3) to repurchase the home from the appellees. The appellees rejected that offer and three weeks later filed this action seeking over $15,000,000 in damages. The appellees sued the realtor involved for an additional $5,040,000. (They also threatened to sue the swimming pool contractor for a violation of Georgia’s Solid Waste Management Act for leaving soft drink bottles and caps around the pool’s installation area.)

Expenses of litigation may be awarded pursuant to OCGA § 13-6-11 where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. The evidence in this case failed to demonstrate any bad faith on the part of the appellants. The existence of a bona fide dispute over both liability and damages was so clear, that the issue could not be passed off to the jury. Where a bona fide controversy clearly exists between the parties, there is not “any evidence” to support an award for expenses of litigation. Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (365 SE2d 540) (1988); Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219 (312 SE2d 386) (1983). Accordingly, the award for expenses of litigation must be reversed.

2. The appellees’ motion for a penalty for frivolous appeal is necessarily denied.

Judgment reversed.

Carley, C. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. McMurray, P. J., Benham and Beasley, JJ., dissent.

Benham, Judge,

dissenting.

Because I cannot agree with the majority that the evidence adduced at trial demands the conclusion that there was a bona fide controversy between the parties such as would prevent the award of expenses of litigation, I must dissent.

Expenses of litigation may be awarded pursuant to OCGA § 13-6-11 where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, and a recovery under the latter two provisions is authorized where the evidence reveals no bona fide dispute with regard to the defendant’s liability. Matthews v. Neal, Greene & Clark, 177 Ga. App. 26 (4) (338 SE2d 496) (1985). The question of whether there is a bona fide dispute is one for the jury, and where there is some evidence to support its determination in that regard, this court cannot say as a matter of law that there was a reasonable defense. Jackson v. Brinegar, Inc., 165 Ga. App. 432 (2) (301 SE2d 493) (1983). In the present case, not only is there some evidence that appellants stubbornly refused to correct construction defects and forced appellees to bring suit as the only means of relief, there was abundant evidence. For this court now to reverse the judgment and rule that there was, as a matter of law, a reasonable defense is an unwarranted appellate invasion of the jury box.

Appellees produced evidence at trial which authorized the jury to find that appellants’ negligence was the cause of the numerous serious defects in the house; that appellants were aware of the defects and agreed to repair them; that after appellants refused to make repairs and appellees threatened to sue, appellants met with appellees and attorneys for each side and reached an agreement that appellants would correct the defects, but then reneged on the agreement after appellees communicated that they had terminated the services of their attorney; and that appellants had never corrected the defects, forcing appellees to bring suit. That evidence was sufficient to show appellants’ bad faith.

Appellants attempted to show, and claim on appeal that they did show, that the damages were all caused by appellees’ negligent changes to the structure of the house; that appellants offered to buy back the house from appellees; and that it was appellees who prevented a resolution of the disputes between the parties. The efforts to portray appellees as responsible for the damages were unsuccessful, however, since appellees’ experts testified clearly that none of appellees’ changes adversely affected the house, and appellants’ experts’ contrary testimony was based on hypotheticals which did not include all the salient facts. For instance, appellants attempted to show that appellees caused some of the cracking in the walls by removing and discarding steel support beams in the basement. Appellees’ expert noted that any loss of support would have cracked different walls and could not have caused the damage at issue here. Appellants’ witness’s opinion to the contrary, impliedly accepted by the majority, was in response to a hypothetical which omitted the uncontradicted fact that the support beams had been immediately replaced with stud walls which provided as much if not more support. Although appellants contend in their briefs to this court, and the majority finds as a fact, that appellees removed a “substantial” amount of soil from the rear footing of the house, the evidence actually shows only that a thin layer was removed for the installation of a patio, an amount which expert testimony established was not sufficient to remove significant support from the foundation. In addition, the movement of the foundation which caused damage to the house was in a different direction altogether. Appellants claim in their briefs, and the majority accepts as true notwithstanding substantial evidence to the contrary, that appellees caused damage to the driveway by permitting bulldozers and concrete trucks to drive on it for the purpose of installing a swimming pool. The record shows, however, that the testimony on which appellants rely for that proposition showed only that a single tracked vehicle had driven on the driveway and that it was not the cause of any of the cracking. Other evidence shows that the cracking in the driveway occurred and was the subject of complaints to appellants prior to the time when appellants claim appellees permitted heavy vehicles to use the driveway. Appellants’ purported offer to correct the damages or to pay for repairs, on which the majority relies, was shown by the evidence to ignore many of the items of damages appellants had agreed at closing to repair. In asserting in their brief that they offered to repurchase the house, an assertion accepted at face value by the majority, appellants omit to state that the offer was to assume appellees’ mortgage, which appellants had reason to know was not assumable. Also ignored by appellants in their arguments and by the majority in its factfinding is the fact that appellees did not file suit until they had tried for more than a year to get appellants to meet their obligations. Appellants’ assertion that it was appellees who were litigious is based on such matters as appellees’ supposed threat to sue a swimming pool contractor for violating Georgia’s Solid Waste Management Act by burying “pop bottles, wrappers and so forth” around the pool area. Notwithstanding the majority’s adoption of the contentions in appellants’ brief, the record contains no support for such an assertion. An agent of the swimming pool contractor testified that Mr. Parker complained in a letter of the contractor’s employees’ behavior in burying their refuse in the backfill of the pool, and commented that it was a violation of the Solid Waste Management Act. The contractor’s agent did not testify that appellees threatened a suit based on that act. In fact, the contractor’s agent read into the record the paragraph of the letter which allegedly contained the threat to sue: that paragraph made no reference to the Solid Waste Management Act, but merely stated that if the contractor had not begun work on correcting specified defects by a certain date, appellees would assume that the contractor intended to breach the contract, and “the beginning of proper action [would] be taken to remedy the situation.”

Decided December 19, 1989

Rehearing denied January 16, 1990 and Rehearing dismissed February 7, 1990

Robert D. Cheeley, Joseph E. Cheeley, Jr., for appellants.

Richard E. Collar, Jr., for appellees.

The majority has usurped the role of the jury by finding facts, and those facts are not supported by the evidence. Being committed to the long-standing rule that this court does not reverse a jury’s verdict if there is any evidence to support it, and being convinced by having examined the record that there is evidence to support the jury’s award of expenses of litigation to appellees, I cannot concur in the majority’s reversal of the judgment. I must, therefore, dissent.

I am authorized to state that Presiding Judge McMurray and Judge Beasley join in this dissent.


text:
    A89A2263.
    LEWIS v. McDOWELL.
    (390 SE2d 605)
   Birdsong, Judge.

Beverly Lewis appeals from the grant of summary judgment to Ed O. McDowell in her wrongful death action against him based upon the death of her seven-year-old son, Marshall Lewis, Jr. Her son was crossing a street on his way home from school following a school outing when he was struck by a car and died. Lewis sued the driver of the car, the Bibb County Board of Education and McDowell. McDowell is the principal of the elementary school her son attended.

Lewis’ complaint alleged that McDowell, at all times material to the complaint, was in charge of the faculty and students at the school, was an agent of the Bibb County Board of Education, and the board, by and through McDowell, “negligently failed to provide responsible adult supervision for” her son, and that “if there had been adult supervision to assist [her son] in crossing the . . . highway” her son would not have died. The complaint does not allege that McDowell acted with wilfulness, malice or corruption, or that he was acting outside the scope of his authority.

Pursuant to its claim of sovereign immunity, the board of education, properly the Board of Public Education & Orphanage for Bibb County, was granted summary judgment on Lewis’ claims against it and final judgment entered for the board. The board’s motion contended that it was entitled to summary judgment because it had not waived sovereign immunity by obtaining liability insurance coverage or otherwise. The board is not a party to this appeal. The case remained pending, however, against McDowell and the driver of the car.

McDowell moved for summary judgment claiming official immunity barred the claims against him. The motion contended that his actions were taken within the scope of his discretionary authority as principal of the school and agent of the board of education and that his actions were without wilfulness, malice, or corruption. Further his motion contended that the board of education had not waived its sovereign immunity by purchasing liability insurance coverage or otherwise.

Lewis’ response to the motion contended that there were questions concerning the material facts in the case. The response was supported by legal argument in her brief, but was not supported by affidavits or other evidentiary materials.

The trial court granted summary judgment to McDowell, and Lewis filed a direct appeal from that order. She contends that the trial court erred- in granting summary judgment because McDowell had waived his immunity defense by obtaining liability insurance, his actions were ministerial rather than discretionary, and there was a genuine issue whether he was negligent in the exercise of those duties. Held:

1. McDowell has moved to dismiss the appeal because he contends that the grant of summary judgment was not a final judgment since the case remains pending against the driver. Hence he argues that before an appeal may be taken there must be a determination by the trial court under OCGA § 9-11-54 (b) or Lewis must make application for interlocutory appeal under the procedures in OCGA § 5-6-34 (b). This argument overlooks the provisions of OCGA § 9-11-56 (h) which specifically authorize a direct appeal from the grant of summary judgment against a party. Accordingly, the motion is denied.

2. Pretermitting consideration of Lewis’ argument regarding a waiver of sovereign immunity by McDowell’s purported purchase of liability insurance is the fact that the record of this case is void of evidence showing that McDowell purchased liability insurance. Apparently, Lewis would have us infer that there is liability insurance because McDowell objected to her discovery about such coverage, but we cannot do so. If Lewis intended to advance this argument, it was incumbent upon her to obtain the evidence necessary to support her contention or from which we could reasonably make such inference, and make it a part of the record. Summer-Minter & Assoc. v. Giordano, 231 Ga, 601, 603-604 (203 SE2d 173). She did not do this, and we cannot speculate what insurance,, if any, might be available, and what the coverage, if any, might be. Moreover, factual allegations in the briefs of parties, not supported by the record, cannot be considered. Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223). Accordingly, there is no factual basis in the record for the legal arguments made, and thus, the first enumeration of error is without merit.

3. Lewis’ second and third enumerations of error contend that McDowell is not entitled to assert the defense of sovereign immunity because the actions she complains of were ministerial duties, not discretionary, and there is a question of fact whether he was negligent in performing these duties. McDowell contends, however, that he is entitled to assert the defense of official immunity because the actions complained of were discretionary acts performed in the exercise of his authority as principal of the school and because they were without wilfulness, malice or corruption. Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878). He supported these contentions with his affidavit and relied on the affidavit filed in support of the board of education’s motion for summary judgment stating that the board did not obtain liability insurance. Lewis did not rebut his contention that the acts were performed within his scope of authority, and on appeal has not contended that his actions were done with wilfulness, malice or corruption.

Accordingly, the issue presented for our consideration is whether McDowell’s actions were discretionary or ministerial. Review of Lewis’ arguments shows that she does not allege that McDowell himself negligently supervised her son, but that his decision, i.e., his exercise of judgment, regarding the means used to supervise the children was negligence. Such decisions are discretionary, not ministerial. Hennessy v. Webb, supra; Sisson v. Douglas County School Dist., 181 Ga. App. 77 (351 SE2d 272); Truelove v. Wilson, 159 Ga. App. 906 (285 SE2d 556); Holloway v. Dougherty County School System, 157 Ga. App. 251 (277 SE2d 251). We do not find persuasive the authorities to the contrary cited by Lewis from foreign jurisdictions.

Decided January 10, 1990

Rehearing denied February 7, 1990.

Berlin & Hodges, Robert A. Berlin, for appellant.

Joseph H. Chambless, for appellee.

Accordingly, McDowell was entitled to the defense of official immunity and this defense precludes consideration of the issue whether McDowell was negligent in the performance of his duties. Therefore, Lewis’ second and third enumerations of error are also without merit, and the trial court properly granted summary judgment to McDowell.

Judgment affirmed.

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


text:
    A89A1916.
    ROBINSON v. THE STATE.
    (390 SE2d 652)
   Birdsong, Judge.

Appellant, Ambrose Robinson, was convicted of possession of cocaine with intent to distribute in violation of the Georgia Controlled Substances Act. He appeals his conviction and sentence and asserts four enumerations of error. Held:

1. Appellant asserts as his first two enumerations of error the general grounds and that the verdict is against the weight of the evidence because the evidence of record will only support conviction for simple possession. We disagree.

Possession with intent to distribute can be proven by circumstantial as well as direct evidence. See, e.g., Hunter v. State, 190 Ga. App. 52, 54 (2) (378 SE2d 338). The evidence of record reflects, inter alia, the police had evidence that cocaine was being sold from the premises; people were coming and going out of the residence; on the day of the search appellant and four other persons were in the residence seated on a sofa; appellant kept his clothes on the premises and stayed there at times; appellant was seen by a policeman dropping a matchbox on the floor; the matchbox contained twenty-one pieces of (crack) cocaine; people keep cocaine in small boxes so it cannot be easily found; eighteen other pieces of cocaine were found scattered on the sofa; the cocaine on the sofa was cut into ten and twenty dollar pieces; the cocaine in the matchbox was all in ten dollar pieces; and, cocaine normally is cut for distribution in ten and twenty dollar pieces.

To support the verdict of guilty of possession of cocaine with intent to distribute “[circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Appellate courts do not weigh the evidence or determine witness credibility, but look only to determine evidence sufficiency. Banks v. State, 185 Ga. App. 851, 853 (3) (366 SE2d 228). On appeal from a finding of guilty, evidence must be viewed in the light most favorable to the verdict, and the presumption of innocence no longer avails. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Viewing the evidence as required, we conclude that the jury rationally could have found that every reasonable hypothesis was excluded except that of the defendant’s guilt. There was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that the trial court erred in allowing introduction of appellant’s statement over objection.

At the Jackson-Denno hearing the trial court found: “[T]he statement . . . was freely, voluntarily, knowingly, and intelligently made by the defendant, typed by the witness ... or someone at his direction on language which was given to him by the defendant and that this is a free, voluntary, knowing and intelligent statement given after the defendant had been advised of his Miranda [r]ights and he fully understood those and having indicated his understanding by signing a rights form which was done voluntarily and freely on his part.” (Emphasis supplied.) The record reflects that appellant made the statement without promise of benefit or reward, and without force, threats or coercion. Additionally, the record reflects that the appellant waived his Miranda rights in writing.

In determining the voluntariness of a confession, an appellate court may look to all the evidence contained in the record. Stapleton v. State, 235 Ga. 513, 516 (1) (220 SE2d 269). The findings of a trial court as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. Terry v. State, 259 Ga. 165 (2) (377 SE2d 837). Moreover, the fact that the statement may not have been a complete rendition of everything the appellant said to the police would affect only the weight to be accorded the statement by the factfinder and not its admissibility. Considering the totality of the circumstances, we find that the trial court’s determination was not clearly erroneous, and that there was no error in the admission of the statement.

3. Appellant asserts that the trial court erred in failing to charge the jury as to the lesser offense of simple possession. The trial record does not contain a written request for such a charge. “A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” Mosley v. State, 257 Ga. 382, 383 (2) (359 SE2d 653).

Decided February 7, 1990.

H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1939.
    ZACKERY v. THE STATE.
    (391 SE2d 15)
   Birdsong, Judge.

Anthony Zackery appeals his convictions of entering an automobile with intent to commit theft and obstruction of a police officer with violence. Held:

1. Zackery contends the trial court erred by denying his motion for mistrial after a police officer testified that he had known Zackery for almost his “entire four years in law enforcement.” Zackery contends this testimony impermissibly placed his character in issue. The transcript shows the response was to one question by the trial judge (asking how well the officer knew Zackery) in a series of questions testing the officer’s identification of Zackery. The transcript also shows that after the motion was denied Zackery refused the court’s suggestion for remedial instructions.

“[W]hether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).” Buxton v. State, 253 Ga. 137, 139 (317 SE2d 538). We do not find the policeman’s testimony required a mistrial. In the circumstances of this case, there was no abuse of discretion by the trial judge.

2. The second enumeration contends that the trial court erred by denying Zackery’s motion for a new trial on the general grounds. We disagree. “In passing upon the general grounds, this court reviews not the weight but the sufficiency of the evidence to support the verdict. ... So long as there is ‘any evidence’ to support the jury’s verdict, it will not be disturbed on appeal. Eubanks v. State, 240 Ga. 544, 546 (242 SE2d 41) (1978).” Pierce v. State, 243 Ga. 454-455 (254 SE2d 838). Review of the transcript in a light most favorable to the verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that [Zackery] was guilty of [the offenses] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

Decided February 7, 1990.

Donald T. Wells, Jr., Kathleen J. Anderson, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1998.
    KALUSTIAN v. McDONALD.
    (390 SE2d 657)
    Decided February 7, 1990.
    Ralph Kalustian, pro se.

      E. Crawford McDonald, Robert B. Wedge, for appellee.
   Cooper, Judge.

Appellant, acting pro se, filed a legal malpractice suit against appellee/attorney arising from appellee’s representation of appellant in a criminal matter. With his answer, appellee filed a motion to dismiss the complaint for appellant’s failure to file with his complaint the statutorily-required supporting affidavit of an expert. See OCGA § 9-11-9.1. The trial court granted appellee’s motion, and this appeal followed.

The trial court did not err in granting appellee’s motion to dismiss. Frazier v. Merritt, 190 Ga. App. 832 (2) (380 SE2d 495) (1989), Contrary to appellant’s assertions, OCGA § 9-11-9.1 (b), the statutory exception to the requirement that the affidavit accompany the complaint, is inapplicable since appellant’s case was not filed within ten days of the expiration of the statute of limitation. Furthermore, neither appellant’s indigency nor the pendency of discovery matters was a barrier to the trial court’s dismissal of the malpractice action for failure to comply with OCGA § 9-11-9.1.

Judgment affirmed.

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