text:
    A01A0716.
    SEALS et al. v. HYGRADE DISTRIBUTION & DELIVERY SYSTEMS, INC.
    (549 SE2d 412)
   Mikell, Judge.

Seals Enterprise Corporation (“SEC”) and Hygrade Distribution & Delivery Systems, Inc. (“Hygrade”) had a contractual relationship whereby SEC delivered freight for Hygrade, for which Hygrade paid SEC delivery commissions. SEC filed a complaint against Hygrade, alleging, among other things, that Hygrade wrongfully deducted SEC’s insurance premiums from SEC’s commissions. The parties filed cross-motions for summary judgment. The trial court granted Hygrade’s motion, ruling that it was entitled to deduct the insurance premiums and to retain certain administrative fees. SEC and Ralph D. Seals, SEC’s owner, appeal. We affirm.

“In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” To prevail at summary judgment under OCGA § 9-11-56 (c), the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.

Viewed most favorably to SEC, the evidence shows that from 1986 to 1998, SEC and Hygrade were parties to an Independent Trucking Agreement (the “Agreement”) whereby SEC hauled freight for Hygrade and Hygrade paid SEC delivery commissions for all loads hauled. The Agreement provided that SEC was an independent contractor. As such, SEC was responsible for obtaining workers’ compensation insurance for its employees.

Initially, SEC obtained its own workers’ compensation insurance. Once the premiums became too expensive, however, SEC enrolled in Hygrade’s voluntary group insurance plan. Seals executed a consent form dated August 25, 1995, which authorized Hygrade to withhold $405 per week from SEC’s gross commissions.

The consent form listed the rates for four different types of insurance: occupational accident ($48.50 per week), which applied only to owners; partnership ($75 per week); fleet owner ($110 per week), which was the workers’ compensation insurance; and active contractor and employee ($90 per week), which applied to contractors that owned and operated one truck. Hygrade deducted $405 per week from SEC’s commissions for workers’ compensation insurance for each of three drivers at $110 per week and for one full-time partner (either Ralph Seals or his son, Darrell Seals) at $75 per week. Seals deposed that after a short time, the amount was decreased to $378, which covered workers’ compensation insurance and occupational accident insurance for Ralph Seals at $48.50 per week.

By affidavit, Jane Quan-Shau, Hygrade’s vice-president of safety, compliance, and risk management, stated that the contractors were notified that Hygrade charged an administrative fee for the operation of the insurance plan that was built into the insurance rates. The purpose of the fee was to offset the administrative costs Hygrade incurred to process the weekly settlement deduction, prepare the monthly reconciliation, and transmit the application and premiums to the insurance broker, Specialty Risk.

The contractor’s premiums were based upon a flat rate schedule. However, the portion of the premium that Hygrade received for its administrative fee varied with the cost of each contractor’s insurance, which was dependent upon the state in which they were insured. Hygrade was able to offer a flat rate schedule because it absorbed the varying insurance costs among the different states. In other words, in states where the insurance was more expensive, Hygrade would receive a smaller fee, if any, than in those states where the insurance was less costly.

Quan-Shau deposed that the contractors paid Hygrade, then Hygrade paid Specialty Risk the cost of the premiums and Specialty Risk’s commission. Specialty Risk then submitted the insurance premiums to the insurer, Reliance Insurance Company. Reliance issued the policy directly to the contractors.

On summary judgment, SEC argued that Hygrade wrongfully deducted $94,681.43 from its delivery commissions for insurance premiums. Further, SEC contended that 49 percent of that amount constituted a commission or profit, which Hygrade was not entitled to collect since it is not a licensed insurance broker. In response thereto and in its cross-motion for summary judgment, Hygrade argued that it had not profited from SEC’s payment of the insurance premiums and that it was entitled to retain the administrative fee it charged for the costs it incurred to administer the policy. The trial court agreed.

1. In their first enumeration of error, appellants argue that the trial court erred because the consent form authorizing the deductions from SEC’s gross commissions was void pursuant to OCGA § 33-23-4 (e), which prohibits any entity “other than a duly licensed adjuster, agent, subagent, or counselor” from accepting any commission.

Contrary to appellants’ contention, Hygrade’s administrative fee does not constitute a “commission,” as the term is used in OCGA § 33-23-4 (e). Thus, OCGA § 33-23-4 (e) does not void the consent form.

OCGA § 33-23-1 provides a list of definitions for certain words used in Article 1 of Chapter 23 of Title 33. It does not define “commission” as it is used in the article. “In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” Black’s Law Dictionary (5th ed.) defines commission as

[t]he recompense, compensation or reward of an agent, salesman, executor, trustee, receiver, factor, broker, or bailee, when the same is calculated as a percentage on the amount of his transactions or on the profit to the principal. [Cit.] Compensation to an administrator or other fiduciary for the faithful discharge of his duties.

In this case, Hygrade did not charge SEC a percentage of SEC’s gross commissions to administer the insurance program. Instead, an administrative fee was built into each insurance rate. The amount of the administrative fee received by Hygrade varied. The evidence shows that in some instances, the insurance premiums paid to Reliance exceeded that paid to Hygrade, and in some instances, they were less.

SEC does not dispute that Hygrade completed all of the paperwork necessary for SEC’s participation in the group plan. Yet, SEC argues, and wants us to conclude summarily, that 49 percent of the amount it tendered to Hygrade was profit or commission. “Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment.” Since SEC does not point to any evidence in the record that the fee charged by Hygrade constituted profit or commission, the trial court did not err in finding that OCGA § 33-23-4 (e) did not void the consent form.

In support of its position that the contract is void under OCGA § 33-23-4 (e), SEC relies on Mgmt. Compensation Group v. United Security Employee Programs, Berger & Washburne Ins. Agency v. Commercial Ins. Brokers, and Olukoya v. American Assn, of Cab Cos. However, none of those decisions are apposite. Both Mgmt. Compensation Group and Berger involve disputes between insurance agencies in which one of the companies alleges that the other is not licensed and thus is not entitled to retain the insurance commissions. Since Hygrade is not contending that it is licensed to sell insurance and there is no evidence that Hygrade received commissions, these cases are not applicable.

In Olukoya, the plaintiff alleged that the defendant’s self-insurance plan constituted an illegal attempt to sell insurance without a license. We held that the defendant’s actions, marketing its self-insurance plan to third parties, requiring them to convey title to their vehicles, and to pay an insurance fee for which the defendant would provide an insurance card, constituted transacting insurance without a license. Olukoya has no applicability to the instant case. Hygrade is not self-insured, nor did it sell insurance to its contractors. Also, Hygrade did not acquire an interest in its contractors’ trucks in consideration for securing lower insurance premiums through Specialty Risk. Instead, the contractors received their insurance policies directly from Reliance. Hygrade simply charged the contractors for the costs it incurred to complete the monthly paperwork required to administer the program. Accordingly, Olukoya is inapposite.

2. SEC next argues that the trial court erred by denying its motion for partial summary judgment because Hygrade’s fee constituted a profit, and by earning a profit, Hygrade voided the consent form. This argument has been addressed in Division 1 of this opinion. SEC also argues that even if Hygrade were entitled to collect a fee, OCGA § 33-23-1 (b) (7) limited the fee to five percent of the cost of the premiums. Again, we disagree.

OCGA § 33-23-1 (b) (7) provides, in relevant part:

The definitions of agent, subagent, counselor, and adjuster . . . shall not be deemed to include: . . . under a group insurance plan, a person who serves the master policyholder of group insurance in administering the details of such insurance for the employees or debtors of the master policyholder or of a firm or corporation by which the person is employed and who does not receive insurance commissions for such service; provided, further, that an administration fee not exceeding 5 percent of the premiums collected paid by the insurer to the administration office shall not be construed to be an insurance commission.

In this case, there is no master policyholder. Instead, Reliance issues the policies directly to the contractors. Furthermore, by collecting the premiums, Hygrade is not performing a service for the insurer or otherwise employed by any entity involved in this case. Finally, Reliance does not pay Hygrade an administrative fee. Thus, OCGA § 33-23-1 (b) (7) does not limit Hygrade’s administrative fee.

3. In its final enumeration of error, SEC contends that the trial court erred by granting summary judgment to Hygrade on its fiduciary duty claim.

Decided May 9, 2001

Hughes & Kaplan, Robert W. Hughes, Jr., for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Ben L. Weinberg, Jr., Howard J. Russell, Adriane C. Yelton, for appellee.

SEC argues that Hygrade acted as its agent in the procurement of insurance; thus, it owed SEC a fiduciary duty to disclose the profits it made from SEC’s insurance premiums. While we agree with the general premise that an agent is under a duty not to make a personal profit from the principal’s business, we do not find that the premise applies to this case.

SEC’s sole argument in this regard is that Hygrade made a profit that it did not disclose to SEC. Even if we assume that Hygrade was SEC’s agent, there is no evidence that Hygrade made a profit which it would have been required to disclose to SEC. Hygrade’s contention that it used the administrative fee to defray its costs is undisputed. During his deposition, Seals admitted that Hygrade did all of the paperwork related to the insurance. Accordingly, since there is no evidence that Hygrade made a profit from SEC’s premiums, this enumeration fails.

Judgment affirmed.

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

       (Citation and punctuation omitted.) Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       Id.

       SEC is a commercial trucking company and Hygrade is a common carrier authorized by the Interstate Commerce Commission to transport freight.

       The original contract, which was executed in 1986, is not included in the record. The second contract, which was signed in 1995, was attached to Seals’ deposition. The contract that was attached to Seals’ complaint is dated May 2,1997.

       No additional premium was paid for the helpers who sometimes accompanied the drivers.

       By that time, Ralph Seals was no longer authorized to drive the trucks; thus, he no longer needed partnership insurance.

       The broker involved when Seals enrolled in the program was the National Association of Independent Truckers.

       The Georgia Insurance Code is codified at OCGA § 33-1-1 et seq. Chapter 23 is entitled “Licensing of Agents, Agencies, Subagents, Counselors, and Adjusters.” Article 1 of the chapter is entitled “Agents, Agencies, Subagents, Counselors, and Adjusters.”

       (Citations and punctuation omitted.) Mgmt. Compensation Group Southeast v. United Security Employee Programs, 194 Ga. App. 99, 102 (2) (389 SE2d 525) (1989).

       (Citations and punctuation omitted.) Johnson v. MARTA, 230 Ga. App. 105, 107 (1) (495 SE2d 583) (1998).

       Supra.

       204 Ga. App. 146 (418 SE2d 640) (1992).

       219 Ga. App. 508 (465 SE2d 715) (1995).

       Id.

       OCGA § 10-6-25; Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 223-224 (2) (520 SE2d 231) (1999).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1014.
    DAVIS v. THE STATE.
    (548 SE2d 678)
   Mikell, Judge.

Xavier Davis was indicted for the offenses of aggravated assault and criminal attempt to commit armed robbery. He was convicted of both crimes. Davis filed a motion for new trial, which the court denied. This appeal followed. We affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on March 20, 2000, Davis and his girlfriend, Nekosha Gibson, went to the home of Chris Robinson in the Fort Hill area of Macon. While there, Davis agreed to drive Chris Akins, who was also at Robinson’s home, to pay a utility bill. Davis left with Robinson, Akins, and Gibson.

Davis first drove to his grandmother’s home and then stopped at a Subway store to purchase a sandwich for Gibson. He proceeded to the home he shared with Gibson, and everyone exited the car. Akins testified that he asked when Davis would drive him to pay his bill, and Davis responded that he would “after a while.”

Akins further testified that he, Davis, and Robinson got back into Davis’ car, drove around, and smoked a “blunt,” which is a marijuana cigar. According to Robinson and Akins, Davis told them that he had a “lick” for them, which they understood to mean a robbery. Robinson agreed to participate in the robbery.

Davis drove to the Mini Foods store located at a filling station at the corner of Napier Avenue and Ayers Road. Davis instructed Robinson to perform the robbery alone, because the people inside the store might recognize him. Davis described the location of the safe under the counter and parked the car a short distance away from the store. Robinson asked for a weapon, and Davis gave him a gun. Robinson and Akins exited the car and walked in the direction of the store.

Robinson testified that he entered the store wearing a blue bandanna over his face and a cap, and that he carried the gun. Valerie Keels, the manager at the Mini Foods store, testified that a man later identified as Robinson approached her at the counter and said, “bitch, give me your money.” Keels further testified that she felt threatened by Robinson, that she saw the gun, and that he told her, “bitch, I’m gonna [sic] kill you.” When Keels opened the cash register, Robinson attempted to reach into the drawer, and Keels slammed it shut. Robinson turned and ran out of the store.

Joseph Fuller, a passing motorist, witnessed two men running from the store toward a car parked nearby. Fuller testified that the t,wo men got into the car with a third man and drove away. Fuller described the car as “one of these box Chevrolets” and further testified that it had gray primer on it. When Fuller noticed police officers at the Mini Foods store, he stopped and told them what he had seen. Fuller testified that he saw the same car driving in the neighborhood near a Sprint Food store after he left the crime scene.

Shortly thereafter, police stopped Davis’ car at the Sprint Food store in the area. Fuller was called to the scene, where he identified the car as the one he had seen outside the Mini Foods store. Davis’ grandmother consented to a search of her home, and police found a gun matching the description of the one used in the robbery on a table on the porch, under a floor mat from a car. Robinson testified that he had returned the gun to Davis after they left the store, and that Davis subsequently put the gun on the table, hidden under a floor mat.

At trial, Davis denied any involvement in the incident.

1. Davis first argues that there was insufficient evidence to support his conviction of aggravated assault and criminal attempt to commit armed robbery. We disagree.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

Based on the evidence summarized above, a rational trier of fact could have found Davis guilty of both offenses beyond a reasonable doubt. A person is a party to a crime if he “[i]ntentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b) (3), (4). See also Anderson v. State, 237 Ga. App. 595, 596 (2) (516 SE2d 315) (1999). The record demonstrates that Davis devised the plan for Robinson to rob the Mini Foods store, advised and encouraged him, provided him with a weapon, and aided him in the commission of the crimes.

OCGA § 16-5-21 (a) provides: “A person commits the offense of aggravated assault when he or she assaults . . . [w]ith intent to . . . rob; ... [or w]ith a deadly weapon.” There is ample evidence that Robinson threatened Keels with the gun and had the intention to rob the store. Accordingly, the evidence supports Davis’ conviction as a party to the crime of aggravated assault.

Likewise, Davis’ conviction for criminal attempt to commit armed robbery must stand. Under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” The evidence demonstrates that Robinson took a substantial step toward the commission of an armed robbery when he entered the store, brandished a weapon, and demanded that Keels give him the money. OCGA § 16-8-41 (a). See also Gaither v. Cannida, 258 Ga. 557, 558 (1) (372 SE2d 429) (1988). Because Davis advised, encouraged, and aided Robinson, we uphold Davis’ conviction.

2. Next, Davis argues that the court erred in refusing to give his requested jury charge on mistake of fact. He contends that the charge was warranted because he did not know that Robinson planned to rob the store when he drove Robinson and Akins there, nor did he know that Robinson had attempted the robbery when he drove them away from the store. This argument is without merit.

It is reversible error to fail to give a requested instruction on an affirmative defense that is supported by the evidence; however, in this case, the evidence did not raise the issue of mistake of fact. See Harden v. State, 239 Ga. App. 700, 703 (5) (521 SE2d 829) (1999). “Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime.” (Citations, punctuation and emphasis omitted.) Randall v. State, 234 Ga. App. 704, 705 (1) (507 SE2d 511) (1998). Pursuant to OCGA § 16-3-5, a mistake of fact is “a misapprehension of fact which, if true, would have justified the act or omission.” In the case sub judice, Davis’ defense was not mistake of fact but was to deny committing the crimes alleged. In fact, Davis denied driving Robinson and Akins to or from the Mini Foods store at all. Therefore, “[Davis] cannot deny committing an act, while at the same time argue he committed the act by mistake.” (Citation and punctuation omitted.) Harden, supra at 703 (5). Under these circumstances, the trial court did not err in refusing to instruct the jury on mistake of fact.

Decided May 9, 2001.

Robert M. Bearden, Jr., for appellant.

Howard Z. Simms, District Attorney, for appellee.

Judgment affirmed.

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

       Robinson was convicted of attempted armed robbery and aggravated assault in the Juvenile Court of Bibb County, based on the events involved in this case. He testified at Davis’ trial as a witness for the state.


author: Phipps, Judge.

text:
    A01A1220.
    WASHINGTON ROAD. DEVELOPERS, LLC v. WEEKS.
    (549 SE2d 416)
   Phipps, Judge.

Washington Road Developers, LLC (Washington) developed a residential subdivision and sold a finished unit to Melba Weeks. Weeks sued Washington and Vintson Construction Company (Vintson) for breach of an implied duty to construct her residence in a fit and workmanlike manner and for negligent construction. Washington moved for summary judgment on the ground that it was merely the seller of the residence and Vintson was the builder. We granted Washington’s application for interlocutory appeal of the trial court’s denial of its motion. Upon consideration of the case, we affirm.

Charles Brigham formed Washington to develop the subdivision, known as Charlestowne Villas. Washington hired Vintson, an independent contractor, to build the townhouses in the subdivision. Other aspects of subdivision development, such as the engineering of lots, were handled by other independent contractors hired by Washington.

Weeks purchased one of the townhouses from Washington. The purchase contract stated that the builder’s warranty was provided by Vintson and that Washington’s responsibility for the condition of the property ceased at closing. Washington and Weeks were, however, the only parties to the purchase contract.

Sometime after closing, Weeks discovered cracking in the townhouse’s concrete foundation, interior Sheetrock, and exterior brickwork. To recover damages, she sued Washington and Vintson. She presented evidence that the townhouse’s structural deficiencies are attributable to omissions of the builder as well as inadequate compaction of the underlying soil. In reliance on Seely v. Loyd H. Johnson Constr. Co., the trial court denied Washington’s motion for summary judgment.

The defendant in Seely built and sold a new residence to the plaintiffs. When the plaintiffs sued for negligent construction, the defendant attempted to shift liability to independent contractors to whom it had subcontracted construction work. In reliance on earlier cases, we held that “as to a claim based on negligent construction, since the builder-seller holds himself out as having the ability and expertise to build a fit and workmanlike residence, he cannot escape liability simply by claiming that an independent contractor he hired was wholly responsible for the negligent work. [Cit.]”

In Collins v. Ralston & Ogletree, Inc., however, we held that the purchasers of a house in a subdivision could not hold the developer liable for malfunctions in the house’s septic tank system. The purchasers in Collins attributed the malfunctions to improper installation of the system and to the engineering of their lot. But the developer did not build the house, it appeared that the purchasers selected the builder, and it was uncontradicted that the developer took no part either in engineering the lot or in installing the septic tank system.

This case is more akin to Seely than to Collins. Unlike the subdivision developer in Collins, Washington selected the builder of Weeks’s townhouse and then sold the townhouse to Weeks. Although the purchase contract purports to make Vintson liable for the builder’s warranty, Vintson was not a party to the contract. Moreover, Weeks’s lot was engineered by another independent contractor with whom she had no contractual relationship, and she has presented evidence that her damages were in part caused by the preconstruction activity performed by that contractor. These circumstances distinguish this case from Collins. The policy established in the line of cases represented by Seely precludes Washington from insulating itself from liability for defects in Weeks’s home by claiming that any negligent work was performed by independent contractors hired by it.

Decided May 9, 2001.

William A. Trotter III, for appellant.

Mistier, Scott & Grate, Allison B. Lawler, Johnston, Wilkin & Williams, Wendell E. Johnston, Jr., William J. Williams, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       220 Ga. App. 719 (470 SE2d 283) (1996).

       Id. at 720-721 (1).

       186 Ga. App. 583 (367 SE2d 861) (1988) (physical precedent only).


author: Smith, Presiding Judge.

text:
    A01A0243.
    THE STATE v. BAZEMORE.
    (549 SE2d 426)
   Smith, Presiding Judge.

The State appeals the trial court’s dismissal of the charges against Douglas L. Bazemore after determining that he was denied his constitutional right to a speedy trial. We affirm.

On August 3, 1998, Doraville police officers arrested Bazemore, charging him via three uniform traffic citations with DUI, driving too fast for conditions, and failure to maintain lane. On August 10, 1998, Bazemore filed a demand for jury trial in the Municipal Court of Doraville, and on September 3, Bazemore’s case was transferred to the State Court of DeKalb County. On October 1, 1998, Bazemore filed in the state court a demand for jury trial; he further demanded a trial within the present term or the next term under OCGA § 17-7-170. Although the state court placed Bazemore’s case on the jury trial calendar call of November 16, 1998, the case was not called for trial on that date because the State had not yet drawn an accusation. Thereafter, on December 21, 1998, the State did draw an accusation, alleging the three original charges and filing the three uniform traffic citations in state court.

The case was placed on the February 17,1999 jury calendar, and on February 8, 1999, Bazemore filed a motion for discharge and acquittal under OCGA § 17-7-170, contending that the two-term statutory time limitation had expired. The trial court denied the motion on May 12, 1999, concluding that because Bazemore had filed the demand before the State filed the accusation and the uniform traffic citations, his demand was premature and therefore a nullity. On July 19, 1999, on reconsideration, the trial court again denied Bazemore’s motion.

The record indicates that no further action was taken on Bazemore’s case for approximately ten months, when the case was placed on the May 23, 2000 trial calendar. On May 23, 2000, Bazemore filed a second motion for discharge and acquittal, this time on constitutional grounds. The trial court granted that motion.

1. The State contends that the trial court erred by granting Bazemore’s motion for discharge and acquittal on constitutional grounds. In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the United States Supreme Court identified four factors for courts to consider in determining whether a defendant has been deprived of the constitutional right to a speedy trial. The factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. Id. at 530. None of these factors alone is necessary or sufficient for a finding of deprivation of the right of speedy trial; rather, courts must engage in a “difficult and sensitive balancing process.” Id. at 533. We review the trial court’s decision under an abuse of discretion standard. State v. Yates, 223 Ga. App. 403, 404 (477 SE2d 670) (1996).

(a) Length of delay. Here, the delay between Bazemore’s arrest and the call of the case for trial was over 21 months, raising a presumption of prejudice and triggering analysis of the other Barker factors to determine whether Bazemore was denied his constitutional right to a speedy trial. See Doggett v. United States, 505 U. S. 647, 652, n. 1 (112 SC 2686, 120 LE2d 520) (1992). As the delay approaches one year, it generally is “ ‘presumptively prejudicial.’ ” Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994).

(b) Reason for delay. Minor delays were caused by Bazemore’s demands for a jury trial and his motion for discharge and acquittal on statutory grounds. The record does not, however, completely explain the four-month delay between arrest and the filing of the accusation. Further, the record shows that because of an unexplained delay in filing the accusation with the state court, the case was not set for trial during the November 16, 1998 calendar call. The charges against Bazemore were all misdemeanors: DUI, OCGA § 40-6-391 (a) (1), (c); too fast for conditions, OCGA §§ 40-6-180, 40-6-1; failure to maintain lane, OCGA §§ 40-6-48, 40-6-1. A uniform traffic citation may serve as the accusation for the prosecution of a misdemeanor traffic case without the filing of a formal accusation. OCGA § 40-13-1; State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996). But the State claims that “[i]t is the routine practice of the DeKalb County Solicitor-General’s Office to file a formal accusation on all cases it prosecutes, including traffic offenses.” In addition, the record indicates that the case was inexplicably dormant for approximately ten months after the denial of the motion for discharge and acquittal on statutory grounds. When a delay is unexplained, it is treated as having been caused by the negligence of the State in bringing the case to trial. Boseman, supra at 733 (1) (b); Yates, supra at 404. The trial court determined that the delays in this case were caused in part by the State’s negligence and by defense counsel’s earlier motion for acquittal, then weighed this factor in Bazemore’s favor.

(c) Defendant’s assertion of his right to a speedy trial. The trial court found that Bazemore had asserted his right to a speedy trial when he filed a demand for speedy trial pursuant to OCGA § 17-7-170 on October 1, 1998. The trial court stated that although Bazemore filed the demand prematurely, he nonetheless placed all parties on notice that he wanted a speedy trial. Moreover, at the hearing on Bazemore’s motion for discharge and acquittal on constitutional grounds, the State acknowledged that Bazemore was “obviously interested” in a speedy jury trial in that he had filed a speedy trial demand, although prematurely. The trial court weighed this factor in Bazemore’s favor.

(d) Prejudice to defendant. Prejudice is assessed in the light of the defendant’s interests which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the defendant’s anxiety and concern; and (3) to limit the possibility that the defense will be impaired. Barker, supra at 532. After Bazemore’s arrest, he was bailed out of jail approximately five and a half hours later. However, “even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. [Cits.]” Id. at 533. Here, there is evidence that the pending case caused Bazemore stress and embarrassment. In considering the prejudice to a defendant, the most important factor is whether the delay resulted in any impairment of the defense. Id. at 532. “If witnesses die or disappear during a delay, the prejudice is obvious.” Id. Bazemore stated at the motion hearing that due to the delay, he has lost a material witness in that he can no longer rely on the testimony of an ex-girlfriend, who had been with him approximately three and a half hours before his arrest and later bailed him out of jail. He stated that his ex-girlfriend could have testified in his defense as to his condition on that evening. He testified that because of a nonamicable breakup with the ex-girlfriend she had become hostile toward him, and he had been unable to locate her since May 1999. The State presented no evidence, although on cross-examination it elicited testimony that a friend of Bazemore, who was available to testify, had been in the automobile with Bazemore at the time of the arrest. The trial court ruled that the uncontradicted evidence weighted this factor in Bazemore’s favor.

Decided May 10, 2001.

Gwendolyn R. Keyes, Solicitor-General, Donald E. Henderson, Rupal D. Vaishnav, Assistant Solicitors-General, for appellant.

Monte K. Davis, for appellee.

Considering the 21-month length of time between the arrest and the scheduled call of the case for trial, the unexplained delays, and prejudice to Bazemore, including impairment of his defense, stress, and embarrassment, we conclude that the trial court did not abuse its discretion in granting Bazemore’s motion for discharge and acquittal for lack of a speedy trial on constitutional grounds.

2. The State also enumerates as “error” that the trial court “correctly denied [Bazemore’s] motion for discharge and acquittal pursuant to OCGA § 17-7-170 because it was filed prematurely.” Although the trial court did deny that motion, that decision is not properly before us, and we do not consider it. See OCGA §§ 5-7-1 (a) (4); 5-6-34 (d).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       We note the statements of counsel for Bazemore and the State during the hearing that they did not timely receive the order denying the motion. But as the trial court stated, neither party brought it to the court’s attention when they did not receive the order, notwithstanding that both parties received notice that the order had been entered.


text:
    A01A0465.
    SMITH et al. v. GERMANIA OF AMERICA et al.
    (549 SE2d 423)
   Smith, Presiding Judge.

We are called upon in this appeal to determine whether a complaint was correctly dismissed for failure to state a claim. The complaint was brought by tenants of an apartment complex and a group of their party guests against the owner and manager of the apartments. As amended, the complaint alleged a 42 USC § 1983 claim as well as state law claims for assault, battery, false arrest, and false imprisonment. We conclude that the trial court erred in granting the motion to dismiss as to both the federal and state law claims, and we therefore reverse.

The amended complaint in this sparse record alleged that Placid and Athelia Eze hosted a party at the pool of their apartment complex, with express permission from Germania of America and GOA Management, Inc., respectively the owner and manager of the complex (“the Germania defendants”). The six other plaintiffs were guests at the party. The complaint alleged that the plaintiffs and other guests were acting lawfully and peacefully when they were attacked without provocation with pepper spray, beaten, cursed, and unlawfully arrested by two Union City police officers who were also “courtesy” officers at the complex, as well as at least one other Union City police officer. These alleged actions formed the basis for the plaintiffs’ 42 USC § 1983 claim against the Germania defendants. The plaintiffs also alleged that the police officers, acting within the scope of their authority as employees of the Germania defendants, “assaulted, battered, falsely arrested and imprisoned” them.

The Germania defendants answered the complaint, denying, among other things, that the police officers were their employees or that it was acting “under color of State law” in the incident. These defendants also moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. In support of their motion to dismiss, these defendants relied upon a brief previously submitted before the complaint was amended. That brief does not address the state law claims because they were added in the amended complaint.

1. It is well settled that:

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citations and punctuation omitted.) Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 207-208 (1) (541 SE2d 33) (2000).

Here, the trial court apparently failed to make such favorable inferences in regard to the state law claims, thereby failing to follow the standard for granting a motion to dismiss. See Nix v. Cox Enter prises, 242 Ga. App. 515, 517 (529 SE2d 426), rev’d on other grounds, 273 Ga. 152 (538 SE2d 449) (2000). The Germania defendants’ answer denied the allegations that the police officers were employees, but no evidence supports either this allegation or the plaintiffs’ allegation that the officers were employees. The issue is in conflict, making the grant of a motion to dismiss inappropriate. If the plaintiffs can prove that the officers were employees and that they were acting within the scope of their employment, it is possible that the Germania defendants could be vicariously liable to the plaintiffs for the officers’ actions under the state law claims.

The law provides that the master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will. While this legal principle may be simply stated, its application has proven to be problematic. It has been recognized that the cases involving the issue of an employer’s vicarious liability for the wilful torts of his employees [ ] can only be reconciled by an approach which directs its inquiry, not to authority to commit the tort[,] but to authority to accomplish a purpose in pursuance of which a wilful tort is committed. Thus, the test of liability is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. . . . Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.

(Citations and punctuation omitted.) Rogers v. Fred R. Hiller Co., 214 Ga. App. 448 (1) (448 SE2d 46) (1994).

The Germania defendants have not filed a brief with this court. We have reviewed the brief they filed in the trial court. In that brief, we note they pointed to no reason why the plaintiffs would be precluded from presenting evidence in support of their state law claims, and we find none. As to these claims, therefore, the trial court erred in granting the motion to dismiss for failure to state a claim.

2. To support their federal claim, the plaintiffs are required to show that the conduct complained of was committed by persons acting under color of state law and that it deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States. The Germania defendants insisted below that the plaintiffs’ 42 USC § 1983 claim should be dismissed because they were not state actors simply because providing housing is “not traditionally the exclusive prerogative of the State.” Jackson v. Metro. Edison Co., 419 U. S. 345, 353 (95 SC 449, 42 LE2d 477) (1974). But “[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting under color of law for purposes of the statute. To act under color of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” (Citation, punctuation and footnote omitted.) Adickes v. Kress & Co., 398 U. S. 144, 152 (90 SC 1598, 26 LE2d 142) (1970). If the plaintiffs can prove that the Ger-mania defendants acted jointly with the police officers, who are state actors, this requirement will be fulfilled.

Decided May 10, 2001.

Frank L. Derrickson, for appellants.

Swift, Currie, McGhee & Hiers, Christopher D. Batch, Laurel E. Henderson, for appellees.

Contrary to the Germania defendants’ argument below, the plaintiffs here are not alleging that Germania has an interdependent relationship with the state or that the state coerced the officers’ behavior. The plaintiffs’ complaint merely alleges that the Germania defendants willingly participated in the officers’ actions because the officers acted under policies adopted by their employer. If the plaintiffs can prove this, they will have satisfied the requirement of state action.

The complaint also alleges that the officers’ actions violated the plaintiffs’ rights guaranteed “under the first, fourth, fifth, sixth and fourteenth amendments” to the U. S. Constitution, as well as rights guaranteed under the Georgia Constitution. If proved, this would satisfy the other requirement for a claim under 42 USC § 1983. The Germania defendants offered no showing that the plaintiffs could not prove this element. Regardless of the merits of the plaintiffs’ allegations, the complaint did not disclose with certainty that the plaintiffs would not be entitled to relief under their § 1983 claim under any set of provable facts, nor did the Germania defendants show that the plaintiffs could not possibly introduce evidence within the framework of the § 1983 claim to warrant relief. It follows that the trial court erred as well in granting the Germania defendants’ motion to dismiss this claim on the ground that it failed to state a claim upon which relief could be granted.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       The action was also brought against the city of Union City and three police officers, but the claims against them were not dismissed, and they are not parties to this appeal, except technically.

       In the original complaint, the Ezes were not plaintiffs, nor were two of the later added guests (Angela Smith and Jacqueline McCoomer).


text:
    A01A0478.
    SALMON v. STATE OF GEORGIA.
    (549 SE2d 421)
   Smith, Presiding Judge.

This case arises out of a judgment against Ronald Salmon in a civil forfeiture proceeding. Salmon appeals from the denial of his motion for new trial. We do not agree with Salmon that the evidence was insufficient to support the judgment of forfeiture. We do agree, however, that the record does not reveal whether the trial court considered the mandatory guidelines of Thorp v. State of Ga., 264 Ga. 712, 717-718 (3) (450 SE2d 416) (1994), in determining whether the forfeiture was excessive. We therefore vacate the judgment of the trial court and remand this case to the trial court with direction that the court consider those factors and make appropriate findings on the record.

1. Salmon first contends that the evidence was insufficient to support the forfeiture of the subject property, $5,652 in United States currency. He asserts that the State failed to show that the money “fell into one of the six categories of property declared to be contraband under OCGA § 16-13-49 (d).” He further argues that no evidence showed that the money was intended to facilitate a violation of the Georgia Controlled Substances Act or that it was “proceeds derived or realized from” such a violation.

The State introduced evidence that Salmon was searched when he returned to his home while the police were executing a search warrant on the premises. The police found approximately 200 diazepam or Valium tablets, a hydrocodone tablet, and several other medications in tablet form concealed in Salmon’s boot. Police also found a small quantity of marijuana, rolling papers, a straw, a partially consumed marijuana cigarette, and $5,652 in currency in his pants pocket. A drug detection dog alerted on the van Salmon arrived in, and a search revealed approximately a quarter-pound of marijuana and a set of scales. Salmon agreed to talk to the police. He stated that he had obtained a substantial quantity of methamphetamine from an individual who was manufacturing the drug and that he intended to sell the diazepam to this person.

Salmon contends the currency found in his pocket was part of the proceeds of a personal injury litigation settlement he had received a few days earlier. Although he did not testify, he tendered into evidence the check and settlement agreement. But “the trial court, as the trier of fact, judged the credibility of the witnesses. Its findings of fact will not be set aside unless clearly erroneous. Since the clearly erroneous test is the same as the any evidence rule, we will not disturb the factfindings of the trial court where, as here, there is evidence to support them.” (Citations omitted.) Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996). The evidence was sufficient for the trial court to determine that forfeiture of the currency was proper under OCGA § 16-13-49 (d) (2), as property “directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom.” Alternatively, the trial court could have found forfeiture proper under subsection (d) (6), as “moneys ... or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture.” See Gearin v. State of Ga., 218 Ga. App. 390, 392 (2) (461 SE2d 562) (1995).

2. Salmon also contends that forfeiture of the cash seized amounted to an excessive fine within the meaning of the Eighth Amendment to the U. S. Constitution. The Supreme Court of Georgia, in Thorp, supra, adopted a three-part test “as the minimal inquiry that must be made in analyzing a claim under the excessive fines provision of the Eighth Amendment. [Cit.]” Mitchell v. State of Ga., 236 Ga. App. 335-336 (1) (511 SE2d 880) (1999). First, the trial court must compare the inherent gravity of the offense with the harshness of the penalty; second, it must consider whether the property seized was close enough to the offense to render it “guilty”; and, finally, it must determine whether the criminal activity involving the property seized “was extensive, in terms of time or space.” Id. at 336. “Proper application of these factors requires the trial court to make certain mixed findings of law and fact.” Thorp v. State of Ga., 217 Ga. App. 275, 276 (2) (457 SE2d 234) (1995). This court must accept the trial court’s findings unless they are clearly erroneous. Id.; Mitchell, supra at 336; Evans v. State ofGa., 217 Ga. App. 646, 647 (458 SE2d 859) (1995).

Although both Salmon and the State raised this issue below, the record does not reveal that the trial court considered Thorp, 264 Ga. 712, or made any findings on the three factors required by that decision. We therefore remand this case for further proceedings in the trial court consistent with Thorp. Since a hearing was conducted, no additional evidentiary hearing is required unless the trial court deems it necessary. The trial court’s order is vacated, and the court is directed to enter a new order including findings of fact and conclusions of law on the factors required by Thorp. The parties shall be entitled to appeal the trial court’s new order within 30 days of its entry. See Mitchell, supra.

Judgment vacated and case remanded with direction.

Barnes and Phipps, JJ., concur.

Decided May 10, 2001.

Larry J. Barkley, for appellant.

Tambra P. Colston, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

       The State of Georgia has failed to file a brief on appeal.


text:
    A01A1351.
    DANIELS et al. v. THE STATE.
    (548 SE2d 108)
    Decided April 25, 2001 —
    Reconsideration denied May 11,2001.

      Andrej S. Bajuk, for appellants.
   Phipps, Judge.

Frederick and Sanchez Daniels were convicted of aggravated battery for shooting Kelvin Carter in the eye, thus depriving him of its use. They argue that under Jackson v. Virginia, the evidence was insufficient to support their convictions. This argument is without merit.

It is undisputed that during the course of a melee involving members of the Daniels and Carter families, Kelvin Carter was shot in the eye and that this resulted in loss of the eye. Numerous State’s witnesses testified that Carter was so injured when appellants began shooting indiscriminately and without provocation at members of the Carter family. Defense witnesses, on the other hand, testified that Sanchez Daniels was not involved in the shooting and that Frederick Daniels discharged his firearm in Carter’s direction to defend himself against gunshots being fired at him by Carter family members.

Under Jackson v. Virginia, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Here, there is competent evidence supporting appellants’ convictions.

Judgments affirmed.

Smith, P. J., and Barnes, J., concur.

J Tom Morgan, District Attorney, Barbara B. Conroy, Joseph N. Walden III, Assistant District Attorneys, for appellee.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996).

       Id.


author: Blackburn, Chief Judge.

text:
    A99A1603.
    TYSON v. THE STATE.
    (548 SE2d 498)
    Decided May 11, 2001.

      Browning & Tanksley, George T. Smith, for appellant.

      Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, John C. Richter, Assistant District Attorneys, for appellee.
   Blackburn, Chief Judge.

In State v. Tyson, the Supreme Court reversed the judgment of this Court’s opinion in Tyson v. State. Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

        State v. Tyson, 273 Ga. 690 (544 SE2d 444) (2001).

        Tyson v. State, 241 Ga. App. 288 (526 SE2d 603) (1999).


text:
    A01A0314.
    PRIESTER v. THE STATE.
    (549 SE2d 429)
   Smith, Presiding Judge.

Christopher Rubin Priester was charged in two indictments and one accusation with three counts of theft by receiving an automobile, two counts of leaving the scene of an accident, aggravated assault on a police officer, felony obstruction of an officer, and driving with a suspended license. The charges were joined for trial on the State’s motion. A directed verdict was granted on the charge of driving with a suspended license, and a jury found him guilty of all remaining offenses. His amended motion for new trial was denied, and he appeals, raising 12 enumerations of error. Priester challenges the trial court’s failure to give certain charges, joinder of the indictments and accusation for trial, and admission of similar transaction evidence. He also contends that certain counts should have merged and that the evidence was insufficient to support his convictions. The State concedes that the conviction for aggravated assault on an officer merged with the conviction for obstructing an officer, and we therefore vacate the judgment imposing sentence on those two counts and remand this case for resentencing on those two counts only. We find no merit in Priester’s remaining contentions, and we affirm the remainder of the judgment below.

Viewed to support the jury’s verdict, the evidence presented at trial showed that the charges arose out of several incidents that occurred in February and October 1998. On February 12, 1998, a 1994 Ford Taurus and its keys were stolen from Southern Natural Gas Company in Augusta. Five days later, Priester was driving that car in Savannah when he collided with another car. Priester and the other driver discussed his reluctance to telephone the police department regarding the accident, but before their discussion was finished, an officer arrived on the scene. Priester asked the officer if he could leave to make a telephone call, the officer acceded, and Priester left and did not return.

On October 12, 1998, a 1991 Buick LeSabre and its keys were reported stolen from Hook Towing Service in Savannah. Two days later, an officer on routine patrol observed the vehicle parked in front of a residence. The vehicle identification number matched that of the stolen vehicle. Priester’s fingerprints were found on the car, he admitted driving the car, and his girlfriend lived on the street where the car was found.

On October 31, 1998, a Savannah police detective patrolling in an unmarked police car recognized Priester driving an 1985 Oldsmobile Delta 88. The officer worked in auto theft, and he knew Priester was wanted for theft by receiving a stolen auto. The officer called for backup and pursued Priester. A marked unit arrived and pulled in front of Priester’s car to block it. The officer in the marked unit jumped out of his car, whereupon Priester backed up suddenly and hit the car immediately behind his. The officer drew his gun, fearing Priester would run over him. He told Priester to get out of the car, and Priester ignored him. The officer then reached into the car, hoping to grab the steering column and stop the car. The car was forced forward, and Priester “immediately shot forward” again, knocking the gun out of the officer’s hand and causing it to discharge as the officer stumbled. Priester then left in his car with the unmarked car in pursuit. Priester eventually abandoned the car and proceeded on foot over a fence into a backyard. Another police officer on patrol heard on the police radio that Priester had fled on foot, along with a description of Priester and his approximate location. He spotted Priester hiding, lying between a parked car and the curb. The officer approached Priester with his weapon drawn, and Priester again fled. As the officer chased Priester, a dog bumped into Priester, causing him to fall and allowing the officer to arrest Priester.

1. In two enumerations of error, Priester contends the trial court erred in failing to give two charges, neither of which was requested by Priester.

(a) Priester contends the trial court erred in failing to instruct the jury on justification, which he maintains was his sole defense to the charges of aggravated assault on a police officer and obstruction of a police officer. Failure to instruct the jury on a defendant’s sole defense is reversible error, even when the defendant does not request the charge. Parker v. State, 230 Ga. App. 578, 579 (2) (497 SE2d 62) (1998).

The aggravated assault charge was based upon Priester’s rapidly accelerating his car while the officer was leaning into it. The indictment charged that Priester obstructed the officer when he offered “to do violence” to the officer “by refusing to stop his vehicle and accelerating the vehicle forward while said officer was leaning into said vehicle to effectuate a lawful arrest.”

But “[e]ven regarding a sole defense, a charge is not mandated without some evidence to support it. [Cit.]” Williams v. State, 227 Ga. App. 147, 148 (2) (488 SE2d 708) (1997). Justification was not Priester’s defense to these charges; he claimed he simply did not commit aggravated assault, but accelerated only when he saw that the officer was “free and clear of the car.” Although Priester argues that he left the scene because the officer had shot him and he was afraid the officer would do so again, the obstruction charge was not based upon Priester’s fleeing. It was based upon his offering to do violence to the officer by refusing to stop the car and instead accelerating forward while the officer was leaning into the car. No evidence of justification or self-defense was presented as to these charges, and the trial court did not err in failing to give the jury instructions.

(b) Appellate courts are required to consider and review erroneous charges when a “substantial error” in the charge “was harmful as a matter of law, regardless of whether [proper] objection was made.” OCGA § 5-5-24 (c). Although he did not request such a charge, Priester maintains the trial court erred by failing to charge the jury expressly that an essential element of the charge of aggravated assault on a police officer is the defendant’s knowledge that the victim was a police officer.

The trial court charged the jury: “A person commits the offense of aggravated assault upon a police officer when that person knowingly commits an aggravated assault upon an officer while that officer is engaged in or on account of the performance of official duties.” The court also charged that intent was an essential element of the offense and that the State must prove every element beyond a reasonable doubt.

Priester’s testimony showed clearly that he knew the man leaning into his car was a police officer. Even if the court’s charge may have been deficient, therefore, it is not reversible error, because no substantial error exists that was harmful to Priester as a matter of law. Stevenson v. State, 234 Ga. App. 103, 106 (3) (c) (506 SE2d 226) (1998).

2. Priester alleges that joinder of the eight charges from two indictments and an accusation was error. In Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975), the Supreme Court of Georgia

adopted the ABA Standards on Joinder of Offenses, holding that two or more offenses may be joined as separate counts of one indictment where both: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Dingier was further explained in Terry v. State, 259 Ga. 165, 168 (1) (377 SE2d 837) (1989), as follows: Where multiple offenses have been joined solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of the offenses.

(Punctuation and emphasis omitted.) Wilcox v. State, 271 Ga. 544, 545 (1) (522 SE2d 457) (1999).

When two or more offenses are joined because they not only are similar but also are part of a single scheme or plan or are based on the same conduct or a series of acts either connected or constituting parts of a single scheme or plan, it is within the trial court’s discretion whether to grant a severance. The trial court should, in its discretion, grant severance if it is appropriate to the fair determination of the defendant’s guilt or innocence on each charge. The court should consider the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense, in view of the number of offenses charged and the complexity of the evidence to be offered. Wilcox v. State, supra.

Here, the offenses were not only similar; they were based upon a series of acts constituting a definite pattern. In each incident, a stolen car was taken with the keys to the car. In each, Priester was later seen driving the car. In two incidents, he fled the scene, and the aggravated assault and obstruction charges stemmed from Priester’s attempt to escape apprehension when driving those stolen vehicles. When, “as here, the similarity of the crimes reaches the level of a pattern, severance of the crimes is not required.” (Citations and punctuation omitted.) Stinson v. State, 197 Ga. App. 687, 688 (1) (399 SE2d 278) (1990). The trial court did not abuse its discretion in denying severance of offenses.

3. Priester did not object to the introduction of evidence, including the testimony of a state patrol officer, of Priester’s conviction in 1991 after pleading guilty to theft by receiving a stolen car, failure to yield right of way, and attempting to elude a police officer. Because he made no contemporaneous objection, he cannot now raise this error. “The failure to object to the admission of evidence at trial constitutes a waiver of the right to raise the issue on appeal.” (Citations and punctuation omitted.) Jack v. State, 245 Ga. App. 216, 218 (4) (536 SE2d 235) (2000).

4. Priester raises two issues regarding merger of offenses.

(a) The State concedes that the crimes of aggravated assault on an officer and obstruction of the same officer were included in each other and Priester could be convicted of only one. The same conduct that proved the aggravated assault proved the obstruction. For sentencing purposes, therefore, the two crimes merged under OCGA § 16-1-7 (a). Because Priester was sentenced on both offenses, we vacate those convictions and sentences and remand to the trial court for resentencing on these two offenses only.

(b) We do not agree, however, with Priester’s contention that his conviction for leaving the scene of an accident merged with his convictions for aggravated assault on an officer and obstruction of the officer. The offense of leaving the scene had different elements than the other two crimes, which were based upon Priester’s accelerating his car to do violence to the officer. Neither of those crimes was based upon Priester’s leaving the scene.

5. In his remaining enumerations of error, Priester raises the general grounds, arguing that insufficient evidence was presented to support his convictions for all three counts of theft by receiving, aggravated assault, obstruction, and leaving the scene.

(a) Priester testified that in all three incidents, he lacked the essential element of scienter. He claimed, in all three incidents, that he did not know the car was stolen. But in all three incidents the fact that Priester was in possession of the stolen car was not the only evidence of guilt.

Although possession of recently stolen property is not alone sufficient to sustain a conviction for receiving stolen property, guilt may be inferred from possession along with other evidence — including circumstantial evidence — of guilty knowledge which would excite suspicion in the mind of an ordinarily prudent person.

(Citation omitted.) Slaughter v. State, 240 Ga. App. 758, 760 (6) (525 SE2d 130) (1999).

Decided May 14, 2001.

Priester was driving the stolen 1994 Ford Taurus when he collided with another car. He asked the other driver not to call the police, but an officer saw the accident and stopped. Priester fled the scene after asking the officer if he could use a telephone. He was seen driving the stolen 1985 Oldsmobile. He fled when an officer attempted to arrest him. Three days after the 1991 Buick LeSabre was stolen along with its keys, the car was found parked in close proximity to Priester’s girlfriend’s home, Priester’s fingerprints were found on the car, and he admitted he had driven it. Priester’s conduct after being apprehended, his possession of stolen property, and the evidence of a similar transaction were sufficient to authorize the jury to infer guilty knowledge. The evidence was sufficient to support his conviction for the three counts of theft by receiving stolen property under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Priester argues that the evidence was insufficient to support his convictions for aggravated assault and obstruction because the State did not prove he knew that the man who leaned into the car Priester was driving was a police officer. We have already determined that Priester possessed this knowledge; in fact, he testified that the man emerged from a “patrol car.” He testified he had no intention of hurting the man because he had “a lot of respect for a lot of officers.” This enumeration is without merit.

(c) It is uncontradicted that Priester left the scene after backing into the car behind him and injuring the officer. Priester denied assaulting or obstructing the officer, but he admitted that he drove off. OCGA § 40-6-270 (a) provides that “[t]he driver of any vehicle involved in an accident resulting in injury to . . . any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident” and provide pertinent information to the other driver and aid to anyone injured, remaining at the scene until these requirements are fulfilled. Evidence was presented at trial that Priester drove off without providing any information or rendering aid to the injured officer. This evidence was sufficient to authorize the jury to find him guilty of violating OCGA § 40-6-270 (a) under the standard set forth in Jackson v. Virginia, supra.

Judgment affirmed in part, vacated in part, and remanded for resentencing in part.

Barnes and Phipps, JJ, concur.

Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Lori L. Canfield, Nancy R. Smith, Assistant District Attorneys, for appellee.

       In addition, Priester was charged with two recidivist counts.

       Priester did object to the admission of a document showing the prior sentence, on the ground that it put his character in issue because it showed that the sentence ran consecutive to another sentence he was then serving, and the trial court agreed and excluded that document.


text:
    A01A0597.
    In the Interest of H. L. W., a child.
    (547 SE2d 799)
   Phipps, Judge.

The Henry County Juvenile Court terminated the parental rights of the biological parents of H. L. W. The father appeals, arguing that the court erred in finding that he had abandoned the minor child. Because the evidence was sufficient to support the court’s determination, we affirm.

Before terminating parental rights, a juvenile court must employ a two-prong test. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. If so, then the court must consider whether the termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs.

1. As to the first prong of the test, abandonment constitutes parental misconduct or inability. To find an abandonment, “there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, so far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.”

On appeal, we view the evidence in the light most favorable to the appellee and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or determine witness credibility but defer to the juvenile court’s factfinding.

Viewed in this light, the evidence shows the following. H. L. W. was born on March 7, 1997. His parents separated seven months after his birth. H. L. W.’s father took custody of him for about two weeks and then let his mother have him. Then the father, alone, moved to Minnesota, and later to Wisconsin. From late October 1997 until March 1998, H. L. W. lived with his mother. During that time, he saw his father once, in January 1998, when his mother took him to his paternal grandparents’ home in Wisconsin. The mother testified that during the five months that H. L. W. lived with her, the father provided only $100 in financial support. By March 1998, the mother had decided that she no longer could provide financially for H. L. W. She took him to her cousin’s home in Henry County and asked her cousin and her cousin’s husband to adopt the child.

At that time, the father was living in Minnesota with his brother in a one-bedroom apartment and had been working as a delivery man since January 1998. In May 1998, he lost that job and moved in with his parents. From May until November, his sole source of income was from part-time service in the National Guard, where he earned approximately $150 each month. In November 1998, he joined the United States Marine Corps. And in April 1999, in addition to his regular military income, he began receiving a monthly military dependency allowance of $300 for having a wife and child.

At the continuation of the termination hearing on July 23, 1999, the father admitted that he knew in March 1998 that H. L. W. was living with the mother’s cousin in Georgia and that he had the cousin’s telephone number. According to the cousin, he called “a couple of times” between March and December 1998, once in January 1999, and once in February 1999. Although the cousin invited the father to visit his child, he did not. Nor did he provide any financial support for a year.

From March 1998 until March 1999, the mother’s cousin and her husband took care of H. L. W, providing all of his food, clothing, shelter, and medical care. In March 1999, wanting to provide a permanent home for H. L. W, the couple petitioned for the termination of his mother’s and father’s parental rights. About that time, the father sent H. L. W. a stuffed animal, a toy car, and a few books. The next month, he sent a $300 bad check. When the father came to Georgia for the termination hearing in June 1999, he gave the cousin a $300 money order.

Because H. L. W.’s mother failed to appear at the June termination hearing, the court continued it. And the court scheduled two days of visitation between the father and H. L. W. On the first day, the father showed up an hour and a half late; on the second day, he was a half-hour late. At the continuation of the hearing in July, the father admitted that he had made no subsequent plans to see his son and that he was unable to take immediate custody because he was living in the military barracks, although he had applied for base housing. He asked for joint custody and for H. L. W.’s mother to take immediate custody of the child. When asked what she wanted, the mother responded, “I would like to take him home. I want to do what — I mean, I don’t know if taking him home today would be the best thing. I mean, I would be willing to work to get him back home with me, yes.” She acknowledged that when she had placed the child with her cousin, she wanted her cousin’s family eventually to adopt him and had signed an affidavit saying so. She stated that her cousin’s family had provided a good home for H. L. W.

The guardian ad litem recommended that based on the child’s needs for financial and emotional stability, it was in the child’s best interest for the father’s parental rights to be terminated and for H. L. W. to be placed in the custody of the mother’s cousin and her husband.

The juvenile court found that the father had abandoned H. L. W. as contemplated by OCGA § 15-11-94 (b) (3) and terminated his parental rights. The father claims that he never consented to the cousin having custody of the child and argues that the evidence is insufficient to support a finding of abandonment. But the evidence shows that the father relocated to Minnesota and that other than providing $100 to the mother and making sporadic calls to the cousin, he essentially ignored all responsibility for supporting the child for approximately 18 months. He has made no formal attempt to gain custody, and in light of the termination of the mother’s parental rights, he has failed to articulate any specific plans for H. L. W.’s care. He continues to demonstrate an unwillingness or inability to provide for H. L. W. and to establish and maintain a parental relationship with him. Although the father maintains that he never intended to sever parental relations with H. L. W., the evidence authorizes a different finding. We conclude that the record reflects sufficient evidence for a rational trier of fact to find by clear and convincing evidence that the father abandoned H. L. W. for purposes of OCGA § 15-11-94 (b) (3). Abandonment constitutes parental misconduct or inability and is a ground for termination of parental rights.

2. As to the second prong of the test for termination of parental rights, the same evidence which shows parental misconduct or inability also can support a finding that the termination of parental rights is in the child’s best interest. Our review of the entire record reveals sufficient evidence to support the juvenile court’s finding that the termination of the father’s parental rights would be in H. L. W.’s best interest.

Decided May 14, 2001.

Schrade & Richardson, Richard D. C. Schrade, Jr., for appellant.

Bach, Carver & Dewberry, Tara G. McNaull, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       The mother is not a party to this appeal.

       OCGA § 15-11-94 (a). The 2000 amendment, effective July 1, 2000, redesignated former Code section 15-11-81 as present Code section 15-11-94.

       Id.

       Id.

       OCGA § 15-11-94 (b) (3); In the Interest of L. S., 244 Ga. App. 626 (536 SE2d 533) (2000).

       (Citations and punctuation omitted.) In the Interest ofL. S., supra.

       Id. at 626-627.

       Id. at 627.

       Previously OCGA § 15-11-81 (b) (3).

       See In the Interest ofL. S., supra at 627-628 (1).

       Id. at 626.


text:
    A01A0722.
    CARTER et al. v. RAVENWOOD DEVELOPMENT COMPANY.
    (549 SE2d 402)
   Phipps, Judge.

Sheila Carter and Samuel Evans appeal from a default judgment entered against them after they failed to comply with an order compelling discovery. They contend that the trial court erred by denying their motion to open default and by denying them a trial on the issue of damages. We agree with the second contention but not the first. Therefore, we affirm in part and reverse in part.

Ravenwood Development Company sued Carter for breach of a contract to build a house, alleging that Carter caused cost overruns and project delays, cancelled a draw line on a construction loan, and prohibited Ravenwood from completing construction. Carter filed an answer denying the allegations of the complaint, and she and her husband, Evans, filed a counterclaim alleging that Ravenwood breached the contract in various ways.

On September 26, 1996, Ravenwood served Carter and Evans with interrogatories and requests for production of documents. Carter and Evans did not respond to the requests. On July 25, 1997, Ravenwood’s attorney sent letters to Carter and Evans via certified mail requesting responses. The record contains no reply to these letters by Carter or Evans.

On September 15, 1997, Ravenwood filed a motion to compel discovery. Carter and Evans did not respond to the motion. On January 14, 1998, the trial court granted the motion and required Carter and Evans to respond to Ravenwood’s discovery requests within 15 days. The order also stated that “[i]n the event that [Carter and Evans] fail to respond as directed they will be subject to severe sanctions, including an order striking their responsive pleadings and dismissing their claims against [Ravenwood].”

On February 25, 1998, Ravenwood filed a “Motion to Enforce Order and for Sanctions,” alleging that Carter and Evans still had not responded to its discovery requests. Carter and Evans did not respond to the motion. On February 28, 1998, the court granted the motion and struck all responsive pleadings of Carter and Evans, including the counterclaim. The order stated that the case would be set for trial on the exclusive issue of Ravenwood’s damages.

On October 5, 1999, Ravenwood filed a “Stipulation for Trial as to Damages,” requesting that the case be placed on a trial calendar. That apparently was done. On November 29, 1999, however, Carter and Evans filed a motion for continuance on the ground that they had not received notice of the calendar call. The trial court granted their motion.

The case was called for trial on March 23, 2000. Ravenwood moved for judgment on the pleadings for the damages demanded in the complaint. Ravenwood did not present any evidence of damages.

On April 6, 2000, Carter and Evans filed a motion to open default on the ground of excusable neglect. They claimed that they were unable to respond to discovery because Evans was totally disabled due to post-traumatic stress disorder and prostate cancer and Carter was busy caring for him and their children and working full-time. On April 14, 2000, the trial court entered final judgment against Carter and Evans for $39,813.32, the amount sought in the complaint. On April 18, 2000, the trial court issued an order denying without explanation Carter and Evans’s motion to open default.

1. Under OCGA § 9-11-55 (b), the trial court may open a default at any time before final judgment on any one of three grounds, including excusable neglect.

“Excusable neglect” does not mean gross negligence. It does not mean a wilful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer. It has been defined as that neglect which might have been the act of a reasonably prudent person under the same circumstances. . . . Excusable neglect can be determined not by any fixed rule, but rather by the circumstances of each individual case. This determination is within the sound discretion of the trial court, and will not be disturbed by the appellate court absent abuse of discretion.

Here, the trial court struck Carter and Evans’s responsive pleadings — thereby effectively entering a default — only after they failed to answer discovery requests, failed to respond to a letter from opposing counsel demanding answers, failed to respond to a motion to compel discovery, failed to comply with an order compelling discovery and warning that their pleadings could be struck, and failed to respond to a motion for sanctions. More than 16 months passed between Ravenwood’s service of discovery requests on Carter and Evans and the trial court’s order striking their responsive pleadings. During this period, Carter and Evans did not answer the discovery requests, provide an excuse for failing to do so, or otherwise participate in the litigation. After their pleadings were struck, they waited an additional 25 months before moving to open the default. Although they then provided evidence that Evans suffers from a disability and Carter is preoccupied with his care, the trial court was entitled to conclude that these circumstances did not excuse such a lengthy period of inattention to the litigation. The trial court did not abuse its discretion in rejecting their claim of excusable neglect.

2. Under OCGA § 9-11-55 (a), if a case is still in default after 15 days, “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, . . . as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action . . . involves unliquidated damages. . . .” (Emphasis supplied.)

Damages are liquidated when they are “an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing.” To be considered liquidated, the amount of damages must be ascertainable from the pleadings. The fact of default, alone, does not render damages “liquidated” for purposes of OCGA § 9-11-55 (a). Otherwise, “every case where a specific amount is stated in the complaint as due and owing would be turned into a liquidated amount by the default, and the Code section’s provision for trial as to damages involving unliquidated amounts in contract cases would rarely if ever occur. [Cit.]”

Decided May 14, 2001.

Sheila M. Carter, pro se.

Samuel C. Evans, pro se.

Kenneth M. Sissel, for appellee.

Here, the complaint sought damages of $39,813.32. This amount included (1) $13,218.59 that Ravenwood allegedly had advanced to Carter for “lumber and supplies”; (2) $24,600 for Ravenwood’s “fee for constructing the house . . . that was to be paid at closing”; and (3) $1,994.73 for the services of four subcontractors. The complaint did not attach copies of any invoices or other documents evidencing the amounts allegedly due, nor did it attach copies of the parties’ agreement. Several other pleadings in the record, however, do attach the agreement.

That agreement called for Carter to pay Ravenwood $107,000 with the proceeds of a loan she would obtain. The parties later entered into a “Letter of Understanding” that reduced the price to $101,650 “or the amount settled at the closing of the permanent loan,” and provided that Ravenwood would pay Carter $8,100 for “improvements already made.” The figures contained in. these agreements bear no obvious relationship to the amounts sought in the complaint. Moreover, nothing in the agreements gave the trial court a tool with which to calculate the damages without referring to evidence outside the pleadings. Ravenwood’s conclusory allegations of the amount owed did not make the damages liquidated for the purpose of OCGA § 9-11-55 (a). Accordingly, the trial court’s determination that the damages were liquidated was clearly erroneous.

Judgment affirmed in part and reversed in part.-

Smith, P. J., and Barnes, J., concur.

       The trial court granted Carter’s motion to add Evans as a plaintiff in the counterclaim.

       This motion is not in the appellate record, but is mentioned in the trial court’s April 14, 1998 order.

       Carter and Evans submitted letters from health professionals documenting Evans’s condition.

       Because Carter and Evans filed their motion to open default before the entry of final judgment, the requirements of OCGA § 9-11-55 (b) apply, rather than the stricter provisions of OCGA § 9-11-60.

       (Citations and punctuation omitted.) Smithson v. Harry Norman, Inc., 192 Ga. App. 796, 797 (3) (386 SE2d 546) (1989).

       (Punctuation omitted.) T.A.I. Computer v. CLN Enterprises, 237 Ga. App. 646, 647 (1) (a) (516 SE2d 340) (1999).

       Id.

        Sellers v. Nodvin, 207 Ga. App. 742, 746 (3) (429 SE2d 138) (1993).

       Id. at 747 (3).

       See Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 27-28 (2) (351 SE2d 218) (1986) (default judgment was improperly entered in case alleging breach of construction contract where, although complaint alleged specific sum, it was impossible to ascertain amount due without reference to extrinsic evidence).

       See Sellers, supra at 746-747.


text:
    A01A0200, A01A0201.
    COTTON v. NATIONSBANK, N.A. et al. (two cases).
    (548 SE2d 40)
   Blackburn, Chief Judge.

In consolidated appeals concerning the enforcement of an allegedly fraudulent deed to secure debt, Thomas E. Cotton, pro se, appeals the trial court’s grant of summary judgment to defendant NationsBank, N.A. and its subsequent denial of his motion to vacate that grant of summary judgment. Because Cotton’s claims that NationsBank defrauded him are barred by the four-year statute of limitation under OCGA § 9-3-31, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

The evidence, so viewed, shows that on October 7, 1986, Cotton signed a blank security deed and delivered it to Bank South, NationsBank’s predecessor in interest. Cotton claimed that the deed was fraudulently altered to list him as the grantor and Bank South as the grantee and recorded without his consent on December 10, 1986.

On April 26, 1996, Cotton filed a civil action against Nations-Bank (formerly Bank South) in Gwinnett County seeking the cancellation of the security deed based on fraud. Cotton voluntarily dismissed that complaint on January 15,1998. On July 14,1998, Cotton refiled the Gwinnett County action, stating that he dismissed the first case due to “ill health.”

NationsBank moved for summary judgment based on res judicata and the running of the statute of limitation. The trial court granted the motion on both grounds. Cotton filed a motion to vacate, which the trial court denied.

Case No. A01A0200

1. We agree with the trial court that the instant action was barred by the statute of limitation and affirm on that ground. The statute of limitation on fraud cases such as this is four years. See OCGA § 9-3-31. However, “the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” OCGA § 9-3-96.

Decided April 19, 2001

Reconsideration denied May 15, 2001.

Thomas E. Cotton, pro se.

Blasingame, Burch, Garrard, Bryant & Ashley, Thomas H. Rogers, Jr., for appellees.

Cotton signed an affidavit on April 25, 1990, in which he stated that Bank South, without authorization, listed itself as the grantee of the security deed and recorded it without his permission. Thus, Cotton discovered the fraud no later than April 25, 1990, and had until April 24, 1994, to file a complaint. Cotton filed his complaint in this case on July 14, 1998, well after the statute of limitation had run.

The renewal statute does not change the result. That statute provides:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.

OCGA § 9-2-61 (a). Cotton filed the complaint that he later dismissed on April 26, 1996, which was not within the applicable statute of limitation.

Case No. A01A0201

2. Cotton appeals the trial court’s denial of his motion to vacate its grant of summary judgment to NationsBank. Because the statute of limitation had run for the reasons set forth in Division 1, we affirm.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

       As an initial matter, we note that Cotton’s brief does not contain any arguments in support of his enumerations, but refers us to the arguments he made before the trial court. Our Rule 27 (c) (2) states that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” However, we choose to exercise our discretion and review the trial court’s ruling.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).


author: Barnes, Judge.

text:
    A01A0088.
    MURDOCK et al. v. MADISON RIVER TERMINAL, INC.
    (547 SE2d 802)
   Barnes, Judge.

Madison River Terminal, Inc. sued Keith Murdock and Waylon Murdock on a judgment of the Vigo Superior Court of the State of Indiana. After an evidentiary hearing, the trial court entered a judgment for Madison River. The Murdocks appeal from the order denying their motion for a new trial. In their enumeration of errors, they claim that the trial court erred in (1) finding that the Indiana trial court had proper jurisdiction, (2) giving effect to the assignment of judgment, (3) considering an unsigned affidavit of the Indiana trial court, (4) taking judicial notice of the Indiana judgment, and (5) finding that Keith Murdock had been validly served in the Georgia action. For reasons that follow, we vacate and remand the case for a determination of whether the Indiana trial court had personal jurisdiction over the Murdocks.

A trial court’s findings of fact after an evidentiary hearing will not be set aside unless completely erroneous. Brandon v. Newman, 243 Ga. App. 183, 186 (3) (a) (532 SE2d 743) (2000). But the trial court’s application of law to undisputed facts is subject to de novo appellate review. H-B Properties v. City of Roswell, 247 Ga. App. 851 (545 SE2d 37) (2001).

Considering the evidence in the light most favorable to the trial court’s findings, Madison River sued Woody Underwood for breach of contract in an Indiana court. Underwood then filed a third-party complaint against the Murdocks, who were Georgia residents. The Murdocks were served by mail in Georgia; they answered the third-party complaint, denied the Indiana court’s jurisdiction over their person and the subject matter, challenged the merits, and requested a jury trial. The Murdocks did not seek a ruling on their jurisdiction challenge and failed to appear for a scheduled hearing. The Indiana court found that the Murdocks “appear not, having been duly notified, and are hereby defaulted.” It then held an evidentiary hearing, made findings of fact, and ruled with respect to the merits of the third-party complaint. However, it made no finding or ruling on the question of personal jurisdiction. Judgment was entered against the Murdocks on May 28, 1992. On August 1, 1994, Madison River filed this complaint on a foreign judgment in Walker County, Georgia.

1. The Murdocks claim the Indiana trial court lacked personal jurisdiction over them. The Georgia trial court found that the Indiana judgment demonstrates that the Indiana trial court had personal jurisdiction over the Murdocks and that the Murdocks, having filed an answer in the Indiana court, had chosen that forum to litigate the issue of jurisdiction and are bound by its findings. Nevertheless, we find that the Murdocks’ decision to answer does not foreclose a later challenge to the Indiana trial court’s personal jurisdiction.

Under the full faith and credit clause of the United States Constitution, the courts of this state will enforce the judgment of a court of another state; such a judgment is res judicata between the parties. Crosby v. Wenzoski, 164 Ga. App. 266, 269 (1) (296 SE2d 162) (1982). When suit is brought in this state to domesticate a foreign judgment, “the judgment may be attacked only if the foreign court lacked jurisdiction over the person of the defendant or of the subject matter of the action, or if the judgment was procured by fraud.” (Citations omitted.) Economou v. Economou, 196 Ga. App. 196 (1) (395 SE2d 830) (1990). Generally, if the foreign judgment was obtained by default, no presumption of personal jurisdiction exists, and the burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837, n. 1 (449 SE2d 347) (1994). However, “[wjhere jurisdictional issues are raised and decided against a litigant in a foreign court, the foreign judgment is given full faith and credit not only as to the merits of the suit but also as to the finding of jurisdiction.” (Citation omitted.) Van Buskirk v. Great American Bank &c., 175 Ga. App. 101 (332 SE2d 394) (1985).

In order to give the Indiana judgment the same effect in Georgia as in Indiana, we must first look to Indiana law. See Chrison v. H & H Interiors, 232 Ga. App. 45, 49 (1) (500 SE2d 41) (1998). Indiana law shows that because the Murdocks answered in the Indiana court to contest personal jurisdiction and made no subsequent motions, their failure to appear in a subsequent proceeding on the merits did not constitute a waiver of personal jurisdiction. In Hotmix & Bituminous Equip, v. Hardrock Equip. Corp., 719 NE2d 824 (Ind. App. 1999), a foreign defendant answered a claim in an Indiana court and contested the Indiana court’s personal jurisdiction. The defendant failed to respond to the plaintiff’s motion for summary judgment, and summary judgment was awarded to the plaintiff. The trial court subsequently granted defendant’s motion for relief from judgment on grounds of lack of personal jurisdiction. On appeal, plaintiff argued that defendant waived its right to contest personal jurisdiction when it refused to respond to the motion for summary judgment. The Court of Appeals of Indiana affirmed, holding that the defendant’s decision to refuse to respond to the summary judgment motion was “analogous to a defendant who chooses to ignore a pending proceeding and takes the risk that a subsequent challenge to personal jurisdiction will prevail.” Id. at 832. The court further explained:

[Defendant] filed an answer in which it asserted that the courts of Indiana did not have personal jurisdiction over it. In reliance on this objection, [defendant] chose not to take further action in regards to discovery or responding to [plaintiff’s] summary judgment motion. By choosing this course of action, [defendant] took the risk that the trial court would grant summary judgment in [plaintiff’s] favor and then deny any subsequent motions for relief from judgment. Although risky, this was a course that [defendant] was entitled to take.

Id. By this reasoning, having objected to the Indiana court’s personal jurisdiction, the Murdocks’ subsequent failure to appear for the hearing would not preclude them from later asking for relief from judgment on the basis of a lack of personal jurisdiction. And if the Indiana trial court lacked personal jurisdiction, its judgment is void, not merely voidable, and relief from judgment may be had at any time. Stidham v. Whelchel, 698 NE2d 1152, 1156 (I) (Ind. 1998).

Giving the Indiana judgment the same credit, validity, and effect in Georgia that it would have in Indiana, see Chapman v. State, 177 Ga. App. 580, 582 (2) (340 SE2d 237) (1986), we find the Indiana judgment does not foreclose a challenge by the Murdocks on the Indiana trial court’s personal jurisdiction over them. The Georgia trial court erred by finding that the Indiana judgment was an unassailable adjudication of personal jurisdiction. We therefore vacate the Georgia trial court’s judgment and remand the case for a determination of whether the Indiana trial court had personal jurisdiction over the Murdocks.

2. The Murdocks have raised several other issues which have no merit. They claim the Indiana judgment was owned by Underwood and that an assignment of judgment by attorney attached to the original complaint was ineffective to assign the judgment to Madison River. But an assignment was not required for Madison River to enforce the judgment. The Indiana court found that the damages owed by the Murdocks should be paid to the original plaintiff, Madison River. The assignment of judgment was superfluous.

3. The Murdocks claim the trial court improperly took judicial notice of the Indiana judgment because it was not authenticated, not certified, and previously excluded from consideration in the motion for summary judgment because it was filed late. However, the appellate record shows that the Indiana judgment was certified as a “full, true and complete copy” by the court clerk. This is sufficient to prove or admit the judgment under OCGA § 24-7-24 (b). Askari v. Dolat, 240 Ga. App. 633, 635-636 (5) (524 SE2d 310) (1999). Furthermore, a review of the record shows that the certified copy of the Indiana judgment was timely filed with the Georgia trial court.

4. Keith Murdock claims that he was not timely served in the Georgia action. The record supports the trial court’s finding that he was personally served on October 17, 1995. OCGA § 9-3-20 requires that a suit on foreign judgment be brought within five years from the date the judgment is first obtained. The foreign judgment here was entered on May 28, 1992. The trial court did not err in finding that Keith Murdock was timely served.

Decided May 15, 2001.

Joseph E. Willard, Jr., for appellants.

Mann, Bracken, Layng & Knezo, Stephen J. Knezo, for appellee.

Judgment vacated and case remanded.

Smith, P. J, and Phipps, J., concur.