text:
    A96A1025.
    JONES v. LITTLEJOHN et al.
    (474 SE2d 714)
   Blackburn, Judge.

Upon our grant of his application for interlocutory appeal, Roger Jones appealed the trial court’s denial of his motion for summary judgment. Jones, defendant in the underlying action for damages arising from a two-car collision, contends that both he and Richard Littlejohn, plaintiff, were on active duty in the military at the time of the collision and, therefore, the doctrine of intra-military immunity bars Littlejohn’s complaint.

1. We are initially concerned with the jurisdictional implications raised by the Federal Tort Claims Act (FTCA). Specifically, 28 USC § 2679 (c) provides that “[t]he Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury.” However, the Code section further requires that the defendant must deliver the suit papers to his superior who shall deliver them to the United States attorney. 28 USC § 2679 (d) (2) provides that the Attorney General shall make a determination as to whether the defendant was “acting within the scope of his office or employment at the time of the incident.” Where the Attorney General determines that the defendant was acting within the scope of his employment, the case is removed to federal court, and the defendant is deemed to be the United States. See id.

In the present case, the record contains neither evidence that Jones delivered the present suit to his superior nor evidence regarding any finding made by the United States attorney regarding whether Jones was acting within the scope of his employment at the time of the incident. No Georgia case addresses the procedure for handling such a case; however, faced with similar circumstances, federal courts have determined that the action proceeds the same as those filed against government employees individually. See Kelley v. United States, 568 F2d 259, 264-265 (2nd Cir. 1978); Combs v. United States, 768 FSupp. 584, 592 (E.D. Ky. 1991); Tassin v. Neneman, 766 FSupp. 974, 977 (D. Kan. 1991). See also Brennan v. Fatata, 359 NYS2d 91, 92 (78 Misc.2d 966) (1974). We agree with and adopt the federal court’s interpretation of 28 USC § 2679. The plain language of § 2679 (c) unmistakably required Jones to deliver all process served upon him to his superiors. Either Jones has not forwarded the materials to the appropriate authorities or he has failed to present evidence of any determination made by the United States Attorney General. Absent the defendant’s compliance with the Code, the suit continues as filed.

2. Having determined that the state courts of Georgia have retained jurisdiction over this case, we now address whether the trial court correctly denied Jones’ motion for summary judgment based upon the doctrine of intra-military immunity. Such a determination requires an overview of the Feres v. United States, 340 U. S. 135, 146 (71 SC 153, 95 LE 152) (1950), doctrine and intra-military immunity.

“In an effort to provide remedies for wrongful government actions through a waiver of sovereign immunity and to relieve Congress of the burden and the public of the inequities of private bills, Congress enacted the Federal Tort Claims Act.” (Punctuation omitted.) Pierce v. United States, 813 F2d 349, 351 (11th Cir. 1987). The FTCA provides a waiver of the United States’ sovereign immunity and allows civil actions against it “for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 USC § 1346 (b). In Feres, the Supreme Court created an exception to government liability under the FTCA for injuries arising out of or in the course of activity “incident to” military service.

“From this holding stems the first of what we recognize as two prongs of a doctrine of immunity which courts have come to call ‘the Feres doctrine.’ The first prong consists of those cases in which a plaintiff connected with the military asserts liability against the United States under the FTCA for injury arising out of activity which is incident to service. These are true Feres cases, and in an unbroken line from Feres, courts have granted immunity to federal defendants upon Feres rationales.

“The second prong consists of those cases in which liability is asserted by servicemen against military actors for acts committed within the context of military service. From these cases has developed what we refer to as ‘the doctrine of intra-military immunity.’ While courts employ Feres rationales in applying intra-military immunity, it cannot be said accurately these are true Feres cases because the claims asserted are not founded upon the FTCA and the liability of the United States is not implicated. . . . [However], the concept of intra-military immunity does have its roots in part of the rationale of Feres.

“Feres is grounded upon three broad rationales. First, the relationship between the government and the members of its armed forces is distinctively federal in character. Second, statutory veterans’ benefits provide an upper limit of liability for the Government as to service-connected injuries. Third, suits by a service member against the government would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.

“The doctrine of intra-military immunity is an outgrowth of the third Feres rationale that decries the propriety of civilian courts delving into military matters and calling to bar military decisions and institutions.” (Citations, punctuation and footnotes omitted.) Durant v. Neneman, 884 F2d 1350, 1352 (10th Cir. 1989). “Thus, our evolving jurisprudence has created a zone of protection for military actors, immunizing actions and decisions which involved military authority from scrutiny by civilian courts. . . . [T]his zone[, however,] was never intended to protect the personal acts of an individual when those acts in no way implicate the function or authority of the military.” Id! at 1353. Therefore, in the present case, the remaining issue for determination is whether Jones was performing a military act at the time of the collision.

In the present case, the only evidence contained in the record is Jones’ affidavit. Jones avers, therein, that both parties were on active duty with the United States Army, that Littlejohn holds the rank of E-4, that Jones is a Sergeant First Class, and that Jones’ private vehicle collided with Littlejohn’s vehicle on the premises of Fort Stewart, Georgia. In his affidavit Jones asserts that he and Sergeant Malcolm Scott were on “their way to continue their military duties and were not on any private errand or personal business.” Therefore, Jones and Sergeant Scott were either on their way to work or were traveling from one work post to another.

On motion for summary judgment, “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 non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the present case, Jones relies on the doctrine of intra-military immunity, which is an affirmative defense, for which he has the burden of proof at trial. Viewing the evidence in the light most favorable to the non-moving party, Jones’ affidavit does not contain sufficient testimony to determine with certainty whether Jones was engaged in a military act at the time of the collision. And, as Jones will have the burden of proof as to his affirmative defense, no burden to produce evidence was placed on Littlejohn as to this issue upon Jones’ motion for summary judgment. See cf. id. Therefore, the trial court correctly denied Jones’ motion for summary judgment.

Decided August 15, 1996.

Beckmann & Pinson, Joseph H. Barrow, for appellant.

Henderson & Henderson, Michael P. Ludwiczak, for appellees.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       Of course, if the United States Attorney General determined that Jones was not acting within the scope of his employment at the time of the collision, Littlejohn’s action would proceed appropriately in superior court. See 28 USC § 2679 (d) (2).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A1048.
    MARTINEZ v. THE STATE.
    (474 SE2d 708)
   Eldridge, Judge.

A confidential informant set up controlled drug buys in Gwinnett County under GBI surveillance from Nestaly Arocho on November 29, 1993, December 2, 1993 and December 20, 1993. The confidential informant met Arocho and each time the informant wore a radio transmitter to broadcast any conversation to the surveillance team. The informant had been searched for drugs on each occasion and had “buy” money furnished by the Gwinnett County authorities. On each buy Arocho arrived in a gray Lincoln driven by a Hispanic male, and the car was registered to appellant.

On November 29, Arocho arrived at the Krystal restaurant on Jimmy Carter Boulevard by crossing the street and getting into the informant’s car where the sale occurred. After the sale Arocho recrossed the road and made a telephone call from a pay phone, and the Lincoln arrived. The driver and Arocho made an exchange and parted with Arocho walking away while the Lincoln drove off. The driver of the Lincoln could not be seen at this time. After the tag was run, the officers obtained a copy of appellant’s driver’s license for use in identification.

On December 2, a second drug buy occurred with Arocho. This transaction occurred at the Circle K store on Dawson Boulevard, the access road for 1-85 just inside Gwinnett County. An ounce of cocaine was purchased by the informant. The same Lincoln delivered Arocho and was driven by a Hispanic male. As soon as Arocho got out of the Lincoln, the car was driven away. The drug buy took only a minute or less, but the informant asked to make a larger future purchase. Arocho exited the car and made a phone call, and the Lincoln returned within ten minutes with appellant driving who had been identified from his driver’s license photo. Appellant drove off with Arocho.

On December 20, the third sale took place again at the Circle K store on Dawson Boulevard, when one and one-half ounces of cocaine were purchased. The Lincoln delivered Arocho and immediately drove off while he carried out the sale. Arocho made a telephone call again from a pay phone, and the Lincoln, driven by a Hispanic male, picked him up within ten minutes.

All the drug buys followed a closely set procedure of Arocho being delivered by the Lincoln, the Lincoln quickly departing, the drug transaction occurring, a telephone call being made that lasted only seconds and Arocho being picked up within ten minutes by the Lincoln. The Lincoln belonged to appellant who was seen driving it on December 2 and at other times by a Hispanic male, who could not be seen to be identified. During the November 29 sale, the Lincoln returned but did not pick up Arocho.

Appellant admitted at trial to driving Arocho to the Circle K store on several occasions and being called to return to pick him up within a very short time but denied any knowledge or involvement with the sale of drugs. Appellant gave rides to Arocho on many occasions because he was a friend.

Arocho entered into a plea bargain to testify against appellant in return for a lighter sentence. Arocho testified to the knowledge and criminal involvement of appellant in each of the sales, identified appellant as the driver of the Lincoln on each occasion and obtained the drugs for sale from appellant.

At trial, the trial court denied a defense request to charge on accessory after the fact to a completed crime because there existed no evidence to show that the criminal enterprise to sell drugs had ended and that the effort to avoid apprehension had ceased to be a part of such enterprise.

While the indictment provided specific dates of the offenses as elements of the crime, the trial court used the pattern jury instruction which stated “on or about” instead of a specific date. The indictment had been read to the jury prior to the jury selection and at the commencement of the charge. The jury was charged that each and every essential element of the indictments had to be shown by' the State beyond a reasonable doubt. By such burden of proof the jury also had to find criminal intent. The jury acquitted appellant on Count 1 but convicted appellant on Counts 2 and 3.

Appellant alleged error in the failure to grant a new trial on the insufficiency of evidence to corroborate the testimony of Arocho as well as objections to the above charges.

Appellant alleged error in the failure to give the defense charge on an accessory after the fact, as well as the trial court giving the pattern jury instruction using the language “on or about” the date of the offense when the specific date was an element of the offense.

1. OCGA § 24-4-8 reads in part: “The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.”

In the case sub judice the investigating officers had the drug buys under both visual, as well as audio, surveillance and used a confidential informant. Appellant was positively identified as driving his gray Lincoln on December 2 at the time of the drug buy; appellant also admitted to having driven Arocho to the Circle K store and picking him up again on several occasions. All such facts and circumstances create circumstantial evidence sufficient to corroborate the testimony of Arocho as to the involvement of appellant as a party to the offenses.

As pointed out by the Supreme Court in Price v. State, 208 Ga. 695, 696 (3) (a) (69 SE2d 253) (1952), “[t]he rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.” Allen v. State, 215 Ga. 455, 457 (2) (111 SE2d 70) (1959); see also Reaves v. State, 242 Ga. 542 (250 SE2d 376) (1978). However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Smith v. State, 238 Ga. 640 (235 SE2d 17) (1977). Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. Birt v. State, 236 Ga. 815, 826 (225 SE2d 248) (1976); see Reaves, supra, 242 Ga. at 543. Whether there has been adequate corroboration of the testimony of an accomplice is for the jury’s determination. Cain v. State, 212 Ga. App. 531, 539 (442 SE2d 279) (1994); Day v. State, 197 Ga. App. 875, 876 (1) (399 SE2d 741) (1990); accord Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983). Accordingly, having reviewed the evidence in its entirety in a light most favorable to support the verdict, we find that the evidence was sufficient to support the conviction beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. An accessory after the fact is not a party to the crime under OCGA § 16-2-21, but the act constitutes the separate offense of obstruction of justice under OCGA § 16-10-24; the General Assembly, in Ga. L. 1968, pp. 1249-1351, revised the Georgia Criminal Code and in doing so made a separate offense for an accessory after the fact who hinders the apprehension of a person known to be guilty of a felony or to destroy or conceal evidence of the crime. Jones v. State, 250 Ga. 11, 13 (295 SE2d 71) (1982). Appellant was not indicted nor tried for the offense of felony obstruction under OCGA § 16-10-24; therefore, it would be improper for the trial court to charge the jury on an offense which was neither indicted nor included as a lesser offense; and furthermore, there was no evidence to support such charge in fact or law. The trial court does not err in refusing to give a charge if any portion thereof is inapt, incorrect, confusing, misleading or not authorized by the evidence. Calhoun v. State, 213 Ga. App. 375, 378 (444 SE2d 405) (1994); Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991); accord Minor v. State, 264 Ga. 195, 196-197 (442 SE2d 754) (1994). Therefore, it was not error for the trial court to deny such charge.

Decided August 15, 1996.

Taylor & Viers, Richard T. Taylor, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

3. The last enumeration of error deals with the use of the pattern jury instruction which dealt with a general criminal offense, “on or about,” as distinguished from a specific offense where the date of the commission of the offense is an element of the indictment and must be proven. Martin v. State, 73 Ga. App. 573, 576-578 (3) (37 SE2d 411) (1946). At the time of jury selection as well as at the charge of the indictment when all counts were read to the jury which set out the three dates of the offenses as November 29, 1993, December 2, 1993 and December 20, 1993, both counsel in opening and closing arguments as well as opening statement referred only to such dates. Only at one point of the charge did the trial court use “on or about” with the actual dates. From the rest of the charge it was clear to the jury what the elements of the three offenses were for them to decide upon appellant’s guilt or innocence. The jury had no difficulty in acquitting appellant of Count 1 and finding him guilty of Counts 2 and 3, which demonstrates the lack of prejudice to appellant. This constitutes harmless error and satisfies the “highly probable test” that the error did not affect the judgment. Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976). It appears that this error comes within the holding of Tenant v. State, 218 Ga. App. 620 (462 SE2d 783) (1995).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A1054.
    PEAVY et al. v. BANK SOUTH, N.A.
    (474 SE2d 690)
   McMurray, Presiding Judge.

Plaintiffs Jerry O. Peavy, Sr. and his wife, Lillie J. Peavy, brought this action for damages against defendant Bank South, N.A. (“the Bank”), alleging that they were customers of the Bank, and that, as an accommodation to his son, “Jerry Otha Peavy, Jr., who did not have a bank account of his own,” plaintiff Jerry O. Peavy, Sr. allowed his son to deposit a certain draft “in the amount of $5,323.60 drawn by CNL Insurance America on its account with BANK SOUTH, N.A.” This draft was jointly “payable to the order of Jerry Peavy and Trust Company Bank[; however, on December 29, 1992,] the draft was [presented and accepted for deposit even though] endorsed only by Jerry Peavy, plaintiffs son.” “Notwithstanding these explicit written instructions, . . . BANK SOUTH, N.A. [allegedly] paid the draft to one endorsee only,” thereby allegedly acting as both a depository bank and a collecting bank. Plaintiffs, “acting in good faith and believing that the $5,323.60 had been deposited in their account lawfully and properly, and therefore rightfully belonged to their son, wrote checks over the period of January and February 1993 withdrawing the funds and exhausting said amount for the direct benefit of their son, Jerry Otha Peavy, Jr.” No one from the Bank contacted plaintiffs until March 30, 1993. At that point, the Bank concluded that the draft had been improperly deposited and reversed the transaction it had made on December 29,1992, by debiting plaintiffs account and crediting CNL Insurance America’s account in the sum of $5,323.60. Also, on or about March 30, 1993, Bank officer Cecil Gordon “telephoned [plaintiffs] and [allegedly] threatened to send them to jail if they did not immediately deposit the sum of $5,323.60 into their account to make up for the amount of the draft [the Bank] had removed from [plaintiffs’] account.” Plaintiffs complied with this directive from the Bank, by depositing the proceeds from a previously planned sale of stock. Plaintiffs sought to recover the $5,323.60 they paid into their account as a result of the Bank’s alleged conversion and tortious coercion, as well as other unspecified damages and attorney fees.

The Bank admitted the chronology of events and that it “credited the account of plaintiffs with the amount of the draft.” On or about March 30, 1993, the Bank “became aware that the draft had been knowingly deposited . . . without the signature of the co-payee. [The Bank] then credited the account of CNL Insurance America in the sum of $5,326.60 . . . and debited the account of Jerry O. Peavy, Sr. by that same amount. . . .” But the Bank denied any conversion of funds, contending that the charge-back was authorized under Article 4 of the “Uniform Commercial Code — Bank Deposits and Collections,” OCGA § 11-4-101 et seq., and also under its deposit account agreement with plaintiffs. The Bank further admitted that Cecil Gordon was its agent attempting to collect a debt from plaintiffs when he insisted that plaintiffs make an immediate deposit, but denied that Cecil Gordon threatened to institute criminal proceedings.

After discovery, the Bank moved for summary judgment, contending that the undisputed facts showed no tortious coercion by the Bank and that plaintiffs cannot recover for their voluntary payment of additional sums paid into their overdrawn checking account. The Bank supported its motion with the deposition of plaintiff Lillie J. ■Peavy, who affirmed that she gave a deposit slip to her husband’s son, who actually endorsed the CNL Insurance America draft and deposited it in plaintiffs’ checking account. It was Lillie J. Peavy’s understanding that this draft from the insurance company was “to take care of [certain] damage to [Jerry O. Peavy, Jr.’s] car.” She confirmed her understanding that Trust Company Bank “ha[d] a lien on the car,” but did not know that the insurer’s draft was made payable jointly to her stepson and Trust Company Bank. It is undisputed that the draft was never endorsed over as payable to plaintiffs.

Lillie J. Peavy recalled her telephone conversation with someone • who “identified himself as Cecil Gordon from Bank South Security. ... He said . . ., you need to bring fifty-four hundred dollars down to Bank South immediately. I said, I don’t have fifty-four hundred dollars. He said, what did you do with the money, Ms. Peavy. I said, I didn’t do nothing with no money. He said, do you not know this is a criminal offense. I said, what. Then he explain [sic] to me, you know, that this check from C & L Bank [sic] was returned to Bank South with insufficient endorsement and [he] wanted to know what was my relation to it and I explained to him as far as we knew that money belonged to [Jerry O. Peavy, Jr.] and that he deposited it in ■our account because he was going back out on the road and when he would ask for money, he would have me write a check for him and I would write a check for whatever he asked for. He said, so you’re an .innocent party in this. I said, well, yes, I guess so.” Lillie J. Peavy confirmed that “Mr. Gordon told [her] or asked [her] don’t you know that this is a criminal offense.” She also confirmed that, while Cecil Gordon “didn’t threaten [her] with prosecution or anything like that[, '. . .] the way he was speaking to [her] harshly. It was like — he acted like I was a criminal and like I was going to go to jail or something. He scared [her].” That same day, Mrs. Peavy sold some stock and caused “[a]round ten thousand [dollars]” to be deposited into her .checking account, to cover the negative balance. Bank records •demonstrated this deposit was actually $8,634.70. Plaintiffs sold that stock intending “to put a down payment on a large truck so [Jerry O. Peavy, Sr.] could go into the trucking business. The bank had already approved the loan.” But Lillie J. Peavy confirmed that her conversation with Cecil Gordon took place “[a]fter [she] had [already] sold the stock.” (Emphasis supplied.) Mrs. Peavy further affirmed that the Bank “cover[ed] any checks” that plaintiffs had written on their account. Plaintiffs never sought legal counsel before telling Cecil Gordon that they would make the additional deposit.

The Bank further relied on plaintiffs’ deposit contract, which incorporates by reference the Bank’s published General Deposit Regulations and accorded the Bank “a security interest in all amounts credited to the Account and in all checks or other items now or in the future delivered to the Bank for collection. . . . The Bank may charge any . . . indebtedness against the Account whenever the Bank believes in good faith that the prospect of payment of such indebtedness is then matured. . . .”

Plaintiffs filed their own cross-motion for partial summary judgment, based on the Bank’s alleged breach of warranty and coercion. The trial court granted the Bank’s motion for summary judgment, and this appeal followed. Held:

1. In their second enumeration, plaintiffs contend that the trial court erred in granting summary judgment as to the claim for tortious coercion, because the Bank’s agent, Cecil Gordon, threatened Lillie J. Peavy by asking her if she knew writing bad checks was a criminal offense.

“Duress is shown where there was an apparent intention and ability to execute the threat that would have coerced action or inaction contrary to the victim’s will.” (Citations and punctuation omitted.) Fields v. Thompson, 164 Ga. App. 331, 332 (2), 333 (297 SE2d 100). “It has been frequently held that mere threats of criminal prosecution, where neither warrant has been issued nor proceedings commenced, do not constitute duress. . . . The threatened prosecution must be for an act either criminal or which the party threatened thought was criminal. A mere empty threat does not amount to duress.” Bond v. Kidd, 1 Ga. App. 798, 801 (57 SE 944).

OCGA § 16-9-20 (a) proscribes the offense of deposit account fraud, including drawing bad checks. There is considerable doubt that a question directed to a bank customer, as to whether that customer knew writing checks drawn against an account with insufficient funds (in exchange for a present consideration or wages) was a criminal offense, constitutes anything more than a truism. Moreover, Lillie J. Peavy conceded that Cecil Gordon never threatened her with prosecution for any criminal offense. There is no evidence that any criminal warrant was ever issued at the behest of the Bank. In our view, any implied threat of prosecution subjectively perceived by Lillie J. Peavy in the case sub judice was a mere empty threat by the Bank. Consequently, we hold that such a question as was posed to Lillie J. Peavy is not that coercion or duress contemplated by the law as would render the Bank liable to these plaintiffs for reimbursement of the funds they deposited into their overdrawn account allegedly in response to such interrogation. Yearwood v. Nat. Bank of Athens, 222 Ga. 709, 712 (152 SE2d 360). The trial court correctly granted summary judgment as to plaintiffs’ claim of tortious coercion.

2. In related enumerations, plaintiffs contend the trial court erred in granting summary judgment as to their claim in conversion and breach of statutory warranties. They argue that a jury question exists as to “whether the wrongful debiting of a bank account without the consent nor [sic] knowledge of the owners and holders of said account constitutes tortious conversion.” In our view, although plaintiffs, in the depository agreement, gave the Bank their prior consent to exercise a right of setoff, we nevertheless agree that a jury question is presented as to whether the Bank’s actions in the case sub judice were timely and in good faith.

“An instrument payable to the order of two or more persons: . . . [i]f not in the alternative is payable to all of them and may be negotiated, discharged, or enforced only by all of them.” (Emphasis supplied.) OCGA § 11-3-116 (b). “An instrument is converted when: . . . (b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it; or . . . (c) It is paid on a forged endorsement.” OCGA § 11-3-419 (1). “Payment of [a] check [or draft] without the endorsement of a joint payee is an exercise of dominion and control over the check [or draft] inconsistent with the nonsigning payee’s rights amounting to a conversion. F.D.I.C. v. Marine Nat. Bank of Jacksonville, 431 F2d 341 (3-6) (5th Cir. 1970). The situation is analogous to payment of the check [or draft] on a forged endorsement, which Code Ann. § 109A-3-419 (1) (c) [OCGA § 11-3-419 (1) (c)] acknowledges to be a conversion.” Trust Co. of Columbus v. Refrigeration Supplies, 241 Ga. 406, 408 (246 SE2d 282).

In the case sub judice, there is no evidence that, after a demand by plaintiffs to pay or return the instrument, the Bank refused to return that instrument, i.e., the CNL draft itself. Consequently, the Bank did not wrongfully exercise any dominion over that draft amounting to a conversion under OCGA § 11-3-419 (1) (b). See generally Bank South, N.A. v. Roswell Jeep Eagle, 204 Ga. App. 432, 434 (5) (419 SE2d 522). Nor would the Bank’s reversal of the transaction amount to an act of dominion inconsistent with the rights of the non-signing co-payee (Trust Company) as would be a conversion by the Bank, acting in its capacity as the collecting bank. Compare Trust Co. of Columbus v. Refrigeration Supplies, 241 Ga. 406, 407, supra. Contrary to plaintiffs’ contentions, as depositors, they do not occupy the position of an “other payor” so as to benefit from any warranties made by a collecting bank to a payor bank or drawee, as imposed by OCGA § 11-4-207 (1) (a). Comparelas. Co. of North America v. Atlas Supply Co., 121 Ga. App. 1, hn. 2 (172 SE2d 632). Consequently, we agree with the trial court that the acts alleged do not amount to any conversion which is inimical to any property interests of the plaintiff-depositors in the draft.

3. As to the alleged conversion of the funds (versus the draft) subsequently deposited into plaintiffs’ checking account, plaintiffs’ depository agreement granted the Bank a security interest in all deposits credited to plaintiffs’ account and expressly made all deposits provisional. Consequently, the Bank had a contractual right to reverse the transactions by debiting plaintiffs’ account and crediting CNL’s account in the amount of the draft, upon learning that the draft had not been properly endorsed. Friedland Properties v. C & S Nat. Bank, 148 Ga. App. 259, 260 (251 SE2d 143). See also OCGA § 11-4-207 (1). Nevertheless, it is bur view that, a jury question remains as to the complete propriety of the Bank’s actions in asserting its contractual rights in this particular case.

Generally, the time for a payor Bank to accept and pay, or else to return, a demand item such as the CNL draft in the case sub judice is by “midnight of the banking day of receipt . . .” of the item. OCGA § 11-4-301 (1). The CNL draft, with its patently insufficient endorsement, was accepted for deposit on December 29, 1992. Fully three months later, the Bank “became aware” that the draft it had accepted was insufficiently endorsed, although the record is devoid of specific facts showing how this circumstance was, at last, brought to the Bank’s attention. Since the Bank was both the depository-collecting bank and the ostensible payor bank, the three-month delay in identifying the inadequate endorsement is attributable to no one but the Bank. “Particularly in the case of a missing endorsement, even a cursory glance at the back of the [draft], by either the bank or the customer, [here CNL as drawer,] would bring the mistake to light.” Trust Co. Bank v. Atlanta IBM Employees Fed. Credit Union, 245 Ga. 262, 264 (264 SE2d 202). The missing endorsement in the case sub judice was irregular enough on its face to raise some question as to the validity of an endorsement for deposit into the account of one not a payee. Consequently, the Bank had a duty to inquire to ascertain the authority of the depositor-plaintiffs. Thornton & Co. v. Gwinnett Bank &c. Co., 151 Ga. App. 641, 646 (4), 647 (260 SE2d 765). Thus, although the Bank revoked its settlement and charged plaintiffs’ account, ostensibly under OCGA § 11-4-212 (3), claiming that plaintiffs breached warranties imposed by OCGA § 11-4-207 (1), the record in the case sub judice does not establish beyond all question that the Bank acted with all commercially reasonable due diligence and dispatch, in discovering the irregularity, or that it acted even handedly as between its two customers, plaintiffs on the one hand and CNL on the other, in addressing the error. The Bank’s contractual right of setoff must be exercised in good faith. First Nat. Bank &c. v. Appalachian Indus., 146 Ga. App. 630, 634 (4) (247 SE2d 422). Based on the record before us, those questions of diligence, commercial reasonableness, and good faith are for the jury. See, e.g., Trust Co. of Ga. Bank of Savannah, N.A. v. Port Terminal &c. Co., 153 Ga. App. 735, 736 (1), 741 (266 SE2d 254). Consequently, the trial court erred in granting summary judgment as to plaintiffs’ claim sounding in wrongful setoff. Any remedy may be limited as justice requires to avoid unjust enrichment. Woodard v. First Nat. Bank &c., 159 Ga. App. 769, 771 (285 SE2d 229).

Decided August 15, 1996.

L. Wayne Gilleland, for appellants.

Martin, Snow, Grant & Napier, William K. McGowan, John T. McGoldrick, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Johnson and Ruffin, JJ, concur.


text:
    A96A1087.
    FARMER v. THE STATE.
    (474 SE2d 711)
   Eldridge, Judge.

On February 8, 1995, at approximately 4:00 p.m. in Rabun County, Mr. and Mrs. Anthony Thompson drove to their land and found fresh tire tracks in the snow and mud on their private road going toward their locked gate. Located on their land they had a shed made from the van portion of an old truck, which had stored in it several Rubbermaid boxes filled with camping gear and a 100-pound green LP cylinder, a 20-pound silver LP cylinder and a thermometer. The Rubbermaid boxes had mismatched tops and bottoms which made them stand out; one had a teal green bottom with a purple top while the other had a translucent blue bottom with a dark blue lid.

The Thompsons saw a red Honda Accord hatchback, bearing a North Carolina license plate which they did not recognize, come out of their road at a high speed; they did not recognize the two male occupants. These facts made them suspicious, so they followed the car and tried to get the vehicle to stop by blowing the horn, flashing the lights and pulling up close to the car’s rear bumper. The car would not stop, and from their position close to the car they could see their Rubbermaid boxes in the rear of the car as well as the LP cylinders. The Thompsons wrote down the tag number and pulled up beside the car but still could not get the men to pull over to explain how they got onto the Thompsons’ land and took their property. The Honda accelerated, and the men sought to outrun the Thompsons on the snowy and icy mountain roads. The Honda got up to speeds of 60 to 70 mph during the chase.

After the chase went into Towns County, Mrs. Thompson saw the passenger open his window, lean out and point a short rifle resembling a .22 at them. She yelled to her husband to look out because the passenger had a gun; she ducked down in the seat and then heard a shot. Mr. Thompson saw the rifle pointed at them, heard the shot and braked to drop back behind the Honda five or six car lengths. He saw the passenger beckon them closer and saw a muzzle flash toward, them, but he never heard the second shot. While the Thompsons had several guns in the truck, they made no effort to get the guns out or to use them. The Thompsons from fear for their lives allowed the men to escape and called the authorities from a friend’s telephone.

After talking to Agent White from the GBI, they returned to their land and found tire tracks leading up to the shed, footprints of two men and property missing as they had expected. The shed had been entered and property removed without permission.

From the license plate number appellant was subsequently arrested, Mirandized and questioned. Appellant made statements to Agent White on February 8, 9 and 13. Defense counsel on August 15, 1995, made a Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), motion and served the district attorney with a notice to produce; the defense never made a written or oral election to come under OCGA § 17-16-1 et seq. However, in the notice to produce, counsel sought to use the motion to obtain discovery; he requested a copy of the arrest warrant, the search warrant, copies of any admissions or confessions made by the defendant, all statements of witnesses or co-defendants, waivers, scientific reports, fingerprint reports, grand jury transcripts and tangible or physical evidence to be introduced by the State. The district attorney turned over the statements of February 9 and 13 but unintentionally omitted to give defense counsel a copy of the statement for February 8. In the February 8 statement appellant made no mention that the Thompsons pointed a gun at them and had fired several shots so that they fled for their lives, but in the later two statements, appellant made such claims.

At trial on cross-examination of Agent White about appellant’s statements, defense counsel asked if all appellant’s statements had not been consistent. Agent White answered that the statement of February 8 had not mentioned the shooting and was not consistent with the other statements. Defense counsel objected that by the failure of the district attorney to produce the statement of February 8, defense counsel was led to ask a question of the officer on cross-examination which allowed the officer to testify that appellant had not been consistent in his statements to the police, which harmed appellant’s credibility, because the earlier statement did not contain his defense that the vehicle chasing him had fired at him causing him to flee in fear.

Appellant was convicted of two counts of aggravated assault and moved for a new trial, and the motion was denied.

1. A rational trier of fact could have found proof of appellant’s guilt beyond a reasonable doubt as a party to the crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ga. L. 1994, p. 1895, § 1, effective January 1, 1995, repealed Ga. L. 1980, p. 1388, § 2 (OCGA § 17-7-210), the former discovery section, which had no duty of reciprocal discovery. The caption of the new discovery act states “to provide for the comprehensive regulation of discovery and inspection in criminal cases” but conditions such grant of discovery to the defense upon a duty to provide reciprocal discovery. As a tactical and strategic decision, defense counsel chose not to come within the new discovery act which would have given him a right to any and all statements of the defendant.

Defense counsel instead sought to employ OCGA § 24-10-26 to compel the district attorney to produce matters that defense counsel had no right to discover by means of a notice to produce. The matters which defense counsel sought to be produced fell outside the ambit of the act; the proper use and scope of production is in “seeking production of evidence” for use at trial or at a judicial proceeding at which such evidence could be tendered. See Ga. L. 1966, pp. 502-505; Wilson v. State, 246 Ga. 62, 64 (1) (268 SE2d 895) (1980); Brown v. State, 238 Ga. 98, 101 (231 SE2d 65) (1976).

The defense can properly compel the State to produce pursuant to a notice to produce “for use at trial, or at a pretrial evidentiary hearing, where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant. [Cit.] ... A notice to produce cannot be used to enable defense counsel to examine, in advance of trial or evidentiary hearing, the contents of the district attorney’s file. [Cit.] As was held in Natson[ v. State, 242 Ga. 618, 623 (5) (250 SE2d 420 (1978),] a notice to produce cannot be used in a criminal case to require the production of the district attorney’s work product; reports, memoranda and documents in the files of law enforcement officers; addresses and telephone numbers of the state’s witnesses; or names and addresses of other persons with knowledge of the facts. As was pointed out in Stevens v. State, 242 Ga. 34 (1) (247 SE2d 838) (1978), witness statements are not subject to notice to produce, although exculpatory witness statements are subject to disclosure under Brady v. Maryland, supra. Accord Hamby v. State, 243 Ga. 339 (2) (253 SE2d 759) (1979); Spain v. State, 243 Ga. 15 (2) (252 SE2d 436) (1979).” (Emphasis and footnotes omitted.) Wilson v. State, supra at 64-65; see also Natson v. State, 242 Ga. at 623 (5), supra.

Decided August 15, 1996.

Scott B. Barloga, for appellant.

Albert F. Taylor, Jr., District Attorney, Richard S. Lawson, Mary E. Moore, Assistant District Attorneys, for appellee.

In short a notice to produce cannot be used as a discovery tool to circumvent discovery reciprocity under the discovery act. The State is under no duty to provide defense counsel a prior contradictory statement of the defendant which impeaches the defendant because such statement is neither exculpatory nor likely to be used in evidence by the defense. Furthermore, the notice to produce called for admissions or confessions of the defendant, and the statement of February 8 did not fit either category.

Had an election been made under OCGA § 17-16-1 et seq., the district attorney would have been under a duty to produce the statement in a fashion similar to the now repealed OCGA § 17-7-210.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Ruffin, Judge.

text:
    A96A1122.
    SAPEU v. THE STATE.
    (474 SE2d 703)
   Ruffin, Judge.

A jury convicted Paul Sapeu of two counts of cruelty to children. The convictions stemmed from Sapeu’s actions in disciplining his son by pouring scalding water over the child’s body and failing to seek medical attention for the resulting burns. Sapeu appeals the trial court’s judgment of conviction and denial of his motion for new trial. For reasons which follow, we affirm.

1. We note initially that although Sapeu is represented by counsel on appeal, he “has nevertheless submitted a pro se filing, enumerating [five] errors allegedly committed by the trial court. Our State Constitution and the Federal Constitution do not provide a criminal defendant with a right to simultaneous representation by counsel and self-representation. We therefore do not consider those errors raised or arguments made by [Sapeu] himself. It is his obligation to bring his concerns to his counsel’s attention in a timely manner so counsel, in the exercise of professional judgment, may incorporate them in the enumerations of error and brief. [Cit.]” Staples v. State, 209 Ga. App. 802, 806-807 (10) (434 SE2d 757) (1993).

2. In two enumerations of error, Sapeu challenges the sufficiency of the evidence. However, because neither enumeration is supported in his brief by citation of authority or argument, they are deemed abandoned. Court of Appeals Rule 27 (c) (2).

3. Likewise, Sapeu’s third enumeration of error, that the court committed an error of law warranting a new trial, is not supported in his brief and is also deemed abandoned. Id.

4. In his fourth enumeration of error, Sapeu asserts that the trial court erred in allowing similar transaction evidence concerning a previous incident of domestic violence. The similar transaction evidence showed that police responded to a domestic violence call made by the security guard at the apartment complex where Sapeu resided. The responding officer testified that the security guard called police after Sapeu’s children ran to inform the guard that Sapeu “was beating up on their mother.” According to the officer, the mother told him that Sapeu started hitting her when she questioned his manner of disciplining the children. Sapeu had disciplined the children earlier that day, and she questioned “his discipline practices on the kids because in the past he had struck the kids with his fist.” Sapeu reportedly told the officers that “he would discipline his kids anyway he wanted to” and became violent with the responding officers.

We note that Sapeu has not cited any portion of the record showing how this enumeration was preserved for appellate consideration, and our review of the transcript does not reveal that Sapeu objected to the testimony at trial. See Court of Appeals Rule 27 (a) (1) and (c). Although Sapeu made a lack of similarity objection at the pretrial similar transaction hearing, he waived this ground by failing to make this objection when the similar transaction evidence was introduced at trial. Jackson v. State, 217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (1995) (physical precedent only). See also Hunter v. State, 202 Ga. App. 195, 196-198 (3) (413 SE2d 526) (1991).

Even if Sapeu had shown that he properly preserved this objection, he has not shown that the court erred in admitting the evidence. Similar to the charged offenses, the independent offense involved Sapeu’s physically abusive conduct towards family members within the family home. “The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the other offenses rule on questions of both identity and motive.” (Citations and punctuation omitted.) Parcell v. State, 198 Ga. App. 439 (1) (401 SE2d 628) (1991).

In this case, the similar transaction evidence was properly admitted to show Sapeu’s motive in physically abusing family members to instill “discipline.” Accordingly, this enumeration is without merit.

5. Sapeu asserts that he was denied effective assistance of trial counsel. Sapeu contends counsel was ineffective because he did not call certain witnesses and because he did not lay a proper foundation to introduce a letter at trial showing the State dismissed charges against Sapeu for the similar transaction offense.

“ ‘When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense that was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ . . . [Cit.]” Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).

At the hearing on Sapeu’s motion for new trial, Sapeu testified that he retained trial counsel one month before trial and gave him a list of potential witnesses. He stated that he met with trial counsel several times before trial, that counsel included him in the process of preparing for trial, that counsel presented testimony from some of the witnesses on the list, and that counsel was retained to make the ultimate decisions concerning which witnesses to call.

Trial counsel also testified at the hearing. He stated that once retained by Sapeu, he had limited time to prepare for trial and, although trial counsel requested a continuance, the court denied the request. Trial counsel testified that Sapeu continued giving him names of potential witnesses and that he spoke to each of the potential witnesses and even wrote them twice. He further stated that there were instances where he had conference calls with Sapeu and potential witnesses and that some of these calls lasted late into the night. Trial counsel stated that Sapeu participated in all the decisions made concerning the trial, including which witnesses to call.

Under these circumstances, the trial court’s determination that Sapeu was provided effective assistance of counsel was not clearly erroneous. Decisions regarding which witnesses to call at trial are strategic decisions which are within the exclusive province of trial counsel after consultation with the client. Id. It is clear that trial counsel consulted with Sapeu concerning all aspects of trial preparation before deciding which witnesses to call.

Neither was the trial court required to grant Sapeu’s motion for new trial because trial counsel failed to properly introduce a letter showing the State dismissed the charges arising from the similar transaction offense. A State’s witness testified at trial that the similar transaction charges were dismissed. Accordingly, the letter would have been cumulative of evidence already before the jury. Under such circumstances, Sapeu has not shown there is a reasonable probability that, but for counsel’s failure to introduce the letter, the result at trial would have been different. See id.; Creech v. State, 171 Ga. App. 217 (1) (319 SE2d 76) (1984). This enumeration is without merit.

6. Similarly without merit is Sapeu’s argument that the trial court erred in failing to admit the letter into evidence. He acknowledges in his appellate brief that a proper foundation was not laid for admitting the letter, but contends that it should have been admitted “out of a sense of fair play and decency.” We are asked to assuage guilt with grace. Unfortunately for Sapeu, such is not an appellate court function. Moreover, Sapeu has presented no argument or authority supporting this contention or otherwise showing that the trial court erred in refusing to admit the letter. Accordingly, this enumeration presents nothing for our review. See Court of Appeals Rule 27 (c) (2).

7. Sapeu asserts the trial court erred in failing to give his requested charge on accident and on a lesser included offense of simple battery.

(a) Sapeu contends that the court was required to give the charge on accident because the evidence at trial showed that his wife accidentally poured hot water on the child. Such evidence, however, does not show that Sapeu accidentally poured scalding water on the child, and Sapeu has not cited any such evidence in the record. Because the charge was not supported by the evidence, the trial court did not err in refusing to give it. See Jirles v. State, 204 Ga. App. 268 (2) (419 SE2d 117) (1992). “Jury charges should be submitted on the bases of evidence and applicability, not on the bases of habit and hope.” Williams v. State, 221 Ga. App. 296, 297 (471 SE2d 258) (1996).

(b) Sapeu’s assertion concerning a charge on simple battery is not supported in his brief by argument or citation of authority and is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

8. Sapeu asserts the trial court erred in refusing to allow his wife to testify at the similar transaction hearing even though she violated the rule of sequestration.

“Although there have been conflicting cases regarding the competency to testify of witnesses who have violated the rule of sequestration, the Supreme Court has held that ‘a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. (Cits.)’ [Cit.] Violation of the rule by any witness in a criminal trial goes to the issue of credibility, not admissibility, of the witness’ testimony. [Cit.]” Weathers v. State, 202 Ga. App. 849, 850 (1) (415 SE2d 690) (1992).

The record shows that Mrs. Sapeu was permitted to testify during the trial concerning the similar transaction offense. As shown by her testimony, Mrs. Sapeu’s version of the similar transaction incident was substantially similar to the account given by Sapeu in his testimony at the similar transaction hearing. Even in light of Sapeu’s testimony, the trial court ruled that the similar transaction evidence was admissible. As we stated in Division 4, the trial court’s ruling on the admissibility of this evidence was not error. Accordingly, considering the fact that the trial court heard a similar version of the similar transaction incident at the similar transaction hearing, and the fact that the jury convicted Sapeu even after hearing Mrs. Sapeu’s testimony at trial, the trial court’s error in excluding her testimony at the hearing was harmless. See id. An error devoid of harm passes into unproductive nothingness.

Sapeu’s contentions that the trial court erred in excluding testimony from other witnesses are unsupported and deemed abandoned. Court of Appeals Rule 27 (c) (2).

9. Sapeu asserts the trial court erred in admitting a tape recording of his custodial statement because he was not informed of his rights prior to giving the statement and because the statement was not freely and voluntarily made.

“A trial court’s conclusions of fact and credibility following a [hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)] are to be accepted unless clearly erroneous. [Cits.]” Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996). In this case, contrary to Sapeu’s assertions, the transcript shows that prior to giving the tape recorded statement, he was advised of each of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694) (1966), he voluntarily waived his rights, and he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury. “Thus, there was no error in the trial court’s ruling in favor of admissibility. [Cits.]” Yorker, supra at 617.

10. In his final enumeration of error, Sapeu’s appellate counsel states that “[a]t the request of the client, he argues all points listed in Paul Sapeu’s brief and arguments incorporated by reference [in] his motion for a new trial and his amended motion for a new trial.” To the extent that this enumeration asserts a claim of error, it is deemed abandoned. It is not supported in the brief by citation of authority, argument, or reference to the record. Court of Appeals Rule 27 (c).

Decided August 15, 1996.

Nan M. Deegan, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A1142.
    KNODEL v. STATE OF GEORGIA.
    (474 SE2d 700)
   McMurray, Presiding Judge.

The State of Georgia served respondent-claimant Leonard Murphy Knodel with a “NOTICE OF SEIZURE OF PERSONAL PROPERTY VALUED AT LESS THAN $25,000,” seeking to condemn cash, a revolver with holster, and a 1989 Ford Bronco. According to the notice of seizure, law enforcement officers discovered “one clear plastic bag containing an amount of white powdery substance,” suspected of being cocaine, under the following circumstances. “On April 11, 1995 law enforcement officers were serving an arrest warrant on Eddie Rainey at 901 Dykes Road, Newborn, Jasper County, Georgia. While [the officers were] serving the arrest warrant, Leonard Murphy Knodel drove up in his 1989 Ford Bronco, a consent to search was granted by Mr. Knodel,” and 2.6 grams of suspected cocaine was discovered in the vehicle. Respondent filed a verified claim of ownership, which the State moved to dismiss. According to the State’s motion, claimant’s response was procedurally deficient because it “fails to provide the legal and factual allegations required by [OCGA § 16-13-49 (n) (4)], subsection[s] (C), (D), [(E),] and (F), ... as to [claimant’s] standing, i.e., the nature and extent of his ownership of the property, the identity of the transferor, and the circumstances of his ownership.” Within 30 days after the State’s notice of forfeiture had been published for the second time, claimant amended his response, alleging that he is the “sole title holder of the 1989 Ford Bronco. He is the sole owner of the charter arms .38 special revolver and Smith & Wesson holster. He had the money in his brief case and the brief case belonged to him. . . . The truck was acquired by [claimant] Leonard Murphy Knodel from International Building Services, Inc. on approximately January 21, 1992. It was acquired as a means of transportation. . . . The charter arms .38 special revolver, blue finish with wood grip, Ser.#917801 and Smith & Wesson brown leather holster was acquired by [claimant] Leonard Murphy Knodel on approximately October 30, 1991 from his father’s estate. It was obtained as a remembrance of his father. . . . The $702.00 cash was received from the proceeds of two checks which include and [sic] insurance check from Nationwide Insurance and a payroll check from Allied International. The money was received to pay for food, shelter, and other ordinary expenses.” Claimant specified that he was relying on four provisions of OCGA § 16-13-49 (e), including OCGA § 16-13-49 (e) (1), because “claimant was unaware of any cocaine in the vehicle and does not claim an interest in the cocaine which was in the vehicle or placed in the vehicle by whomever. The claimant is unaware of who the responsible party was for placing the cocaine in the vehicle.” The State pursued its initial motion to dismiss and motion for judgment of forfeiture, without amendment.

At the hearing, it was undisputed that “this [forfeiture proceeding] was put on the hold order basically pending the outcome of the criminal trial, the criminal trial [was] heard by a jury and [claimant] was found not guilty.” In support of its motion to dismiss Leonard Murphy Knodel’s claim, the State argued that, in order to show all of the circumstances of claimant’s acquisition of the vehicle, he must “show, T bought it from Central Auto Sales, the salesman was Joe Brookins, the purchase price was $16,000.00, and I paid $1,000.00 down, the remaining balance was financed through my credit Union, the Federal Credit Union, I made payments of $300.00 a month,’ or whatever.” As to the allegedly inherited pistol and holster, the State objected because claimant “didn’t really give us the identity of his father, they didn’t give a name, and they gave us the date as to a couple of these pieces of property, but as to that third and very important [statutory] phrase, ‘all circumstances of their acquisition of the property’ [claimant] simply ignored it.” The State also argued that the claim was deficient under OCGA § 16-13-49 (n) (4) (F) because it failed to “plead all essential facts showing that the property is innocent, that — that it wasn’t used to facilitate a transaction.” The trial court concluded that the “purported Claim, as amended, filed in this case by or on behalf of Leonard Murphy Enodel is insufficient as a matter of law and does not meet the requirements set out in OCGA § 16-13-49 (n) (4),” and entered a judgment of forfeiture in favor of the State. This appeal followed. Held:

Claimant first contends the trial court erred in ruling that his claim was procedurally insufficient.

“OCGA § 16-13-49 (o) (3) requires that an answer stating a claim to property subject to forfeiture satisfy not only the general pleading rules applicable to all civil actions, but must also specifically set forth the following: . . . (C) The nature and extent of the claimant’s interest in the property; (D) The date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property; (E) The specific provision of ([OCGA] § 16-13-49) relied on in asserting that the property is not subject to forfeiture; [and] (F) All essential facts supporting each assertion.” State of Ga. v. Alford, 264 Ga. 243, 244 (2), 245 (2). (a) (444 SE2d 76). Identical pleading requirements are imposed upon owners and interest holders responding to a notice of seizure authorized by OCGA § 16-13-49 (n) (1). State of Ga. v. Cannon, 214 Ga. App. 897, 899 (449 SE2d 519).

The claim in the case sub judice asserts the nature and extent of claimant’s interest (sole ownership); the date, identity of the transferor (International Building Services, Inc. and claimant’s father’s estate) and the circumstances of claimant’s acquisition (e.g., transfer of the vehicle from International Building Services, Inc., inheritance of the revolver and holster,, and cash as the proceeds of employment and insurance payments); and the specific provisions relied upon to establish that the property is not subject to forfeiture. We conclude that claimant’s response alleged sufficient facts within claimant’s personal knowledge, and not mere conclusory allegations, to establish a triable issue as to innocent ownership under OCGA § 16-13-49 (n) (4) (C), (D), and (E). Compare Jackson v. State of Ga., 218 Ga. App. 437, 439 (461 SE2d 594), where that “claim merely cite[d] to the innocent owner provision of OCGA § 16-13-49 without asserting facts in support of his alleged innocent ownership. Thus [that] claim fail[ed] to comply with subsections (E) and (F) of the specific pleading requirements of OCGA § 16-13-49 (n) (4).” (Citations and punctuation omitted; emphasis in original.)

Nevertheless, the State urges that claimant’s bare denial of wrongdoing is insufficient to create a triable issue, citing Mitchell v. State of Ga., 217 Ga. App. 282 (457 SE2d 237). We find that case distinguishable in material respects. In Mitchell, that claimant “falsely stat[ed] that [a lien creditor] did not have a security interest in the vehicle, [and so] failed to state the extent of his own interest. He did not cite any provision of OCGA § 16-13-49 relied on in support of his assertion that the vehicle was not subject to forfeiture. His [bare] denial of the State’s allegation that the vehicle was used to facilitate the sale of cocaine was not supported by any facts. In [those] particulars, his answer [was] deficient.” Mitchell v. State of Ga., 217 Ga. App. 282, supra. In the case sub judice, the claimant pleaded such facts denying personal knowledge as he could aver, without speculating as to other persons’ actions. Moreover, those facts are necessarily supplemented by the undisputed circumstance that claimant has been put on his trial (presumably for possession of cocaine, and possibly for distribution of cocaine) and was acquitted by a jury. That is a sufficient allegation of material fact tending to show that the vehicle was not used to facilitate the distribution of cocaine with claimant’s knowledge or consent. But see OCGA § 16-13-49 (v). Accordingly, we vacate the trial court’s judgment of forfeiture and dismissal of Leonard Murphy Knodel’s claim and remand with direction that he be granted a reasonable time in which to supplement his response with the material fact of his acquittal (occurring after the time had passed for claimant to submit a timely response). See, e.g., State of Ga. v. Adams, 264 Ga. 842 (2) (452 SE2d 117); State of Ga. v. Alford, 264 Ga. 243, 246 (3), supra. Thereafter, the trial court shall conduct a hearing on the merits of claimant’s response to the State’s notice of seizure.

Decided August 15, 1996.

Terry N. Massey, for appellant.

Fredric D. Bright, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.

Judgment vacated with direction.

Johnson and Ruffin, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A96A1397.
    TUCKER v. THE STATE.
    (474 SE2d 696)
   McMURRAY, Presiding Judge.

Defendant was charged, via two-count indictment, with aggravated assault (assault with a deadly weapon) and possession of a knife during the commission of a crime. The evidence adduced at a jury trial reveals that defendant pulled a knife and stabbed the victim several times during an early morning brawl in the parking lot at a Waffle House restaurant. Although defendant claims that he stabbed the victim in self-defense, an eyewitness testified that she observed defendant exit an automobile and go for the victim with a knife as the victim “backed off” from the violent encounter.

The jury found him guilty on both counts of the indictment. This appeal followed. Held:

1. Defendant challenges the sufficiency of the evidence with regard to his conviction for aggravated assault, arguing that the proof is undisputed that he acted in self-defense when he stabbed the victim.

It is undisputed that defendant stabbed the victim several times during the parking lot brawl, once in the chest, once in the stomach and once in the back. The victim testified that the frontal abdominal wounds penetrated deep into his body and seriously damaged his internal organs. This evidence, and testimony that defendant exited an automobile and advanced toward the victim with a knife (at a time when the victim was backing away from the fight), supports the jury’s finding, beyond a reasonable doubt, that the force defendant used against the victim was unnecessary in self-defense and that defendant’s acts constituted aggravated assault as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Stewart v. State, 201 Ga. App. 190 (1) (410 SE2d 380). See Palmore v. State, 264 Ga. 108 (441 SE2d 405), and Langham v. State, 263 Ga. 750 (1) (438 SE2d 623).

2. In his third enumeration of error, defendant contends the trial court erred in admitting evidence of a blood-stained knife that law enforcement officers found in defendant’s apartment a short time after the incident in which the victim was stabbed. Defendant argues that he did not knowingly, freely and voluntarily give law enforcement officers consent to search his home because he was drunk when he executed a consent to search form presented by the police and he was not advised of his right to refuse to allow such a search before he executed the consent to search form.

“In order to challenge the admissibility of evidence seized by the police, a defendant must file a motion to suppress before trial. ‘ “ ‘(F)ailure to interpose a timely motion to suppress pursuant to the Act (Georgia Search and Seizure Act of 1966) constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question. (Cits.)’ ” (Cits.)’ Stansifer v. State, 166 Ga. App. 785, 788 (3) (305 SE2d 481) (1983).” Moss v. State, 196 Ga. App. 81, 83 (2) (395 SE2d 363). The record in the case sub judice indicates that defendant did not assert a motion to suppress before trial. Defendant therefore waived any right to complain about admission of the bloody knife that was found in his apartment based on an alleged unlawful search of his home.

3. In his second enumeration of error, defendant contends the trial court should not have admitted evidence of the bloody knife because the State failed to provide him with access to the knife ten days before trial as required by OCGA § 17-16-4 (a) (3).

If the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State. OCGA § 17-16-6. In the case sub judice, defendant made no showing that he was prejudiced as a result of the State’s failure to make the bloody knife available to him prior to trial. No continuance was requested to cure any prejudice which may have precipitated as a result of the State’s failure to comply with OCGA § 17-16-4 (a) (3). Consequently, the trial court was without authority, under OCGA § 17-16-6, to exercise discretion and exclude the bloody knife from evidence at trial. It thus follows that the trial court did not err in admitting the blood-stained knife into evidence at trial.

Decided August 15, 1996.

Stanley C. House, Richard T. Pacheco II, for appellant.

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

4. Defendant contends the trial court erred in allowing the victim’s testimony regarding the physiological consequences of his knife injuries, arguing that such testimony is either inadmissible hearsay, or a medical diagnosis which is outside the scope of the victim’s nonprofessional comprehension. This enumeration provides no grounds for reversal as any error in admission of the victim’s statements regarding his medical condition is merely cumulative of other admissible evidence regarding the savage extent of the victim’s injuries. Wright v. State, 216 Ga. App. 486 (1) (455 SE2d 88).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1519.
    DEPARTMENT OF TRANSPORTATION v. MILLEN et al.
    (474 SE2d 687)
   McMurray, Presiding Judge.

The Georgia Department of Transportation (“DOT”) condemned 1.32 acres of land belonging to condemnees Allen Millen, Jr. and the late Homer A. Millen, Sr. and paid $90,600 into the registry of the court. A special master awarded condemnees a total of $150,944.27 as just and adequate compensation for the land and permanent easements taken and awarded zero consequential damages. Still dissatisfied with this award, condemnee Allen Millen appealed to the superior court, where the issue of just and adequate compensation was tried before a jury.

Over DOT’s objections as to relevancy and lack of foundation, the trial court admitted two photographic exhibits depicting drainage ditches with water in them. The trial court also gave immediate limiting instructions to the jury that “[t]he weight and effect and credit of those photographs is solely a matter for the jury to determine. . . . [I]f you find that damage to the property during the course of construction is of a temporary nature, if you find ultimately it’s of a temporary nature, then you are to disregard these photographs. If you find on the other hand that what these photographs depict to be of a permanent nature . . ., then you may consider them for whatever you think they are worth.”

The jury returned a verdict awarding $165,000. From the judgment entered on the jury’s verdict for just and adequate compensation, DOT brings this direct appeal. Held:

In two related enumerations of error, DOT contends the trial court erred in admitting these two photographs, arguing that they depict only a temporary inconvenience which is not compensable as a direct taking or as consequential damages to any remainder.

1. “A photograph is authenticated by showing that it is a fair and accurate representation of the scene depicted. Johnson v. State, 158 Ga. 192, 198 (2) (123 SE 120) (1924). Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken. Toler v. State, 213 Ga. 12 (3) (96 SE2d 593) (1957).” Isaacs v. State, 259 Ga. 717, 732 (26) (386 SE2d 316).

In the case sub judice, condemnees’ professional engineer witness, Charles Harold Moss, testified that he took the photographs a “week or ten days . . .” before trial. He affirmed that each exhibit “fairly and accurately reflects the matter depicted in it, . . . [as he] saw from the location [where he was] standing on November 3,1995.” Consequently, the trial court did not err in admitting these exhibits over DOT’s objection as to foundation.

2. DOT further enumerates the admission of these photographs over its relevancy objection. DOT argues that these photographs are evidence of a mere inconvenience resulting from the construction process that is not admissible to show consequential damage to the remainder because “there was no evidence showing the portrayed conditions as being permanent or continuous incidents of the improvement for which the property was condemned.” We disagree.

“ Tn order for [such] factors [as noise, smoke, dust, and water] to be considered as adversely affecting the market value of the remaining property, it must be shown, among other things, that such factors are a continuous and permanent incident of the improvement. . . .’ [State Hwy. Dept. v. Hollywood Baptist Church &c., 112 Ga. App. 857, 860 (2) (146 SE2d 570)]. Accord, State Hwy. Dept. v. Davis, 129 Ga. App. 142, 144 (199 SE2d 275) (1973).” MARTA v. Datry, 235 Ga. 568, 579 (III), 580 (220 SE2d 905). In the case sub judice, DOT’s own witness, Bill Moskal, affirmed that the change in grade level after completion of the project was “anywhere from 27 feet down, . . . to 13 or 14 feet and then 5 to 6 feet on [one] side.” He also affirmed that, prior to construction of this improvement, “the property was not receiving the volume of water, the velocity of water, . . . through [drainage] pipes and the concentration of water in this area [depicted in the photographs] as it receives now in the [so-called] after condition.” Bill Moskal also affirmed that he was “out there September 23rd, and that the drainage system was functioning appropriately . . . [and] as it’s intended to.”

Decided August 15, 1996.

Michael J. Bowers, Attorney General, Zachary & Segraves, Kenneth L. Levy, for appellant.

William G. Gainer, for appellees.

Accordingly, there was an adequate evidentiary basis to authorize a jury finding that the conditions depicted in condemnees’ photographs of November 3, 1995, were continuous and permanent incidents of the public improvement to the state highway system. “The DOT’s reliance on Theo [v. Dept. of Transp., 160 Ga. App. 518, 519 (3) (287 SE2d 333) (physical precedent)] is misplaced because the photographs in the instant case were not admitted as evidence of damages caused by temporary inconvenience due to the construction. Rather, the photographs were admitted to show that increased elevation . . . caused flooding of the [condemnees’] adjacent property. ‘Photographs . . . are generally admissible, when relevant, to describe a person, place, or thing, for the purpose of explaining and applying the evidence and assisting the court and the jury in understanding the case. The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused.’ (Citations and punctuation omitted.) CSX Transp. v. McCord, 202 Ga. App. 365, 368 (5) (414 SE2d 508) (1991). Because the trial court did not abuse its discretion in admitting the photographs, its ruling will not be disturbed.” Dept. of Transp. v. Ballard, 208 Ga. App. 474, 475 (3) (430 SE2d 848). Accord Dept. of Transp. v. Swanson, 191 Ga. App. 752, 754 (3) (382 SE2d 711).

3. Condemnees’ motion for frivolous appeal damages is denied.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A1684.
    JARRETT v. THE STATE.
    (474 SE2d 702)
   McMURRAY, Presiding Judge.

Defendant Jarrett was convicted of possession of methamphetamine and possession of a dangerous weapon. He requested a bond pending appeal, and the trial court conducted a hearing in accordance with Birge v. State, 238 Ga. 88 (230 SE2d 895). This appeal is taken from the denial of defendant’s motion for appeal bond based on the trial court’s conclusion that there is a likelihood that defendant will intimidate witnesses and interfere with the administration of justice. Held:

Decided August 15, 1996.

Rodney S. Zell, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

The burden of seeking a stay of execution and a release on bond is upon the applicant. Thus under Birge, the trial court should not grant bond pending appeal unless the applicant presents sufficient information, evidence, or argument to convince the trial court that an affirmative response is not appropriate as to any of the Birge criteria. Also, the trial court may consider the evidence adduced at trial that is pertinent to this determination. Williford v. State, 218 Ga. App. 522, 523 (462 SE2d 632). In view of the brief, superficial, and conclusory nature of the evidence presented by defendant at the hearing, consisting primarily of the responses of close family members to leading questions, along with the evidence heard at trial, we find that the trial court’s conclusion that defendant had failed to satisfy his burden was not clearly erroneous. Id. at 524; Pressel v. State, 161 Ga. App. 488 (287 SE2d 780).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Judge Harold R. Banke.

text:
    A96A1008.
    JOHNSON v. KNEBEL et al.
    (474 SE2d 636)
   Judge Harold R. Banke.

Rhonda Johnson sued David Knebel and William Fitzpatrick for damages resulting from collisions between her vehicle and those driven by Knebel and Fitzpatrick. A Houston County jury awarded her $55,000 against Knebel only and exonerated Fitzpatrick. She appeals from a judgment entered on that verdict. Held:

1. Johnson contends the trial court erred by allowing the investigating police officer to testify, on cross-examination by Fitzpatrick’s counsel, that he issued Fitzpatrick no traffic citations. The principle of law she cites is generally correct. “It is well-settled that in a civil action for damages a plaintiff may not show that charges were brought against a defendant or that the defendant was required to make an appearance in traffic court for a violation of the law alleged to have proximately resulted in the plaintiff’s injuries. [Cit.]” Emory v. Dobson, 206 Ga. App. 482, 483 (426 SE2d 50) (1992); see also Underwood v. Butler, 166 Ga. App. 527, 529 (3) (304 SE2d 729) (1983).

To every evidentiary rule are exceptions, however, and even where there is error the appellant must also show harm by the record. City of College Park v. Pichon, 217 Ga. App. 53, 54 (1) (456 SE2d 686) (1995). “The burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issues raised by the enumerations of error[ ] is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance to that issue must result.” (Citations and punctuation omitted.) Graham v. Newsome, 174 Ga. App. 351, 352 (2) (330 SE2d 98), rev’d on other grounds, 254 Ga. 711 (334 SE2d 183) (1985). “This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.” (Citations and punctuation omitted.) Compo Machinery Corp. v. Pants Limited, 203 Ga. App. 728 (417 SE2d 443) (1992) (physical precedent only).

In support of this enumeration of error, Johnson has supplied this Court with only an excerpt of the recross-examination testimony of the police officer. From this limited record, it is impossible to tell whether Johnson somehow opened the door to this testimony or whether other testimony in the case rendered this evidence harmless. See Strickland v. Stubbs, 218 Ga. App. 279, 281 (4) (459 SE2d 473) (1995), in which the Court considered but rejected, based on the record, arguments that other evidence had made admissible testimony regarding the issuance of a traffic citation. We addressed this issue in Drummond v. Gladson, 219 Ga. App. 521 (2) (465 SE2d 687) (1995), a case which is physical precedent only because two panel judges believed the record sufficient to fully review the enumeration. Unlike the record in Drummond, the partial transcripts Johnson supplied this Court cannot be considered to provide the “barest minimum” record necessary to reverse the case based on this ruling. Id. (Beasley, C. J., concurring specially). Johnson has not shown, by the record, that the trial court erred in admitting this testimony.

2. Johnson contends Fitzpatrick’s expert, Mr. Lindsay, was not qualified to give his opinion as to which of the two collisions resulted in her injuries. Pretermitting whether the trial court properly allowed Lindsay to testify as an expert on this subject, the record shows he related the facts upon which he based that opinion, including his review of photographs showing the damage to each vehicle. Because even a lay witness may give his opinion so long as he relates the facts upon which he bases that opinion, Dual S. Enterprises v. Webb, 138 Ga. App. 810, 812 (3) (227 SE2d 418) (1976), we find no error here.

3. Johnson’s final enumeration of error, like her first, suffers from a fatal lack of record. She contends the trial court erred by allowing a deputy to testify that a Mr. Smith told him Johnson was driving the car. The trial court overruled the objection on the grounds that Smith was present and available to be cross-examined on this issue. See T. J. Morris Co. v. Dykes, 197 Ga. App. 392 (1) (398 SE2d 403) (1990) (not reversible error to allow hearsay where witness available and subject to cross-examination); Shelton v. Long, 177 Ga. App. 534, 535 (1) (339 SE2d 788) (1986) (same). Although Johnson argues Smith had been excused at the time of this testimony and decries her inability to cross-examine him on this matter, she fails to provide the court with a transcript of his testimony. She does provide an excerpt from Smith’s testimony showing he was excused as a witness, but there is no way to tell from the record when he was excused. She also fails to provide any portion of the deputy’s testimony other than that containing the question, objection, and answer at hand. We cannot, based on this scant record, tell whether the trial court properly admitted this evidence. See, e.g., Shelton, supra. Neither can we determine whether the admission of this testimony caused any harm. See, e.g., Harris v. Tatum, 216 Ga. App. 607, 611 (2) (455 SE2d 124) (1995) (admission of hearsay which is merely cumulative of other evidence is harmless). “As [Johnson] has not met [her] burden of proving [her] enumerated error by the record, we must presume that the trial court did not err. [Cit.]” Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (2) (424 SE2d 807) (1992).

Decided July 25, 1996

Reconsideration denied August 16, 1996

Sell & Melton, Mitchel P. House, Jr., Jeffrey B. Hanson, for appellant.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Jones, Cork & Miller, Wendell K. Howell, Robert E. Norman, for appellees.

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J., concur.


author: Blackburn, Judge.

text:
    A96A0787, A96A0788.
    FIRST ALLIANCE BANK v. WESTOVER, INC. et al.; and vice versa.
    (474 SE2d 717)
   Blackburn, Judge.

We granted this interlocutory appeal to address the denial of motions for partial summary judgment by each side on the sole issue before us, that being whether a discount received by one of two joint lenders at the time it bought the interest of the other lender shall be included in calculating interest for the purpose of evaluating a usury claim pursuant to OCGA § 7-4-18.

On October 27, 1988, Cobb Federal Savings Bank (Cobb Federal) loaned Westover, Inc. (Westover) $2.7 million to develop a subdivision. The agreement provided that Westover would pay Cobb Federal a loan origination fee of $310,000 with $20,000 to be paid at closing. Shortly thereafter, a 15 percent participation interest in the Primary Loan was sold to United Federal Savings & Loan (United Federal). One year later, Cobb Federal renewed the Primary Loan with the total principal amount being increased to $3.3 million. Thereafter, Cobb Federal sold a 30 percent participation interest in the Primary Loan to First People’s Bank of Cobb County, the predecessor to First Alliance Bank (First Alliance).

In the summer of 1990, First Alliance made a separate loan to Don McAfee in the amount of $170,462.50 (Individual Loan) to assist in paying Cobb Federal amounts owed on the Primary Loan. The Individual Loan was secured by Don and Beverly McAfee’s 12,500 shares of Cobb Federal stock as well as junior liens on the same collateral securing the Primary Loan.

In the fall of 1990, Cobb Federal was experiencing serious business difficulties. The Office of Thrift Supervision (“OTS”) audited Cobb Federal and placed stringent requirements on how it should manage the Primary Loan. Before agreeing to a renewal, the OTS required additional security as well as the personal guaranty of both Don and Beverly McAfee. In the fall of 1991, the Resolution Trust Corporation (RTC) was appointed as receiver for Cobb Federal.. It reluctantly renewed the Primary Loan and then placed it under the control of a contractor hired pursuant to a Standard Asset and Management Agreement (SAMDA). First Alliance, Westover and the McAfees all feared that this transfer to a SAMDA contractor signalled the RTC’s intent to liquidate the Primary Loan. Shortly thereafter, First Alliance purchased Cobb Federal’s controlling interest as well as United Federal’s participation interest in the Primary Loan, receiving a 25 percent discount. First Alliance’s version of how it came to acquire the Primary Loan from the RTC differs markedly from the version offered by Westover and the McAfees. For appellate review of the denial of the motions for partial summary judgment, the facts will be viewed in a light most favorable to the parties resisting each of such motions.

On June 18, 1992, a closing was held between Westover and First Alliance whereby Westover executed a modification of the Primary Loan agreement it originally entered in 1988. Westover also executed a renewal promissory note for $1,650,462.50 which consolidated the $1.48 million principal outstanding on the Primary Loan and the $170,462.50 principal outstanding on Don McAfee’s Individual Loan. At the time of the closing, Westover and the McAfees claim that First Alliance affirmatively misrepresented that, in purchasing the Primary Loan, it had been unable to secure a discount and attempted to hide that fact by virtue of its closing statement and accounting measures. The consolidated loan was satisfied by its maturation date with First Alliance receiving full payment of the principal plus interest.

In March 1993, Westover, Don McAfee and Beverly McAfee (hereinafter collectively known as plaintiffs) filed the underlying suit against First Alliance alleging among other things, breach of fiduciary duty, fraud, and usury. First Alliance filed a counterclaim seeking to collect an allegedly unpaid portion of the origination fee originally owed to its predecessor, Cobb Federal. Both sides filed cross-motions for partial summary judgment on the plaintiffs’ usury claim. The plaintiffs’ motion also sought summary judgment on First Alliance’s counterclaim on the grounds that it too was barred by usury. The trial court denied both motions, finding that the case raised genuine issues of material fact that precluded either party from receiving summary judgment. We granted First Alliance’s application for interlocutory review, and the plaintiffs filed a cross-appeal.

Case No. A96A0787

In Case No. A96A0787, First Alliance appeals the denial of its motion for partial summary judgment. Pursuant to OCGA § 7-4-18 (a), “[a]ny person, company, or corporation who shall reserve, charge, or take for any loan or advance of money . . . any rate of interest greater than 5 percent per month, either directly or indirectly, by way of commission for advances, discount, exchange, or the purchase of salary or wages; by notarial or other fees; or by any contract, contrivance, or device whatsoever shall be guilty of a misdemeanor.” In a civil context, a lender who has violated the criminal usury statute may collect the principal amount of its usurious loan but forfeits its right to any interest or other fees associated with the loan. Norris v. Sigler Daisy Corp., 260 Ga. 271, 273 (392 SE2d 242) (1990).

Georgia has previously addressed whether the discounted sale of a note raises an issue of usury. “Where one buys outright a negotiable promissory note, the transaction is not rendered usurious because the discount upon the note amounts to more than the maximum lawful rate of interest.” Mutual Canning Co. v. DeGuenther, 23 Ga. App. 746, 747 (99 SE 319) (1919) citing Campbell v. Morgan, 111 Ga. 200 (36 SE 621) (1900). See also Jackson v. State, 5 Ga. App. 177, 183 (62 SE 726) (1908) (Usury statute should not be construed so as to restrict the free transfer of property between willing parties). The plaintiffs contend that this longstanding Georgia law is inapplicable in the present matter. Rather, they argue that under the facts of this case, the sale of a discounted note merely served to cloak what was a usurious loan. The plaintiffs argue that “ ‘[i]n determining whether a contract is usurious the substance of the transaction will be critically examined, for the name by which the transaction is called is wholly immaterial where it appears that its foundation was the loan of money.’ ” Tribble v. State, 89 Ga. App. 593, 596 (80 SE2d 711) (1954).

The plaintiffs contend that the modification and the renewal of the Primary Loan that took place in June 1992 in fact constituted a new loan and should be treated as such. Particularly, the plaintiffs argue that First Alliance had agreed to provide them with a new loan to pay off the outstanding loans and that it failed to do so and structured the transaction so that First Alliance would benefit from the discount to the exclusion of the plaintiffs.

The plaintiffs argue that First Alliance merely attempted to cloak a new and usurious loan by structuring the transaction as the modification and renewal of a prior loan. The plaintiffs had full use of the funds disbursed by Cobb Federal when the Primary Loan originated. At the time First Alliance purchased the Primary Loan, its principal value was $1.48 million. The plaintiffs enjoyed full use of that $1.48 million, and it is not usurious for a borrower to pay interest on the full amount that it borrowed. See Williams v. Powell, 214 Ga. App. 216, 218 (447 SE2d 45) (1994) (In conducting a usury analysis, “[i]nterest is calculated on the amounts of which the borrower had use”).

The primary case cited by the plaintiffs, Norris, supra, demonstrates this point. In Norris, the note reflected a face amount of $12,310.50. Of that amount, $5,800 was an origination fee which was retained by the lender. The Supreme Court ignored the labels contained within the loan document, determining that while the parties included the $5,800 as principal, it was “clearly a fee paid for the extension of credit” and thus should be considered as interest for purposes of OCGA § 7-4-18. Id. at 272. In Norris, usury resulted because the borrower was charged a tremendous sum for money that it was prevented from using. That is not the case here.

The gist of the plaintiffs’ complaint is not that First Alliance obtained the Primary Loan at a discount — but rather that First Alliance improperly prevented the plaintiffs from sharing in the benefits derived from that discount. Because the borrower in this transaction was able to enjoy the full amount it borrowed, questions about whether First Alliance misled the plaintiffs as to the discount or breached a duty to the plaintiffs in negotiating with the RTC are not presently before us.

The trial court erred in denying First Alliance’s motion for partial summary judgment on the usury claim.

Decided August 16, 1996

Powell, Goldstein, Frazer & Murphy, John T. Marshall, William V. Custer IV, Joseph D. Wargo, for appellant.

Kilpatrick & Cody, Stephen E. Hudson, Trent B. Speckhals, for appellees.

Case No. A96A0788

In Case No. A96A0788, plaintiffs appeal the trial court’s denial of their motion for partial summary judgment. In light of our analysis in Case No. A96A0787, supra, the trial court properly denied plaintiffs’ motion for summary judgment on their claim of usury. Accordingly, we affirm. Precise v. City of Rossville, 261 Ga. 210, 211 (403 SE2d 47) (1991) (a judgment that is right for any reason will be affirmed).

In their motion, plaintiffs also sought summary judgment on First Alliance’s counterclaim to recover the unpaid loan origination fee assessed by Cobb Federal at the time the Primary Loan was originally made. The right to collect this fee was transferred to First Alliance when it purchased the Primary Loan from the RTC. The plaintiffs do not assert that anything was improper with the fee at the time it was assessed by Cobb Federal. Rather, the plaintiffs contend that, according to Norris, supra, by partaking in a usurious transaction, First Alliance forfeited its right to seek anything other than the money it actually disbursed on the plaintiffs’ behalf to pay off the principal balance of the Primary Loan and the Individual Loan. Hence, according to the plaintiffs, First Alliance could not collect any interest or cost associated with its June 1992 transaction including the origination fee originally imposed by Cobb Federal.

In view of our holding that First Alliance did not partake in a usurious transaction, the trial court correctly denied plaintiffs’ motion for partial summary judgment. Precise, supra.

Judgment affirmed in Case No. A96A0788. Judgment reversed in Case No. A96A0787.

Beasley, C. J., and Birdsong, P. J., concur.