text:
    A98A1600.
    EL CHICO RESTAURANTS, INC. v. TRANSPORTATION INSURANCE COMPANY.
    (509 SE2d 681)
   Smith, Judge.

This appeal involves the unusual issue of whether the superior court erroneously dismissed an amended class action complaint based in part on the original plaintiffs’ failure to seek leave of superior court to add parties, notwithstanding a federal district court’s previous grant of permission to do so. Under the circumstances of this case, we conclude that the superior court erred in dismissing the amended complaint, inasmuch as it named parties for whom leave to add had been granted by the district court. But with regard to parties unilaterally added without leave of court, we conclude that dismissal as to those parties was authorized. We therefore affirm in part and reverse in part.

El Chico Restaurants, Inc. filed a class action suit against several defendants in superior court, seeking damages for the alleged overcharging of workers’ compensation insurance premiums. The case was then removed to federal court, where El Chico moved for leave to add parties and serve an amended complaint. The district court entered an order granting El Chico’s motion to name additional plaintiffs. It appears that in granting that order, the district court may have considered a proposed amended complaint, which named the following entities as party plaintiffs: Bristol Hotel Management Corporation; CR/PL, Inc.; CR/PL Limited Partnership, El Chico Restaurants, Inc.; FFE Transportation Services, Inc.; and Judwin Properties, Inc. The district court also granted El Chico’s motion to add additional defendants. But because it found that addition of defendants destroyed diversity, the district court also remanded the case to superior court; it did so in the same order granting the motion to add parties. As a result, El Chico was not afforded the opportunity to file an amended complaint in district court.

After remand to superior court, defendant Transportation Insurance Company moved to dismiss on the ground that El Chico Restaurants, Inc., a Texas corporation transacting business in Georgia, had brought suit without first obtaining a certificate of authority from the Secretary of State. See OCGA § 14-2-1502. An “amended class action complaint” was then filed in superior court. That complaint named some of the entities listed as plaintiffs in the proposed amended complaint considered by the district court but also unilaterally dropped some parties and added others. The amended superior court complaint named the following entities as plaintiffs: Bristol Hotel Management Corporation; CR/PL Management Company; El Chico Corporation; and FFE Transportation Services, Inc. The only parties common to the two complaints therefore are Bristol Hotel Management Corporation and FFE Transportation Services, Inc. The trial court then granted Transportation’s motion to dismiss after concluding, among other things, that new plaintiffs were unilaterally added without a court order.

1. Transportation’s motion to dismiss this appeal is denied.

2. Under the facts of this case, we conclude that complete dismissal of the entire action was improper. Our law does state that “[a] court order is required to add or drop parties under OCGA § 9-11-21.” Young v. Rider, 208 Ga. App. 147, 148 (1) (430 SE2d 117) (1993). See also Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983). And it is undisputed that El Chico Restaurants (El Chico) did not seek a court order in superior court granting permission to amend. El Chico, however, did seek permission in district court to accomplish this end, and in a detailed order, the district court found that the plaintiffs sought to be added were proper ones and expressly permitted the addition of parties. But, as discussed above, without giving El Chico an opportunity to file an amended complaint in federal court and effectuate actual amendment there, see Carter v. Church, 791 FSupp. 297, 298 (M.D. Ga. 1992), the district court simultaneously remanded the case to superior court after determining that addition of new defendants destroyed diversity. Had the district court foreseen that dismissal would occur on the grounds stated in the superior court’s order, the district court might well have avoided this result by more explicitly stating its intention.

But by whatever means the district court chose to address the motions presented to it, that court’s intent is nevertheless clear: to permit El Chico to add parties in superior court. Indeed, the district court must have considered the complaint to be automatically amended by virtue of its conclusion that, after it granted the motion to add parties, it no longer had diversity jurisdiction. In effect, the district court appears to have “deemed” the complaint amended. See Carter, supra at 298.

To construe the district court’s order to uphold complete dismissal would frustrate the district court’s intent; this would be tantamount to finding the district court’s discussion concerning addition of parties to be mere surplusage and therefore meaningless. It is inconceivable that the district court could have intended such a result. Permission to add parties was required, and permission was given. The fact that the district court, and not the superior court, granted leave to add parties, does not nullify this permission. It is true, as argued by Transportation, that appellate courts of this state are “not bound by decisions of other states or federal courts except the United States Supreme Court.” Rodgers v. First Union Nat. Bank &c., 220 Ga. App. 821, 822 (470 SE2d 246) (1996). But this refers to the precedential value of opinions from foreign jurisdictions. While decisions of federal courts in general are not binding on state courts, Rodgers does not suggest that a state court may simply ignore the rulings of district courts made in the same case before remand to superior court.

We also recognize, as argued by Transportation, that one trial judge is not always necessarily bound by the rulings of another trial judge. See, e.g., Bradley v. Tattnall Bank, 170 Ga. App. 821, 822-823 (318 SE2d 657) (1984). In Bradley, a successor trial judge reconsidered the previous order of another trial judge denying summary judgment, set aside the order, and granted summary judgment to the moving party. Id. at 822. Here, though, the superior court judge did not reconsider or set aside the district court’s ruling but summarily ignored it. This practice is not authorized by cases such as Bradley.

The district court’s order was valid until set aside. See generally Howell Mill/Collier Assoc. v. Gonzales, 186 Ga. App. 909, 910 (1) (368 SE2d 831) (1988). It was never set aside, and the superior court was therefore bound by it. In filing an amended complaint in superior court, plaintiffs were simply complying with a valid district court order. Accordingly, we conclude that the superior court erred in dismissing the complaint as to those parties for whom permission to add was given. This conclusion is consistent with the notion of fairness to the parties, because the intent of the district court’s ruling is clear, because compliance with the former order serves the purpose of judicial economy, and most importantly, because effectuating the intent of the previous order avoids the inequitable result of dismissal on the hypertechnical basis that a party should have obtained from the superior court some type of “second permission” to amend. Dismissal is fundamentally unfair when permission to add parties was given by the district court and the parties acted consistently with the district court’s ruling in filing an amended complaint.

We do not agree with Transportation that affirmance is required under Strauss Fuchs Organization v. LaFitte Investments, 177 Ga. App. 891 (341 SE2d 873) (1986) and Southern Bell Tel. &c. Co. v. Perry, 168 Ga. App. 387 (308 SE2d 848) (1983), which state the general rule that “[w]hen an áction in a State court is removed to a Federal district court, the jurisdiction of the State court is suspended until the case is remanded to the State court, at which time the case resumes the status it occupied at the time of the removal.” (Citation and punctuation omitted.) Southern Bell at 388; Strauss Fuchs at 893. Those cases are factually distinguished, as they address the effect on the “five-year rule” of removal to district court and subsequent remand to superior court. They do not hold that a superior court may simply ignore the ruling of a federal court.

We also note Transportation’s argument that the original complaint was void under OCGA § 14-2-1502 (a) and therefore not subject to amendment. Indeed, a void suit cannot be amended. See Roberts v. McCollum, 215 Ga. 174, 175 (109 SE2d 744) (1959). But even assuming, without deciding, that El Chico Restaurants was not authorized to maintain this action under OCGA § 14-2-1502, we cannot agree that the action filed was void at its inception and therefore not subject to amendment. Even an action brought in the name of an improper party is amendable: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” OCGA § 9-11-17 (a).

Moreover, leave to amend was granted in federal court, where a defendant seeking to raise the defense of failure to obtain a certificate must do so in affirmative pleadings. Otherwise, that defense is waived. See Morgan Guaranty Trust Co. &c. v. Blum, 649 F2d 342 (5th Cir. 1981). Because this defense may be waived, it appears that an action brought without a certificate, while perhaps voidable, is not void. In sum, when the new parties were added in federal court, the action was properly pending under Morgan. Upon remand, the case therefore remained viable.

Decided November 20, 1998

Bell & James, John C. Bell, Jr., James L. Bentley III, for appellant.

Dye, Tucker, Everitt, Wheale & Long, Thomas W. Tucker, for appellee.

3. Although we hold that the trial court erred in dismissing the complaint in its entirety, that does not end our inquiry. The amended complaint as filed in superior court did not name the same parties plaintiff as did the proposed amended complaint considered by the district court. It appears from the amended complaint filed in superior court that some parties were dismissed while others were added, all without permission of either the district court or the superior court. The attempt to dismiss parties through an amended complaint was ineffectual because leave of court was required for dismissal. See generally Graham v. Development Specialists, 180 Ga. App. 758, 762 (350 SE2d 294) (1986) (normal practice permitting amendment of pleadings as matter of right has no application to class action); Murphy v. Hope, 229 Ga. 836, 837-838 (1) (195 SE2d 24) (1972). As previously noted, permission was required as well to add parties. Young, supra. To the extent that the amended complaint filed in superior court attempted to add parties for whom permission was not given by the district court, that addition was ineffectual, and the trial court’s dismissal of those parties is affirmed. Only those parties for whom permission to add was given by the district court may maintain the action in superior court.

Judgment affirmed in part and reversed in part.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       For example, with the benefit of hindsight, it appears thát the district court perhaps could have added parties in a more straightforward manner by granting the motion to add parties, giving plaintiffs an opportunity to file amended pleadings within a specified period of time, and then, once the addition of new parties destroyed diversity, remanding the case to superior court.

       The “five-year rule” places a duty on a plaintiff to obtain a written order of continuance or other written order during a five-year period “and to make sure the same is entered in the record. Dismissal is automatic on expiration of five years.” (Citations and punctuation omitted.) Southern Bell, supra at 388.

       OCGA § 14-2-1502 (a) states that “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.”

       We make no ruling here as to whether the parties added by permission of the district court are capable of adequately representing the class; that issue is not presented in this appeal.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1820.
    TURNEY v. THE STATE.
    (509 SE2d 670)
   Johnson, Presiding Judge.

A Dawson County jury found Rodney Turney guilty of kidnapping with bodily injury and cruelty to children. The trial court reduced the kidnapping with bodily injury conviction to kidnapping and entered a judgment of conviction on the two felonies, kidnapping and cruelty to children. Turney appeals. For the reasons set out below, we affirm both convictions.

The evidence presented at trial showed that Rodney and Tammy Turney were married and had two daughters, three-year-old Anna and six-year-old Kayla. On the night in question, Rodney Turney came home after the children had been put to bed. He told his wife he wanted to talk to her about buying a truck. Because he had been drinking and appeared to her to be drunk, she told him they could talk about it in the morning. An argument erupted. She told him she was going to bed. She went to the bedroom, got into their bed, and pretended to be asleep. Turney later entered the bedroom and began pushing his wife, calling her names and telling her to wake up. She told him to keep his voice down so the children would not wake up. He went back into the living room and turned up the volume on the television. His wife went to the living room and told him to turn down the volume because she did not want the children to be awakened. Turney yelled and cursed at her. He reminded her that her family was coming to visit the following week and warned her that if any of her family members set foot on the property, he would kill them. He called her parents insulting names. She slapped him and ran back into their bedroom. Turney chased her and threatened to kill her and “mess up” her nose. She assumed a fetal position on the bed and covered her head. Turney hit her about her head and face with his fists. She begged him to stop and told him she would leave the house, to which he responded that he would throw her off the porch. He pulled her off the bed and dragged her to the doorway of the bedroom. Their three-year-old daughter was standing in the doorway and screamed at her father to stop hurting her mother and to let her mother go. Turney told the child to go back to bed, that he was “fixing to get rid of this piece of trash of a mother she had.” He then yelled at the child, using profanity, and told the child to go back to bed. The child ran back to her room. Turney dragged his wife to the front doorway, stomped her hand, dragged her across the porch and pushed or kicked her in the back. He told her he should have killed her a long time ago and was going to do it now. As Turney went back into the house, his wife escaped to the family’s van. She saw Turney come out of the house with what appeared to be a gun and heard shooting. She drove away and contacted police.

1. Turney contends the trial court erred in entering a judgment notwithstanding the verdict to reduce the kidnapping with bodily injury offense to the lesser included offense of kidnapping when the jury had not been charged on kidnapping. Turney claims the trial court should have instead simply acquitted him of the kidnapping with bodily injury charge. The record shows that Turney waived this argument by agreeing to the trial court’s action and failing to preserve the error for review on appeal.

The issue arose during sentencing when the prosecutor pointed out to the trial court that a kidnapping with bodily injury conviction carried a mandatory minimum sentence of life imprisonment. See OCGA § 16-5-40. Having presided over the trial and having heard all the evidence, the trial court expressed the opinion that the facts of the case did not appear to warrant the imposition of a life sentence. The trial court then asked both counsel for suggestions on resolving the issue. The assistant district attorney announced to the trial court that the state would agree to have the trial court sentence Turney for kidnapping rather than kidnapping with bodily injury. Defense counsel remarked that he appreciated the state’s willingness to reduce the charge. The trial court expressed concern as to whether it could properly reduce the charge and whether the correct procedure would be to enter j.n.o.v. on the kidnapping with bodily injury charge. When the trial court asked defense counsel for his thoughts on the matter, counsel replied: “I do think it’s a matter of a judgment notwithstanding the verdict in the case and I think the Court can do that upon their own motion. ... I believe the Court can do exactly what the Court is speaking of.” The trial court asked defense counsel if he was suggesting that the court could grant a j.n.o.v. and reduce the finding to guilty of kidnapping. Defense counsel replied: “That’s what I’m suggesting the Court has the authority to do.” The trial court then specifically asked defense counsel if, for the purposes of appeal, Turney would waive the issue of whether the trial court was authorized to grant a j.n.o.v. and reduce the charge. Defense counsel consulted Turney and reported to the trial court that Turney would waive the procedural issue, provided he retained the right to appeal the substance of the kidnapping verdict. The trial court then engaged in an exhaustive colloquy with Turney, asking Turney whether he understood what was happening and that he was waiving his right to appeal the procedural correctness of the grant of the motion for j.n.o.v. The trial court added that Turney retained the right to appeal the substantive issues in the case. Turney remarked that he understood and agreed to the procedure.

It is clear that the error enumerated in this appeal raises precisely the issue Turney waived during the sentencing hearing. In fact, defense counsel not only suggested the procedure was authorized, but he and Turney both repeatedly assured the trial court that the procedure was acceptable to Turney. Furthermore, not only did Turney directly and significantly benefit from the reduction, nowhere in the sentencing discussions did he or his attorney suggest acquittal as a remedy for the trial court’s reluctance to impose a life sentence. One cannot complain of a judgment, ruling or result he has procured or aided in causing by his own strategy, tactics or conduct. Gill v. State, 229 Ga. App. 462, 464 (3) (494 SE2d 259) (1997); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990).

Our holding in this division is based solely upon Turney’s failure to preserve the issue for appeal. We cannot in any way condone the procedure employed in this case, though we can understand from our review of the record why the trial judge felt disposed to find a way to resolve what he perceived as a real injustice. Based upon our review of the record, we can understand why the trial court and the assistant district attorney who prosecuted the case concluded that the imposition of a life sentence seemed inappropriately harsh given the facts of the case. However, no matter how well intentioned the trial court was, it was not authorized, even with the agreement of the state and the defendant, to usurp the statutory requirement that a minimum sentence of life imprisonment be imposed on a kidnapping with bodily injury conviction. Under our system, it is the exclusive province of the legislature to prescribe the range of punishment for criminal offenses. Where the legislature has established a minimum mandatory sentence for an offense, and the evidence submitted at trial is legally sufficient to support the jury’s verdict of guilty for that offense, courts are simply not authorized to substitute, their judgment for that of the legislature. Certainly judges and lawyers are authorized to inform the legislature of situations like the one presented here which call into question the wisdom of a particular statute. Indeed, we have a duty to do so.

If at its end this case was not a proper one in which to charge, convict and sentence Turney for kidnapping with bodily injury, it was also thus at the beginning. Judging from the record before us, this case was thoroughly investigated and skillfully prosecuted. Surely the evidence upon which Turney’s conviction was predicated was as well known to the state before trial, indeed before indictment, as it was after the jury had completed its work. The true responsibility for deciding upon which offense to charge and assuring that a conviction and sentence for that offense would be warranted and appropriate in light of the evidence available rested with the state. That the state ultimately acted so as to avoid an injustice it too late perceived is certainly commendable and lends truth to the old adage “better late than never.” We simply point out that if corrected at the proper time, at the beginning of the process or, at the very least, before the jury was instructed, the trial , court would not have been placed in the awkward position of having to act as it did to avoid injustice at the risk of usurping power vested exclusively in the legislature.

2. Turney contends that the trial court erred in not directing a verdict of acquittal on the cruelty to children charge. He maintains that his acquittal of the reckless conduct and battery charges required a dismissal of the cruelty to children charge because the reckless conduct and battery charges formed the basis of the cruelty to children charge. This enumeration is without merit.

A person commits the offense of cruelty to children in the first degree when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. OCGA § 16-5-70 (b).

The cruelty to children charge brought against Turney was not based on the battery and reckless conduct charges. Count 2 of the indictment alleged Turney committed the offense of cruelty to children by causing his small child “cruel and excessive mental pain by hitting, beating, and striking . . . the child’s mother and by pulling [the mother’s hair] and dragging her.” Count 3 of the indictment alleged Turney committed the offense of reckless conduct by endangering the safety of his two children, namely “walking around the residence with a loaded firearm and discharging the weapon.” Count 4 alleged Turney committed a battery by causing “substantial physical harm and visible bodily harm to [his wife] by hitting, beating, and striking her on and about the head and face, which resulted in bruises.” Thus, Counts 3 and 4 do not contain the same allegations as Count 2. Indeed, the jury might have believed that Turney hit, beat, struck, and dragged the mother and pulled her hair, but was not convinced beyond a reasonable doubt that he carried and discharged a loaded gun or caused the mother substantial and visible harm which resulted in bruises. Thus, an acquittal of the battery and reckless conduct charges would not require an acquittal of the child cruelty charge.

Furthermore, in light of the abolition of the inconsistent verdict rule in criminal cases in Georgia, the sole issue is whether the evidence was sufficient to authorize a rational trier of fact to find Turney guilty of cruelty to children beyond a reasonable doubt. See White v. State, 268 Ga. 28, 29 (1) (486 SE2d 338) (1997). At trial, the mother testified that Turney chased her into their bedroom, then hit, beat and dragged her. Their three-year-old child, the victim as to the cruelty charge, was standing just outside the bedroom door and began screaming at Turney to stop hurting her mother and to let her go. Turney yelled that he was going to “get rid of this piece of trash of a mother she had,” and then ordered the child to go back to her room. Turney then dragged the mother through the house, pulled her outside and said he was going to kill her. The mother retrieved her car keys, and as she was driving away, Turney fired a gun at her. Just after the incident, the child told an investigator that Turney was trying to kill her mother. Although the child was young and not very articulate, at trial she testified affirmatively when asked if Turney did something bad to her mother, hurt her mother and scared her. The child’s sister testified that she awoke during the incident and saw the three-year-old run past her room with a frightened look on her face. The evidence was sufficient for a rational trier of fact to find Turney guilty beyond a reasonable doubt of cruelty to children. See generally Hall v. State, 261 Ga. 778, 782 (7) (b) (415 SE2d 158) (1991).

Decided November 20, 1998.

James E. Hardy II, for appellant.

Lydia J. Sartain, District Attorney, Allison B. Goldberg, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A98A1627.
    FULLER v. THE STATE.
    (509 SE2d 79)
   Beasley, Judge.

Fuller appeals his convictions of aggravated assault, OCGA § 16-5-21 (a) (2), and possession of a knife during the commission of a crime, OCGA § 16-11-106 (b) (1).

1. He first contends that the evidence is insufficient to support his conviction of the latter crime. He argues that the evidence did not show that the knife of which he was allegedly in possession had a blade of three or more inches in length, which is an element of the offense.

The evidence showed that Fuller choked and stabbed his former girlfriend after his attempted reconciliation with her proved unsuccessful. No knife was recovered from the scene of the crime, and the victim was the only State’s witness who saw the knife. While on the stand, she was shown a knife and testified that the blade of the knife used by Fuller was longer and wider. She was not specifically asked the length of the blade he used. When the State later tendered the purported facsimile in evidence, the court sustained an objection by Fuller on grounds that it was not the knife actually used by him, and it was not necessary for the jury to view the present knife during its deliberations.

Although the knife presented was not formally admitted in evidence, it was shown to the jury and has been included in the record on appeal. An examination of it shows its blade exceeds three inches in length. Consequently, a reasonable juror could have determined, based on the victim’s testimony and the juror’s observation of the knife exhibited, that the knife used by Fuller had a blade exceeding the requisite length. The evidence supports the verdict.

2. Fuller next contends the court erred in failing to give the jury a limiting instruction contemporaneous with the admission of similar transaction testimony given by two witnesses, even though such an instruction was not requested and a limiting instruction was given in the court’s general charge.

There were two similar transaction witnesses. One testified that Fuller had befriended her but that during a social visit at her house one night, he became angry when she asked him to leave and proceeded to choke and stab her. The'other witness, who had been married to Fuller, testified that he accosted her at work and choked and stabbed her after she left him.

In Belt v. State, a four-judge plurality of this Court held that where, pursuant to Williams v. State and Stephens v. State the trial court has determined that similar transaction evidence will be admitted for a specified limited purpose, it is the court’s duty, even in the absence of a request, to instruct the jury that such acts are only to be considered for that compartmentalized aspect of the case. Further, the instruction is to caution that the jury first determine whether the act in light of the limited purpose for which it is introduced was similar enough to the crime charged so that proof of the prior act tends to prove the latter crime. The plurality held that such instruction should be given “preferably” at the time the evidence is introduced and in its general charge to the jury.

In subsequent cases which (unlike Belt) were binding precedents, we held that a trial court commits reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of similar crimes evidence. This was so even where such an instruction is given in the general charge, because the confining caution is so vital to the jury’s proper consideration of the evidence that it compels expression when it is introduced lest the evidence take hold generally. If not given, the risk of improper imbedding of the evidence in the jurors’ minds as the trial unfolds looms great. It is merely hopeful, at best, and doubtful realistically, to expect that jurors can engineer the tooling of their minds to excise the devastating information from any influence or as a factor on elements other than the limited one or few designated. Consequently, we refused to apply the harmless error rule in Chisholm v. State. The view was that when the court allows in this extra-event evidence, the court must ensure its proper use else fairness will be jeopardized.

These subsequent cases, as well as earlier ones with the issue, have been either explicitly or implicitly overruled by the Supreme Court in State v. Belt. It is a controlling pronouncement which overrides the developments in the Court of Appeals. The Supreme Court granted certiorari in Belt, supra, and held that absent a request, the trial court does not commit reversible error in failing to instruct the jury on the limited purpose for which similar transaction evidence is admitted.

The deficiency in Fuller’s case was exacerbated by the incompleteness of the instruction which the court gave in its general charge. The court did not inform the jury that it had to determine whether the prior acts were similar enough to the crime charged so that proof of the former tended to prove the latter. Prior to the Supreme Court’s decision, this in itself would have constituted reversible error.

Fuller’s enumeration is governed adversely to him by the application of Belt.

3. Finally, Fuller contends the court erred in forcing him to trial without counsel of his own choosing and in denying his motion for new trial on the ground of ineffective assistance of trial counsel.

The trial was scheduled for February 7, 1994. On January 31, defense counsel provided Fuller with a formal notice that he wished to withdraw from the case, and on February 1 counsel filed a request to withdraw. Testimony given by counsel at the hearing on Fuller’s motion for new trial showed that he was seeking to withdraw because Fuller had only paid $300 of counsel’s $1,000 fee. Counsel testified that by letter dated January 11, he had notified Fuller’s family that he required full payment by January 20. He explained to Fuller on several occasions that otherwise he would have to withdraw.

Apparently because of statements made by the senior judge who presided at arraignment on February 1, counsel was under the impression that his motion to withdraw would be granted and the case continued until March or April. He so informed Fuller’s family, even though the withdrawal request had to be acted on by the judge presiding at trial, and no motion for continuance had been made.

Decided November 6, 1998

Reconsideration denied November 23, 1998.

Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Howard Z. Simms, Assistant District Attorneys, for appellee.

At the time Fuller was told he had to appear for trial on February 7, his family was in the process of hiring or attempting to hire another lawyer. When counsel first saw Fuller on the morning of trial, Fuller was very upset because the case had been called. Although Fuller said he wanted another lawyer and asked to speak to the judge, counsel testified that Fuller previously had not indicated any dissatisfaction with his services.

After a jury was impaneled, counsel informed the court that Fuller had something he wanted to say. Fuller then asked that he be allowed to discharge his attorney and retain another lawyer because he disagreed with his present attorney and was dissatisfied with his services. When the court indicated it was too late for Fuller to hire a new lawyer, Fuller stated that he had been informed that a continuance had been granted. Since neither counsel’s withdrawal nor a continuance had been granted, the court ordered the trial to proceed.

The court did not abuse its discretion in denying a delay, as it was authorized to find that Fuller was attempting to use the discharge of counsel and employment of another as a tactic to avoid trial, an impermissible purpose.

The record supports findings that counsel adequately consulted with Fuller, investigated and researched the case, and provided a capable defense at trial. The determination that Fuller was provided with effective assistance of counsel will be upheld as it is not clearly erroneous.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       See White v. State, 203 Ga. App. 889, 891 (4) (418 SE2d 149) (1992).

       See id.

       227 Ga. App. 425 (1) (489 SE2d 157) (1997).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       261 Ga. 467 (405 SE2d 483) (1991).

        Belt v. State, supra at 428.

       See Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997); Jackson v. State, 230 Ga. App. 292, 298 (12) (496 SE2d 315) (1998); Luke v. State, 230 Ga. App. 712, 713 (1) (497 SE2d 376) (1998); Lunberry v. State, 231 Ga. App. 706 (500 SE2d 625) (1998).

       231 Ga. App. 835, 838 (2) (500 SE2d 14) (1998).

        Priekett v. State, 220 Ga. App. 244 (469 SE2d 371) (1996); Moore v. State, 202 Ga. App. 476 (414 SE2d 705) (1992).

       269 Ga. 763 (505 SE2d 1) (1998). See State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998) (reversing our decision in Hinson, supra, under the authority of Belt).

       See Chisholm v. State, supra at 837, 838 (2).

        Mallory v. State, 225 Ga. App. 418, 422 (4) (483 SE2d 907) (1997).

       E.g., White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995).


text:
    A97A1589.
    BARLOW v. THE STATE.
    (509 SE2d 728)
    Decided November 23, 1998.

      Cauthorn & Phillips, Thomas E. Cauthorn III, Bruce W. Phillips, for appellant.

      Benjamin F. Smith, Jr., District Attorney, Frank R. Cox, James Albertelli, Assistant District Attorneys, for appellee.
   Beasley, Judge.

In Barlow v. State, 229 Ga. App. 745 (494 SE2d 588) (1997), we affirmed Timothy Barlow’s conviction. The Supreme Court granted certiorari and reversed in Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Andrews, C. J., McMurray, P. J., Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.


author: Pope, Presiding Judge.

text:
    A98A1065.
    HOMELAND COMMUNITIES, INC. v. RAHALL & FRYER, P. C.
    (509 SE2d 714)
   Pope, Presiding Judge.

This case involves a dispute over a tax lien encumbrance on property which Homeland Communities sold to Joel Selanikio. The state court granted summary judgment to Rahall & Fryer, P C., Selanikio’s assignee, for the principal sum of $13,288.84, attorney fees of $3,970.03, pre-judgment interest of $2,591.29, plus post-judgment interest. Homeland Communities appeals. For the following reasons, we affirm the judgment, but reverse the award of prejudgment interest and attorney fees, and remand the case to the state court for proceedings consistent with this opinion.

In June 1994, Homeland Communities acquired the subject property through foreclosure proceedings from Raycine and Marilyn Parson. About ten months later, in April 1995, Homeland Communities sold the subject property to Selanikio. David Rahall of Rahall & Fryer was the closing attorney and settlement agent for the lender, BankSouth Mortgage. Jeanine Goddard was the settlement agent for Homeland Communities.

The warranty deed by which the property was transferred provided: “Grantor will warrant and forever defend the right and title to the above described property unto the said Grantee against the claims of all persons whomsoever.” In connection with the closing, Rahall & Fryer prepared an “Acknowledgement and Receipt of Settlement Statement,” which provided: “Seller warrants the correctness of all payoff amounts for outstanding liens and encumbrances; if any deficiency occurs, Seller shall promptly remit the same to the settlement agent.” The document then stated: “If the proration of taxes and assessments was made on estimated amounts prior to receipt of current actual bills, Purchaser and Seller agree to adjust the prorations shown on the Settlement Statement between themselves when current actual bills are received. The payment of all outstanding taxes and assessments not paid at settlement are assumed by Purchaser. . . . Seller warrants that all required tax returns and applicable exemption applications have been filed for the current tax year. Seller further agrees to reimburse Purchaser for any penalties caused by Seller’s failure to file a proper and timely tax return.” The document was signed by Goddard, as agent for Homeland, and by Selanikio.

After closing, Selanikio received notice of the encumbrance on the property. The record contains evidence of a statement, dated May 2, 1995, which Sexton Tax Service sent to Tatum, the attorney who examined title for Rahall & Fryer, showing the existence of tax liens on the property for 1991, 1992, and 1993. According to Homeland’s interrogatory responses, Homeland did not discover the liens until February 1996 — Homeland claimed that Rahall & Fryer had been aware of the liens before closing. Rahall & Fryer claimed that due “to a misinterpretation of the real estate tax report which had been obtained for the closing, Plaintiff mistakenly believed that the 1991, 1992, and 1993 real estate taxes had been paid.” In attorney David Rahall’s affidavit he acknowledges that he received the tax report which had been ordered, but states that the report was misinterpreted.

The record contains the Fulton County Sheriff’s “Notice of Execution of Tax Levy” to Selanikio, dated February 16, 1996, which lists the outstanding taxes due. When Selanikio became aware of the liens, he requested that Homeland clear the encumbrance. Homeland refused to do so; Rahall & Fryer paid the outstanding taxes; and Selanikio assigned his cause of action to the law firm. Rahall & Fryer brought suit against Homeland and Homeland filed a third-party complaint against the Parsons seeking an order that they pay the outstanding taxes on the property. Rahall & Fryer moved for summary judgment, which the state court granted and Homeland appeals.

1. Homeland contends that the court erred in granting summary judgment because a factual issue exists as to whether Selanikio’s assignment of his causé of action was valid. Specifically, Homeland argues that any valid cause of action was extinguished upon Rahall & Fryer’s payment of the outstanding debt — which occurred before the assignment of the cause of action. This argument is without merit.

Pretermitting issues regarding Homeland’s standing to raise this argument, a covenant of freedom from encumbrances in a warranty deed, if breached at all, is breached at the time of its execution. Teems v. City of Forest Park, 137 Ga. App. 733, 734 (1) (225 SE2d 87) (1976); accord Hitchcock v. Tollison, 213 Ga. App. 477, 479 (2) (444 SE2d 844) (1994) (physical precedent only). Thus, if the covenant was breached here, it was breached at the time of the closing. The fact that outstanding taxes were paid before the assignment occurred does not determine whether Rahall & Fryer could maintain the cause of action.

Furthermore, the evidence sufficiently established that the assignment was supported by the necessary consideration and the other requisites of an assignment. See generally Bank of Cave Spring v. Gold Kist, 173 Ga. App. 679, 680 (1) (327 SE2d 800) (1985); Northside Title &c. Co. v. Simmons, 200 Ga. App. 892 (409 SE2d 885) (1991); compare Benton v. Gaudry, 230 Ga. App. 373 (2) (496 SE2d 507) (1998) (assignment invalid when made by the previous owner who had no interest to assign).

2. Homeland argues that an issue of fact exists because of the misfeasance of Rahall & Fryer. Homeland also argues that Rahall & Fryer was estopped from recovery because of its false representations regarding the status of any liens. These arguments lack merit.

There was no evidence of any misfeasance so as to bar recovery on the part of Rahall & Fryer. And, as a matter of law, Homeland did not justifiably rely on the representations made by the law firm. See generally Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754 (2) (371 SE2d 217) (1988). Homeland’s agent Jeanine Goddard admitted in her affidavit that she “expressed concern that there might be existing encumbrances on the Edgewood property” to the agent for the bank, Rahall. As the seller’s agent, Goddard certainly had the access to look into this matter. Nevertheless, there is no evidence that Goddard investigated this matter, asked to examine the title search documents or otherwise pursued the issue in any manner other than by relying upon Rahall’s representation.

Decided November 23, 1998.

As an assignee of the contract, Rahall & Fryer assumed the rights under the contract from Selanikio, and was subject to all defenses which could have been raised against him. See generally Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992); OCGA §§ 44-12-24; 44-5-62; 44-5-63. Homeland’s position that these defenses, which are specific to Rahall & Fryer, bar its action against Homeland is meritless.

3. Homeland contends, and Rahall & Fryer agree, that the court’s computation of the amount of pre-judgment interest was erroneous in that the court calculated interest pursuant to OCGA § 7-4-16, which applies to commercial accounts, at a rate of one and one-half percent per month. Accordingly, this portion of the award must be reversed and the case remanded to the state court with direction that it re-calculate the amount of pre-judgment interest owing on the principal amount of $13,288.84. Interest shall be calculated at seven percent per annum in accordance with OCGA §§ 7-4-15 and 7-4-2 (a) (1). See Turner Constr. Co. v. Elec. Distributors, 202 Ga. App. 726, 727 (3) (415 SE2d 325) (1992).

4. Homeland also contends that the award of attorney fees was erroneous. Again we agree. “ “Where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense the jury may allow expenses of litigation.’ OCGA § 13-6-11. A plaintiff may not recover expenses of litigation for stubborn litigiousness where a bona fide controversy exists.” (Citations and punctuation omitted.) Forester v. McDuffie, 189 Ga. App. 359, 360 (1) (375 SE2d 488) (1988). In this case, there was a bona fide controversy regarding whether Rahall & Fryer, as the assignee, could recover from Homeland. Further, the evidence did not establish that Homeland acted in a manner to warrant the imposition of attorney fees. See generally Pone v. Barbre, 57 Ga. App. 684, 690 (3) (196 SE 287) (1938). Accordingly, the state court’s award of attorney fees was improper.

Judgment affirmed in part and reversed in part; case remanded with direction.

Beasley and Ruffin, JJ, concur.

Hays & Potter, James W. Hays, Bernard E. Potter, for appellant.

Simpson Law Office, Neil A. Moskowitz, for appellee.

       As the decision in this opinion implicitly indicates, we deny Rahall & Fryer’s motion to dismiss the appeal.

       There was evidence from Goddard’s affidavit that before the closing she expressed concern to Rahall that there “might be existing encumbrances” on the property. Goddard stated that Rahall assured her that all existing encumbrances were listed on the closing statement and that a comprehensive title search had been performed on the property.

       Although not enumerated as error, Homeland raises arguments regarding the ambiguity of the documents executed in the closing. Because they are outside the scope of enumerated error, these arguments will not be addressed. In any case, the alleged ambiguous portion of the settlement statement, which states that the buyer will pay the outstanding taxes, clearly refers to the taxes outstanding for the current year. This provision of the settlement statement does not cancel the other provision in the statement, or the representation in the warranty deed that the seller is responsible for this encumbrance.


text:
    A98A1164, A98A1165.
    CLARK v. PERINO et al.; and vice versa.
    (509 SE2d 707)
   Pope, Presiding Judge.

These cases arise out of an automobile collision which occurred on May 3, 1990. Nancy Clark sued Juliana Domenica Perino for negligence and alleged that at the time of the accident Perino was acting within the course and scope of her employment with IBM Corporation, which was also named in the suit. Clark appealed from the grant of summary judgment to Perino and IBM on the ground of judicial estoppel. Perino and IBM filed a cross-appeal from the denial of their Motion to Enforce Settlement.

Case No. A98A1164

“In determining whether the trial court properly granted summary judgment. . . we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party.” Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997). Construed in this light, the record shows that in 1991 Clark filed a lawsuit against Perino and IBM in the State Court of DeKalb County arising out of the 1990 accident. In 1994, while this action was pending, Clark filed a Chapter 7 bankruptcy petition in Florida but did not identify her claims against Perino and IBM as a potential asset of her bankruptcy estate. She failed to list the claims on her verified personal property schedule, which requested that she disclose “contingent and unliquidated claims of every nature.” Additionally, Clark failed to identify the DeKalb County action on her Statement of Financial Affairs, which asked for “all suits to which the debtor is or was a party within one year immediately preceding the filing of” her bankruptcy petition.

Clark testified on deposition that she filed her bankruptcy petition pro se after obtaining the appropriate forms from a service that provided blank forms and sent them, when completed by the customer, to the bankruptcy court. Because this service did not provide its customers with any advice on how to complete the required paperwork, Clark completed her bankruptcy without assistance. She never consulted legal counsel and never discussed her case with the bankruptcy trustee. Clark explained that she did not list her claims against Perino and IBM because she did not know that the disclosure was required. She said that she did not understand what the term “unliquidated claims” on the Schedule of Personal Property meant. She also testified that she interpreted the question on the Schedule of Financial Affairs to refer only to lawsuits filed in the year prior to the bankruptcy, and thus did not include the DeKalb County action, which was filed in 1990. In August 1994, the bankruptcy court granted Clark a discharge.

Clark subsequently dismissed her DeKalb County action without prejudice, and then hired new counsel to file the current case as a renewal action in the State Court of Fulton County in September 1996. After Clark’s current counsel discovered that Clark had not disclosed her claims against Perino and IBM in her bankruptcy, and after the matter was raised by opposing counsel in Clark’s deposition, Clark filed a motion to reopen the bankruptcy. The bankruptcy court ordered the bankruptcy reopened to allow Clark to file amended schedules listing the claims against Perino and IBM.

Perino and IBM filed a motion for summary judgment asserting that Clark’s claims against them were barred by the doctrine of judicial estoppel due to her failure to disclose the claims in her original bankruptcy filings. The trial court agreed and granted the motion. We reverse.

1. The doctrine of judicial estoppel arises under federal law and precludes a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. “[T]he essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary.” (Citations and punctuation omitted.) Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). “The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.” (Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996).

Courts have viewed the failure to identify accrued claims in accordance with bankruptcy’s “stringent disclosure requirements” to amount “to a denial that such claims exist,” and the subsequent assertion of such claims to amount to a contradictory position in violation of the judicial estoppel doctrine. Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. at 456.

Although Clark failed to list the claims when she prepared her original pro se bankruptcy filings, she later obtained permission to correct this omission and amend her filings to include the claims. “[B]ecause [Clark] successfully has amended [her] bankruptcy petition to include any claim against [Perino and IBM] as a potential asset, [she] clearly has gained no unfair advantage in bankruptcy court. Any recovery [s]he obtains from [Perino and IBM] will inure to the benefit of [her] bankruptcy estate, and in turn, to the creditors who asserted claims to the estate’s assets. Due to the bankruptcy court’s decision to reopen the Chapter 7 case and its acceptance of the amendment to the schedules [Clark] filed with the court, it also cannot be said that [Clark’s] present position in the trial court is inconsistent with one successfully and unequivocally asserted by [her] in a prior proceeding.” (Citation and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. at 651-652.

In Johnson this Court reversed the grant of summary judgment on the ground of judicial estoppel. While the Johnson plaintiff obtained a Chapter 7 discharge after failing to identify potential tort claims in his bankruptcy schedules, he later moved to reopen his bankruptcy to amend his schedules to reflect the claims. In reversing summary judgment, we relied upon this amendment as well as evidence that plaintiff had mentioned his claim to both his attorney and the bankruptcy trustee and even had referenced the claim in one of his schedules. Johnson v. Trust Co. Bank, 223 Ga. App. at 651. Although there is no evidence that Clark disclosed her claims to anyone, unlike the plaintiff in Johnson, Clark was not represented by counsel and completed her forms without assistance. She presented evidence that she misunderstood some of the questions. This evidence and the amended bankruptcy filings are sufficient to preclude summary judgment on the issue of judicial estoppel. See Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 124-125 (1) (483 SE2d 135) (1997) (judicial estoppel claim fails where plaintiff obtained permission to amend bankruptcy papers to include previously omitted claims). Compare Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997) (judicial estoppel applies where plaintiff failed to read the bankruptcy papers even though she signed a verification, and also failed to petition to reopen her bankruptcy proceeding); Southmark v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (judicial estoppel applied where plaintiff did not seek permission to reopen bankruptcy to include omitted cláims).

Accordingly, we reverse the trial court’s order granting summary judgment to Perino and IBM.

Case No. A98A1165

2. Because we have determined that summary judgment was not properly granted, we now consider the cross-appeal filed by Perino and IBM in connection with the denial of their motion to enforce settlement.

The issues raised on an appeal from a denial of a motion to enforce settlement are analogous to those in a motion for summary judgment. Superglass Windshield Repair v. Mitchell, 233 Ga. App. 200 (504 SE2d 38) (1998); Ballard v. Williams, 223 Ga. App. 1 (476 SE2d 783) (1996). Therefore, “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.” Stacey v. Jones, 230 Ga. App. 213, 214 (1) (495 SE2d 665) (1998).

The facts pertinent to this appeal show that in early May 1994 while Clark’s DeKalb County action was still pending, she was represented by Franklin E. Parker of the law firm of Deming, Deming, Born & Parker, PC. On May 10,1994 Parker phoned Clark to recommend that she settle the DeKalb action for $25,000. Clark states that she told Parker that she would not settle for that amount, and further that she discharged Parker as her attorney during the conversation. Clark’s husband signed an affidavit stating that he was with Clark during the May 10 phone conversation and heard her fire Parker. Parker, however, signed an affidavit asserting that he was employed as Clark’s attorney through June 1994 and further that Clark specifically authorized him to accept a settlement offer of $25,000 on May 19, 1994.

On that date, Parker negotiated a settlement with Neal C. Scott, counsel for Perino and IBM. At no time during the course of the settlement discussions did Parker communicate that he had been discharged as Clark’s counsel or that there was any limitation on his authority to enter into a settlement on behalf of Clark. The parties’ agreement to settle Clark’s claims for the sum of $25,000 was confirmed by a letter dated May 20, 1994 from Scott to Parker.

After Parker sent Clark the settlement documents for her execution, she wrote him a letter stating that she did not accept the $25,000 settlement, and stating a list of conditions she would require for any settlement, including payment of an amount in excess of $1.5 million. The letter further noted “[i]f you and your firm do not present the [conditions listed] to Perino/IBM, it is my wish that you and your firm no longer represent me in this matter....” Parker asserts that this letter was his first indication that Clark wished to terminate his representation. In August 1994, Parker and his firm moved to withdraw as counsel of record, and their motion was granted on September 8, 1994. Scott states that he had no notice that Clark disputed Parker’s authority to enter into a settlement agreement on her behalf until he received Parker’s motion to withdraw.

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered plenary by the court and opposing parties. The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties.” (Citations omitted.) Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 675 (308 SE2d 544) (1983).

Clark does not dispute that Parker entered into a settlement on her behalf on May 19, 1994, but claims that at the time he entered into the settlement Parker was no longer her attorney and thus had no authority to act on her behalf. While there is a dispute in the record as to when Clark discharged Parker, for purposes of this appeal we must accept her statement that she fired him nine days before the settlement was entered.

While prior Georgia cases addressing the enforceability of settlement agreements have not addressed an instance when a client claims to have terminated her attorney prior to a settlement, under general principles of agency law, “[t]he termination of authority does not thereby terminate apparent authority.” Restatement, Law of Agency 2d, § 124 A. As the comments to the Restatement explain, “If there was apparent authority previously, its existence is unaffected until the knowledge or notice of the termination of authority comes to the third person, except when all agency powers are terminated without notice by death, loss of capacity by the principal or an event making the authorized transaction impossible.” Id. at comment a.

It is undisputed that no one communicated to Scott that Parker had been discharged or that any limitation on his authority existed. To the contrary, Parker was Clark’s attorney of record in the case, and Scott was entitled to rely on Parker’s apparent authority to enter into a settlement on her behalf. “In other words, where the dispute as to an agreement is not between opposing parties but is, rather, between the attorney and client over the attorney’s authority, and where the opposite party is ignorant of any limitation upon the attorney’s authority, the client will be bound by his attorney’s actions.” Brumbelow v. Northern Propane Gas Co., 251 Ga. at 676. And as in this case, where “there is no challenge to the existence or the terms of an agreement but only to an attorney’s authority to enter into it, the client is bound by its terms even in the absence of a writing or detrimental reliance on the part of the opposite party.” Id. at 676-677.

Therefore, even if Clark had fired Parker prior to the settlement, this fact alone does not render the settlement unenforceable where opposing counsel had no notice of the termination when the settlement was entered. See generally Green v. Lanford, 222 Ga. App. 480, 481 (474 SE2d 681) (1996); Dickey v. Harden, 202 Ga. App. 645 (414 SE2d 924) (1992); Hynko v. Hilton, 198 Ga. App. 308, 310 (401 SE2d 324) (1991). Compare Pembroke State Bank v. Warnell, 266 Ga. 819, 823 (4) (471 SE2d 187) (1996) (settlement agreement not enforced against two parties who never established- attorney-client relationship with attorney who negotiated settlement); Addley v. Beizer, 205 Ga. App. 714, 721 (423 SE2d 398) (1992) (settlement negotiated by corporate attorney not enforceable against corporate officers, who had not established independent attorney-client relationship with corporate attorneys).

In making this ruling, we are mindful that this Court previously has raised concerns about the harshness of a doctrine binding a client to a settlement he did not authorize. See Lewis v. Uselton, 202 Ga. App. 875 (416 SE2d 94) (1992); Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854) (1986). It may seem harsher still to hold that a client may be bound to an agreement entered into by an attorney whom he no longer employs. However, the rule outlined in Brumbelow focuses on the interests of opposing parties and puts the burden of communicating any limitation of an attorney’s authority on the party seeking to disavow the settlement. “The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of his agency, not against the third party.” Brumbelow v. Northern Propane Gas Co., 251 Ga. at 675; Pembroke State Bank v. Warnell, 266 Ga. at 821.

Therefore, we are bound by Brumbelow, as well as general principles of agency law, to hold that where an opposing party has not received notice that an attorney’s authority has been terminated, or otherwise limited, he may rely upon the attorney’s apparent authority to bind his client.

3. Alternatively, Clark claims that Scott could not have relied on Parker’s apparent authority because, at the time of the settlement negotiations, Scott had questions regarding Parker’s authority to accept his $25,000 offer. In support of this argument, Clark relies upon the affidavit of Thomas J. Ousley, the attorney she hired to handle the case after Parker withdrew as counsel of record.

Ousley’s affidavit states that in 1995 he had conversations with Scott concerning the May 19, 1994 settlement agreement. In those conversations, Ousley says that Scott told him “that he was surprised when Mr. Parker accepted the settlement offer and that he had questions in his mind at the time the offer was accepted because of the context in which the offer was accepted. Mr. Scott stated that he was surprised because essentially the same settlement had been offered for a long time and, it was his understanding that Mrs. Clark had repeatedly refused to accept the offers. Mr. Scott said that he was also surprised about the manner in which Mr. Parker accepted the offer in that it seemed that apparently Mr. Parker did not get confirmation from his client prior to accepting the offer.”

Perino and IBM contend that this affidavit contains impermissible hearsay, conclusions and speculation and thus cannot be considered as evidence in connection with their motion. However, Perino and IBM failed to raise these objections in the trial court. “ ‘Objections to affidavits such as these will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.’ Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982). See also Neese v. Britt Home Furnishings, 222 Ga. App. 292 (474 SE2d 44) (1996).” Smith v. U-Haul Co. Ga., 225 Ga. App. 356, 359 (4) (484 SE2d 49) (1997).

Nevertheless, hearsay has no probative value and cannot be considered as evidence in a summary judgment proceeding. Neese v. Britt Home Furnishings, supra, 222 Ga. App. 292 (1), n. 1. Pretermitting the issue of whether Ousley’s affidavit contained impermissible hearsay, we hold that even if Scott were “surprised” in May 1994 that Parker accepted the previously rejected offer of $25,000, without apparently consulting his client, this surprise did not prevent him from relying upon Parker’s apparent authority. The fact that a plaintiff chooses to accept a settlement in an amount less than her claimed damages does not mean that an opposing counsel should have known of a lack of authority to settle the case. Green v. Lanford, 222 Ga. App. at 481; Hynko v. Hilton, 198 Ga. App. at 309. The fact that this acceptance represented a change in a party’s prior position on settlement also is insufficient to support such a finding. Any number of reasons could explain such a change of heart.

Further, the fact that Parker did not appear to consult Clark at the time of the settlement does not mean that Scott should have doubted his authority. Scott was entitled to rely upon Parker’s status as Clark’s attorney of record as the basis for his authority to bind Clark to a settlement, unless and until any limitation on that authority was communicated to him. Brumbelow, supra.

Decided November 23, 1998

Calabro & Jennette, Larry F. Jennette, Jr., for appellant.

Neal C. Scott, for appellees.

Judgments reversed.

Beasley and Ruffin, JJ., concur.

       Although we find this evidence sufficient to preclude summary judgment on this issue, questions of credibility may remain as to whether Clark’s actions in failing to report the DeKalb action in her bankruptcy proceeding were an attempt to manipulate the system. While for purposes of summary judgment we accept as true her statements that she did not understand the questions in the bankruptcy schedules, it is up to the trial court to determine matters of credibility.

       Perino and IBM contend that the trial court did not rely upon Ousle/s affidavit, filed 12 days before the court’s order denying their motion to enforce the settlement. However, “[i]n the absence of evidence to the contrary, we will presume that the trial court reviewed the entire record. . . .” E. H. Crump Co. v. Millar, 200 Ga. App. 598, 600 (2) (409 SE2d 235) (1991).


text:
    A98A1298.
    PICKSTOCK v. THE STATE.
    (509 SE2d 717)
   Pope, Presiding Judge.

Appellant Kevan Pickstock appeals from the denial of his motion for new trial following his conviction on 13 counts of burglary, robbery and kidnapping for which he was sentenced to 90 years. We affirm.

1. Pickstock first asserts that the trial court erred in charging the jury that the date contained in Count 13 was not material. Count 13 charged Pickstock with aggravated assault and asserted that the offense occurred on December 5, 1995. The proof at trial showed that the incident underlying this charge actually occurred on November 21, 1995.

“The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred at any time within the statute of limitations. There is an exception to this rule where the variance between the allegata and the probata surprises and prejudices the defendant by effectively barring an alibi defense he intends to assert. Under the latter circumstances, the trial court should grant the defendant a continuance in order to afford him sufficient time to prepare his defense to meet a new date.” (Citations omitted.) Edgehill v. State, 253 Ga. 343, 345 (3) (320 SE2d 176) (1984); Caldwell v. State, 139 Ga. App. 279, 281 (2) (228 SE2d 219) (1976).

Although Pickstock did raise an alibi defense, there is no question of surprise in this case. The incident underlying Count 13 also resulted in a charge of burglary. That charge, found in Count 12 of the indictment, referenced the correct date of November 21, 1995. Therefore, Pickstock was on notice that he was charged with a crime occurring on that date and thus had the opportunity to pursue evidence of an alibi. And, in fact, his trial attorney conceded that she was not surprised by the state’s evidence relating to an alleged assault on November 21, 1995.

After determining that there was no issue of prejudice or surprise to Pickstock, the trial court attempted to fashion a jury charge to apprise the jury of the typographical error in Count 13. The trial court instructed the jury that “[t]he date set out in each count of the indictment is material except for the date set out in Count 13, where the material date is November 21, 1995.” Pickstock argues that this charge may have confused the jury regarding the state’s burden to prove the other matters alleged in the indictment.

We disagree. ‘Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.” (Citations and punctuation omitted.) Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

In addition to the charge complained of, the trial court instructed the jury that each count of the indictment had to be considered separately and that the state had the burden of proving the defendant guilty beyond a reasonable doubt of “each count and each and every element of the offense alleged in each count” and “every material allegation of the indictment and every essential element of the crime.” These charges clearly outlined the state’s burden in the case, and the jury’s task of considering each charge of the indictment separately. “[T]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. We do not believe that the charge as a whole would mislead a jury of average intelligence.” (Citation and punctuation omitted.) Redd v. State, 232 Ga. App. 666, 667 (2) (b) (502 SE2d 467) (1998).

Moreover, Pickstock was acquitted of the assault charge alleged in Count 13. This is an indication that the jury did consider the charges separately and further demonstrates that no harm resulted to Pickstock from the trial court’s instruction to the jury to disregard the date alleged in Count 13.

2. Pickstock next asserts that the trial court erred in denying his claim of ineffective assistance of counsel based upon his trial attorney’s failure to raise a Batson objection to the state’s jury strikes. “In order to establish that there has been ineffective assistance of counsel, appellant must have shown not only that his counsel’s performance was deficient, but also that deficiency resulted in prejudice to him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); [cit.].” Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). We find that Pickstock has failed to meet this burden.

Pickstock was represented at trial by an attorney with the DeKalb Public Defender’s office who had more than 10 years of experience and who had handled over 100 trials. The attorney testified at the hearing on Pickstock’s new trial motion that she did not make a Batson objection because she did not believe that there was any legal basis to do so. While she recalled that the state did strike some black jurors, at no time did she believe that the state was using its strikes in a racially discriminatory manner in violation of Batson and, in fact, she saw non-racial reasons for the state’s strikes of the black veniremen. Based upon this testimony and his observance of the attorney’s performance, the trial court found that there was no evidence that Pickstock had received ineffective assistance of counsel. The trial court’s determination on this issue will be affirmed unless that determination is clearly erroneous. White v. State, 213 Ga. App. 429, 434 (6) (445 SE2d 309) (1994) (physical precedent). Based on the record in this case, we find that the trial court’s findings were not erroneous.

Moreover, because Pickstock has failed to provide us with a transcript of voir dire, we are left without any record of the jury panel composition or the state’s peremptory strikes. Thus, we have nothing to review to determine if any prejudice may have resulted from his trial counsel’s failure to raise a Batson objection. See White v. State, 213 Ga. App. at 436 (Smith, J., concurring specially).

3. As his third enumeration, Pickstock argues that the trial court erred in charging the jury on the law of voluntary intoxication because he did not offer intoxication as a defense. The record shows that Pickstock gave police a statement several days after his arrest, which was admitted into evidence. In that statement, Pickstock told detectives that he did not recall the events in question because he had been under the influence of drugs and alcohol at the time.

Even though Pickstock did not claim intoxication as a defense at trial, he offered intoxication as an explanation for his lack of memory in his statement to police. Under these circumstances, we find that a charge on voluntary intoxication was warranted. Moreover, even if the charge were in error, no harm or prejudice resulted to the defendant and this enumeration is without merit. See Thurston v. State, 186 Ga. App. 881, 882 (2) (368 SE2d 822) (1988) (charge on intoxication not harmful error even where no evidence supported the charge).

4. Pickstock also asserts that the court erred in failing to sever Counts 1, 2 and 3 of the indictment alleging burglary, robbery and kidnapping charges against him. These counts stem from an incident on December 15, 1994, in which a man forced himself into the home of Debbie Mayo and demanded money. When she only gave him $11, he then forced her to drive to various automated teller machine (ATM) locations and to withdraw additional money.

“Offenses may be joined for trial when they are based on the same or similar conduct or when they are based on a series of acts that are connected or part of a single scheme or plan. When charges have been joined solely on the ground that they are of the same or similar character, severance is mandatory; if they are joined for other permissible reasons, however, the trial court has discretion on the issue of severance. Severance should be granted if it is necessary ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense.’” (Citations omitted.) Samples v. State, 217 Ga. App. 509 (1) (460 SE2d 795) (1995).

Pickstock argues that the incident underlying Counts 1, 2 and 3 is totally different from the incidents underlying all the other charges. The evidence in this case demonstrates that a series of burglaries and robberies occurred in a close geographical area from December 1994 to December 1995. In each of the incidents, a man entered an apartment in which someone was home alone or in which children were present. The man gained his initial entrance either through force or deception, held his hand beneath his clothing and indicated he had a gun, demanded money and in almost every instance told the victims that he had killed two to five people already and that he did not want to kill again or that he needed to leave town. Then the man left, usually after obtaining money. Each of the victims identified Pickstock as the perpetrator of the crimes.

Pickstock argues that the incident involving Mayo differs from the other incidents in that the perpetrator never stated that he had killed before and further that the victim was abducted when she only came up with $11 and forced to drive to ATMs to obtain more money. While there are some differences between each of the incidents from which the charges against Pickstock arise, we believe that there are sufficient similarities to show a pattern of conduct. “When the similarity of separate offenses reaches the level of a pattern, it may evidence a single scheme or plan. [Cit.]” Samples v. State, 217 Ga. App. at 509. In each of the instances, there are similar circumstances surrounding the victims (someone home alone and/or children present); the crimes all occurred at apartments; the perpetrator gained entry to the apartments in a similar manner; the perpetrator threatened use of a gun, usually with his hand held beneath his clothing; and the perpetrator consistently demanded money from his victims. Moreover, each of these crimes occurred in close geographical proximity to one another within the period of one year, and each of the victims identified Pickstock as the perpetrator. While the Mayo incident differed in some respects, it involved each of these similarities and thus fell within the pattern.

Moreover, as noted above, the trial court charged the jurors that they must consider each count separately and that the state had the burden of proving each and every element of each offense. Therefore, severance was not necessary to ensure “ ‘a fair determination of [Pickstock’s] guilt or innocence of each offense’ ” and we find that the trial court properly acted within its discretion in denying Pickstock’s motion to sever. Samples v. State, 217 Ga. App. at 509. See generally Lundy v. State, 265 Ga. 30-31 (1) (453 SE2d 466) (1995); Smith v. State, 225 Ga. App. 553, 554-556 (1) (484 SE2d 515) (1997); Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995).

Pickstock also argues under this enumeration that the trial court should have severed Count 12, alleging a burglary charge occurring on November 21, 1995, because the victim of that burglary testified that nothing was taken. He makes the same argument with regard to Count 10, alleging a robbery charge occurring on October 10, 1995, because only two bracelets, and not money, were taken from the victim. For the reasons noted above, we find that these factual distinctions do not remove these charges from the pattern of conduct shown in the offenses overall.

5. In his final two enumerations of error Pickstock contends that the trial court erred in admitting pre-trial and in-court identification testimony.

(a) Pickstock challenges the trial court’s decision to allow evidence concerning some of the victims’ pre-trial identification. Pick-stock argues that the one-on-one show-up resulting in the identification made by victim Frances Murray was impermissibly suggestive. He also contends the trial court erred in denying his motion to exclude pre-trial identifications made by victims Frank Rambo and Debbie Mayo where they each tentatively identified Pickstock from a photo lineup, and then later confirmed this identification after seeing Pickstock at his preliminary hearing.

“There is no per se exclusionary rule applied to pre-indictment confrontations. Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).” (Citations and punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 418 (1) (471 SE2d 528) (1996).

Murray

The record shows that Frances Murray was home alone for lunch when a man knocked on her door and asked to speak with her about the apartment complex where she was living. Murray spoke with the man through her sliding glass door and testified that this exchange took about three or four minutes. She then let the man inside her apartment, and he walked over to a table and slid Murray’s wallet inside his pocket. Murray testified that she realized at this point she had done the wrong thing in letting the man into her apartment. The man then threatened to kill her and said that he had already killed someone else that morning. The man was in her apartment, where the lights were on, three or four minutes before she was able to escape from her apartment. The man pursued her, pinning her against the wall. At that time, she was face-to-face with her attacker for about 60 to 90 seconds. Murray eventually was able to break free and run for help, while the man fled.

Murray described her attacker to the police as a 5' 9" or 5' 10" man wearing dark pants, a plaid shirt, a blue baseball cap and a black jacket. Approximately 20-30 minutes after the attack, the police drove Murray by Pickstock, whom the police had apprehended in the area. Pickstock was wearing only jeans and a black T-shirt. The first time the police drove by, Pickstock was on the ground with half of his face obscured, and Murray was unable to make an identification. When the police car then drove by again, Pickstock was standing up and Murray could observe his entire face, approximately three feet from the car. She identified Pickstock positively as her attacker. Within the next few days, police were notified that a plaid shirt and a blue baseball cap had been found stuffed into a bucket in a yard near the location where Pickstock was apprehended.

“[S]uch on-the-scene show up identifications have been held not to be impermissibly suggestive where they are necessary due to the practicalities of the situation.” (Citations and punctuation omitted.) Mattison v. State, 215 Ga. App. 635, 636 (2) (451 SE2d 807) (1994). In this instance, police had captured Pickstock fleeing the scene of the crime and needed an identification from Murray to determine if they had reason to detain him. “[B]oth state and federal courts have recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible, if not desirable. These include the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects.” (Citations and punctuation omitted.) Sabo v. State, 226 Ga. App. 106, 107 (2) (a) (485 SE2d 591) (1997).

It follows that the trial court did not err in denying Pickstock’s motion to suppress Murray’s pre-trial identification testimony. The fact that Pickstock was already in custody and being restrained by police when she first viewed him does not render the identification impermissibly suggestive in light of surrounding circumstances. See Flores v. State, 228 Ga. App. 152, 153 (491 SE2d 86) (1997); Maxwell v. State, 178 Ga. App. 20, 21 (1) (342 SE2d 8) (1986). Murray had ample time to observe the perpetrator, both before the attack, and thus before she became nervous, as well as later during the attack. Her description of the perpetrator and his clothing was sufficiently accurate to support her later identification, especially in light of the evidence indicating that the perpetrator shed some of the clothing she described in his escape. The one-on-one show-up occurred within one-half hour of the attack. Moreover, the fact that Murray made her identification only after having the opportunity to view Pickstock’s face helps bolster her identification.

Rambo and Mayo

The evidence shows that Frank Rambo was home alone on the afternoon of October 2, 1995, when a man knocked on his door. Rambo stepped outside and spoke with the man for a couple of minutes. After the man said he wanted to use the phone, Rambo let bim into his apartment. Once inside, the man said he had a gun and demanded money. He told Rambo that he had killed someone and needed money to get out of state. At this point the man was some three to four feet away from Rambo, although the lights were not on in the apartment. In describing the perpetrator to police, Rambo stated the man was clean shaven, six feet in height, with a medium build.

On December 6, 1995, Rambo was given the opportunity to review a photo line-up where he tentatively selected Pickstock’s picture. He told the officer that he was not sure because it was not a good photo, but that it looked most like the man who had robbed him. He later attended Pickstock’s preliminary hearing where he saw bim seated in the courtroom and later being led from the courtroom. Rambo was able to view Pickstock’s face in its entirety and positively identified him as the man who robbed him.

Debbie Mayo had arrived home alone on December 15, 1994, when, as she was letting herself into her apartment, she observed a man ring the doorbell at the apartment next to hers. When Mayo opened the door to her apartment, the man shoved her inside, stepped in behind her and shut the door. He told Mayo that he had a gun and said he needed money. When she was only able to give him $11, he ordered her to drive him to several ATM locations. After getting more money, the man asked her to drive to a MARTA station, where he fled on foot. The whole episode lasted about 45 minutes, and during most of that time the man was seated a few feet away from Mayo in her car. Mayo testified that she made a point of looking at the man as often as she could so that she would remember him. Mayo told police that she was abducted by a 6' 3" man, who weighed around 200 lbs., who was wearing a black ball cap and jeans, and who had a somewhat roundish face and no beard.

On December 7, 1995, Mayo viewed a photo line-up and selected Pickstock’s photo, telling the police detective that she was 75 percent sure in her identification. She also appeared at Pickstock’s preliminary hearing and was able to view Pickstock coming into the courtroom. She then made a positive identification.

Under these circumstances, we find that the trial court did not err in allowing Rambo and Mayo to testify as to their pre-trial identification of Pickstock. Each of them had ample opportunity to view Pickstock during the commission of the crime. The descriptions they gave to police were sufficiently consistent with Pickstock’s appearance. Each of them initially selected Pickstock’s photo and later confirmed their earlier identification after viewing Pickstock in person. As noted above, the mere fact that Pickstock was in custody at the time they viewed him in person does not render their in-person viewing impermissibly suggestive. See Flores v. State, 228 Ga. App. at 153; Anderson v. State, 206 Ga. App. 354, 355 (1) (426 SE2d 6) (1992); Maxwell v. State, 178 Ga. App. at 21.

(b) Pickstock further argues that the trial court erred in allowing the crime victims’ in-court identification because he contends their pre-trial photo identification was impermissibly suggestive. He complains that some of the victims were told that the police had a suspect in custody before viewing the photo line-up.

However, Pickstock raised no objections at trial to the in-court identifications and therefore, this issue is not subject to appellate review. "It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Baez v. State, 231 Ga. App. 375-376 (500 SE2d 339) (1998).

Decided November 23, 1998.

Wanda S. Jackson, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Even if Pickstock had properly preserved this issue for appeal, however, we find nothing impermissibly suggestive in the photo lineup that would taint the victims’ in-court identifications. The fact that the officers stated that a suspect was in custody was not enough to render the photo identifications invalid. See generally Thomason v. State, 268 Ga. 298, 304-305 (3) (486 SE2d 861) (1997). Moreover, a review of the record reveals that the victims testified to their opportunity to view the perpetrator during their crimes and thus established an independent basis to support their in-court identifications. See Jones v. State, 226 Ga. App. 428, 431-432 (3) (487 SE2d 62) (1997).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       In fact, the trial court found “that defense counsel did as fine a job in this case as I can recall being done in any case, so not only was she not ineffective, she was exceedingly effective with what she had.”

       Both Rambo and Mayo stated that the man who robbed them was clean shaven. Although Pickstock had a full beard at the time of his arrest, this inconsistency could be explained by the passage of time. He was arrested two months after Rambo was robbed and almost one year after Mayo was robbed and abducted.

       While Pickstock also questions the certainty of some of the identifications, such contentions go to the issue of credibility, which is a matter to be resolved by the jury. Troutman v. State, 191 Ga. App. 243, 244 (1) (381 SE2d 409) (1991).


text:
    A98A1781.
    McWHORTER v. THE STATE.
    (509 SE2d 736)
   Pope, Presiding Judge.

Marvis McWhorter appealed from his aggravated assault conviction. This Court remanded the case to the trial court for a determination as to whether McWhorter’s statement to a police detective was given voluntarily. McWhorter v. State, 229 Ga. App. 875, 877-878 (3) (495 SE2d 139) (1997). On remand; the trial court held a hearing and then ruled that the statement was voluntary. McWhorter appeals from the court’s ruling.

When a trial judge has made a determination as to the voluntariness of a statement after a hearing, such determination must be accepted by the appellate courts unless it is clearly erroneous. Clay v. State, 209 Ga. App. 266, 268 (1) (433 SE2d 377) (1993). In the instant case, the trial judge’s determination that McWhorter’s statement was voluntary is not clearly erroneous because it is supported by testimony given at the hearing held on remand.

At the hearing, the police officer who arrested McWhorter testified that he read McWhorter his Miranda rights and that McWhorter said he understood his rights. The officer, however, did not question McWhorter, but drove him to the police station where a detective questioned him. The detective testified that when he started to read McWhorter his Miranda rights, McWhorter said that he had already been given his rights, that he understood them and that he was willing to talk to the detective. The detective testified that McWhorter did not appear to be under the influence of any drugs and appeared to be in bis right mind. The detective further testified that he did not threaten, coerce, harm, or promise any benefit or reward to McWhorter. McWhorter made a very short statement to the detective about what happened at the crime scene and then ended the interview by saying he would “tell it to the judge.”

Decided November 24, 1998.

Debra M. Finch, Deborah N. Bedsole, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Based on the testimony given at the hearing, the trial court did not err in determining that McWhorter made his statement to the detective freely and voluntarily. See Christopher v. State, 269 Ga. 382, 383 (2) (497 SE2d 803) (1998); Pope v. State, 228 Ga. App. 897, 899 (3) (494 SE2d 345) (1997). Accordingly, the court’s determination is upheld.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A98A2406.
    ATLANTA GEORGETOWN CONDOMINIUM ASSOCIATION, INC. v. CHAPLIN.
    (509 SE2d 729)
   Johnson, Presiding Judge.

Atlanta Georgetown Condominium Association, Inc. (the “Association”) sued Leon Chaplin for his refusal to pay his condominium association fees. The trial court denied the Association’s motion for summary judgment, and we granted the Association’s application for interlocutory review. For reasons which follow, we reverse.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewed in that light, the record shows the following: The Association consists of approximately 350 units, of which 300 are occupied by renters and the other 50 are occupied by owners. Ardsley Southeast manages the Association. Many unit owners who rent their units maintain independent agreements with Ardsley Southeast whereby Ardsley Southeast manages the rental units on their behalf. The Association does not pay for any services Ardsley Southeast provides to these rental units.

The Association’s board of directors determined that the condominium development as a whole benefits when there is a high occupancy rate in the condominium units. According to the treasurer of the board of directors, a high occupancy rate translates into a safer community and better sales and rental opportunities in the future. Consequently, the board of directors adopted the policy of paying Ardsley Southeast a bonus for achieving certain occupancy rates. Chaplin refused to pay his condominium association fees because of the Association’s policy of using a portion of the fees to pay Ardsley Southeast this bonus.

1. OCGA § 44-3-80 (d) provides: “No unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever. . . .” Interpreting this plain and unambiguous language, we have previously held that “[t]here is no legal justification for a condominium owner to fail to pay valid condominium assessments.” Forest Villas Condo. Assn. v. Camerio, 205 Ga. App. 617, 618-619 (1) (422 SE2d 884) (1992).

Chaplin contends the condominium assessments are invalid and in violation of the Georgia Condominium Act (OCGA § 44-3-70 et seq.) because he and the other owners who occupy their units receive no benefit from Ardsley Southeast’s services in attempting to maintain certain occupancy rates. However, the record shows that the Association’s board of directors determined otherwise. A condominium board of directors’ decision is subject only to a review of whether it was procedurally fair and reasonable and whether the substance of the decision was made in good faith. See Spratt v. Henderson Mill Condo. Assn., 224 Ga. App. 761, 763 (1) (481 SE2d 879) (1997). Chaplin has not submitted any evidence that the Association’s board of directors’ decision was procedurally unfair or unreasonable or was not made in good faith.

Chaplin also argues that the general assessments are invalid because the Association failed to issue a special assessment, as provided for in OCGA § 44-3-80 (b) (1), against the absentee owners who directly benefit from Ardsley Southeast’s actions as a rental agent. As support he cites OCGA § 44-3-80 (b), which provides that “[t]o the extent that the condominium instruments expressly so provide: (1) Any other common expenses benefiting less than all of the units shall be specially assessed equitably among all of the condominium units so benefited.” While OCGA § 44-3-80 (b) (1) provides a mechanism to impose a special assessment to the extent that the condominium instruments expressly so provide, none of the condominium instruments in the present case, including the declaration, bylaws, and articles of incorporation, provides for a special assessment against some but not all of the unit owners.

Decided November 24, 1998.

Weissman, Nowack, Curry & Wilco, Derek W. Johanson, for appellant.

Weinstock & Scavo, Michael Weinstock, Adam M. Gleklen, Andrew J. Coomes, for appellee.

Based on the foregoing, the trial court erred by denying the Association’s motion for summary judgment.

2. Chaplin argues that the Association is not entitled to court costs and attorney fees because it did not specifically enumerate as error the trial court’s denial of these fees. We disagree. The Association enumerated as error the trial court’s denial of its motion for summary judgment. Included in that motion was its request for attorney fees and court costs. Furthermore, the Association is entitled to these expenses pursuant to the condominium documents and the Georgia Condominium Act (OCGA § 44-3-109 (b) (3)). See Wehunt v. Wren’s Cross &c. Assn., 175 Ga. App. 70, 72 (2) (332 SE2d 368) (1985).

3. Based on our holding in Division 1, we need not reach the Association’s enumeration of error regarding whether the doctrine of res judicata bars Chaplin’s defense.

Judgment reversed.

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