text:
    A93A2090.
    TRUCK PARTS & SERVICE, INC. et al. v. RUTLEDGE.
    (438 SE2d 404)
   Birdsong, Presiding Judge.

Truck Parts & Service, Inc. appeals the order of the superior court denying its motion for new trial. Appellants’ sole enumeration is that the trial court erred in denying appellants’ motion for directed verdict on the issue of damages in that the jury was allowed to consider elicited hearsay testimony which had no probative value and was not based upon an adequate foundation. Specifically, appellants assert that only inadmissible hearsay evidence was introduced as to the value of a building removed without authority from appellee/ plaintiff’s property by appellant/defendants. Held:

1. No timely and specific objection was posed at trial to appellee’s testimony concerning the value of the building. Thus, any foundation objection thereto was waived. Patton v. Bank of LaFayette, 124 Ga. 965 (7) (53 SE 664); McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666).

2. “The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554). If there exists some admissible evidence of record regarding the value of the building then there would be no basis for granting directed verdict as to these issues, as the evidence would not demand a verdict in favor of appellants.

Appellant contends that the sole evidence regarding the value of a certain building removed from appellee’s property was hearsay testimony of appellee that the value of the building was worth $15,000 to $20,000.

Appellee testified that the building appellant removed was a metal, two-bay shop, approximately ninety feet long and sixty feet wide. Parts of the disassembled building included metal sheets, metal bolts and not less than eight to ten metal beams. Appellee laid the foundation for admission of three photographs of the building; one showed the interior, one was an exterior view of the building, and one showed the building exterior from the side. These photographs were admitted into evidence. Other photographs were identified and admitted showing how the building was removed from the land.

Thereafter, appellee testified that the value of the removed building was $15,000 to $20,000. He subsequently admitted he had gotten the figure testified to as to the building’s value from an “estimate” obtained from someone in the business of installing or erecting buildings and not present in court. Appellee also agreed that “those two lists of damages . . . were just somebody else’s opinion and not yours,” and further conceded he had no factual basis, other than what he thought or speculated, for telling the jury that he suffered total damages in the amount of $29,000. However, appellee re-affirmed that, although he had no independent facts to support his claim for damages, his figures were “based on estimates” he had been given.

Construing appellee’s testimony in its totality and in a light most favorable to verdict and judgment (Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746)), we find that in substance appellee was testifying that, based upon estimates he had received, he believed the value of the building to be between $15,000 and $20,000. Thus, appellee was testifying “to a fact within his knowledge, namely that he had made inquiry and developed an estimate [of between $15,000 and $20,000 as the value of] the building.” Harden v. Drost, 156 Ga. App. 363, 364 (1) (274 SE2d 748); see B & L Svc. Co. v. Gerson, 167 Ga. App. 679, 681 (4) (307 SE2d 262); compare Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 522 (3) (352 SE2d 835). Appellee’s knowledge of the general composition and size of the structure, as corroborated substantially by photographic evidence, together with the fact that he had made an inquiry and developed a broad estimate of value of the building based on “estimates” he had been given, provided some basis for a determination by the trial court that appellee had sufficient opportunity for forming his opinion as to the value range of the building. Involved in the admission of this evidence is the very type of judgment determination left to the discretion of the trial court; the trial court did not abuse its discretion in admitting appellee’s testimony as to the value of the building, particularly in view of the lack of a timely and specific objection. Compare Smith v. Millen Properties, 179 Ga. App. 165 (345 SE2d 625). This result is consistent with the general rule that all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Wilson v. Southern R. Co., 208 Ga. App. 598, 604-605 (4) (431 SE2d 383).

However, appellants, relying in part on Reeves v. Crawford, 185 Ga. App. 518 (364 SE2d 895), assert that appellee’s testimony was grounded in hearsay. Reeves, supra, is distinguishable from this case, as in Reeves the party’s opinion was based on guesswork; in this case, the opinion as to the range of value was developed by appellee based on estimates obtained. While generally hearsay has no probative value with or without objection (Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862)), “ ‘ “[i]t is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay.” ’ ” Burch v. Lawrence, 150 Ga. App. 351, 352 (258 SE2d 35) and cases cited. “ ‘ “Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable [on hearsay grounds].” . . . “(Market value) may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.” ’ ” B & L Svc. Co., supra at 681 and cases cited therein.

Decided November 30, 1993.

Phillips & Messer, Arthur L. Phillips, for appellants.

Chambless, Higdon & Carson, Mary M. Katz, for appellee.

Generally, admissibility of evidence rests in the sound discretion of the trial court. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). The determination whether appellee had. sufficient opportunity for forming a correct opinion as to the value of the building creates no exception; this determination also rests in the sound discretion of the trial court. Smith v. Millen Properties, supra. As above determined, the trial court did not abuse its discretion in admitting the evidence; the record contains some evidence on which a finding could be based that appellee had sufficient opportunity for forming his opinion as to the value range of the building.

Additionally, assuming arguendo that appellee’s testimony that the building had a value of between $15,000 and $20,000 was without probative value, nevertheless there exists in the record (by means of photographs and appellee’s testimony as to the type of construction and general size of the building) some evidence from which the jury could find that the building had some value. As the jury could find the building had some value, a motion as to directed verdict as to damages for the removal of the building was not demanded by the evidence, and appellants’ contention that the trial court erred in denying them a directed verdict as to the issue of damages for building removal would remain without merit. As appellants did not enumerate as error that the verdict and judgment were excessive, this issue is not before us on appeal.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A0989.
    A93A0990.
    A93A0991.
    ZEPP v. TOPOREK et al. TOPOREK v. ZEPP. ALLSTATE INSURANCE COMPANY v. ZEPP.
    (438 SE2d 636)
   Birdsong, Presiding Judge.

Amy Marie Zepp appeals from the trial court’s order dismissing her complaint. Julian H. Toporek and Allstate Insurance Company have filed cross-appeals challenging other rulings by the trial court.

The appeal and cross-appeals arise from a settlement of a minor’s claim for personal injuries reached over 20 years ago. After Amy Zepp was injured by a Sears delivery truck in Michigan in May 1972, a $75,000 settlement was negotiated with Sears’ insurer, Allstate Insurance Company. This settlement represented $21,000 payable to the parents for medical expenses and loss of Amy’s services and $54,000 for Amy’s injuries.

Because Amy was a minor, Allstate retained Toporek to submit the settlement of her claim to the court of ordinary for approval. In the proceedings, Amy’s father was appointed Amy’s guardian and ultimately the court approved the settlement. Amy Zepp now maintains that Toporek’s actions were improper because he represented both Allstate and the Zepps in this matter, and knowingly encouraged the Zepps to settle for an inadequate amount.

The settlement was deemed adequate apparently until Amy Zepp was 21 years old and was advised that because of her childhood injuries she could not have children unless she underwent a serious operation. This information allegedly caused her to believe that the settlement of her claim was inadequate and that the inadequate settlement resulted from Toporek’s representation of both parties in the settlement.

Thereafter, she filed suit in Chatham County against Toporek and Allstate asserting claims based upon fraud, breach of fiduciary duty, and legal malpractice. Zepp, however, dismissed this complaint, and later refiled the complaint against both defendants in the Superior Court of Fulton County. The defendants moved to dismiss the complaint and, although the trial court denied defendants’ motions to dismiss based on venue, jurisdiction over the person, subject matter jurisdiction, and failure to state a claim upon which relief can be granted for claims sounding in tort, the trial court granted their motions on claims based on contract because Amy Zepp was not privy to any of the contracts and any claims based on her reliance on other parties’ performance of the contracts would sound in tort, not contract. The trial court also found that Amy Zepp lacked standing to bring a breach of contract action because the terms of the contract were performed fully, and that she could not assert a failure of consideration because a substantial sum was paid. The trial court further found that any claim for breach of fiduciary duty was a tort action.

The trial court then found that all of Amy’s tort claims were for damages based upon personal injuries since she sought the damages she would have received but for the conduct of Toporek and Allstate. Hence, the court found the two-year statute of limitation for personal injury actions applied, and since Amy did not bring the claims within two years of her eighteenth birthday, the trial court found all the tort claims were time-barred.

Notwithstanding the dismissal of the action, both Toporek (Case No. A93A0990) and Allstate (Case No. A93A0991) have filed cross-appeals contending the trial court erred by denying their motions based upon subject matter jurisdiction and the three-year statute of limitation in OCGA § 9-11-60. Held:

1. As certain issues raised in the cross-appeals challenge the trial court’s jurisdiction over the subject matter, we must first consider those issues because the judgment of the trial court would be void if the cross-appellants are correct. Contrary to the contentions of the cross-appellants, however, if we find the trial court was without subject matter jurisdiction, we cannot merely affirm the trial court under the right-for-any-reason rule, i.e., correct decisions of a trial court will not be reversed, regardless of the reasons stated. If the trial court was without subject matter jurisdiction, any judgment rendered was void, and the cross-appellants cannot waive the lack of subject matter jurisdiction. OCGA § 15-1-2; Langston v. Nash, 192 Ga. 427, 429 (15 SE2d 481).

(a) Both cross-appellants contend that Amy Zepp’s complaint is merely an unauthorized collateral attack on the judgment of the Chatham Court of Ordinary, that any effort to set aside that judgment under our law must be brought in the court of rendition; that, in any event, the complaint was not brought within the time prescribed in OCGA § 9-11-60 (f); and, further, that Zepp must first set aside the court of ordinary’s judgment before this action can be maintained.

Case No. A93A0991

(b) As to Allstate, these contentions have merit. Zepp’s claim against Allstate is an effort to increase the amount she received for her injuries caused by Sears’ driver in 1972. Thus, the claims against Allstate seek to recover from the opposing parties’ insurance company a sum greater than that which was approved by the court of ordinary’s judgment.

Consequently, as to Allstate, the trial court erred by denying Allstate’s motion to dismiss the complaint because this action is an unauthorized collateral attack on the judgment of the court of ordinary approving the settlement between the Zepps and Allstate’s insureds. See Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 152-153 (348 SE2d 695); Shepherd v. Epps, 179 Ga. App. 685, 686 (347 SE2d 289). Under our law, a judgment not void on its face is subject to attack only by a direct proceeding in the court in which it was rendered. OCGA § 9-11-60 (a), (b). Moreover, other than by direct appeal, OCGA § 9-11-60 is the exclusive means for obtaining relief from judgments. Cronic v. State of Ga., 172 Ga. App. 675, 677 (324 SE2d 533); Henry v. Adair Realty Co., 141 Ga. App. 182, 184 (233 SE2d 39). If one is dissatisfied with a judgment one does not merely file a new action against the other party or his counsel. Instead, one must attack the prior judgment directly. Matthews Group, supra; Shepherd, supra.

Therefore, Zepp was not authorized to maintain this action against Allstate in the Superior Court of Fulton County, and, moreover, as OCGA § 9-11-60 (f) provides that such challenges must be brought within three years of the date of the judgment to be attacked, any action against Allstate would be time-barred.

Even though the three-year period did not begin to run until Zepp reached the age of majority (OCGA § 9-3-90), she reached that age on February 17, 1988, her eighteenth birthday. OCGA § 39-1-1 (a). As the present action was not filed within three years of that date, it was untimely. Further, though the complaint alleges that Allstate committed fraud, the statute of limitation was not tolled because Zepp did not allege that such fraud deterred or debarred Zepp from bringing the action. Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (399 SE2d 565). Accordingly, the trial court erred by denying Allstate’s motion to dismiss the complaint on these grounds. Cronic v. State, supra.

(c) Because of our disposition in Division 1 (b), Allstate’s remaining enumeration of error in its cross-appeal is moot. Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241); Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91).

Case No. A93A0990

(d) As to Toporek, however, his arguments based upon the application of OCGA § 9-11-60 are without merit. These are not claims against the opposing party, counsel for that party, or opposing witnesses. Compare Shepherd v. Epps, supra. Instead, the claims against Toporek allege that by serving as Zepp’s attorney and Allstate’s attorney, Toporek had an inherent, actual conflict of interest; by acting contrary to Zepp’s interests he violated his professional obligations to her. Although Zepp contends Toporek’s actions resulted in an inadequate settlement for her, she does not contend the earlier judgment was improperly entered and by claiming against her attorney she does not seek recovery from the former opposing parties.

While Toporek may have been retained initially by Allstate, the record shows he also served as Zepp’s attorney. Toporek signed the application for approval by the court of ordinary as attorney for the petitioner/guardian and in the petition he represented that the settlement was advantageous and in Zepp’s best interest. Thus, it is apparent that Zepp’s claims arise from Toporek’s service as her attorney.

While Zepp’s claims may fail for some other reason, it is not the law in this state that clients seeking to sue their attorneys for malpractice or misconduct which resulted in an adverse or unacceptable judgment must first set aside that judgment before proceeding against their attorneys. Further, as Toporek was not a party to the court of ordinary’s judgment and the judgment did not approve a settlement between Zepp and Toporek, he cannot assert the prior judgment as a bar to this action. Boozer v. Higdon, 252 Ga. 276 (313 SE2d 100); Blakely v. Couch, 129 Ga. App. 625 (200 SE2d 493); Roberts v. Hill, 81 Ga. App. 185, 186 (58 SE2d 465). Consequently, as to Toporek, OCGA § 9-11-60 does not control these proceedings so as to require a direct action to set aside the former proceedings.

(e) However, since Toporek is not a resident of Fulton County, jurisdiction and venue in that county were dependent upon jurisdiction over Allstate as a joint tortfeasor with Toporek. See Art. VI, Sec. II, Par. IV, Ga. Const. 1983. Since we have found that the trial court improperly denied Allstate’s motion to dismiss, Allstate is not a proper party to this action and cannot be liable as a joint tortfeasor. Consequently, the trial court erred by denying Toporek’s motions based upon improper venue and lack of personal jurisdiction because Fulton County is no longer the proper venue for this action. Stroud v. Doolittle, 213 Ga. 32, 38 (96 SE2d 876). Therefore, the denial of Toporek’s motion on these grounds must be reversed. This action must be brought against him in the county of his residence. Art. VI, Sec. II, Par. VI, Ga. Const. 1983. Accordingly, the trial court should have transferred the action to the Superior Court of Chatham County in accordance with Uniform Superior Court Rule 19. Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 898 (354 SE2d 632); Long v. Bruner, 171 Ga. App. 124, 125 (318 SE2d 818).

Case No. A93A0989

2. More significantly, however, since the Fulton County trial court was no longer the proper venue for Toporek, the trial court was without jurisdiction to rule on Toporek’s other motions, and specifically his motion to dismiss for failure to state a claim. Brown v. Coastal Emergency Sues., supra. Therefore, the trial court’s judgment dismissing the action against Toporek for failure to state a claim upon which relief can be granted is vacated and the trial court is directed to transfer the case to the proper venue.

Decided November 4, 1993

Reconsideration denied December 1, 1993

Middleton & Mixon, Richard H. Middleton, Jr., Lynda G. Wilson, for Zepp.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Margie M. Eget, Mills & Moraitakis, Glenn E. Kushel, for Toporek.

Alston & Bird, Ronald L. Reid, Richard T. Fulton, Daniel A. Kent, for Allstate.

Judgments reversed in Case Nos. A93A0990 and A93A0991 and judgment vacated with direction in Case No. A93A0989.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1020.
    BATTEN et al. v. CHRYSLER CORPORATION.
    (438 SE2d 647)
   McMurray, Presiding Judge.

On October 30, 1988, Patricia Batten sustained severe head injuries when the 1978 Chrysler Lebaron automobile she was operating collided with another vehicle. Although wearing a seat belt at the time of the collision, Patricia Batten was hurled over the vehicle’s collapsed steering column and into the instrument panel. Patricia Batten, and her spouse in a loss of consortium claim, sued Chrysler Corporation, alleging the seat belt retractor mechanism in the vehicle was defective; that the defective device caused the seat belt restraint to fail and that Patricia Batten suffered enhanced injuries as a result of the product defect. Chrysler denied the material allegations of the complaint and filed a motion for summary judgment, asserting the ten-year statute of repose prescribed in OCGA § 51-1-11.

The trial court granted Chrysler’s motion for summary judgment, finding that the Battens filed their complaint more than ten years after the first sale of the allegedly defective vehicle. This appeal followed. Held:

1. The Battens contend the trial court “[e]rred in granting summary judgment in favor of Chrysler Corporation as there are factual issues to be decided by a jury under O.C.G.A. Section 51-1-11 (c).”

(a) OCGA § 51-1-11 (b) (2) provides that no products liability action “shall be commenced pursuant to [OCGA § 51-1-11 (b)] with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” OCGA § 51-1-11 (c) extends this ten-year limitation period “to the commencement of an action claiming negligence of a manufacturer as the basis of liability, except in an action seeking to recover from a manufacturer for injuries or damages . . . arising out of conduct which manifests a willful, reckless, or wanton disregard for life or property.” OCGA § 51-1-11 (c). The issue of wilful, reckless, or wanton disregard for life or property is generally a matter for the jury. See Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340 (7), 341 (319 SE2d 470).

In the case sub judice, Billy S. Peterson deposed that he was the Chief Project Engineer at the Vehicle Research and Test Center of the National Highway Traffic Safety Administration (“NHTSA”) between August 1976 and January 1983; that Chrysler was under investigation by NHTSA prior to 1978 because of failures in the type of seat belt restraint system found in the vehicle driven by Patricia Batten (i.e., “inertia reel” seat belts) and that Chrysler’s subsequent modifications to its inertia reel seat belt systems did not resolve the product defect. Peterson further deposed that Patricia Batten was wearing an inertia reel seat belt at the time of the collision and that the intrinsically defective seat belt resulted in improper passenger restraint, causing Patricia Batten to suffer enhanced injuries. There is also proof that inertia reel seat belts do not always function within Federal Motor Vehicle Safety Standards; that Chrysler could have avoided the safety hazard caused by use of inertia reel seat belts prior to 1978 via use of another passenger restraint system then available; that Chrysler then rejected use of supplemental (“air-bag”) restraint systems as development of such a system was cost prohibitive and that Chrysler predicted (at a June 22, 1976, meeting with NHTSA officials) what it viewed as an acceptably low number of injuries resulting from use of inertia reel seat belts. This evidence and evidence that Chrysler failed to report inadequacies in its inertia reel seat belt system (after 30,000 vendor tests) is sufficient to authorize a finding that Chrysler acted with wilful, reckless, or wanton disregard for life or property in installing the allegedly defective inertia reel seat belt in the automobile driven by Patricia Batten.

(b) OCGA § 51-1-11 (c) further provides that “[n]othing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer.” In this vein, Billy S. Peterson deposed that Chrysler was aware, before 1978, that inertia reel seat belts (substantially the same as the device worn by Patricia Batten) failed about 20 to 50 percent of the time; that Chrysler informed its consumers (via a 1978 “Operating Instructions and Product Information” manual) that seat belts in 1978 Chrysler Lebaron automobiles would restrain passengers during sudden stops and impact and that Chrysler never warned customers of dangers associated with use of its inertia reel seat belts. This evidence is sufficient to authorize a finding that Chrysler breached its duty to warn of the alleged danger associated with use of the inertia reel seat belts.

Decided November 19, 1993

Reconsideration denied December 1, 1993

Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Walker & Sweat, Bruce M. Walker, Freeman & Hawkins, Joe C. Freeman, Jr., Stephen M. Lore, Charles R. Beans, for appellee.

King & Spalding, Chilton D. Varner, Lawrence A. Slovensky, amicus curiae.

The ten-year statute of repose prescribed in OCGA § 51-1-11 (c) does not preclude the Battens’ claim for negligent manufacture and design and, to this extent, the trial court erred granting Chrysler’s motion for summary judgment.

2. Both Chrysler and the Battens raise issues not properly asserted via enumeration of error.

“ ‘On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. (Cit.)’ Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991).” Dukes v. State, 205 Ga. App. 678 (1) (423 SE2d 295). Consequently, this court is without jurisdiction to consider issues raised by the Battens and Chrysler, but not properly asserted via enumeration of error.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

       The Battens also alleged that the vehicle’s steering system and instrument panel were defective because the steering column was designed to collapse upon collision, thus clearing the way for impact into an instrument panel which was not designed to reduce injury upon impact.


author: Blackburn, Judge.

text:
    A93A1744.
    SMITH et al. v. TOLBERT et al.
    (438 SE2d 655)
   Blackburn, Judge.

Appellants Mark A. Smith and Michael Miller (collectively referred to as the purchasers) appeal the trial court’s order granting the renewed motion for summary judgment filed by defendants Ben Tolbert and Louise Tolbert (collectively referred to as the sellers). Additionally, the purchasers enumerate as error the trial court’s denial of their motion for summary judgment.

In the underlying action, the purchasers sought damages from the sellers based on the sellers’ alleged breach of the general warranty deed used to convey commercial real property to the purchasers. The property consists of an approximately 100-year-old, two-story commercial building located on the corner of Elizabeth Way and Canton Street in the City of Roswell (Roswell). A gravel driveway and parking area (the alley) are located behind all of the buildings fronting Elizabeth Way. The property description found in the warranty deed encompasses the alley and specifically notes the gravel driveway. The purchasers assert that Roswell has made a claim for fee simple title to the alley. The purchasers further claim that the sellers are obligated to warrant and forever defend the right and title to the subject property against Roswell’s claims. The sellers refused to defend the purchasers’ title against Roswell and moved for summary judgment based on the purchasers’ knowledge of the alley’s existence and its use by the general public at the time of the sale.

The purchasers admit that they were aware of the existence of the alley and that certain individuals used the alley for ingress, egress and parking. Although the purchasers do not admit that the property behind their building is an alley, contending that it could just as easily have been called the “vacant property,” we do not agree. Webster’s Dictionary defines an alley as “a narrow street or walk; [specifically], a lane behind a row of buildings or between two rows of buildings that face on adjacent streets.” The pictures in the record leave no doubt that the disputed portion of the property is an alley.

Next, the purchasers argue that they thought the alley was a “private way” rather than a “public alley.” This assumption is not supported by the facts or the law. The record is replete with evidence of the purchasers’ knowledge of the public’s use of the alley. Roswell exhibited open and obvious control over the alley; it regraded the alley, cut the grass in the alley and picked up the trash from the alley. The public openly and obviously used the alley for approximately 100 years in order to park their carriages or vehicles while shopping at the businesses on Elizabeth Way and Canton Street. Furthermore, an alley is deemed a public way unless specifically noted as private. Moon v. Jones, 101 Ga. App. 79, 80 (113 SE2d 159) (1960).

The purchasers’ warranty claims against the sellers fail because “the existence of a public road on the land, known to the purchaser or which should have been known to the purchaser, is not such an incumbrance as would constitute a breach of the covenant of warranty.” (Punctuation omitted.) Shepherd v. Henderson, 169 Ga. App. 486, 487 (313 SE2d 503) (1984) quoting Desvergers v. Willis, 56 Ga. 515, 516 (1876).

The purchasers had a duty to determine the interest possessed by those occupying or using the property at the time of the sale. Purchasers failed to make inquiry as to such interest with undisputed knowledge of the public use of the subject property.

Decided November 22, 1993

Reconsideration denied December 1, 1993

Mark A. Smith III, for appellants.

Campbell & Dreger, Richard J. Dreger, Polatty & Sullivan, George J. Polatty, Jr., Michael E. Sullivan, for appellees.

Additionally, the purchasers waived any warranty claims by virtue of their knowledge of the alley prior to the closing and their failure to list it in their list of items to be cured upon completion of the title search. The parties entered an agreement for the sale and purchase of real property which required that exceptions to title, such as “easements or rights of way,” be waived unless included on a list of items to be cured prior to closing. The purchasers do not dispute that their title search uncovered an express exception to title in the last three deeds. The exception read: “Subject to the rights of all persons, if any, in and to the alley way across the northern portion of the aforesaid property.” Therefore, the purchasers’ failure to make any. objection prior to closing conclusively waived any breach regarding title to the alley.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A93A0942.
    WINDERMERE, LTD. et al. v. BETTES et al.
    (438 SE2d 406)
   Cooper, Judge.

After a fire destroyed their home in a residential apartment building owned and operated by appellant-defendants, appelleeplaintiffs brought the instant tort action to recover for personal injuries and property damage. The case was tried before a jury which found for appellees, awarding both compensatory and punitive damages, as well as litigation expenses and attorney fees. Appellants appeal from the judgment entered on the jury verdict.

1. Appellants moved for a directed verdict on the issue of punitive damages, arguing that there was no clear and convincing evidence to authorize such an award. The trial court denied the motion and the jury returned an award of punitive damages in the amount of $1. The denial of this motion for directed verdict and of a subsequent motion for j.n.o.v. are enumerated as error.

A directed verdict is proper only where there is “no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). Pursuant to OCGA § 51-12-5.1 (b), punitive damages may be awarded “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “ ‘The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.’ [Cit.]” Ponce de Leon Condos, v. DiGirolamo, 238 Ga. 188, 189 (1) (232 SE2d 62) (1977). “ ‘If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received,’ for vindictive or punitive damages are recoverable only when a defendant acts ‘maliciously, wilfully, or with ... a wanton disregard of the rights of others.’ [Cit.]” State Mut. Life &c. Assn. v. Baldwin, 116 Ga. 855, 860 (3) (43 SE 262) (1903). “[Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is general agreement that, because it lacks this element, mere negligence is not enough.” (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991).

Evidence was presented that faulty lighting was the cause of the blaze. In addition to suffering burns, appellees were injured when they had to jump from the second story of the apartment to flee the conflagration because interior hallway exits were already engulfed in flames. Appellees presented evidence that the apartment building failed to comply with safety features for isolating exits from fire as mandated by applicable building exit and fire codes. See generally OCGA § 25-2-4.

The landlord cannot avoid duties created by housing codes, building codes, or other regulatory provisions affecting the safety of the premises. Bastien v. Metro. Park Lake Assoc., L.P., 209 Ga. App. 881, 882 (434 SE2d 736) (1993). Although appellants vigorously contested the applicability of the fire and building exit codes and denied that the building was in violation of any provision thereunder, the evidence on these issues was in conflict. The rules and regulations of the Fire Safety Commissioner shall have the force and effect of law. OCGA § 25-2-4. “After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.” OCGA § 1-3-6. The circumstances whereby the landlord failed to exercise any effort to comply with the mandatory safety provisions of an applicable fire or building exit code provided a clear and convincing evidentiary basis for an award of punitive damages against the landlord, for they demonstrate that entire want of care evincing conscious indifference to the consequences. See J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 256 (3) (427 SE2d 499) (1993). See also Field Developers v. Johnson, 160 Ga. App. 180 (2) (289 SE2d 321) (1981). The trial court correctly denied appellants’ motions for directed verdict and j.n.o.v. as to the issue of punitive damages.

2. Appellees made a claim for the expenses of litigation pursuant to OCGA § 13-6-11, which provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but 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 them.” Appellants moved for a directed verdict as to these elements of damages, claiming that there was no evidence of bad faith and that the existence of a bona fide dispute as to liability precluded any award based upon stubborn litigiousness. The trial court denied this motion, and the jury awarded appellees $41,400 in attorney fees. The denial of this motion and of a subsequent motion for j.n.o.v. are enumerated as error.

Contrary to appellants’ contention, the absence of an intentional tort is not fatal to appellees’ claim for OCGA § 13-6-11 bad faith attorney fees. See Ford, Motor Co. v. Stubblefield, 171 Ga. App. 331, 343 (8b) (319 SE2d 470) (1984) (the same evidence which authorized the verdict for punitive damages also authorized the jury to find the defendants acted in bad faith). “The bad faith referred to [in OCGA § 13-6-11,] in actions sounding in tort, means bad faith in the transaction out of which the cause of action arose. [Cit.]” Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 336 (5) (60 SE2d 802) (1950). The cause of action in this case arises in part out of personal injuries appellees received when they were forced to leap from the second story of a burning building because the exits were not safe to use. “ ‘Indicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter’s legal rights.’ [Cit.]” Hinton v. Ga. Power Co., 126 Ga. App. 416, 420 (9) (190 SE2d 811) (1972). Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit of appellees is some evidence that appellants acted in bad faith in the transaction, within the meaning of OCGA § 13-6-11. Where, as here, evidence of bad faith in the transaction is presented, the existence of a bona fide ground for contesting liability is not dispositive of the claim for OCGA § 13-6-11 damages. Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 816 (2) (423 SE2d 725) (1992). The trial court correctly denied appellants’ motions for directed verdict and j.n.o.v.

3. OCGA § 51-12-14 (a) provides in part: “Where a claimant has given written notice ... of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case . . . the judgment is for an amount not less than the amount demanded.” Appellees made a written demand, offering to settle all their claims arising from the fire against all defendants for $225,000. The verdict awarded $222,118 in general and special damages, $41,400 in attorney fees, and $1 in punitive damages. The judgment includes pre-judgment interest in the amount of $41,054.80. Appellants enumerate as error the award of pre-judgment interest, urging that the amount of attorney fees should not be included in the amount of the judgment for purposes of determining whether the judgment is for “an amount not less than the amount demanded.” Relying on Chapman v. Hepburn, 191 Ga. App. 909 (1) (383 SE2d 352) (1989), they contend that the claim for OCGA § 13-6-11 damages was not in existence at the time the OCGA § 51-12-14 (a) demand letter was sent and so that claim was not encompassed in the offer to settle all claims “arising from the fire.”

Chapman v. Hepburn, supra, is distinguishable, for the claimant there offered to settle only a specific property damage claim. There, an award of attorney fees was based on stubborn litigiousness, that is, conduct occurring after the demand letter had been sent. This award was improperly included in the amount of the judgment to determine whether the plaintiff was entitled to interest on unliquidated damages pursuant to OCGA § 51-12-14. Here, the complaint contained the prayer for OCGA § 13-6-11 damages and the evidence in support of the claim was appellants’ bad faith in the transaction. The OCGA § 51-12-14 (a) demand letter expressly offers to settle the entire case with all defendants for all damages. See Grissett v. Wilson, 181 Ga. App. 727 (1) (353 SE2d 621) (1987). The trial judge correctly included the amount of OCGA § 13-6-11 bad faith damages in calculating the amount of the judgment for purposes of determining appellees’ entitlement to interest on unliquidated damages.

4. Appellants claim that the trial court erroneously awarded post-judgment interest on an amount which included the amount of prejudgment interest on the unliquidated damages. Although appellees contend that appellants have waived any error by failing to object to the form of the judgment in the trial court, we nevertheless will consider this enumeration of error. Clerical errors and irregularities in the judgment, if they appear on the face of the record, may be corrected even after expiration of the term. See Bank of Tupelo v. Collier, 192 Ga. 409 (1) (15 SE2d 499) (1941); OCGA § 9-11-60 (g).

OCGA § 9-12-10 provides: “In all cases where judgment is obtained, the judgment shall be entered for the principal sum due, with interest, provided the claim upon which it was obtained draws interest. No part of the judgment shall bear interest except the principal which is due on the original debt.” “A judgment may be legally entered up for the principal sum and the interest due on the claim sued on to date of judgment. However, such a judgment bears interest only from its date [and only] on the principal sum. The interest found to be due at date of judgment does not bear interest. [Cits.]” Southern Loan Co. v. McDaniel, 50 Ga. App. 285, 286 (2) (177 SE 834) (1934). The judgment in this case permits appellees to recover “the sum of” principal, pre-judgment interest, as well as costs, with interest accruing on the sum total. “This judgment clearly provides for interest on interest. The trial court erred in so providing.” State Hwy. Dept. v. Godfrey, 118 Ga. App. 560, 561 (2) (164 SE2d 340) (1968). However, this error can be cured by amendment of the judgment and does not require a new trial. Accordingly, the judgment of the trial court is affirmed with direction that, upon receipt of the remittitur, the trial court amend the judgment in favor of appellees to provide that interest after judgment shall accrue on the principal sum only. See Williams v. Runion, 173 Ga. App. 54, 61 (5) (325 SE2d 441) (1984).

Decided December 1, 1993.

Irwin, Bladen, Baker & Russell, Kathleen M. Pacious, Jennie E. Rogers, for appellants.

Calabro & Jennette, Michael M. Calabro, for appellees.

Judgment affirmed with direction.

Beasley, P. J., and Smith, J., concur.


text:
    A93A0973.
    BOEHM v. ABI-SARKIS et al.
    (438 SE2d 410)
   McMurray, Presiding Judge.

Plaintiff Jennifer Boehm, individually and as administratrix of the estates of Barbara Boehm and Charles Boehm, brought suit against Father Elias Abi-Sarkis, a Maronite priest, the Diocese of St. Maron-U.S.A.; Archbishop Francis Zayek, the Archdiocese of Atlanta; and Bishop James P. Lyke. She sought damages for the wrongful deaths of her parents, Barbara Boehm and Charles Boehm, alleging that Abi-Sarkis carried on a love affair with Barbara Boehm, one of his parishioners, and that, as a consequence of the affair, Charles Boehm shot and killed Barbara Boehm and himself. She also sought damages for her parents’ pain and suffering, alleging that the love affair between Abi-Sarkis and Barbara Boehm caused severe anguish during her parents’ lives. The liability of the Maronite Church and Archbishop Zayek was predicated on the doctrine of respondeat superior, as well as allegations of negligent hiring and retention. The Atlanta Archdiocese and Bishop Lyke were said to be liable because they failed to investigate the matter properly and to recommend that Abi-Sarkis be defrocked. Defendants answered the complaint, denying any liability to plaintiff. In his answer, Abi-Sarkis made it a point to deny any improper relationship with Barbara Boehm, adding that “the only relationship between him and Barbara Boehm was that of the usual relationship between a priest and his parishioner.”

Following discovery, defendants moved for summary judgment. The trial court granted summary judgment to defendants and plaintiff appeals. Held:

Defendants assert, inter alia, that they are entitled to summary judgment because the record is devoid of competent evidence demonstrating that Abi-Sarkis had a love affair with Barbara Boehm. We agree. Abi-Sarkis has steadfastly denied that he had a love affair with Barbara Boehm and we find no probative evidence to the contrary.

Plaintiff points to hearsay testimony tending to establish the affair: Barbara Boehm told her sister that she was seduced by Abi-Sarkis several days after the seduction allegedly occurred. She told her sister details about the alleged affair on other occasions. Plaintiff contends that this evidence is admissible out of necessity (OCGA § 24-3-1 (b)) or as a declaration against interest (OCGA § 24-3-8). We cannot accept this contention because we do not find Barbara Boehm’s statements to be trustworthy.

In order for evidence to be admitted under the necessity exception to the hearsay rule, it must be deemed worthy of belief. As it is said: “Necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence are the two underlying reasons for an exception to the hearsay rule. Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988); Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (173 SE2d 691) (1970). See also Higgs v. State, 256 Ga. 606 (5) (351 SE2d 448) (1987). A decedent’s declaration, when coupled with circumstances which attribute verity to the decedent’s declaration, is admissible. Id.” White v. White, 262 Ga. 168 (415 SE2d 467).

“In Higgs v. State, supra, the issue was admissibility of statements made to police by defendant’s former wife who was not available at trial because she had remarried the defendant. The following indicia of trustworthiness were found: 1) declarant consulted an attorney before giving a statement to police; 2) the statement was given within hours of the event in the course of an official investigation; 3) the witness never retracted the statement or testified contrary to the statement; 4) the witness testified prior to trial that she refused to testify because she loved her husband. In Adams v. State, 191 Ga. App. 16 (381 SE2d 69) (1989), the issue was the admissibility of the statement of the defendant’s [12]-year-old niece who was apprehended after filling a forged prescription for the defendant. The witness was unavailable because she was hidden by family members. The Court of Appeals found that the necessity for the admission of the statement had been shown and that the following indicia of trustworthiness were present: 1) the statement was given in the course of an official investigation immediately after the child was apprehended; 2) she never recanted her statement or sought to change it; 3) parts of her statement were corroborated by other evidence.” Mallory v. State, 261 Ga. 625, 627 (409 SE2d 839).

In the case sub judice, we find no indicia of trustworthiness. To the contrary, all signs point to the unreliability of Barbara Boehm’s declarations: She told a friend that she did not have an affair with Abi-Sarkis and in an official church investigation by the church, she denied any involvement with the priest. She wrote a letter to Archbishop Zayek in which she stated that she had fantasized an affair with Abi-Sarkis because her husband was away on business and she was lonely. She asked the archbishop for forgiveness and stated that she was seeking professional help. What is more, Charles Boehm believed Barbara Boehm was having an affair with one Michael Abdalla. In a suicide note, he fingered Abdalla as his wife’s lover. Finally, a greeting card was found at the scene of the Boehms’ murder/suicide. The card was addressed to “Michael” and bore Barbara Boehm’s handwriting.

In light of the foregoing contradictions, Barbara Boehm’s declarations cannot be admitted out of necessity. Nor can they be admitted as declarations against interest.

Declarations against interest by a person since deceased have been ruled admissible because, generally speaking, it is improbable that such declarations are false. Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297 (50 SE 92). See generally State Farm Mut. Auto. Ins. Co. v. Great American Ins. Co., 164 Ga. App. 457, 460 (297 SE2d 355). Thus, to be admissible, declarations against interest must also be deemed trustworthy. Id. Because the declarations of Barbara Boehm lack reliability, they are not admissible as declarations against interest. See Hollis v. Sales, 103 Ga. 75, 79 (3) (29 SE 482); Freeman v. Brewster, 93 Ga. 648, 651 (4) (21 SE 165).

“When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” OCGA § 9-11-56 (e).

Defendants produced evidence demonstrating that Abi-Sarkis did not have a sexual relationship with Barbara Boehm. Plaintiff has failed to come forward with evidence to the contrary. It follows that the trial court did not err in granting summary judgment to defendants.

Decided December 1, 1993.

Garland, Samuel & Loeb, Edward T. M. Garland, Robin N. Loeb, for appellant.

Boyce, Ekonomou & Atkinson, Andrew J. Ekonomou, Howell A. Hall, Drew, Eckl & Farnham, W. Wray Eckl, Peter H. Schmidt II, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A1480.
    BLOCK v. WOODBURY et al.
    (438 SE2d 413)
   Pope, Chief Judge.

Plaintiff appeals from the trial court’s grant of summary judgment for defendants John R. Woodbury and DFS Services, Inc. (“DFS”) and denial of partial summary judgment for plaintiff.

Defendant DFS and Patstone Development Corporation (“PDC”) created Morgan Farm Associates, a joint venture formed for the purpose of purchasing and developing Morgan Farm Subdivision. Pursuant to the “Development Agreement” between Morgan Farm Associates and PDC, PDC was hired, purportedly as an independent contractor, as the developer. Defendant Woodbury was president and sole shareholder of PDC, and was the individual most actively involved in the day-to-day work of developing the community. Plaintiff and her husband purchased a lot in Morgan Farm Subdivision subject to various restrictive covenants. Their building plans were approved, and they hired a builder who began construction on their home. There is evidence that Woodbury, who was also Chairman of the Morgan Farm Architectural Control Committee (“the Committee”), repeatedly came by the building site, criticizing various aspects of the house and complaining that the house violated certain restrictive covenants. At times he made plaintiff’s builder stop work, and he wrote the bank financing her loan to tell them she was having problems with construction. Plaintiff alleges that Woodbury knew plaintiff’s family was having trouble with its temporary housing and was desperate to move into the new home as soon as possible. Plaintiff further alleges he exploited that knowledge to pressure plaintiff into doing things his way and make her life miserable during the construction period.

Eventually PDC and the Committee sued plaintiff and her husband for violating restrictive covenants in their deed. Plaintiff and her husband then counterclaimed for intentional infliction of emotional distress and abusive litigation, alleging that Woodbury, as agent of both PDC and the Committee, maliciously harassed, intimidated and humiliated them. Mediation resulted in the settlement of this action, with all parties voluntarily dismissing their claims with prejudice. Plaintiff then brought this action against Woodbury individually and DFS based on the same alleged misconduct of Wood-bury. Defendants moved for summary judgment based on res judicata and collateral estoppel, and DFS moved for summary judgment on the additional ground that DFS was not responsible for the actions of Woodbury because Woodbury was an independent contractor. Plaintiff moved for partial summary judgment with respect to defendants’ res judicata/collateral estoppel and independent contractor defenses. Defendants’ motion was granted, and plaintiff’s motion was denied.

1. Plaintiff first contends that summary judgment was not properly granted based on res judicata or collateral estoppel. We agree. Collateral estoppel (issue preclusion) cannot apply in this situation because the issues raised in this case — whether Woodbury is liable for committing the alleged acts and whether DFS is also responsible therefor — have not been actually adjudicated, and “ ‘collateral estoppel . . . only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action.’ ” (Citations omitted.) Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852 (399 SE2d 708) (1990). Res judicata (claim preclusion) may apply to bar litigation of claims which could have been adjudicated in a prior action even if they were not, but only if the earlier suit was between the same parties or their privies. See Roberts v. Porter, Davis &c., 193 Ga. App. 898 (389 SE2d 361) (1989); OCGA § 9-12-40. Woodbury posits that because PDC was a party to the prior action and he is PDC’s president and sole shareholder, he should be considered a privy of PDC. In allegedly trespassing, harassing plaintiff and interfering with the building of her home, Woodbury was acting as agent and employee of PDC. “Although a master has privity with his servant and can claim the benefit of an adjudication in favor of the servant (cit.), a servant is not in privity with the master so as to be able to claim the benefit of an adjudication in favor of the master.” Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975); see also Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 306 (2), n. 6 (271 SE2d 207) (1980) (president of corporation who is sued individually is not in privity with corporation for res judicata and collateral estoppel purposes). McNeal v. Paine, Webber &c., 249 Ga. 662 (2) (293 SE2d 331) (1982), which distinguished Gilmer and held that an employee was in privity with his employer for purposes of res judicata, is in turn distinguishable from this case because McNeal involved issue rather than claim preclusion. In McNeal, the employer obtained a favorable verdict after acknowledging that if the employee was liable, it was liable. Thus, the prior adjudication in favor of the employer necessarily determined that the employee was not liable, and the plaintiff was precluded from relitigating the issue of the employee’s liability.

Nor does the fact that DFS is PDC’s partner in the Morgan Farm joint venture mean that the two have the “mutual or successive relationship to the same rights” necessary to establish privity. See Roberts, 193 Ga. App. at 901 (1); Smith v. Wood, 115 Ga. App. 265 (4) (154 SE2d 646) (1967). Partners do not have identical rights, and the dismissal of an action against one partner does not bar subsequent suit against the partnership or another partner. See Doody Co. v. Jeffcoat, 127 Ga. 301 (56 SE 421) (1907); Foster v. Silvey, 104 Ga. App. 185 (1) (121 SE2d 263) (1961).

Defendants’ assertion that plaintiff’s claims against them were compulsory counterclaims under OCGA § 9-11-13 is also without merit, as parties need only bring claims they have “against any opposing party” under this provision. Defendants were not parties to the prior suit; nor were they necessary parties to the plaintiff’s counterclaims in that suit. See OCGA § 9-11-19.

A dismissal of an action against one defendant with prejudice does not preclude a plaintiff from bringing an action based on the same facts against another defendant. Rowland v. Vickers, 233 Ga. 67 (209 SE2d 592) (1974). Accordingly, summary judgment based on res judicata or collateral estoppel was improper.

2. Summary judgment for DFS based on its independent contractor defense was also unwarranted. It is undisputed that DFS and PDC were partners in Morgan Farm Associates, a joint venture formed to purchase and develop Morgan Farm Subdivision. Moreover, it seems clear that if Woodbury committed wrongful acts against plaintiff as alleged, he did so as PDC’s agent while “acting in the ordinary course of the business of the [joint venture].” OCGA § 14-8-13; see Bowman v. Fuller, 84 Ga. App. 421, 426 (1) (66 SE2d 249) (1951) (where joint venture is established, general laws of partnerships and agency apply). A partner in a joint venture is liable for the wrongful acts of its partner committed in the ordinary course of business of the joint venture and cannot avoid this liability by an agreement between the partners that one of the partners will carry out the business of the joint venture as an independent contractor. See OCGA § 14-8-13 (when partner acting in ordinary course of partnership business commits wrongful acts, partnership is liable for damage caused thereby to same extent as partner committing the wrongful acts); OCGA § 14-8-15 (all partners are jointly and severally liable for all obligations of partnership); OCGA § 14-8-9 (1) (partner is agent of partnership for purpose of carrying on its business, unless that partner has no authority to act for the partnership and the person he is dealing with is aware that he has no authority). It is undisputed that plaintiff was unaware of the Development Agreement. Thus, DFS cannot rely on the provision of the Development Agreement stating that PDC was carrying on the business of the joint venture as an independent contractor to shield itself from liability.

Decided December 1, 1993.

John W. Mrosek, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Cynthia J. Becker, for appellees.

3. Contrary to defendants’ assertions, plaintiff’s evidence, viewed in a light most favorable to plaintiff and with all reasonable inferences drawn in her favor, is not contradictory and supports her allegations.

4. For the reasons discussed in Divisions 1 and 2, summary judgment for defendants should have been denied and partial summary judgment for plaintiff on defendants’ res judicata and independent contractor’defenses should have been granted.

5. Defendants’ motion to penalize plaintiff for a frivolous appeal is denied.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       This does not mean, of course, that a plaintiff can sue one partner after another in the hope of eventual victory. To the extent the issue of liability is adjudicated, issue preclusion will apply. And if a settlement is reached, the release agreement can be worded to release all partners and other possible defendants; but the release agreement in this case did not do so. See Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992) (only parties actually named in release agreement are released).


author: McMurray, Presiding Judge. Beasley, Presiding Judge, Blackburn, Judge,

text:
    A93A1594.
    PARKER v. THE STATE.
    (438 SE2d 664)
   McMurray, Presiding Judge.

Defendant Parker was indicted for possession of lysergic acid diethylamide (“LSD”) with the intent to distribute. Following the denial of his motion to suppress evidence seized during a search of his person, Parker pleaded guilty and attempted to reserve the right to appeal the denial of the motion to suppress. Held:

The applicable procedure by which a criminal defendant may plead guilty but reserve issues for consideration on appeal is enunciated in Mims v. State, 201 Ga. App. 277, 278 (1), 279 (410 SE2d 824). In Mims this court held that “trial courts have the discretion to accept or reject guilty pleas (Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685); Echols v. State, 167 Ga. App. 307, 308 (306 SE2d 324)), even when the guilty plea is part of a plea bargain. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851). Therefore, it is the responsibility of the trial court to decide whether to exercise its discretion and accept a guilty plea on condition that appellate issues are preserved. . . . [Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved. . . .” (Emphasis supplied.) Id. at 278-279 (1).

In the case sub judice, it appears that not until after the trial court pronounced sentence and explained the conditions relating to defendant Parker’s sentence on probation is there any mention of a reservation of defendant Parker’s appeal of “a motion to suppress.” This is confirmed in the following quoted portion of the “pleas and sentences” transcript: “(Standing before the Court, Kenneth Andrew Parker, [first co-defendant], and [second co-defendant].) MR. STINES [assistant district attorney]: Your Honor, the State would call co-defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]. THE COURT: There’s three of these, and that’s Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]? MR. STINES: That’s correct, Your Honor. MR. FOWLER [counsel for second co-defendant]: [Second co-defendant] is here, Your Honor. This is [second co-defendant]. THE COURT: Okay, each one of you raise your right hand. NOTE: (Defendants sworn in.) THE COURT: Now, each one of you understand what you’re charged with in this case? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. [DEFENDANT] PARKER: Yes, sir. THE COURT: And you’re charged with violation of the Georgia Controlled Substance Act, is that right? [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. THE COURT: Now, you’ve had time to talk with your lawyer about this case, each one of you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And your lawyer is physically present with you in court at this time? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: And you understand that upon your plea of guilty, you could be imprisoned for as much as 30 years? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Are you able to hear and understand my statements and questions? [SECOND CO-DEFENDANT]: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Are you now under the influence of alcohol, drugs or medication? [SECOND CO-DEFENDANT]: No, sir. [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. THE COURT: Do you know that you have a right to enter a plea of not guilty, be faced by your accusers, examine them, and present witnesses and other evidence in your behalf? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: You understand that you have a right to plead not guilty to every charge filed against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And you understand that if you plead not guilty, you have the right to testify or not to testify, as you choose; that you cannot be required to testify and that if you do not testify, the Jury cannot take that as evidence against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Do you understand that if you plead not guilty, you would be presumed to be innocent and that before you can be convicted, the prosecution will have the duty of proving your guilt beyond a reasonable doubt? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Now, has anyone made any promises or threats to you to cause you to plead guilty? [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. [SECOND CO-DEFENDANT]: No, sir. THE COURT: You can now let them enter their plea at this time. Now, you’re pleading guilty freely and voluntarily? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. STINES: Your Honor, the facts would show in this case that back on the 10th day of September, 1992, agents from the Moultrie/Colquitt County Drug Squad made a stop up at the Zippy Mart in Doerun, found three persons involved, that they had 136 hits of LSD on them. They made statements indicating that the intent was to distribute this. This happened in Colquitt County, Georgia. NOTE: (Defendants enter their pleas of guilty.) MR. STINES: Your Honor, as to case number 93-CR-34, the Defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant], have all entered their guilty pleas by signing the place provided on the back of the indictment along with their attorneys, Mr. Fowler for [second co-defendant], Mr. Mullís for Mr. Parker, and Mr. May for [first co-defendant]. THE COURT: Okay. Now, it’s the sentence of the Court that each one of you serve 10 years and I’m going to let you servé thát ten years on probation, provided you pay a fine of $3,000. And also, there will be a search clause in there that they can stop you and search you at any time, any law enforcement officer, or the probation officer at any time can bring you in for a search. They can also test you to see if you’re using drugs at any time. Now, here again, on the two — not all of them are first offender, are they? MR. MULLIS: No, sir. The two young lady’s [sic] are. THE COURT: Now, you heard me tell the other ones awhile ago about that first offender. You’re only getting 10 years but if during that 10 year period they catch you using drugs, then they bring you into court and you get 30 years on this charge; not on the new charge but on this one here. You just go off to prison for 30 years, no trial or anything. I just adjudicate you guilty. But if during this period you don’t violate the law, your record’s clear, the same as if you’d never been in Court with a charge against you. Do you understand that? [FIRST CO-DEFENDANT]: Yes, I understand. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: But, like I say, if they test you and you test positive for marijuana or any other kind of drug, then you come back into Court and you go off automatically for 30 years. [SECOND CO-DEFENDANT]: I understand. [FIRST CO-DEFENDANT]: I understand. THE COURT: And LSD, y’all didn’t get to use any of it, did you? [SECOND CO-DEFENDANT]:. No, sir. THE COURT: I mean, see, that’s an old drug they came out with years ago when they first started using it, it started out in California. That just destroys your brain, if you ever get — I mean, you just don’t know nothing, you’re just crazy the rest of the time. You don’t give anybody else any trouble because you don’t have sense enough to give anybody trouble with LSD. That’s the way it works because I’ve had some around me over there that tried it and they’re just crazy the rest of the time until they die, is what happens. Of course, most of them’s not around now because at the time, it’ll kill you, is what it’ll do. You don’t have to use it but one or two times and that’s what it does to you. Now, you’re working and doing good. Also, you’ve got to reimburse the county for your attorney fees. Do you understand that? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. MULLIS: Your Honor, also, I talked to the District Attorney. This plea was contingent on reserving our right to appeal a motion to suppress we’d had earlier and I was wanting to get that on the record also. I am also going to need to get that transcript. I don’t know if I need to do a motion to you to get the transcript of that hearing. THE COURT: That’ll be all right. But now you’re working, you’re doing all right, and you need to forget about drugs. MR. MULLIS: Thank you, Your Honor. MR. FOWLER: Thank you, Your Honor. MR. MAY: Thank you, Your Honor. . . . (Plea and Sentencing Concluded.)” (Emphasis supplied.)

The question presented is: Did the trial court in stating “[t] hat’ll be all right” comply with the procedural mandate of Mims v. State, 201 Ga. App. 277, 278 (1), 279, supra, and “expressly [approve] the reservation of the issue and [accept] the guilty plea with that condition . . .” or was the trial court responding to defense counsel’s statement “I don’t know if I need to do a motion to you to get the transcript of that hearing?” This Court cannot presume from the record before us, in the case sub judice, that the trial court has made and expressly set forth the critical determination that it “approves the reservation of the issue and accepts the guilty plea with that condition.”

Due to the ambiguity on the face of the record in the case sub judice, the trial court’s judgment as to defendant Parker must be vacated, his guilty plea vacated and the case remanded to the trial court for a plea hearing at which the trial court may clearly exercise its discretion in accordance with Mims v. State, 201 Ga. App. 277, 278 (1), 279, supra. Should the trial court permit defendant Parker to enter a guilty plea “with a reservation of an appellate issue,” defendant may bring an appeal submitting those issues. Otherwise, defendant must be provided a trial before a jury or the court sitting without a jury, followed by a new appeal if necessary. In any event, the trial court shall assure that an appropriate record of the proceedings be preserved for any appellate review.

Judgment vacated and case remanded.

Pope, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Beasley, P. J., Cooper and Blackburn, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

I agree with my brother’s dissent, which would hold that the right to appeal was preserved (Division 2) and that the State failed to show that there was probable cause to search Parker’s person at the time and in the manner in which it was done.

1. Clearly, the court was indicating assent to the appeal. Defendant’s counsel had made two requests, one for the right of appeal and the other for a transcript. The latter was obviously for the pursuit of appeal. The court simply assented to both requests: “That’ll be all right.” There would be no purpose to prompting the expense of transcript preparation if an appeal was not permitted. Moreover, it is evident beyond conjecture that both parties understood the court’s affirmative assent to apply to appeal. The State makes no issue of it whatsoever. As in Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992), we would be exalting form over substance if we concluded that the court did not expressly approve the reservation of the issue. Highly technical adherence to procedural requirements, creating a narrow window for the exertion of procedural rights (such as the right to appeal the alleged deprivation of federally protected personal security in this case), displays a gap between law and justice.

2. Parker was searched by officer Bryant when he, along with the other two occupants, exited the vehicle as directed. The officers were all males, and apparently Parker was the only one physically searched. At least one of the two women, Weldon, was visually searched. She was the only one who had been named by the informant, who said she and one or two others, possibly Tracy (last name unknown), the owner of the vehicle, would arrive with a quantity of LSD. Parker was in the back seat, and the two women were in the front seat. Tracy Adair, who was driving and who owned the car, gave permission to search it. The evidence suggests that Parker was searched before or while the car was being searched, indicating that the reason for searching him was not that all other locations of the expected LSD had been excluded.

Officer Bryant was asked if he conducted a pat-down search of Parker’s person, and he responded that he searched him, after having him place his hands on top of the vehicle, and found what he believed to be LSD in his pants pocket. There was no pat-down for weapons. Self-protection was never articulated as the purpose of the search. The informant had targeted Wendy Weldon in particular and did not suggest that someone else might have the LSD.

The question is whether there was probable cause for the police to intrude upon Parker’s personal security. Sibron v. New York, 392 U. S. 40, 62 (IV) (88 SC 1889, 20 LE2d 917) (1968). “Before [a police officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Id. at 64. As in Sibron, the only goal for the search was to find drugs, and there was no probable cause established for believing at the time Parker was searched that LSD was on his person “Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.” Id. at 65-66. “[A] person, by mere presence in a suspected car, [does not lose] immunities from search of his person to which he would otherwise be entitled.” United States v. Di Re, 332 U. S. 581, 587 (68 SC 222, 92 LE2d 210) (1948). Neither the information received from the informant, nor its corroboration by the occurrence of the informant’s prediction, nor what transpired as the event unfolded, gave probable cause to believe that the passenger in the back seat of the vehicle, an unnamed cooperative male, had LSD on his person.

Blackburn, Judge,

dissenting.

The majority opinion remands this case, on the grounds that the trial court did not expressly approve Parker’s reservation of the right to appeal the denial of his motion to suppress, and did not accept Parker’s guilty plea with that condition. I disagree with that conclusion, believe that we should consider the merits of this appeal, and further believe that we should reverse the trial court’s denial of Parker’s motion to suppress. For those reasons, I respectfully dissent.

1. As quoted by the majority itself, the record indicates that during the hearing on the guilty plea, counsel for Parker expressly reminded the trial court of the conditional nature of the guilty plea. The assistant district attorney was present and did not object to such a conditional plea (and likewise does not object on appeal), and in accepting Parker’s guilty plea the trial court obviously approved that condition.

Had there been any question over the trial court’s acceptance of Parker’s conditional plea, it is inconceivable that both the trial court and the prosecutor would have stood silently by as Parker ineffectively attempted to reserve his right to appeal the denial of his motion to suppress. “[Considering the colloquy between defense and the court in this case and the fact that the State has not objected on appeal, defendant adequately reserved the right to appeal the denial of his suppression. [Cit.]” Starks v. State, 204 Ga. App. 185 (419 SE2d 75) (1992); see also Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992).

Nothing in Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991) requires a trial court literally to speak out “magic” words such as “I approve the reservation of the issue and accept the guilty plea with that condition.” The majority opinion imposes precisely that requirement upon trial courts.

Although the majority may object to the conditional plea allowed by Mims, the prosecution in this case agreed to it, and it is clear from the record and the trial court’s actions that the trial court approved the reservation and accepted the conditional plea. While one might question whether or not it is wise to allow the appeal of cases where there has been a guilty plea, that is not the issue before us, and Mims is the law in Georgia at this time. The procedural mandate of Mims was followed in this case, and the remand by the majority is unnecessary and inappropriate.

2. At the hearing on Parker’s motion to suppress, the arresting officer testified that around 2:30 p.m. on September 10, 1992, a reliable confidential informant gave him a tip that a red Honda containing LSD would arrive in Doerun between 4:30 to 5:00 p.m. that afternoon and would stop at the only Zippy Mart in that town. The Honda would be occupied by one individual named Wendy Weldon, another individual named Tracy, and possibly one other person. The officers did not believe they had time to apply for a search warrant, and instead proceeded to set up a stakeout of the location. Two police officers waited inside the Zippy Mart, and two officers remained in an unmarked car and followed the red Honda to the Zippy Mart when it arrived as the informant had predicted.

The officers in the unmarked car pulled into the Zippy Mart parking lot and blocked the exit of the red Honda. Tracy Adair was the driver, and Wendy Weldon and Parker were passengers in the Honda. All three occupants were ordered to get out of the car, and Adair consented to the search of the vehicle. Parker placed his hands on the roof of the car as instructed by the officers, and one of the officers searched him, first by removing his wallet and looking in it and then by reaching into Parker’s front pocket of his trousers, where over 130 “hits” of LSD were discovered. It is undisputed that Parker did not consent to this search. On appeal, Parker contends that his mere presence in the red Honda did not justify this warrantless search of his person, and I agree.

A person’s mere proximity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979). More specifically, by one’s mere presence in a suspected automobile, a person does not forfeit his immunities from searches of his person that he otherwise enjoys. United States v. Di Re, 332 U. S. 581 (68 SC 222, 92 LE2d 210) (1948).

OCGA § 17-5-28 authorizes an officer, during the execution of a search warrant, to detain or search any person in the place at the time in order to protect himself from attack, or to prevent the disposal or concealment of the subject matter of the warrant. That Code section pertains only to searches conducted pursuant to a warrant, and thus has no application in the instant case. State v. Stephens, 167 Ga. App. 707 (307 SE2d 518) (1983). Nevertheless, even under that statute, a search of an individual not named in the warrant may not be upheld where there is no nexus between that individual and the suspected criminal activity, other than mere presence, unless independent probable cause existed for a warrantless search of the individual. See State v. Anderson, 195 Ga. App. 793 (395 SE2d 50) (1990); but compare Travis v. State, 192 Ga. App. 695 (385 SE2d 779) (1989). The same principle must apply where no warrant is obtained.

In the instant case, although the tip received by the arresting officers revealed the identity of two occupants traveling in the car, it did not identify Parker. The only connection shown between Parker and the two occupants identified by the informant was his mere presence in the vehicle. When Parker exited the vehicle as instructed by the officers, he was cooperative and made no gesture or movement that would indicate a threat or concealment of evidence. Cf. Travis v. State, supra. Although the arresting officers articulated no concern that Parker may have been armed, under these circumstances the officers may have been authorized to perform a pat-down of Parker’s outer clothing for weapons, but the officers exceeded that permissible intrusion and conducted a complete search of Parker, which was unjustified by Parker’s mere presence in the vehicle or by any independent probable cause. State v. Stephens, supra; State v. Anderson, supra. For that reason, the trial court should have granted Parker’s motion to suppress the evidence seized during that search.

Decided December 1, 1993.

James M. Mullís, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

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


text:
    A93A1673.
    WILLIAMS v. GOSS.
    (438 SE2d 670)
   Pope, Chief Judge.

We granted this application for discretionary review to consider whether the Superior Court of Henry County, Georgia, properly exercised jurisdiction in this custody matter under the provisions of the Uniform Child Custody Jurisdiction Act (“UCCJA”), OCGA § 19-9-40 et seq.

The essential facts are not in dispute. The parties to this appeal were divorced on November 16, 1989, by a decree entered in the Superior Court of Henry County. Appellant/mother was granted custody of the parties’ two minor children and appellee/father was granted specified visitation privileges. From the time of the divorce in November 1989 until the time of the present proceedings, the minor children resided with their mother in Tennessee.

On July 15, 1992, the mother filed a “Petition for Registration, Enrollment, Enforcement and Modification of Foreign Decree of Divorce” in the Chancery Court for Sumner County, Tennessee, seeking, inter alia, to modify the visitation privileges of the father. Appellant specifically requested in her petition that the court contact the Henry County Superior Court to confirm “relinquishment of jurisdiction by that court in conformance with the [UCCJA].” On July 29, 1992, the father filed his “Petition for Modification of Child Custody and Support,” in Henry County, seeking, inter alia, custody of the parties’ oldest child, who was then 14 years old, and modification of visitation privileges with the parties’ younger son. Attached to the petition was the affidavit of the older child stating his desire to reside with his father. At the time the father’s petition was filed, both children were visiting with him in Georgia in accordance with the visitation provisions of the prior decree.

Also on July 29, 1992, the Henry County Superior Court issued an emergency order granting the father temporary custody of the older child. At the bottom of that order the court noted the following: “Court attaches a copy of the action in Tennessee which seeks to modify visitation [and] child support. Court finds preliminarily that [that action] does not constitute the same facts as contained in the petition pending in Henry Superior Court.” On August 25, 1992, the Chancellor of the Sumner County Tennessee Chancery Court wrote a letter to the Georgia court stating that “priority in exercise of jurisdiction rests with your court. The Chancery Court for Sumner County, Tennessee may only exercise jurisdiction if declined by you and then that jurisdiction may be limited to issues of custody and visitation.” On August 31, 1992, the mother filed a special appearance as well as a separate special appearance, answer and counterclaim in the Georgia action, contesting the Georgia court’s jurisdiction to entertain the change of custody petition filed by the father. Following a hearing and the submission of briefs, the Georgia court entered an order on November 17, 1992, finding that it did have jurisdiction to decide the father’s modification petition under both the UCCJA and Parental Kidnapping Prevention Act (PKPA), 28 USCA § 1738A. The court subsequently entered a final order granting custody of the older child to the father and modifying visitation as to the younger child.

The pivotal question in this case is whether Georgia, the state where the original custody decree was issued, or Tennessee, the “home state” of the minor children, has jurisdiction to decide the issues relating to the modification of custody and visitation in this case. Georgia courts have, in general, evinced a preference in favor of the home state of the child in custody determinations. See Kemp v. Sharp, 261 Ga. 600, 601 (2) (409 SE2d 204) (1991). On the other hand, the appellate courts of this state also have recognized that in appropriate cases the state which made the initial custody determination may be the appropriate forum in which to relitigate subsequent custody matters even though that state is no longer the home state of the minor children. See Steele v. Steele, 250 Ga. 101 (296 SE2d 570) (1982); Mulle v. Yount, 204 Ga. App. 876 (420 SE2d 776) (1992); Gordon v. Gordon, 185 Ga. App. 100 (363 SE2d 353) (1987); Osgood v. Dent, 167 Ga. App. 406 (306 SE2d 698) (1983). Indeed, OCGA § 19-9-54 prohibits the courts of this state from modifying a custody decree made by another state unless it appears that such state does not have jurisdiction, or has declined to assume jurisdiction, to modify the decree. This is referred to as “continuing jurisdiction” under the PKPA. See USCA § 1738A (d). However, under both the UCCJA and PKPA, a state must have jurisdiction under its own laws before it can modify a decree previously entered in that state.

Whether a court of this state has jurisdiction in an interstate custody matter is determined under the provisions of the UCCJA, which “determines jurisdiction based on factual circumstances promoting the child’s best interests and stability.” Gouse v. Wilson, 207 Ga. App. 574, 576 (428 SE2d 571) (1993). “OCGA § 19-9-43 (a) . . . (UCCJA § 3) establishes the four bases for jurisdiction of child custody proceedings, whether initially or by modification: (1) the state is or has been within six months the child’s ‘home state,’ as defined by the Act; (2) the child and at least one custody contestant have a significant connection with the state; (3) the child is physically present and has been abandoned or is in need of emergency protection from actual or threatened abuse or neglect; or (4) no other state has or accepts jurisdiction, and it is in the child’s best interest for this state’s courts to take jurisdiction.” (Emphasis supplied; and in original.) Osgood v. Dent, 167 Ga. App. at 407. The parties agree that Tennessee is the home state of the minor child under subsection (a) (1) (A). It is likewise clear from the record that subsection 3 is inapplicable in this case.

The father argues, and the trial court found, that the Georgia court had “significant connection” jurisdiction under OCGA § 19-9-43 (a) (2). This section provides that jurisdiction is proper when “ [i]t is in the best interest of the child that a court of this state assume jurisdiction because: (A) The child and his parents or the child and at least one contestant have a significant connection with this state; and (B) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” In reaching the conclusion that it had jurisdiction under that section, the trial court reasoned that because the oldest child had indicated his preference to reside with his father pursuant to OCGA § 19-9-1 (a), the focus of the issues to be resolved by the court in deciding the father’s modification petition would be on the father’s fitness as a parent, and since the father resides in Georgia, such information would be more “readily available” in this state. However, we do not think the fact that the child has indicated a preference to reside with a parent of a certain state, although authorized to do so under the laws of that state, alone creates a significant connection between the child and the state where that parent resides so as to confer jurisdiction on the courts of that state under the UCCJA. “Such ‘bootstrapping’ would not appear to be consistent with the overall spirit and purpose of the UCCJA, which seeks to ‘assure that custody proceedings take place in the state with which the child and his family have the closest connections.’ [Cits.]” Gordon v. Gordon, 185 Ga. App. at 103. Thus, the child did not have a significant connection with Georgia despite his choice, and the trial court’s finding otherwise was thus erroneous.

Decided December 1, 1993.

Lynch & Powell, Ralph E. Merck, for appellant.

Smith, Welch & Studdard, Benjamin IT. Studdard III, for appellee.

The trial court also found, and the father argues on appeal, that the Georgia court also had jurisdiction in this case under OCGA § 19-9-43 (a) (4) (A) because the Tennessee court had declined to exercise its jurisdiction over this matter. As to this issue we find persuasive, and therefore adopt, the reasoning of the Supreme Court of North Dakota in rejecting this same contention under a similar provision of the laws of that state. “Subject-matter jurisdiction is derived from the constitution and the laws, [cit.], and cannot be conferred by agreement, consent or waiver. [Cits.] The PKPA and the UCCJA specifically set forth the jurisdictional requirements to modify a custody determination, and neither confers jurisdiction by stipulation, agreement or consent of the parties or the court. [] [Cits.] Therefore, we conclude that [Georgia] did not have jurisdiction to modify the custody determination because of . . . the [Tennessee] court’s consent to [Georgia’s] jurisdiction in this case.” Long v. Long, 439 NW2d 523, 525 (N.D. 1989). Accord Douse v. Douse, 157 Ga. App. 524, 525 (277 SE2d 807) (1981).

Moreover, and lastly, “[w]e must observe that the Supreme Court in Yearta v. Scroggins, 245 Ga. 831, 832 (268 SE2d 151) [(1980)] makes it plain, even if the [UCCJA] does not, that our courts ‘will continue to refuse to provide a forum for relitigating custody except where the legal custodian resides.’ This is an incisive statement of the public policy of this state. There being no grounds under the [UCCJA] by which this expressed rule might be extenuated to give a Georgia court jurisdiction in this case, the trial court [erred in assuming jurisdiction under the facts of this case].” Douse v. Douse, 157 Ga. App. at 526. See also Kemp v. Sharp, 261 Ga. at 601 (2).

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       For a Georgia case so holding, see Gouse v. Wilson, 207 Ga. App. at 574.


text:
    A93A2068.
    A93A2373.
    A94A0007.
    SHAKIM v. THE STATE. DALTON v. THE STATE. RAWLS v. THE STATE.
    (438 SE2d 673)
   Birdsong, Presiding Judge.

Shabazz Shakim, Bobby Lewis Dalton, and Darryl Rawls a/k/a David Wooden appeal their convictions for five separate counts of armed robbery, involving the successive thefts by car-jacking, with the use of a gun, of a Ford Escort, a BMW, and a Plymouth Acclaim. Their appeals are here consolidated.

The State’s evidence showed that the car-jackings occurred on the night of February 29, 1992, while appellants and co-defendant Ted Williams, who was acquitted, were traveling together. At about 8:30 p.m., the first victim was washing his red Ford Escort when Bobby Dalton held a gun to his head and took his car, jewelry and money. Dalton got in the back seat of the victim’s car while another co-defendant tried to drive it, but when he announced he could not drive a standard shift, another defendant took the wheel. The victim could not identify three of the men, but he later identified Dalton in a photo line-up.

About five-and-one-half hours later, four men in the red Ford rammed the second victim’s black BMW. When this victim got out of his car, appellant Shakim held a gun in his face and the four defendants drove off in his car, leaving the Ford behind. As they were driving away, this victim heard one of them say he could not drive a standard shift. This victim identified Shakim and Rawls from the photo line-up.

About an hour later, the four armed robbers in the black BMW saw four young women with a 1992 Plymouth Acclaim. The women were parked next to a telephone booth so that one could use the telephone. Appellant Shakim walked up, spoke to the woman using the telephone and shook her hand. The robbers took the car and money at gunpoint. The victim at the telephone booth especially remembered Shakim because he was “cute,” and she got a good look at all four defendants. She later identified all four from a photo line-up. The three women in the Plymouth identified only Shakim and Rawls from the photo line-up. Two robbers drove off in the BMW; the other two took the Plymouth.

Within 36 hours after car-jacking the Plymouth, all four defendants were arrested when they tried to sell two kilos of bogus cocaine to undercover agents. Rawls drove the Plymouth to meet the agents while the other three transported the bogus cocaine in another car. All were arrested and the Plymouth was traced as stolen. Officers used photographs taken of the drug defendants after their arrest and photos of two other persons for possible identification by the car-jacking victims. The first car-jack victim picked photos of Dalton and Rawls. The second car-jack victim picked photos of Shakim and Rawls. Three of the women victims of the third car-jack picked photos of Shakim and Rawls, and the fourth woman who had been standing at the telephone booth picked photos of all four defendants: Dalton, Shakim, Williams and Rawls.

Appellants filed motions to suppress the photograph identifications. A day before trial Shakim and Dalton filed motions to sever which were renewed when Rawls decided to testify about the drug arrest so as to explain that he had borrowed the Plymouth. In ruling on the motions to suppress, the court examined the witness identification form which the witnesses had signed and had noted thereon that the first witness (owner of the red Ford) identified Dalton as having a nickel-plated automatic handgun; the second witness (owner of the BMW) identified Shakim and Rawls as both having had guns; two of the women who were in the Plymouth noted that Shakim and Rawls had guns and one noted that Rawls had a gun; the fourth woman, who was standing by the telephone booth, noted that Shakim had a gun.

All defendants were convicted except Williams, who was identified by only one of the witnesses. Held:

1. All appellants enumerate as error the denial of their motions to suppress, motions for acquittal and motions for new trial, on grounds that the photo line-up identification and the in-court identification of each appellant was so impermissibly suggestive that it was subject to a substantial likelihood of irreparable misidentification.

Appellants contend that the photo line-up was suggestive in that it consisted of six photos of persons, two of whom were dissimilar to the four photos of the co-defendants, which were distinguished by identical backgrounds including height marks indicating that the photos were made at a line-up. These photos were in fact taken after their arrest on the cocaine charge. Appellants also contend that a few days before trial, when they were in an empty jury box, dressed in inmate clothing, they were viewed by all the victims for several minutes.

The photographs used in the line-up are in the record. We do not find that the photographic line-ups were impermissibly suggestive; consequently, we need not determine whether the procedure created a substantial likelihood of irreparable misidentification. Colston v. State, 205 Ga. App. 782, 783 (423 SE2d 714). The photos of the two persons not involved depicted men with similar complexions, hair length and facial features. The witnesses viewed the photographs separately from the other witnesses and there is no suggestion that they were coached. The first victim and the second victim viewed the photo line-up and made their identifications at different times and places. Each of the four women viewed the photos in a room separate from the others and was told not to discuss her conclusions. See Cheeves v. State, 157 Ga. App. 566 (278 SE2d 148). The fact that all four defendants were in the line-up of six and the fact that there were height markings in the four photos of the persons arrested at the bogus cocaine sale, do not render the procedure suggestive. Eiland v. State, 246 Ga. 112 (268 SE2d 922); Jackson v. State, 209 Ga. App. 53, 54 (432 SE2d 649); see Taylor v. State, 203 Ga. App. 210 (1) (416 SE2d 554). As a matter of fact, the height markings in the four photographs were not suggestive, because they are not so distinctive as to lead to an “ ‘all but inevitable’ ” identification of appellants. Jackson, supra. In fact, only one of the six witnesses picked all four defendants. The second male victim picked only Shakim and Rawls, and three of the women also picked only Shakim and Rawls. The witnesses were not unduly influenced by the height markings in the four photos, as none identified more than two of those photos except the woman who testified she could see all the robbers from her position at the phone booth.

Finally, the mere fact that the witnesses viewed the defendants in inmate clothing in court before trial does not taint the in-court identification. See McClesky v. State, 245 Ga. 108 (263 SE2d 146); Anderson v. State, 206 Ga. App. 354 (426 SE2d 6). The trial court did not err in denying the motions to suppress, the motions for acquittal and motions for new trial on these grounds.

2. Appellants Shakim and Dalton contend the trial court erred in denying their motions to sever when appellant Rawls stated he intended to testify about the drug arrest, and they contend this evidence impermissibly tainted their character.

It is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those which establish the commission of another criminal offense and bring into question his character. Bixby v. State, 234 Ga. 812 (218 SE2d 609); Blackshear v. State, 199 Ga. App. 839 (2) (406 SE2d 269); Steele v. State, 196 Ga. App. 330 (396 SE2d 4). The circumstances of the arrest are admissible for whatever value the jury wants to place on them (Bogan v. State, 206 Ga. App. 696 (426 SE2d 392)), and though evidence may incidentally put character in issue or be prejudicial, it may be admitted if otherwise relevant. Id. The trial court did not abuse its discretion in refusing to sever appellants’ trials because one of the defendants chose to admit evidence which was admissible. See Kelly v. State, 209 Ga. App. 789 (434 SE2d 743).

3. Appellant Dalton contends the trial court erroneously admitted the evidence of the drug arrest as a “similar transaction,” when he did not receive the State’s notice of intent to introduce this evidence pursuant to Uniform Superior Court Rule 31.3 (b). Williams v. State, 261 Ga. 640, 642 (409 SE2d 649). The record shows that the State did send Dalton’s attorney a notice of intent to introduce evidence of the arrest on drug charges, thereby complying with the rule. Although Dalton’s attorney stated in his place that he did not receive the notice because he had moved his office, the trial court found that the attorney had notice prior to trial and that Dalton was not prejudiced by his failure to receive it in the mail. Moreover, as this evidence was admissible as circumstances of the arrest and as part of a continuing criminal enterprise, it is not objectionable on grounds that it was a “similar transaction” for which compliance with Superior Court rules and with Williams, supra, is required.

Decided December 1, 1993.

Ellis W. Peetluk, for Shakim.

Rickey L. Richardson, for Dalton.

Hester & Hester, Frank B. Hester, for Rawls.

Lewis R. Slaton, District Attorney, Ron Dixon, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.