text:
    A92A0083.
    WILLIAMS v. THE STATE.
    (419 SE2d 351)
   Beasley, Judge.

Williams is charged with possession of cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (a), driving while license revoked, OCGA § 40-5-121 (a), and driving on wrong side of road, OCGA § 40-6-40 (a). This is an interlocutory appeal from the trial court’s denial of a motion to suppress evidence of the contraband seized after impoundment and inventory of Williams’ automobile following his arrest on traffic violations.

Williams contends that the impoundment was invalid and the search therefore unreasonable under both the Federal and State Constitutions. He does not challenge the lawfulness of the arrest. Even though he cites the State Constitution, he does not pursue this claim with argument or case law developing it. The authority upon which he relies addresses only the federal standard. Consequently, the state ground is considered abandoned. See Davenport v. State, 172 Ga. App. 848, 850 (2) (325 SE2d 173) (1984).

The arresting officer testified that at approximately 1:30 a.m. on March 31, 1991, he was on routine patrol in the City of Cumming when he spotted Williams’ car. He was following behind the car when he observed Williams cross over the centerline a few times. The officer activated the blue lights and Williams pulled off to the roadway’s grassy shoulder. Williams was unable to produce a driver’s license. A computer check showed that Williams’ license had been suspended. The officer arrested him for driving with a suspended license and driving left of center and put him in the patrol car. The officer chose to impound the vehicle and conduct an inventory search on the spot. He found what was later determined to be cocaine in the glove compartment.

The officer acknowledged that the police department policy was to impound vehicles and inventory them if the arrestee had no companion in the car. He explained that he chose to impound Williams’ car because at that early hour he was the only one in the department working and had no other way to secure or do anything with the vehicle, which was located partially on the roadway and partially on the grassy shoulder. On cross-examination, the officer agreed that the car could have been moved to a nearby asphalt lane across from the roadway but stated that he did not move people’s vehicles. He did not inquire whether or not Williams could make other arrangements for the car’s retrieval. He did not recall Williams asking for a private wrecker but stated that whenever a reasonable request was made, he did not deny it.

Williams testified that the officer refused his request to call someone to take the car, either one friend half a mile away who could walk over or another friend with a wrecker.

The trial court denied suppression, concluding that the officer’s being on duty alone at that time of night necessitated the officer’s impounding the car by use of the standard tow truck company and that the officer had no other reasonable alternatives presented. Supporting factual findings by the trial court are useful in assessing suppression determinations; however, here the court did not make a specific finding as to whether or not it accepted Williams’ version of events, i. e., that he requested to call someone to retrieve the vehicle.

Williams maintains that the impoundment and inventory were invalid because there were other reasonable alternatives for retrieval and removal of his car, including the two he presented.

“ ‘(I)nventory searches have been upheld because they serve three legitimate interests: (1) protection of the property while in custody; (2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property.’ Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983). ‘Justification of such a search, however, is premised upon the validity of the impoundment of the vehicle.’ Id. ‘Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).’ Whisnant v. State, 185 Ga. App. 51, 52 (2), 53 (363 SE2d 341) (1987). ‘Where the impoundment is unreasonable the resulting inventory search is invalid. (Cit.)’ State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989).

“ ‘ “(A) police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” Mooney v. State, 243 Ga. 373, 375 (254 SE2d 337) (1979). Although absolute necessity is not required, however, a seizure must still be reasonable under the circumstances of a case, and the rationale for inventory searches must inhere in the decision to impound. (Cits.)’ Strobhert, supra at 515. See State v. Ludvicek, 147 Ga. App. 784, 785 (250 SE2d 503) (1978).” Martin v. State, 201 Ga. App. 716, 717 (1) (411 SE2d 910) (1991). See also State v. Thomason, 153 Ga. App. 345, 349 (265 SE2d 312) (1980).

Whether or not Williams did suggest to the officer any alternative to impoundment was for the trial court to decide as finder of fact at the suppression hearing. The appellate court is then “bound to accept the trial court’s decision on questions of fact and credibility . . . unless clearly erroneous, . . .” Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987). It is not certain what the court found in this regard, although the court did state: “I do not feel that the officer was presented with reasonable alternatives, particularly alternatives which dictated his exploration into using other alternatives.” Assuming the trial court found that Williams suggested to the officer his asserted two alternatives, and considering the third, the officer’s failure to explore or pursue any of them and to impound the vehicle instead was reasonable under the Fourth Amendment.

There were no passengers in Williams’ car and Williams himself was ineligible to further drive the car because of lack of a valid driver’s license. The car was in a dangerous position on the roadway and had to be moved for safety’s sake. It was the middle of the night and the officer could not readily summon assistance to either move the car across the street or attend Williams in the patrol car if the officer himself moved the vehicle. Nor could he obtain backup assistance in the event either of the individuals suggested by Williams actually came but created a security problem. The solitary officer was under no duty to subject himself to possible peril in order to further accommodate Williams in this regard. Choosing impoundment was reasonably necessary to safeguard Williams’ property, protect the public by removing the roadway obstruction, and prevent exposure of the officer to potential danger.

As to the search, “ ‘[t]he police, in conducting an inventory search, may ordinarily inspect the glove compartment, the trunk, on top of the seats as well as under the front seats, and the floor of the automobile. An inspection of these areas is reasonable because these are common locations in or on which it is reasonably to be expected that the owner or occupant of an automobile may place items of personalty. The intrusion, although serious, is justified by the need to protect the property of the owner, and to protect the police from claims. This is to say no more than in the typical case it is not unreasonable for the police to search such places while conducting an inventory.’ [Cit.]” Arnold v. State, 155 Ga. App. 581, 582 (1) (271 SE2d 714) (1980). See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).

Decided May 29, 1992.

J. Richard Neville, for appellant.

Garry T. Moss, District Attorney, for appellee.

Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983), and Mulling v. State, 156 Ga. App. 404 (274 SE2d 770) (1980), relied on by Williams are readily distinguishable on their facts. Strobhert had a companion with him, the vehicle was unconnected with the reason for the defendant’s arrest, it belonged to someone else, and the vehicle was legally parked at the time of arrest. In Mulling, the defendant had been allowed to select a towing service for his vehicle and the tow was on the way when the police made an “inventory” search of the vehicle. Compare also State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978) and State v. King, 191 Ga. App. 706 (382 SE2d 613) (1989), in which impoundment was not permitted because unnecessary.

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A0049.
    BOB v. SCRUGGS COMPANY. BOB v. DEPARTMENT OF TRANSPORTATION.
    A92A0492.
    (419 SE2d 100)
   Sognier, Chief Judge.

Emma Bob brought suit against, inter alia, the Scruggs Company and the State Department of Transportation, alleging that the defendants’ negligent design and construction of a segment of Interstate 75 proximately caused an automobile accident in which she was severely injured. Scruggs and DOT each filed motions for summary judgment, and the trial court granted both motions. We consolidated for decision Bob’s appeal in Case No. A92A0049 from the judgment in favor of Scruggs and her appeal in Case No. A92A0492 from the grant of summary judgment to DOT.

The construction project at issue comprised the widening of certain bridges along a segment of Interstate 75 in southwest Georgia. DOT entered into a general contract with Leware Construction Company for the performance of the work in accordance with plans and specifications prepared by DOT engineers. Leware then subcontracted a portion of the grading, paving, drainage, and grassing work to Scruggs pursuant to a written subcontract that expressly incorporated the DOT plans and specifications. Scruggs performed the subcontract work, and its work was accepted by Leware and DOT.

Early in the morning of November 6, 1988, Bob was a passenger in a car being driven south on Interstate 75 in the vicinity in which the project work was performed. She was injured when the driver fell asleep and ran off the road and plunged down a steep embankment. She filed suit on November 5, 1990, contending that the slope of the embankment was too steep, the guardrail was too short, and the condition of the roadway at the site of the accident was inherently dangerous.

1. In Case No. A92A0049, Bob asserts that material fact questions remain concerning whether Scruggs performed its subcontract work at the accident site in accordance with the plans and specifications, whether Scruggs should have known the project design was inherently dangerous, and whether Scruggs held itself out as an expert in highway embankment or guardrail design. Bob maintains that the subcontract incorporated two highway design manuals issued by the American Association of State Highway and Transportation Officials (“AASHTO”) and required Scruggs to perform its work in accordance with these manuals, and she submitted an affidavit of an expert in highway design and engineering who opined that the guardrail and embankment at the accident scene deviated from the AASHTO standards.

As a general rule, a contractor may be liable to third parties injured as a result of the negligent performance of the contract work — that is, work not in accordance with the project plans and specifications. Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1909). However, even if a contractor’s work was performed negligently, if that work is accepted by the owner, the contractor cannot be held liable to an injured third party for negligent performance unless the work was either a nuisance per se, or inherently or intrinsically dangerous, or so negligently defective as to be imminently dangerous to others. David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990); Young v. Smith & Kelly Co., 124 Ga. 475, 476 (52 SE 765) (1905). If the design of the work is inherently dangerous, the contractor may be held liable only if it held itself out as an expert in the design of the type of work performed at the project. David Allen Co., supra.

Representatives of Scruggs testified by affidavit and deposition that the subcontract work was performed in accordance with the DOT plans and specifications and accepted by DOT. The testimony of Bob’s expert that the project work did not conform to the AASHTO standards does not rebut this testimony, for the AASHTO standards were not part of the project plans and specifications Scruggs was required to follow. The record shows without dispute that DOT engineers consulted the AASHTO manuals for guidance in designing the project plans and specifications, but that the Scruggs subcontract and the general contract between DOT and Leware provided that the work should be performed in accordance with the DOT-prepared plans and specifications. The subcontract does not mention the AASHTO manuals and contains no requirement that the work be performed according to the manuals. Thus, the record unequivocally establishes that Scruggs performed its work in a non-negligent manner and the work was accepted by the owner. Consequently, Scruggs has pierced Bob’s allegation that Scruggs performed its subcontract work negligently, thereby shifting to Bob the burden of rebutting that evidence, Button Gwinnett Landfill v. Sinnock, 193 Ga. App. 244, 245 (387 SE2d 439) (1989), which Bob has failed to do. Therefore, even assuming, without deciding, that fact questions exist regarding whether the work was inherently dangerous and whether Scruggs knew or should have known that, Scruggs cannot be held liable for negligent performance. See David Allen Co., supra.

Bob’s contention that the trial court erred by concluding that Scruggs could not be held liable for any design defects is similarly without merit. Ferrell Scruggs, the company president, testified that Scruggs employed no architects or professional engineers and had no highway design expertise. He stated that Scruggs was not capable of preparing plans for road construction projects and that it relied upon the plans and specifications supplied by the owners of its projects. Contrary to Bob’s contention, Scruggs’s experience in constructing highway projects from plans and specifications prepared by design professionals does not qualify it as an expert in highway design. Accordingly, the trial court did not err by entering summary judgment in favor of Scruggs. See David Allen Co., supra.

2. In Case No. A92A0492, Bob contends the trial court erred by granting summary judgment to DOT on the basis of sovereign immunity afforded by a 1990 amendment to the Georgia Constitution, Art. I, Sec. II, Par. IX. Ga. Laws 1990, p. 2435, § 1. We address only the first of Bob’s enumerations, for it is dispositive. The trial court applied the amendment retroactively to bar Bob’s suit. The Supreme Court, however, subsequently ruled that the amendment, which became effective on January 1, 1991, applies only to lawsuits filed after the effective date of the amendment. Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992). Since Bob filed suit two months prior to that date, the amendment does not apply, id., and DOT has waived its sovereign immunity to the extent of its available insurance. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303 (2) (357 SE2d 569) (1987).

Decided May 11, 1992

Reconsideration denied June 1, 1992

Sutton & Slocumb, Berrien L. Sutton, for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, for appellee.

Judgment affirmed in Case No. A92A0049; judgment reversed in Case No. A92A0492.

McMurray, P. J., and Cooper, J. concur.


author: Carley, Presiding Judge.

text:
    A92A0178.
    KAPLAN et al. v. BLANK et al.
    (419 SE2d 127)
   Carley, Presiding Judge.

Prior to the delivery of her child, appellant-plaintiff Mrs. Susan Kaplan signed a written consent to the performance by appellee-defendant Dr. Stephen Blank of a cesarean section and a possible hysterectomy. Immediately following the delivery, appellee determined that a hysterectomy would not be necessary. However, appellee did perform a bilateral tubal ligation after obtaining only oral consent thereto. Subsequently, appellant and her husband initiated the instant tort action against appellee and his professional corporation, basing their claim upon the lack of any written consent to the performance of the tubal ligation. After discovery, appellants moved for partial summary judgment as to the issue of appellees’ liability. Although the trial court denied the motion, it did certify its order for immediate review. Pursuant to this court’s grant of appellants’ motion for an interlocutory appeal, they bring the instant appeal from the denial of their motion.

1. “A cause of action for battery exists when . . . treatment is performed [by a physician] without the consent of, or after withdrawal of consent by, the patient. [Cits.]” Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). Under the general provisions of the Georgia Medical Consent Law, OCGA § 31-9-1 et seq., a patient’s consent to surgical or medical treatment need not be obtained in writing. OCGA § 31-9-2 (a); Spikes v. Heath, 175 Ga. App. 187, 188 (2) (332 SE2d 889) (1985). However, the Georgia Medical Consent Law “specifically excludes sterilization procedures, [which] must be governed by the ‘existing law independently of the terms and provisions of [OCGA 31-9-1 et seq.]’ [Cit.] The ‘existing law’ is found in the language of the Voluntary Sterilization Act[, OCGA § 31-20-1 et seq.]. . . .” Robinson v. Parrish, 251 Ga. 496, 497 (306 SE2d 922) (1983).

Under the Voluntary Sterilization Act, “[i]t shall be lawful for any physician to perform a sterilization procedure upon a person 18 years of age or over, .. . Provided that a request in writing is made by such person. . . .” (Emphasis supplied.) OCGA § 31-20-2. “When an operation shall have been performed in compliance with [the Voluntary Sterilization Act], no physician . . . shall be liable civilly or criminally as a result of such operation . . . , except in the case of negligence in the performance of such operation.” (Emphasis supplied.) OCGA § 31-20-5. When, however, a sterilization procedure has not been performed in compliance with the consent requirements of the Voluntary Sterilization Act, the procedure was not otherwise lawfully performed and a physician may be held liable for the commission of a battery. Gowen v. Carpenter, 189 Ga. App. 477 (1) (376 SE2d 384) (1988); Gowen v. Cady, 189 Ga. App. 473 (2, 3) (376 SE2d 390) (1988).

“ ‘Sterilization procedure’ means any procedure which is designed or intended to prevent conception and which is not designed to unsex the patient by removing the ovaries or testicles.” OCGA § 31-20-1 (3). A tubal ligation obviously constitutes such a “sterilization procedure.” However, appellees did not obtain any written consent prior to the performance of that procedure.

Relying upon OCGA § 31-20-5, appellees urge that they nevertheless incur no liability for the failure to obtain written consent. That statute provides: “Nothing in [the Voluntary Sterilization Act] shall be construed so as to require compliance therewith where medical or surgical treatment for sound therapeutic purposes . . . is required of any person in this state and where such treatment, at the same time that it serves such purposes, may involve the nullification or destruction of reproductive functions.” (Emphasis supplied.) This statute obviously contemplates the case wherein the ultimate loss of reproductive functions is merely incidental to a course of treatment which is otherwise beneficial to the patient’s over-all general non-reproductive health. It is undisputed that the only purpose served by the performance of the tubal ligation in the instant case was to prevent a future pregnancy and that it served no sound therapeutic purpose which was of any immediate benefit to appellant Mrs. Kaplan’s non-reproductive health. The purpose of every sterilization procedure is the prevention of a future pregnancy and to hold that such a purpose, standing alone, constitutes a “sound therapeutic purpose” within the meaning of OCGA § 31-20-5 would effectively negate the Voluntary Sterilization Act. Even if a pregnancy might be detrimental to the patient’s general health, a future pregnancy can certainly be avoided by means less extreme than undergoing a sterilization procedure. Accordingly, mere avoidance of a future pregnancy is no viable basis for obviating the requirement that the physician obtain the patient’s written consent to performance of a sterilization procedure and give “a full and reasonable medical explanation ... as to the meaning and consequence of such operation.” OCGA § 31-20-2.

Decided May 19, 1992

Reconsideration denied June 1, 1992.

Jordan & Bodner, Leigh R. Bodner, for appellants.

Alston & Bird, Bernard Taylor, Harold W. Jordan II, for appellees.

It is undisputed that appellees performed a sterilization procedure without obtaining the written consent mandated by the Voluntary Sterilization Act. Accordingly, the procedure was performed without the requisite consent necessary to insulate appellee from liability for the commission of a battery. It follows that the trial court erred in denying appellants’ motion for partial summary judgment as to appellees’ liability for the battery that was committed.

2. The trial court did, however, correctly deny appellants’ motion for partial summary judgment as to appellees’ liability under a professional negligence theory. There appears to be no contention that appellees were negligent in the treatment that was provided. The only contention is that appellees performed a sterilization procedure to which the requisite consent was not given. Oral consent to a sterilization procedure is no consent under the Voluntary Sterilization Act. “Although [this] suit is against a physician and [his professional corporation] for conduct within the scope of the relationship of a physician to his patient, [it appears that the] determination [of such suit] depends, not upon the principles applicable to actions for negligence or malpractice, but upon the rules relating to a suit for damages growing out of a trespass alleged to have been committed upon the person of [appellant Mrs. Kaplan].” Mims v. Boland, 110 Ga. App. 477, 481 (1a) (138 SE2d 902) (1964).

Judgment affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0182.
    TYLER et al. v. ROBERTS.
    (419 SE2d 103)
   Pope, Judge.

Plaintiffs Doyster and Rebecca Tyler brought suit against defendant Norman Roberts for personal injury allegedly sustained when the wheel of a trailer hitched to a truck driven by defendant ran over Mr. Tyler’s foot after he exited the vehicle. Evidence of payments to plaintiffs from various collateral sources was presented by both plaintiffs and defendant at trial. The jury returned a verdict, for defendant. Plaintiffs filed a motion for new trial, raising the general grounds. While the motion was pending, the Georgia Supreme Court rendered its decision in Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), holding OCGA § 51-12-1 (b),’authorizing the admission in evidence of collateral source payments, to be unconstitutional. Plaintiffs amended their motion for new trial; arguing the trial court’s instruction to the jury thát they could consider collateral source payments in mitigation of plaintiffs’ damages was improper. Plaintiffs appeal the denial of their motion for new trial.

Decided May 12, 1992

Reconsideration denied June 1, 1992

Bennett, Wisenbaker, Bennett & Williams, Michael S. Bennett, for appellants.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, for appellee.

1. This court recently ruled that the holding in Denton must be applied retroactively to those cases still pending at the time Denton was decided. Anepohl v. Ferber, 202 Ga. App. 552 (415 SE2d 9) (1992). Thus, plaintiffs are correct in arguing the holding in Denton should have been applied retroactively to their motion for new trial.

2. Pursuant to our ruling in Anepohl, the plaintiffs did not waive their objection to the trial court’s charge on collateral source payments by failing to raise an objection at trial since, pursuant to OCGA § 5-5-24 (c), the charge was error as a matter of law. We reject defendant’s argument that plaintiffs are precluded from raising an objection to the unconstitutional charge because the plaintiffs, themselves, introduced evidence of collateral source payments to support their claim that their damages were substantial. Plaintiffs had the right to introduce evidence of insurance payments to prove their damages, or for any other reason, regardless of the existence or constitutionality of OCGA § 51-12-1 (b). The introduction of such evidence does not, however, preclude plaintiffs from objecting to the improper charge to the jury that they could consider the evidence in mitigation of their damages. Thus, the trial court erred in denying plaintiffs’ motion for new trial.

3. Having ruled that plaintiffs are entitled to a new trial, we need not address plaintiffs’ remaining enumeration of error.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0326.
    THE STATE v. WRIGHT et al.
    (419 SE2d 334)
   Carley, Presiding Judge.

Appellees Wright and Brown were jointly indicted for trafficking in cocaine. Brown was also indicted for possession of a firearm by a convicted felon. The trial court granted pre-trial motions to suppress and the State appeals.

1. Brown’s motion to dismiss the State’s appeal is denied.

2. On March 27, 1990, a federal warrant was issued in Pennsylvania for the arrest of Wright on a charge of unlawful flight to avo.id prosecution for drug offenses. On July 22, 1990, Wright was arrested on an unrelated charge in DeKalb County. As the result of this arrest, it was learned that Wright was residing in an apartment in Clayton County. Although Wright had been released before it was determined that he was a wanted fugitive, the information as to his address was provided to the F.B.I. On July 26, 1990, F.B.I. agents entered Wright’s apartment in an attempt to execute the federal arrest warrant. The trial court found that the DeKalb County arrest was illegal and that any evidence seized from Wright’s apartment by the F.B.I. agents should be suppressed as the “fruit of the poisonous tree.”

Evidence is suppressible if it was seized in a search that was authorized only by information that was illegally obtained. However, the search in the instant case was not conducted pursuant to a search warrant that had been issued subsequent to and in reliance upon any information derived from the DeKalb County arrest. Wright’s apartment was entered pursuant to a federal arrest warrant that had been issued prior to and without reliance upon any information derived from the DeKalb County arrest. Unlike a search warrant, the federal arrest warrant was not directed toward the seizure of tangible evidence from a specified location. The federal arrest warrant authorized the seizure of the person of Wright wherever he might be located. As it happens, the F.B.I. agents learned that Wright, having fled Pennsylvania, was in Georgia and residing in a specific apartment in Clayton County. Thus, the information derived from the DeKalb County arrest was relevant only to the location of the subsequent execution of the federal arrest warrant, not to the original issuance of that warrant itself. Armed with the information from DeKalb County, the F.B.I. agents could have conducted a stakeout of Wright’s apartment and arrested him when he exited or before he entered. However, the agents were not precluded from entering Wright’s apartment. “[A]n arrest warrant alone will suffice to enter a suspect’s own residence to effect his arrest.” Steagald v. United States, 451 U. S. 204, 221 (101 SC 1642, 68 LE2d 38) (1981).

Accordingly, the legality of Wright’s DeKalb County arrest is irrelevant in the instant case. Regardless of how the' information regarding the whereabouts of Wright was obtained, any evidence found in the search of Wright’s apartment cannot be considered as solely the “fruit” thereof. The evidence found in the search of Wright’s apartment was solely the “fruit” of the previously issued federal arrest warrant. The “fruit of the poisonous tree” “doctrine is limited to evidence which the police cannot trace to an independent and lawful source. [Cits.]” Morrison v. State, 129 Ga. App. 558 (1) (200 SE2d 286) (1973). The initial authority to enter the apartment to conduct a search for Wright was in no way dependent upon information regarding the mere location thereof, but was wholly dependent upon the pre-existing federal warrant as an entirely independent and lawful source of authority for that search. Compare Clare v. State, 135 Ga. App. 281, 285 (5) (217 SE2d 638) (1975).

As long as the federal arrest warrant was issued on probable cause and was itself “untainted,” the F.B.I. agents could use the information derived from the DeKalb County arrest and thereafter execute the warrant in Wright’s Clayton County apartment if they had reason to believe that Wright was inside. “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U. S. 573, 603 (100 SC 1371, 63 LE2d 639) (1980). There is no contention that the federal arrest warrant was not valid and the undisputed evidence of record shows that the F.B.I. agents had reason to believe that Wright was in his apartment when they entered. Accordingly, the original entry into the apartment pursuant to the federal arrest warrant was authorized.

3. Upon entering the apartment, the F.B.I. agents almost immediately discovered Brown and a gun. The seizure of Brown and the gun was authorized pending his identification and, if he proved not to be the wanted fugitive, pending a further search of the apartment for Wright. State v. Scott, 176 Ga. App. 887, 889 (2) (339 SE2d 276) (1985).

4. Having determined that Brown was probably not the fugitive, the F.B.I. agents were obviously authorized to conduct a thorough search of the premises to determine whether Wright was there, since it was the seizure of the person of Wright that was authorized by the federal arrest warrant. “Possessing an arrest warrant and probable cause to believe [Wright] was in his home, the officers were entitled to enter and to search anywhere in the [apartment] in which [Wright] might be found. [Until] he was found, . . . the search for him was [not] over, and there was [still] that particular justification for entering any [place] that had not yet been searched.” Maryland v. Buie, 494 U. S. 325, 332-333 (III) (110 SC 1093, 108 LE2d 276) (1990).

After a search of the apartment itself, Wright had yet to be found. However, an F.B.I. agent then observed a “hatch” which ostensibly provided access to an attic area above the apartment. Using a stool to stand on, the agent pushed the hatch aside and shined a light into the attic. The trial court concluded that, by so doing, the agent exceeded his authority and “entered a part of the apartment which was not normally accessible to [him] or anyone else.”

This is clearly erroneous. The proper inquiry must be whether it was reasonable to believe that the hatch could lead to a part of the apartment which might normally be considered accessible by a fugitive who was seeking to avoid his arrest for having already fled another jurisdiction to avoid prosecution. Obviously, it is not unreasonable to believe that such a fugitive might “normally” consider an attic to be an accessible part of his residence. It was necessary for the agent to use a stool to reach the closed hatch. However, there is nothing to indicate that it was not reasonable for the agent to suspect that Wright may have been able to use a rope ladder or to have availed himself of some other means of access which were otherwise undetectable. Having discovered the hatch, the agent would have been remiss in his duties had he not checked to determine what was on the other side before he abandoned his search for Wright. As previously noted, the agent was “entitled to enter and to search anywhere in the [apartment] in which [Wright] might be found.” (Emphasis supplied.) Maryland v. Buie, supra at 333 (III). Wright “claims that it was unreasonable for the officers to look inside [the attic] . . . when they were armed with an arrest warrant that gave them only the limited authority to search for [Wright] himself. Of course, [Wright] could hide in [an attic], therefore it was reasonable to look for him there.” United States v. Beck, 729 F2d 1329, 1332 (4) (11th Cir. 1984).

5. As the agent stood on the stool, his view was obstructed by several paper and plastic bags which were on the floor of the attic at his eye level. In order for him to obtain a clear view of the attic and to prepare for his possible confrontation with an armed fugitive, the agent quickly grabbed the bags and threw them to the floor. An unobstructed view of the attic revealed to the agent that Wright was not present there. When he began to return the bags to the attic, however, the agent saw that one of them contained, in plain view, glassine envelopes of what appeared to be cocaine. This cocaine was seized.

The suspected cocaine did not come into the agent’s plain view until after he had moved the bags. It is undisputed, however, that the agent did not move the bags in order to search them, but merely to facilitate his search for Wright. Thus, the agent’s act of moving the bags did not constitute a “search” of the premises which was separate and apart from the search for Wright that had been the lawful objective of the agent’s entry into the apartment. “Merely inspecting those [items] that came into view during the . . . search [for Wright] would not have constituted an independent search, because it would have produced no additional invasion of [Wright’s] privacy interest. [Cit.]” Arizona v. Hicks, 480 U. S. 321, 325 (II) (107 SC 1149, 94 LE2d 347) (1987). By taking action directly related to the objectives of the authorized intrusion to search for Wright, the agent may have exposed to view concealed portions of the apartment and its contents, but this action did not produce a new invasion of Wright’s privacy which was unjustified by the exigent circumstance of executing the federal arrest warrant that had validated the entry. Compare Arizona v. Hicks, supra at 325 (II). Accordingly, the cocaine was properly seized under the “plain view” doctrine. “Once the officers looked in the [attic] the [cocaine] came within their view and therefore [was] seized properly.” United States v. Beck, supra at 1332 (4).

6. After the cocaine had been seized, the F.B.I. agents used that discovery to secure a warrant to search the apartment for additional evidence of drug activity. The subsequent search conducted pursuant to this warrant did result in the discovery of additional evidence. However, the trial court suppressed this additional evidence, concluding that the search pursuant to which it had been discovered was “tainted” because the warrant had been issued on the basis of the cocaine found during the purportedly “illegal search” of the attic.

This conclusion is clearly erroneous. As discussed in Divisions 4 and 5, there was no “illegal search” of the attic. There was a legal search of the attic for Wright, which search resulted in the discovery, in plain view, of cocaine. That lawfully seized cocaine furnished ample probable cause for the issuance of a warrant to search the apartment for additional evidence of drug activity.

7. The State filed notice of its intent to introdúce, as similar offenses, evidence of Wright’s commission in Pennsylvania of those drug offenses which had led to his fugitive status. Wright responded by making a motion to suppress which was, in effect, a motion in limine to exclude this evidence on the ground that the drugs had been illegally seized by the Pennsylvania authorities. The trial court, after conducting a hearing, granted this motion, finding that the drugs had been illegally seized in Pennsylvania.

The State does not seek to try Wright for the Pennsylvania offenses or to introduce as tangible evidence in the instant Georgia criminal proceeding the actual drugs that were seized in Pennsylvania. The State seeks only to introduce evidence of Wright’s commission of similar drug offenses in Pennsylvania. “ ‘(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to' prove the latter. [Cit.]’ ” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). The purported illegality of the seizure of the drugs in Pennsylvania would have no bearing on Wright’s identity as the perpetrator of an offense in that jurisdiction and would not serve to demonstrate any dissimilarity between that offense and his commission of a drug crime in Georgia. The exclusionary rule is neither relevant to guilt or innocence, nor does it bar a prosecution. However, the State does not urge that the asserted illegality of the Pennsylvania seizure of drugs is an irrelevant inquiry in the determination of the admissibility of the other crimes evidence, but urges only that the trial court erred in granting Wright’s motion on the merits. Accordingly, for purposes of this appeal, we will assume, without deciding, that the exclusionary rule is not limited to the suppression of tangible evidence to prove guilt, but is broad enough to mandate the suppression in Georgia of mere evidence of purported similar offenses committed and otherwise prosecutable elsewhere.

The relevant facts are as follows: Officers originally entered Wright’s two apartments in Pennsylvania without a search or arrest warrant. The State urges that these warrantless entries were authorized so as to prevent the destruction of evidence of Wright’s drug activity pending issuance of a search warrant. However, no evidence of exigent circumstances sufficient to authorize the immediate warrant-less entries was introduced. Compare Anderson v. State, 193 Ga. App. 6, 7 (2) (387 SE2d 148) (1989). The State further urges that, even if the initial entries were illegal, it was only after the issuance of the search warrants on sufficient probable cause that Wright’s apartments were actually searched and the drugs seized. See Mack v. State, 189 Ga. App. 261, 263 (1) (375 SE2d 458) (1988). However, admissible copies of the Pennsylvania search warrants were never introduced into evidence. Absent any admissible evidence of valid search warrants, the seizure of drugs from Wright’s apartments cannot be upheld under the “independent source” doctrine. Compare Murray v. United States, 487 U. S. 533 (108 SC 2529, 101 LE2d 472) (1988).

The State having failed to produce any evidence that the drugs were seized in Pennsylvania pursuant to a valid search warrant or pursuant to any exception to the warrant requirement, it follows that the trial court did not err in granting Wright’s motion in limine.

8. The trial court’s grant of Wright’s and Brown’s motions to suppress evidence discovered during the search of Wright’s apartment is reversed. The trial court’s grant of Wright’s motion in limine as to the inadmissibility of the evidence of the similar offenses occurring in Pennsylvania, is affirmed.

Judgments affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.

Decided May 19, 1992

Reconsideration denied June 1, 1992

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellant.

John A. Nuckolls, Lillian L. Neal, for appellee.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A92A0587.
    CITY OF ATLANTA v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (419 SE2d 330)
   McMurray, Presiding Judge.

This appeal arose after Patricia Babin Bauer was killed when the vehicle she was operating on a three-laned portion of DeKalb Avenue in the City of Atlanta (“Atlanta”) collided head-on with a passenger bus operated by Metropolitan Atlanta Rapid Transit Authority (“MARTA”). The decedent’s estate and members of her family (“the Bauers”) filed a complaint against MARTA and its bus driver, Warren Gould, for negligence and against Atlanta for nuisance. MARTA and Gould cross-claim for contribution, alleging that Atlanta created and maintained a nuisance which contributed to the fatal collision. The Bauers dismissed the complaint, settling with MARTA for $1,100,000. Atlanta did not join in the settlement and the case was tried before a jury on the contribution cross-claim.

At about 8:00 in the evening on June 4, 1987, Warren Gould, acting in the scope of his employment as a MARTA bus driver, was operating a passenger bus near the end of a 3.4 mile stretch of DeKalb Avenue which consists of two outside opposing traffic lanes and a middle lane bounded with double-dashed yellow lines. (The middle lane is reversible and is regulated by overhead traffic control devices. These traffic control devices display opposing red and green signals during peak traffic periods and, during non-peak traffic periods, the devices signal a flashing yellow “X” in both directions.) Gould moved the bus into the middle lane against yellow flashing “X” signals, attempting to pass an erratically moving vehicle. (Gould testified that it was his understanding that a middle lane regulated by flashing yellow “X” signals could be used “for emergency purposes to get around anything that may be impeding traffic in the right lane.”) The decedent was then traveling against the flashing yellow “X” signals from the opposite direction, just entering the middle lane from a stretch of DeKalb Avenue that consists of four evenly divided traffic lanes. (A photograph of the transition from four to three lanes reveals the centerline of the four-laned road abruptly ending after bisecting the mid-die lane of the three laned portion of DeKalb Avenue.) The vehicles approached head-on while negotiating a curve which limited distance visibility and collided after both drivers evasively steered into the same lane of traffic. The decedent was pinned in her automobile and died about 30 minutes after the collision.

Variable-lane traffic control devices, functioning with flashing yellow “X” signals, were installed by Atlanta on DeKalb Avenue in the 1950s. These devices were replaced in the 1970s when a rapid transit railway was constructed parallel to one side of DeKalb Avenue. The replacement equipment also functioned with opposing flashing yellow “X” signals and operated through the June 4, 1987, collision.

During two years before the collision, Atlanta recorded several accidents caused by confusion over the directional meaning of the flashing yellow “X” signals on DeKalb Avenue. Atlanta also received direct reports from motorists reflecting misunderstanding over the use and function of the middle lane of DeKalb Avenue when flashing yellow “X” signals are functioning. In fact, a 19-year veteran engineer with Atlanta’s Bureau of Traffic and Transportation recognizes that flashing yellow “X” signals are confusing and do not convey any specific meaning with regard to use of regulated traffic lanes.

The Manual on Uniform Traffic Control Devices for Streets and Highways (the “manual”), a body of regulations published by the Federal Highway Administration and adopted by Atlanta, provides that “[a] flashing YELLOW X means that a driver is permitted to use a lane over which the signal is located for a left turn.” However, the manual warns that such signals should be used only “[w]here feasible [and] with due caution.” The manual also cautions that any driver using a lane with an over-head flashing yellow “X” signal “may be sharing that lane with opposite flow left-turning vehicles.”

The jury returned a verdict, finding that Atlanta created or maintained a nuisance on DeKalb Avenue and that the nuisance was a proximate concurring cause of the collision. The trial court entered judgment for MARTA and Gould in the principal amount of $550,000. Atlanta filed this appeal after the denial of its motion for a judgment notwithstanding the verdict. Held:

1. Atlanta contends the trial court erred in failing to dismiss the cross-claim, arguing that contribution claims pertain only to joint tortfeasors and not to “defendants in nuisance.” This enumeration inaccurately assumes that MARTA and Gould were sued as joint participants in the creation of a nuisance.

OCGA § 51-12-32 provides for contribution among joint tortfeasors. However, “joint participants in the creation of a nuisance are not jointly and severally liable for the full total of plaintiffs’ damages, but only for their individual parts.” Gilson v. Mitchell, 131 Ga. App. 321, 328 (205 SE2d 421), affirmed in Mitchell v. Gilson, 233 Ga. 453, 454 (211 SE2d 744). In the case sub judice, it was never alleged that MARTA and Gould were joint participants in the creation of a nuisance. MARTA and Gould were sued along with Atlanta for indivisible losses allegedly stemming from separate and distinct wrongful acts, i.e., negligence by a MARTA employee and the creation and maintenance of a nuisance by Atlanta. See Parks v. Palmer, 151 Ga. App. 468, 470 (2) (260 SE2d 493). Consequently, MARTA and Gould were authorized in asserting a cross-claim against Atlanta for allegedly contributing to the Bauers’ damages. OCGA § 51-12-32. The trial court did not err in refusing to dismiss the contribution cross-claim.

2. Atlanta contends the trial court erred in failing to dismiss the cross-claim, arguing that MARTA and Gould failed to give ante litem notice within six months of the collision as is required by OCGA § 36-33-5. This contention is without merit.

OCGA § 36-33-5 is in derogation of the common law and must be strictly construed against the municipality. Hicks v. City of Atlanta, 154 Ga. App. 809, 810 (270 SE2d 58). This Code section requires ante litem notice for damage claims against municipalities which arise “on account of injuries to person or property. ...” OCGA § 36-33-5 (a). Nothing in this statute requires ante litem notice for claims by joint tortfeasors against municipalities for contribution. Consequently, the contribution claim filed against Atlanta by MARTA and Gould was not conditioned upon the ante litem notice provision of OCGA § 36-33-5. To say otherwise, would require defendants to anticipate within six months of any incident giving rise to damages “on account of injuries to person or property” claims for contribution against municipalities which may not accrue for several years. See Olsen v. Jones, 209 NW2d 64 (1973).

3. Atlanta contends the trial court erred in denying its motion for judgment notwithstanding the verdict. Atlanta argues that the flashing yellow “X” signals and the road markings on DeKalb Avenue do not constitute a nuisance because these traffic control devices are authorized by the manual and were functioning as intended, i.e., not obscured or malfunctioning at the time of the collision. This contention is without merit.

The law does not require that an instrumentality be functioning improperly before it may be regarded as a nuisance. City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245). On the contrary, in the case of Porter v. City of Gainesville, 147 Ga. App. 274, 276 (248 SE2d 501), involving a grant of summary judgment to the City of Gaines-ville, this Court held that genuine issues of material fact remained for jury consideration since the City failed to pierce the pleadings of that plaintiff wherein it was alleged that the design of the instrumentality was “inherently dangerous and was a continuing threat to anyone who might choose to use it.”

“ ‘ “ ‘A municipal corporation, like any other individual or private corporation, may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function. . . .’ ” (Cit.)’ [Cit.]” City of Fairburn v. Cook, 188 Ga. App. 58, 64 (6), 65, supra. “A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” OCGA § 41-1-1. “ ‘ “ ‘In City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979), the Supreme Court set out three guidelines to define a nuisance for which a city may be liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.’ (Cit.)” ’ City of Eatonton v. Few, 189 Ga. App. 687 (1) (377 SE2d 504) (1988). ‘ “Under some factual situations, it can be held as a matter of law that no nuisance exists; however, that question ordinarily is a question of fact for the jury.” (Cits.)’ Whiddon v. O’Neal, 171 Ga. App. 636, 638 (320 SE2d 601) (1984).” Grier v. City of Atlanta, 200 Ga. App. 575, 576 (408 SE2d 794).

In the case sub judice, there is uncontradicted evidence that, “to be effective, a traffic control device should . . . [c]onvey a clear, simple meaning [and] : . . [cjommand respect of road users.” However, Atlanta’s deputy director with the Bureau of Traffic and Transportation affirmed on cross-examination that flashing yellow “X” signals are confusing and do not convey any specific meaning with regard to use of regulated traffic lanes and he indicated that the flashing yellow “X” signals on DeKalb Avenue do not command the motoring public’s respect, testifying that he has traveled DeKalb Avenue and witnessed motorists misusing the middle lane for passing. This evidence, evidence that Atlanta maintained flashing yellow “X” signals on DeKalb Avenue despite knowledge that a hazardous condition existed due to confusion over the meaning of the flashing yellow “X” signals and evidence that such confusion caused MARTA’s bus and the decedent’s vehicle to be in the same lane of traffic in an area of DeKalb Avenue with obscured distance visibility and with an abrupt lane transition is sufficient to authorize a finding that Atlanta created and maintained a nuisance which contributed to the fatal collision. Compare Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 422 (2) (249 SE2d 224) and Hancock v. City of Dalton, 131 Ga. App. 178 (205 SE2d 470). Consequently, the trial court did not err in denying Atlanta’s motion for judgment notwithstanding the verdict. Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238).

Judgment affirmed.

Cooper, J., concurs. Sognier, C. J., concurs specially.

Sognier, Chief Judge,

concurring specially.

I agree with the judgment reached by the majority. However, I believe that further explication is necessary of the conclusion in Division 3 that the evidence proffered at trial authorized the jury to find that Atlanta created and maintained a nuisance.

As the majority points out, the basis for Atlanta’s contention that it could not be found to have either created or maintained a nuisance was that the flashing yellow “X” signals were authorized by the manual and were functioning as intended.

However, George Black, a traffic engineer and Gwinnett County’s Director of Transportation, testified that the manual cautions that “traffic engineering judgment should be exercised at all times” because what might work in one area will not work in another. This caution clearly applied to the use of flashing yellow “X” signals, which the manual provides should be used “where feasible . . . over a lane to permit use of that lane for left turns, with due caution.” The manual states that yellow flashing “X” signals mean the lane may be used for left turns from both directions. Both Black and Howard Harris, a deputy director of the Atlanta Bureau of Traffic and Transportation, acknowledged that the flashing yellow “X” signals could not be used for the purpose set forth in the manual over most of this portion of DeKalb Avenue when traveling west because of the presence of the MARTA rail line running parallel to and just south of DeKalb Avenue. The MARTA rail line made left turns impossible for westbound traffic except at one or two intersections. Thus, based on this testimony, the jury reasonably could have concluded that flashing yellow “X” signals would not work properly on that particular stretch of DeKalb Avenue, and were therefore authorized to conclude that the signals were not functioning properly, but instead were being interpreted by drivers traveling west on DeKalb Avenue as a signal to use the center lane as a passing lane, a dangerous use for which the lane was not intended.

The manual also provides that “[t]he decision to use a particular device at a particular location should be made on the basis of an engineering study of the location,” which Harris indicated had not been done when the signals were replaced after construction of the MARTA rail line even though the effect of that construction was to eliminate most left turn usage of the center lane by westbound traffic.

Thus, evidence was introduced at trial from which the jury could have concluded that installing such signals on the portion of DeKalb Avenue where the accident at issue occurred was not “feasible,” and which authorized the jury to find that Atlanta created a nuisance in installing the flashing yellow “X” signals.

Decided May 18, 1992

Reconsideration denied June 1, 1992

Michael V. Coleman, Joe M. Harris, Jr., Sarah I. Mills, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Martha D. Turner, Michael E. Fisher, for appellees.

In addition, Black testified that a number of accidents occurred on that portion of DeKalb Avenue. Harris admitted that he knew the lane was not being used in the manner intended, and that the Bureau had received a number of complaints regarding the signals as well as inquiries regarding their meaning, but he had not read the reports of these complaints and inquiries until after the incident in issue. This evidence showed that drivers on DeKalb Avenue were either confused or mistaken about the meaning of the signals or were using the center lane improperly despite the signals, a condition Harris acknowledged as dangerous. Therefore, because there was evidence that Atlanta had failed to act within a reasonable time after acquiring this knowledge, the jury was authorized to conclude that Atlanta had maintained a nuisance. City of Fairburn v. Cook, 188 Ga. App. 58, 65-66 (7) (372 SE2d 245) (1988).


author: McMurray, Presiding Judge.

text:
    A92A0649.
    PATTON et al. v. CFH INVESTMENTS et al.
    (419 SE2d 104)
   McMurray, Presiding Judge.

CFH Investments, Lennard Carlson, Marion C. Keller, Mary W. Keller, Roger C. Rath & Associates, M.D., P.A., Roger Stedronsky, Jean Jun and Channing S. Jun, M.D. (plaintiffs) filed an action against E. Earl Patton, Jr., Thomas E. Patton and Richard M. Patton (defendants), seeking recovery on a $320,000 promissory note executed by defendants and Atlantic-Pacific Restaurant Management, Inc. (“APRM”). Defendants denied the material allegations of the complaint and the parties subsequently filed opposing motions for summary judgment.

On August 27, 1984, defendants and APRM entered into a Management and Development Agreement (“the Agreement”) with Lite Food Partners I (“the Partnership”) for long-term development and operation of restaurants under a franchise conferred upon defendants by D’Lites Corporation of America (“D’Lites”). The Agreement reflects APRM’s promise to develop and operate the restaurants in exchange for the Partnership’s promise to pay monthly management fees and provide primary capital support, including funding of “Operating Budgets” for the restaurants. The Agreement also reveals APRM’s promise to purchase the restaurants from the Partnership on January 3, 1990, for an amount referred to in the Agreement as “the ‘Buyout Amount.’ ” The Agreement further provides as follows: “Working Capital Loans. APRM and [defendants] agree to make available to the Partnership up to $320,000 in loans in the event of a working capital shortfall during the [executory] period [of the Agreement]. This undertaking by APRM and [defendants] will be evidenced by their execution on the date hereof of a demand note in substantially the form and with the terms of the note that appears as Exhibit F hereto (the ‘Demand Note’). All amounts advanced to the Partnership pursuant to the Demand Note shall bear interest' at a rate that corresponds to the cost of those funds to the lending parties, and any amounts advanced under the Demand Note that are unpaid at January 3, 1990, together with any unpaid interest thereon shall be applied in reduction of the principal of the Buyout Amount.”

On August 27, 1984, APRM and defendants executed a “Demand Note” in favor of the Partnership in the principal amount of $320,000.

On November 22, 1985, the Partnership, APRM and defendants executed another agreement which provides, in pertinent part, as follows: “The Partnership shall credit to APRM and [defendants], against that certain $320,000.00 demand note dated August 27, 1984, ... an amount equal to certain unreimbursed costs and expenses incurred by [defendants] and APRM for management, operation and maintenance of the two D’Lites restaurants located in Augusta, Richmond County, Georgia, including those general and administrative expenses previously approved by the Partnership as part of the general administrative budget.”

During 1986, the Partnership unilaterally terminated its relationship with defendants, turned management of the restaurants over to D’Lites and sold the restaurants to third parties. The $320,000 “Demand Note” was subsequently assigned to plaintiffs with an endorsement warning plaintiffs that “the makers of the demand promissory note assert defenses to liability under the note and further assert that they have no obligation or liability under the note.”

The trial court denied defendants’ motion for summary judgment and granted plaintiffs’ motion for summary judgment, awarding plaintiffs $413,117.23. This appeal followed. Held:

1. Defendants contend the trial court erred in denying, their motion for summary judgment, arguing that consideration for the “Demand Note” failed when plaintiffs unilaterally terminated the Agreement and sold the restaurants to third parties. Plaintiffs contend consideration for the “Demand Note” was complete upon execution of the Agreement and argue that the “Demand Note” evidences an unconditional equity contribution in the amount of $320,000.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

In the case sub judice, it is undisputed that the parties modified the Agreement on November 22, 1985, allowing defendants credit against the “Demand Note” for unreimbursed costs and expenses incurred by defendants and APRM for management, operation and maintenance of two restaurants in Augusta, Georgia. Further, defendant E. Earl Patton, Jr., deposed that the amount of unreimbursed costs and expenses incurred for management, operation and maintenance of the Augusta restaurants, “including those general and administrative expenses previously approved by [the Partnership] as part of the general administrative budget, is in excess of the $320,000 principal plus interest amount Plaintiffs contend is due under the [Demand] Note.” However, plaintiffs offer no evidence contradicting this affidavit. Instead, they rely on an affidavit which “does not include any calculation of the obligations represented by the Demand Note” and a 1985 audit of the Partnership’s financial statements which does not mention defendants’ alleged obligation under the “Demand Note.” Consequently, even assuming the “Demand Note” evidences an unconditional equity contribution, defendants have carried their burden on motion for summary judgment by presenting uncontradicted evidence that their obligation under the “Demand Note” has been satisfied. The trial court erred in denying defendants’ motion for summary judgment.

Decided May 13, 1992

Reconsideration denied June 1, 1992

Alston & Bird, Oscar N. Persons, Walter G. Elliott II, James C. Grant, for appellants.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jeffrey D. Horst, James W. Kimmell, Jr., for appellees.

2. It is unnecessary to address defendants’ remaining enumerations.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

       The November 22, 1985, agreement provides that “[t]he final amount of credit to be applied against the [Demand] Note shall be determined by an audit by a CPA firm selected by the Partnership and reasonably acceptable to APRM and [defendants], and shall include only such costs and expenses as are incurred through the date of such audit.” There is no evidence that any such audit has been completed. Further, the 1985 audit relied on by plaintiffs does not reveal specific unreimbursed costs and expenses incurred by defendants and APRM for management, operation and maintenance of the two restaurants in Augusta, Georgia. This report only reveals that the Partnership owed defendants and APRM a net amount of $32,977 on December 31, 1985.


text:
    A90A1626.
    JAMISON v. THE STATE.
    (419 SE2d 543)
    Decided June 1, 1992.

      William E. Frey, for appellant.

      Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Our prior judgment in Jamison v. State, 199 Ga. App. 401 (405 SE2d 82), wherein this Court affirmed the trial court, having been reversed by the Supreme Court of Georgia in Jamison v. State, 262 Ga. 40 (414 SE2d 466) our judgment is vacated, and the judgment of the trial court is reversed.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0997.
    McDOWELL v. LACKEY.
    (419 SE2d 544)
   Birdsong, Presiding Judge.

In McDowell v. Lackey, 200 Ga. App. 506 (408 SE2d 481), we looked solely at the four corners of the release contract to ascertain the parties’ intent as to the scope of the release and thereafter concluded the trial court erred in failing to grant appellant’s motion for summary judgment. In Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902), the Supreme Court reversed the judgment of this court, concluding the trial court’s refusal to grant summary judgment to McDowell was appropriate under the rule of Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417). The Supreme Court also held this court erred by ignoring the language in Posey that “the intent of the parties to the release regarding its effect may be proven by external evidence” and by looking only within the four corners of the release. (Emphasis supplied.) Id. at 59. Moreover, based on a stated desire “to provide a clearer rule,” the Supreme Court modified the Posey rule, effective the date of publication of its opinion in Lackey v. McDowell, supra, in the manner therein expressed.

Decided June 1, 1992.

Dennis, Corry, Porter & Thornton, R. Clay Porter, Linda C. Michel, for appellant.

Robert P. Phillips, Todd A. Hall, for appellee.

Accordingly, our original judgment is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1161.
    CHAMBERS v. THE STATE.
    (420 SE2d 393)
   Birdsong, Presiding Judge.

In Chambers v. State, 201 Ga. App. 245 (410 SE2d 771), the trial court erroneously commenced trial before this court had issued remittitur. Accordingly, we vacated the judgment of the trial court and ordered the case be remanded with direction that a necessary nunc pro tunc order be issued in accordance with the procedure of Knox v. State, 113 Ga. 929 (39 SE 330) to reinvest the trial court with the requisite jurisdiction over the proceeding. In Chambers v. State, 262 Ga. 200 (415 SE2d 643), the Supreme Court reversed our judgment and the holding of Division 1 of our opinion and concluded that the trial court lacked jurisdiction of the case when it proceeded to trial and that Chambers’ subsequent conviction is void.

The Supreme Court also noted that, as the trial which commenced on March 5, 1990, was a nullity, double jeopardy will not be an issue if the State elects to try this case again. Additionally, as said trial has been rendered a nullity, the alleged errors in that proceeding, addressed in Divisions 2 and 3 of our opinion, no longer constitute viable appellate issues; and this court does not render advisory opinions. Accordingly, our original judgment is vacated, the judgment of the Supreme Court is made the judgment of this court and the judgment of the trial court is hereby reversed.

Decided June 1, 1992.

Adams & Brooks, J. Kelly Brooks, John B. Adams, for appellant.

Harry D. Dixon, Jr., District Attorney, Lucy J. Bell, Assistant District Attorney, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


author: Sogniee, Chief Judge.

text:
    A92A0488.
    LIU’S ENTERPRISES CORPORATION et al. v. LI.
    (419 SE2d 511)
   Sogniee, Chief Judge.

Eric Yang Li brought suit against Liu’s Enterprises Corporation d/b/a Hunan House Chinese Restaurant and its shareholders, Sheng Hui (“Steve”) Liu and Shih-Yuan (“Esther”) Liu, to recover damages for injuries incurred when he was attacked by two men at the restaurant owned by the corporation, alleging, inter alia, that his injuries were inflicted by restaurant employees at the direction, or with the tacit approval, of Steve Liu. A jury verdict was rendered in favor of Li. Defendants appeal from the denial of their motion for judgment n.o.v. or alternatively for a new trial.

The evidence at trial established that on January 1, 1989, appellee was delivering plastic table tops to appellants’ restaurant in the course of his employment with a restaurant supply company. Present in the restaurant’s dining room were appellant Esther Liu, appellant Steve Liu’s brother-in-law Paul Liu, who was a waiter at the restaurant, and two Asian men who were sitting at a table at the back of the dining room. While unwrapping the plastic tops and fitting them on the tables, appellant Steve Liu conversed with appellee regarding a check Liu had previously given appellee to pay for other merchandise that had been returned for insufficient funds. Appellee and Liu agreed at trial that the conversation, in which appellee related that his employer had agreed to pay the charge for the returned check because he had inadvertently deposited the check after agreeing to hold it, was friendly. The two men at the back of the dining room apparently took issue with appellee’s employer’s behavior, and chided appellee to remind his employer to be more careful in the future. Chinese obscenities were exchanged, and an altercation quickly ensued in which appellee was stabbed with a steak knife.

The evidence conflicted sharply as to whether the men at the back of the restaurant were performing duties for the restaurant or were merely visiting. Steve Liu testified he knew one of the men, but only casually, and although he admitted that the man had loaned him $2,000, he knew only that he was called “number four,” and did not know his correct name or where he lived. The evidence also conflicted as to who first used the offensive language, and several other matters. Steve Liu testified that his back was to appellee, but admitted that he heard the words between appellee and the other men, and that if he had been facing appellee he could have prevented the attack. Appellee testified that Steve Liu was facing both him and the two assailants during the exchange of words, and that the assailants exchanged glances with Steve Liu prior to attacking him. Appellee also testified that after the stabbing Steve and Esther Liu were reluctant to assist him by calling the police or an ambulance but encouraged him to leave the restaurant immediately and drive himself to a hospital despite his injury.

1. Appellants contend the trial court erroneously admitted certain testimony of Sergeant Douglas Murry of the Fulton County Police Department. At trial, appellants objected on hearsay grounds to Murry’s testimony regarding the substance of what Paul Liu, who at the time of trial had moved out of the state and was not called as a witness, had told him. We agree and reverse.

It is undisputed that the testimony was hearsay. The statements in issue were not part of the res gestae as they were not made at the time of the incident but later, during Murry’s investigation. See OCGA § 24-3-3; Augusta Coach Co. v. Lee, 115 Ga. App. 511, 514-517 (154 SE2d 689) (1967). Murry’s conduct and motives were not in question, and thus the statements were not admissible to explain his conduct, as urged by appellee. Teague v. State, 252 Ga. 534, 535 (314 SE2d 910) (1984); Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). Contrary to appellee’s assertion, Paul Liu did not make the statements in question in the presence of appellants, and thus the principle set forth in Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990) is inapplicable. Thus, as the testimony objected to was hearsay and came under no exception to the hearsay rule, its admission was error.

We do not agree with appellee that this error was cumulative or harmless. Paul Liu’s description of the incident differed from Steve Liu’s in several particulars, and Murry’s testimony necessarily would have affected the jury’s view of Steve Liu’s credibility. Given the sharply conflicting nature of the evidence at trial and the fact that the evidence supporting the jury’s verdict was slight, although sufficient, we cannot say the admission of this evidence did not affect the jury’s verdict. See generally A Child’s World v. Lane, 171 Ga. App. 438, 440-442 (4) (319 SE2d 898) (1984).

2. For the reasons set forth in Division 1, Sergeant Murry’s written reports of his interview with Paul Liu, containing the same hearsay, are inadmissible even if they are business records. See generally Mitchell v. State, 254 Ga. 353, 355 (5) (a) (329 SE2d 481) (1985) (but erroneously cites business records exception as OCGA § 24-2-14).

Decided June 1, 1992.

Bentley, Karesh & Seacrest, Karsten Bicknese, for appellants.

Salem & Wong, Alvin T. Wong, for appellee.

3. We do not agree with appellants’ contention that the testimony of Dr. Frank Chen, who was qualified as an expert in Chinese language and culture, was erroneously admitted because it was an opinion which bore on the ultimate issue. Dr. Chen testified as to the meaning of the Chinese words spoken and his opinion, under Chinese culture, of what should be done by a proprietor hearing those words exchanged. Testimony by an expert as to what one or the other party should have done in the factual or hypothetical circumstances has been held not to be inadmissible as bearing on the ultimate issue. Foskey v. Williams Bros. Trucking Co., 197 Ga. App. 715, 716-717 (1) (399 SE2d 484) (1990). Moreover, in this case the ultimate issue was not what appellants should have done under Chinese cultural standards, but whether they breached their duty to appellee under the law of Georgia.

4. Although it was not error for the trial court to refuse to give appellants’ requests to charge on foreseeability in the exact language requested because the principles therein were substantially covered, see Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 191-192 (1) (345 SE2d 875) (1986), we note that the requested charges were correct statements of the law.

5. We need not address appellants’ remaining enumerations of error, as they are unlikely to occur at retrial.

Judgment reversed and remanded.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0286.
    MILLARD v. MILLARD.
    (419 SE2d 718)
   Pope, Judge.

Plaintiff/appellant Arthur Millard and defendant/appellee Donalinda Millard, who were married in 1968, were husband and wife when they moved to California in January 1973. In 1978, while the parties were still residing in California, defendant filed for divorce against plaintiff. Plaintiff was served with the divorce action in California, hired California counsel, filed an answer, and actively litigated the divorce in California. Prior to a final decree being entered in the divorce in 1981, plaintiff, who was employed by the U. S. Army, moved to Georgia. In December 1983, a California court entered an order establishing plaintiff was in arrears in his alimony and child support payments to defendant. Defendant’s counsel filed an order to show cause for wage assignment for child and spousal support in California, and although court records indicate that plaintiff was personally served with the order to show cause in Augusta, Georgia, he failed to make an appearance in the California proceeding. In August 1984, a wage assignment order was entered by the California court which was forwarded by defendant’s attorney to Indiana where the U. S. Army has its payroll office. The order provided that the U. S. Army was to deduct the sum of $300 per month from plaintiff’s active and retirement pay until further notice and the sum of $700 per month from his active and retirement pay for 21 months starting September 15, 1984. Since 1984, the U. S. Army payroll department in Indiana has purportedly deducted in excess of $39,000 from plaintiff’s active and retirement pay pursuant to the wage assignment order and continues to deduct the designated amounts from his retirement pay.

On or about February 27, 1991, plaintiff filed the present action in the Superior Court of DeKalb County seeking legal and equitable relief from defendant’s alleged wrongful levy on his military pay and claiming inter alia that the wage assignment order was void on its face because plaintiff had not been subject to personal jurisdiction in California in 1984 and had no notice or opportunity to contest jurisdiction in that proceeding. Defendant, who was served with this action in New Mexico where she has resided since 1987, filed an answer to plaintiff’s complaint denying the allegations contained therein and raising inter alia the affirmative defense of lack of personal jurisdiction over defendant.

Plaintiff moved for partial summary judgment on his claim for injunctive relief on the grounds that the California order was void because of lack of personal jurisdiction over plaintiff and because defendant failed to have the California order domesticated in Georgia. Defendant then moved to dismiss the present action for lack of jurisdiction and venue, or in the alternative for summary judgment. The trial court denied plaintiff’s motion for summary judgment and granted defendant’s motion to dismiss. Plaintiff appeals.

1. Plaintiff first contends the trial court erred in granting defendant’s motion to dismiss and ruling that defendant did not have sufficient relevant contacts with this State to support personal jurisdiction over the non-resident defendant. Specifically, plaintiff argues that defendant’s two-day visit to Fort McPherson, Georgia, shortly after the divorce action was filed when she accompanied her daughter to see plaintiff in compliance with a California court order on visitation, and defendant’s attorney’s trip to Georgia in 1984 to take plaintiff’s deposition for use in one of the California proceedings pertaining to the divorce were sufficient relevant contacts to Georgia to support personal jurisdiction over defendant. Plaintiff further argues that assuming arguendo these two trips were not sufficient relevant contacts for jurisdictional purposes, the courts of this state still have personal jurisdiction over defendant pursuant to Georgia’s long-arm statute because although the wage assignment order originated in a California court and the U. S. Army processes his pay in Indiana, the deductions from his military pay constitute a constructive taking of his property in Georgia where he resides and is entitled to receive his check. He contends that by executing the California wage assignment order, defendant commits a purposeful act in Georgia each time plaintiff receives a reduced check, thereby subjecting defendant to jurisdiction in Georgia by virtue of either OCGA § 9-10-91 (2) or OCGA § 9-10-91 (3).

“Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. [Cits.] A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court.” Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990).

“[T]o satisfy due process, the requirements of Intl. Shoe Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945) must be met as to each defendant over whom a state court exercises jurisdiction. (D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Id. at 316.” (Indention omitted.) Straus v. Straus, 260 Ga. 327, 328 (2) (a) (393 SE2d 248) (1990), overruled on other grounds, Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587 (408 SE2d 103) (1991). Furthermore, “[d]ue process requires that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.’ [Cit.]” Beasley v. Beasley, supra at 421. “Three rules to determine the power of this state to exercise jurisdiction over a nonresident have been gleaned. The rules are: ‘(1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum . . . ; (2) The plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant within the forum and (3) If (and only if) the requirements of Rules 1 and 2 are established, a “minimum contact” between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of “fair play” and “substantial justice.” In other words, the exercise of jurisdiction based upon the “minimum contact” must be “reasonable.” ’ [Cit.]” Smith v. Smith, 254 Ga. 450, 453 (3) (330 SE2d 706) (1985). See also Beasley v. Beasley, supra at 421.

Applying this analysis to the present case, we must agree with the trial court that personal jurisdiction over defendant in this case is unreasonable. Assuming without deciding that the first and second prongs of the three-part test set forth above have been met in this case (i.e. defendant has committed a purposeful act to avail herself of the law of this state, and plaintiff’s claim arises from defendant’s act in this state), we hold that the exercise of jurisdiction over defendant in this case would offend notions of fair play and justice and fail the third prong of the test. Defendant, a resident of New Mexico, has neither lived in Georgia nor filed any action related to the divorce in the Georgia courts. She has set foot in this state only once, shortly after the divorce action was filed in or about 1978 when she accompanied the parties’ daughter to Fort McPherson in compliance with a California court order on visitation. Also, her attorney in the California proceedings represented her during a deposition of plaintiff in 1984 taken for use in one of the California proceedings related to the divorce. These two activities alone cannot satisfy the due process requirement for personal jurisdiction set forth in Intl. Shoe v. Washington, supra. Defendant could not reasonably have expected that she could be haled into DeKalb Superior Court in 1991 merely because seven years earlier she sent a California wage assignment order to U. S. Army payroll headquarters in Indiana which resulted in her receiving a portion of plaintiff’s military pay which would otherwise have been forwarded to him in Georgia. Under the circumstances of this case, it would offend notions of “fair play” and “substantial justice” to require defendant to defend an action in Georgia which arose out of a California matrimonial domicile and a California divorce. See, e.g., Popple v. Popple, 257 Ga. 98 (355 SE2d 657) (1987); Marbury v. Marbury, 256 Ga. 651 (352 SE2d 564) (1987). Compare Fralix v. Cordle, 261 Ga. 224 (403 SE2d 793) (1991), where the nonresident ex-wife was subject to the jurisdiction of our courts because she had previously initiated garnishment proceedings in Georgia against her ex-husband relating to her divorce and, thus, should have reasonably anticipated being haled into court in this state in an action brought by her ex-husband pertaining to the divorce.

We reject plaintiff’s argument that because defendant elected to enforce the wage assignment order against him without first domesticating it in Georgia, defendant had constructive knowledge that plaintiff would later assert his rights in the Georgia courts. If we were to accept this assertion, then defendant should also have reasonably expected to be haled before the courts of each and every other state in which plaintiff may have thereafter resided and received his military pay, even if defendant had no other connection with any of those states.

We find defendant has met her burden of showing that her connection with Georgia was sufficiently attenuated that due process would be offended by the exercise of jurisdiction over her person. Accordingly, the trial court did not err in granting defendant’s motion to dismiss plaintiff’s complaint.

2. Plaintiff next contends the trial court erred by failing to find that defendant had waived her objections to personal jurisdiction by submitting affidavits in this action in opposition to plaintiff’s motion and in support of her own motion which addressed the merits of the case. It is well settled that “[i]n order for a defendant’s acts to serve as a wavier of his previously asserted objection to jurisdiction, ‘his acts or omissions to act, relied on, should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.’ . . . [Cit.]” Marsh v. Wright Memorial Mortuary, 197 Ga. App. 736, 736-737 (1) (399 SE2d 232) (1990). Moreover, a defendant does not waive her objections to jurisdiction by virtue of her filing a plea to the merits in a case. In Roberts v. Bienert, 183 Ga. App. 751 (2) (360 SE2d 25) (1987), this court held that the defendant had not waived his right to assert his plea as to insufficiency of process merely because he had filed a motion for summary judgment on the substantive merits of the plaintiff’s complaint because the defendant had, at the same time, objected to jurisdiction. A waiver was not effected even though the plea to the merits was not expressly made subject to the plea to the jurisdiction.

In this case, defendant specifically raised the affirmative defense of lack of jurisdiction in her answer and motion to dismiss. Furthermore, both her answer and her brief filed in opposition to plaintiff’s motion for summary judgment, specifically reserved her objections to the jurisdiction of the court. Consequently, defendant did not waive her objections to jurisdiction in this case, and this enumeration is without merit.

3. Plaintiff next argues the trial court erred in finding that personal jurisdiction over defendant is necessary to permanently enjoin defendant from her enforcement of the wage assignment order against plaintiff. Relying on OCGA § 9-10-71 (6), plaintiff argues that in rem jurisdiction is sufficient in a proceeding “[t]o make any decree or order in which the subject of the action is . . . personal property in this state in which a nonresident . . . has or may have or claims an interest, actual or contingent, and in which the relief demanded consists wholly or in part in excluding him from an interest therein.” Plaintiff further argues that his military pay is constructively present in this state according to the holdings of Williamson v. Williamson, 247 Ga. 260 (275 SE2d 42) (1981), cert. denied, 454 U. S. 1097 (102 SC 669, 70 LE2d 638) (1981) and Nelson v. Nelson, 173 Ga. App. 546 (327 SE2d 529) (1985); therefore, our courts have in rem jurisdiction over this personal property and may grant plaintiff the injunctive relief prayed for in his complaint. However, plaintiff’s prayer for injunctive relief seeks “a permanent injunction that Defendant cease and desist from interrupting Plaintiff’s receipt of said pays in this State.” Thus, plaintiff is seeking relief which would operate against the person of defendant, rather than plaintiff’s personal property. See, e.g., Sternbergh v. McClure, 217 Ga. 278, 281 (1) (122 SE2d 217) (1961). Therefore, the trial court was correct in concluding that plaintiff’s claims are against defendant personally, and this enumeration of error is without merit.

Decided April 29, 1992

Reconsideration denied June 2, 1992.

Arthur F. Millard, pro se.

McCrimmon & McCrimmon, Edward W. McCrimmon, for appellee.

4. Plaintiff argues the trial court erred in failing to strike defendant’s affidavits filed in support of her motion to dismiss because the affidavits addressed the merits of the California proceeding and the exhibits to the affidavits failed to contain a complete record of the California proceedings. Pretermitting the issue of whether these affidavits were inadmissible on the grounds alleged by plaintiff, we conclude that the facts alleged in plaintiff’s affidavits alone afforded the trial court a sufficient basis for determining that defendant was not subject to the jurisdiction of our courts. Thus, this enumeration of error is without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A0298.
    KEITH v. THE STATE.
    (419 SE2d 491)
   Cooper, Judge.

Appellant was convicted of driving under the influence and without headlights in a jury trial and appeals the trial court’s denial of his motion for new trial.

1. Appellant first enumerates as error the trial court’s refusal to allow the cross-examination of the arresting officer as to the officer’s failure to appear at an administrative hearing on appellant’s refusal to take a state-administered test for alcohol. Although the record is not clear, it appears that the Department of Public Safety did not suspend appellant’s driver’s license; however, during the trial, the court granted the State’s motion in limine prohibiting testimony regarding the administrative hearing, finding that the officer’s failure to attend the hearing and the administrative hearing itself had no relevance to the DUI charge for which appellant was being tried. Appellant contends that the officer’s failure to appear at the hearing cast doubt on the reliability of an affidavit submitted by the officer in which he averred that appellant refused the test, thereby creating an inconsistency upon which the officer could have been impeached at trial. We disagree. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly; irrelevant matter should be excluded. [Cit.] What occurred at the administrative hearing subsequent to appellant’s arrest would have no bearing on whether or not [appellant] was driving under the influence of alcohol. . . .” Wyatt v. State, 179 Ga. App. 328 (1) (346 SE2d 387) (1986). See also Sheffield v. State, 184 Ga. App. 141 (2) (361 SE2d 28) (1987).

Decided May 11, 1992

Reconsideration denied June 2, 1992.

Little & Adams, Sam F. Little, for appellant.

Jack 0. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

2. Appellant has not argued or submitted citations of authority in his brief regarding his second enumeration of error, that the trial court erred in granting the State’s motion to introduce evidence of a prior DUI conviction; it is therefore deemed abandoned. Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

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