text:
    A94A0375.
    THORP et al. v. STATE OF GEORGIA.
    (457 SE2d 234)
   Birdsong, Presiding Judge.

Brenda Thorp appeals from the order of the superior court granting the State of Georgia forfeiture of her 1988 Isuzu Trooper motor vehicle and enumerates as error the allowing of an officer to give his opinion as to the weight and amount of cocaine and, based upon the evidence, levy an excessive fine under the Eighth Amendment.

This court certified certain issues pertaining to appellant’s second enumeration of error to the Georgia Supreme Court which addressed only certain of the certified issues in Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416). Held:

1. The trial court did not commit reversible error in allowing the police officer to give opinion evidence as to the weight and amount of cocaine seized. (Appellant previously had pled guilty to the criminal offense of possession of cocaine; at the forfeiture hearing the trial court characterized appellant’s plea as being an admission of guilt — in solemn judicio — to possession of cocaine with intent to distribute.)

At the forfeiture trial, the officer testified, without objection, that he had discovered scales for weighing cocaine and suspected powder cocaine and that “at that time I suspected [the powder] to be 105 grams of cocaine.” On cross-examination, the officer testified that there were two separate bags of white powder and that he weighed the substances together. The officer also testified that even if the larger bag contained only a cutting agent (which it appears to have), the smaller bag contained at least 20 grams of a mixture containing cocaine. Appellant perforce admitted cocaine possession by entering a plea of guilty to the crime of possession of cocaine. Moreover, appellant admits in judicio in her appellate brief the fact that the true amount of cocaine possessed was 7.1 grams. State v. Griffin, 204 Ga. App. 459 (419 SE2d 528) and cases cited therein; Bonilla v. State, 204 Ga. App. 424 (1) (419 SE2d 495); Weir v. McGill, 203 Ga. App. 431, 432 (3) (417 SE2d 57). In addition, this court granted appellant’s motion to supplement the record with the laboratory report confirming that, although the one zip-lock bag containing white powder tested negative for common drugs of abuse, the other plastic bag of white powder (seized from appellant and transported in her automobile) tested positive for cocaine and had a net weight of the total sample of 7.1 grams, as admitted by appellant.

In any case, by failing to object timely to the admission of the testimony of the officer regarding the weight of the suspected cocaine substance, appellant waived that issue for consideration on appeal. Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395).

2. Appellant’s second enumeration asserts that the trial court erred in its determination that the forfeiture imposed was not an excessive fine under the Eighth Amendment of the United States Constitution. At the time the trial court issued its ruling, this State had no precedent regarding whether the Eighth Amendment constraints applied to our statutory drug forfeiture provisions, or what factors must be considered in the resolution of such an Eighth Amendment issue. Subsequently, the Supreme Court of Georgia in response to certain issues certified by this court issued authoritative guidance (Art. VI, Sec. V, Par. IV, Ga. Const, of 1983) in Thorp v. State, supra. In Thorp, the Supreme Court declined to adopt Justice Scalia’s single-factor instrumentality test as the sole test for determining whether a forfeiture was excessive and adopted minimum guidelines for excessiveness inquiries employing a three-factor proportionality analysis. Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous. Cf. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). In this instance, the trial court has not had the opportunity to render those factual determinations relevant to a meaningful application of the three-factor proportionality analysis.

To protect and effectuate any appellate disposition of appellant’s claim, in aid of our jurisdiction (Art. VI, Sec. I, Par. IV, Ga. Const. of 1983) and in the interest of fundamental fairness to all parties here concerned, we remand this case for further proceedings to the trial court with direction that a post-trial hearing be held and that the Eighth Amendment issue be analyzed in light of Thorp, supra. The judgment of the trial court is hereby vacated; upon remand the trial court is authorized to conduct such additional factfinding as deemed necessary in the interests of the discovery of truth (OCGA § 24-1-2) and to protect its judgment (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983, supra). OCGA § 15-1-3 (6), (7); cf. Hammond v. State, 260 Ga. 591, 599-600 (398 SE2d 168); Hicks v. State, 255 Ga. 503 (340 SE2d 604) (remand for further proceedings); Moore v. State, 187 Ga. App. 387, 392-393 (370 SE2d 511). Within a reasonable time thereafter, the trial court shall issue a new order; either party shall be entitled to appeal from this decision within 30 days of its entry. Art. VI, Sec. I, Par. IV, Ga. Const, of 1983.

Decided April 12, 1995

Cory G. Begner, for appellants.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Judgment vacated and remanded for further proceedings.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A95A0081.
    MULLIS v. SHAHEEN.
    (456 SE2d 764)
   Johnson, Judge.

In March 1994, Doris B. Shaheen sued Billy Mullís and Bruce Love for breach of a commercial lease and, in her complaint, notified defendants pursuant to OCGA § 13-1-11 (a) (3) of her intent to enforce the lease provision for payment of attorney fees in addition to principal and interest due under the lease. The trial court granted Shaheen’s motion for summary judgment, and ordered Mullís and Love to pay $37,500 principal, plus $3,775 attorney fees and post-judgment interest. This appeal followed.

Viewed in the light most favorable to the party opposing the motion for summary judgment, the evidence shows that Billy Mullís, Bruce Love and Love Enterprises, Inc., on March 29, 1990, entered into a five-year lease of commercial property in Cartersville with monthly rent payments of $2,250. The lessees operated Captain Billy’s Fishhouse # 10 and made monthly rent payments under the lease until the restaurant changed hands. It is uncontroverted, however, that no new lease was executed. In March 1992 the new proprietor, John E. Hathcoat, made a partial rent payment of $1,500 and rents remained in arrears thereafter until September 1992, when Shaheen exercised her rights under its default provisions to terminate the lease by obtaining writs of possession against Hathcoat, Mullis and Love and retaking the premises. Shaheen also obtained a money judgment of $8,250 against Hathcoat.

1. Mullis contends summary judgment for Shaheen was improper because the lessor was not entitled to rents after she obtained a writ of possession and thereby terminated the lease. We disagree.

“It is the general rule in Georgia that an eviction and subsequent reentry and possession of the premises by the landlord terminates the lease. [Cit.] Thus, any right to rent which accrues after eviction is normally extinguished.” Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466, 467 (367 SE2d 317) (1988). However, “parties to a lease agreement may contract in advance to hold the lessee liable for rent even after an eviction, deducting therefrom only the amounts recovered by the lessor from reletting the premises. [Cit.]” Id. at 467-468; Rucker v. Wynn, 212 Ga. App. 69, 70 (1) (441 SE2d 417) (1994). In paragraphs 11.4 (b) and 11.5 of the lease, Mullis and Love agreed that in the event Shaheen terminated the lease in accordance with its default provisions, as landlord she could recover from them all damages incurred by reason of their breach, including the cost of recovering the premises and reasonable attorney fees, and including the worth at the time of termination of the difference between the rent under the lease and that for which the premises were relet, if any, for the remainder of the lease term. Paragraph 11.6 further provides that pursuit of legal remedies for default would not “constitute a forfeiture or waiver of any rent due to Lessor [under the lease].” “Mere acceptance by the obligee of performance by the assignee, or substituted obligor, of the contract is not sufficient to establish novation in the absence of words or conduct tending to show an intention or agreement on the part of the obligee to release the original obligor and extinguish his liability. When a lease recites that the original lessee is to remain liable even if the lease is assigned, the lessee is not relieved from its contractual obligation merely because the lessor gives his written consent to the assignment.” (Citations and punctuation omitted.) Worth County Indus. &c. v. Lehigh Valley Indus., 183 Ga. App. 634, 636 (1) (359 SE2d 707) (1987). Under the facts of this case, therefore, the trial court properly granted summary judgment to Shaheen for rents past due.

2. Mullis also argues that summary judgment for Shaheen was improper because after the parties agreed to an assignment of the lease to Hathcoat and O-SE-O, Inc., Shaheen failed to provide notice, as required by OCGA § 13-4-4, of her intention to rely on the exact terms of the original lease. This argument is without merit since the original lease contemplates the possibility of assignment in paragraph 16.1 and expressly provides that the original lessees remain liable for the payment of rent and all other obligations under the lease.

Decided April 12, 1995.

Fred J. Stokes, for appellant.

Frederick J. Hanna & Associates, Frederick J. Hanna, Elizabeth C. Whealler, for appellee.

3. Finally, Mullís challenges the award of attorney fees pursuant to OCGA § 13-1-11 on the ground that the complaint did not inform the obligors of the location in the contract of the provision for assessment of attorney fees, and therefore notice was insufficient. This argument is without merit.

Shaheen’s complaint informed Mullís and Love that unless they paid the sum owing within ten days from receipt of the complaint, they would incur the additional expense of attorney fees as set out in OCGA § 13-1-11, pursuant to the “provisions of the agreement relative to payment of all costs of enforcement, including attorney’s fees.” Such notice within the complaint meets the requirements of the statute. Compare Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 845 (3) (392 SE2d 37) (1990).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Beasley, Chief Judge.

text:
    A95A0139.
    HOUSTON v. THE STATE.
    (456 SE2d 766)
   Beasley, Chief Judge.

Houston was convicted of possession of cocaine with intent to distribute. OCGA § 16-13-30. He filed this appeal following denial of his motion for new trial.

1. Houston contends that the evidence was insufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Officer Martin testified that on the day in question he was patrolling Harwell Street when he observed Houston standing toward the rear of his wife’s house. She lived on one side of a duplex and George Coppage lived on the other side. Houston was counting plastic bags, containing a substance which appeared to be crack cocaine, which Martin saw Houston put under a tin can. Houston then walked away from the can in the direction of Martin and saw him for the first time. Martin grabbed Houston and walked back with him to the can. Underneath he found thirteen bags of crack cocaine and six bags of white powder cocaine. He advised Houston he was under arrest.

Houston testified that on the day he was arrested, he and others were drinking beer near his wife’s house when Martin appeared and told them he would arrest them if they did not leave. They went to the front yard of the house. Houston’s wife let their infant son into the yard and Houston picked him up. Martin appeared and arrested Houston for no reason after searching his son’s diapers.

Houston presented several eyewitnesses whose testimony supported his. One such witness testified he saw neighbor Coppage place something in the tin can in the back yard and then saw Martin retrieve something from it, but that he never saw Houston in the back yard during this time. Another witness testified that Martin told him not to say anything or he would arrest him for possession of half the drugs.

Officer Williams, called as a defense witness, testified that approximately three months prior to Houston’s arrest, he had arrested Coppage inside his house for possession of cocaine. Williams had been told by a confidential informant that a young black male known as Jamal was selling crack cocaine along Harwell Street and was using Coppage’s house as a storage place. Williams observed two men engaging in an activity that appeared to be the sale of crack cocaine to passing motorists in front of an abandoned house at the corner of Harwell Street. He found ten “hits” of crack cocaine in ziplock bags in the yard of the abandoned house. Afterward, Williams and other officers went to Coppage’s house and found him sitting on the front porch. He gave them consent to search the house, in which they found 23 “hits” of crack cocaine along with various drug paraphernalia.

The jury determines the credibility of witnesses and resolves conflicts in the evidence. Dunn v. State, 213 Ga. App. 165 (1) (444 SE2d 812) (1994). Viewed in a light most favorable to the verdict, the evidence authorized a rational trier of fact to find Houston guilty beyond a reasonable doubt of the offense charged.

2. Houston next contends that the court erred both in refusing to conduct an in camera inspection of Officer Martin’s personnel file and in refusing to seal the file for appellate review.

Prior to trial, Houston issued a subpoena to compel the file’s production, which the city moved to quash. At trial, the city’s attorney stated that Houston wanted to discover the contents of the file in an attempt to establish a pattern by Martin of arresting suspects without probable cause. She argued, among other grounds, that such evidence is not material since there was a finding of probable cause in this case.

Defense counsel countered that Martin’s personnel file is material because the case hinges on his credibility. Counsel stated that he had witnesses who would testify that Martin had arrested them without probable cause and had also harassed individuals. Counsel asked the court to conduct an in camera inspection of the file to determine whether it contained any information concerning such incidents. In reliance oh such cases as Lockwood v. State, 184 Ga. App. 262, 263 (2) (361 SE2d 195) (1987), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574) (1988), and Taylor v. State, 172 Ga. App. 827 (1) (324 SE2d 788) (1984), the city’s attorney responded that a defendant is not entitled to access to an arresting officer’s personnel file for no other reason than to test the officer’s credibility, but she raised no objection to the court’s viewing the file in camera, stating that there was nothing exculpatory of defendant. The court granted the motion to quash and denied defense motions for an in camera inspection and to have the file copied and sealed for appellate review.

In reliance on Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981), Houston argues that the court was required to conduct the inspection pursuant to his Brady request for information that was exculpatory or could be used to impeach Martin. See generally Brooks v. State, 182 Ga. App. 144, 145 (1) (355 SE2d 435) (1987).

The Georgia Supreme Court held in Cargill v. State, 255 Ga. 616, 638 (23a) (340 SE2d 891) (1986), that when the defense seeks to discover the personnel file of a law enforcement officer, some showing of need must be made. Houston’s defense counsel stated that he needed the file in order to uncover incidents in which Martin had arrested or harassed individuals without probable cause. Even if such facts would be relevant to the issue of the officer’s credibility in this case, counsel also stated that he had witnesses who would so testify. Moreover, an arrest or harassment without probable cause does not constitute a false arrest, which is what Houston maintains Martin did here. Houston did not show a need to discover the contents of the file in order to fully defend himself. Thus, it was not error to refuse an in camera inspection, nor to refuse to include the file in the record, nor to quash the subpoena.

3. Houston contends the court erred in restricting defense counsel in his opening statement.

Opening statements were not reported. In subsequent colloquy between counsel and the court, defense counsel complained of the court’s refusal to allow him to state that the evidence would show that on a prior occasion Coppage had been arrested for possession of cocaine at the duplex. The assistant district attorney replied that the court had merely prohibited defense counsel from going into Cop-page’s criminal record.

With neither an original transcript nor one prepared from recollection, we must presume that the trial court did not commit reversible error in controlling the content of defense counsel’s statement. See generally Sims v. State, 251 Ga. 877, 879 (3) (311 SE2d 161) (1984); Houck v. State, 173 Ga. App. 388 (2) (326 SE2d 567) (1985).

Judgment affirmed.

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

Decided April 12, 1995.

Wolfe & Steel, Brian E. Steel, Shandor S. Badaruddin, David P. Shapiro, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Juliette 0. Scales, Carla E. Young, Assistant District Attorneys, for appellee.


text:
    A95A0833.
    MITCHELL v. STATE OF GEORGIA.
    (457 SE2d 237)
   Beasley, Chief Judge.

The State sought forfeiture of a pickup truck under OCGA § 16-13-49, naming Mitchell and E-Z Pay Used Cars, Inc., as owners and/ or interest holders. The complaint alleged that this vehicle is contraband in that law enforcement officers purchased cocaine from Mitchell in Greene County on March 9, 1994, and that he was utilizing the vehicle to facilitate the sale or distribution of the cocaine.

In response, E-Z claimed that it held a first lien security interest and was an innocent holder of the title.

Mitchell answered, stating that he was the registered owner and denying that E-Z had an interest in it at that time. He also denied that the vehicle was used as alleged.

The State moved for judgment of forfeiture and disposition of property, on grounds that the purported answers were insufficient under OCGA § 16-13-49 (o). E-Z was permitted to withdraw by agreement of the parties, upon Mitchell’s payment to it of the principal amount of his debt and upon its satisfaction of the security interest and delivery of title into the court registry. The court later ordered judgment of forfeiture and disposition, finding under the authority of State v. Alford, 264 Ga. 243 (444 SE2d 76) (1994), that Mitchell’s answer is insufficient as a matter of law as it fails to meet the requirements of OCGA § 16-13-49 (o) (3). That section requires the claimant to provide certain factual and legal information in his answer: (C), “[t]he nature and extent of the claimant’s interest in the property”; . . . (E), “[t]he specific provision of (OCGA § 16-13-49) relied on in asserting that the property is not subject to forfeiture”; (F), “[a] 11 essential facts supporting each assertion.” Alford, supra, 264 Ga. at 245.

By falsely stating that E-Z did not have a security interest in the vehicle, Mitchell’s answer failed to state the extent of his own interest. He did not cite any provision of OCGA § 16-13-49 relied on in support of his assertion that the vehicle was not subject to forfeiture. His denial of the State’s allegation that the vehicle was used to facilitate the sale of cocaine was not supported by any facts. In these particulars, his answer is deficient.

Decided April 12, 1995.

H. Samuel Atkins, Jr., for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A0856.
    BOWENS v. THE STATE.
    (457 SE2d 238)
   Smith, Judge.

In a bifurcated trial conducted under the procedure established in Head v. State, 253 Ga. 429, 431-432 (3) (a) (322 SE2d 228) (1984), James Arthur Bowens was found guilty by a jury of armed robbery and aggravated assault, then tried and likewise found guilty by the jury of possession of a firearm by a convicted felon. Bowens was convicted on all three counts, but his conviction on the aggravated assault verdict was later vacated since the armed robbery and aggravated assault counts merged as a matter of fact. See, e.g., Hambrick v. State, 256 Ga. 148, 150-151 (4) (344 SE2d 639) (1986). Bowens appeals following the denial of his motion for new trial.

In his sole enumeration of error, Bowens contends “the trial court erred by failing to voir dire the jurors after the defense brought possible juror misconduct to the court’s attention.” The transcript of the first phase of the trial reflects that Bowens informed his defense counsel that the charges against him, including the possession of firearm charge, were posted in the hallway outside the courtroom. Defense counsel related to the court that “[Bowens’] family was here yesterday in the hallway. And the way that it came to their attention, my understanding is that one of the white female jurors said, look at what all they got him charged with. He is not clear on which juror it is. The only description was one of the white female jurors.”

This is essentially defense counsel’s account of Bowens’ account of his missing and otherwise unidentified family member’s account of what that person believed he saw a juror do, a juror described only as a “white female.” Based on this somewhat less than rock-solid premise, Bowens argues that not only should the trial court have questioned the jurors on the matter, but that the court should have done so after the verdict was rendered. We disagree. The trial court correctly concluded the “evidence” presented was insufficient to afford a basis for inquiring into the alleged misconduct. Moreover, neither Bowens nor his counsel moved for a continuance nor in any other way suggested that Bowens’ “family member” might be available to identify the offending juror so that the alternate juror (who happened to be a black female and therefore did not fit the profile of the offending juror) could be substituted.

Decided April 13, 1995.

John O. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

The time to investigate and remedy suspected juror misconduct brought to the parties’ attention during the trial is before the jury reaches its verdict and not after. See Monroe v. Kersey, 207 Ga. App. 108, 109 (6) (427 SE2d 80) (1993); Hand v. State, 205 Ga. App. 467, 468 (1) (422 SE2d 316) (1992); Wood v. Food Giant, 183 Ga. App. 604, 605 (3) (359 SE2d 410) (1987); Maloy v. Dixon, 127 Ga. App. 151, 163 (4) (193 SE2d 19) (1972). “In short, one cannot, in the hope or expectation of obtaining a verdict in his own favor, follow a trial tactic which he may believe to be advantageous but which results in a waiver and, when a verdict is returned which he now seeks to overturn, enumerate the error as a ground for setting it aside.” Id.

Even if this were not so, we note that the evidence against Bowens was overwhelming, which suggests that if the trial court had failed entirely to sever the possession of firearm charge from the more serious charges as mandated under Head, supra, the omission likely would not have affected the verdict on the armed robbery charge. See Meredith v. State, 211 Ga. App. 213, 214 (1) (438 SE2d 644) (1993). We find no harmful error preserved for our review.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The record reflects the trial court had the unredacted calendar information removed from the hallway as soon as the problem came to the court’s attention. We cannot overstate the wisdom of this decision, nor can we overemphasize the soundness of the court’s pronouncement that “we’re not going to post any more calendars.” As this case illustrates, it cannot merely be assumed that an unedited court calendar contains no extrajudicial information of a nature potentially prejudicial to a criminal defendant.


author: Blackburn, Judge.

text:
    A95A1025.
    EMERSON v. THE STATE.
    (458 SE2d 657)
   Blackburn, Judge.

Following a trial by jury, the appellant, Jerry Emerson, was convicted of the offense of “peeping Tom” under OCGA § 16-11-61. His motion for new trial was denied by the trial court and this appeal followed.

Decided April 13, 1995.

Gunter & Standi, N. Stanley Gunter, for appellant.

C. David Turk III, District Attorney, Albert F. Taylor, Jr., Assistant District Attorney, for appellee.

The evidence adduced at trial shows that at 9:30 p.m. on May 21, 1992, the victim heard something go past her driveway motion detector. She looked out the window of her home which is located 600 feet from the roadway, but did not see anything. Later, at 10:50 p.m., she became uneasy when she smelled a faint odor of smoke in her home. While checking her home for the origin of the odor, she became frightened when, upon opening her back door, she discovered Emerson leaning against the porch railing. When questioned as to why he was on her porch, Emerson responded that he was just wondering what time it was and peered through the door to look at a clock on her microwave. Emerson lived approximately a quarter of a mile from the victim’s home. The victim had first encountered Emerson three days earlier when he appeared on her porch and asked for permission to fish in a pond on her property. The victim identified Emerson at trial as the person she discovered on her porch on May 21, 1992. Emerson did not testify at trial.

“When, as here, an enumeration of error is based upon the overruling of a motion for directed verdict of acquittal, which was grounded at trial on insufficiency of the evidence, the proper test for an appellate court is the beyond a reasonable doubt test as expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Punctuation omitted.) Grover v. State, 215 Ga. App. 907 (1) (452 SE2d 586) (1994). “The gravamen of the offense of peeping Tom is being on the premises of another for the purpose of spying or invading privacy. [Cits.]” Longenbach v. State, 202 Ga. App. 863, 864 (1) (415 SE2d 546) (1992).

In the case at bar, the victim’s testimony was sufficient to authorize a finding that Emerson was on her premises with the intent to invade her privacy. See id. This proof was sufficient to authorize a rational trier of fact to find Emerson guilty as charged, beyond a reasonable doubt, under the standard enunciated in Jackson v. Virginia, supra. The trial court did not err in denying Emerson’s motion for new trial.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1069.
    IVEY v. THE STATE.
    (456 SE2d 768)
    Decided April 13, 1995.

      Mary Ellen Lysak, for appellant.

      Douglas L. Gibson, for appellee.
   Blackburn, Judge.

John Ivey appeals his convictions by a jury of criminal trespass, carrying a concealed weapon, and carrying a pistol without a license.

1. In his first enumeration of error, Ivey contends that his banishment from the Waycross Housing Authority’s properties was unlimited in duration and, therefore, void for vagueness. However, as Ivey failed to raise this contention below, we are presented with nothing to review. Lewis v. State, 212 Ga. App. 310 (4) (441 SE2d 851) (1994).

2. Ivey next challenges the sufficiency of the evidence. Ivey was served with notice of banishment from the subject property on June 7, 1993. However, on October 14, 1993, Ivey was on the subject property engaging in a verbal dispute with his fiancee. The police responded to a call and discovered Ivey on the property in the possession of a .22 pistol. Ivey did not have a permit to carry the pistol.

Having viewed the evidence in the light most favorable to support the verdict, we conclude that a rational trier of fact could have found Ivey guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1471.
    ATHENS-CLARKE COUNTY v. WALTON ELECTRIC MEMBERSHIP CORPORATION.
    (456 SE2d 115)
   Birdsong, Presiding Judge.

In Athens-Clarke County v. Walton EMC, 265 Ga. 229 (454 SE2d 510) the Supreme Court reversed the judgment of this court in Athens-Clarke County v. Walton EMC, 211 Ga. App. 232 (439 SE2d 504). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the judgment of the trial court is reversed and the case remanded to the trial court.

Judgment reversed and case remanded.

Pope, P. J., and Andrews, J., concur.

Decided April 14, 1995.

Galis & Packer, Denny C. Galis, Ellen L. Whitaker, for appellant.

Lambert & Roffman, E. R. Lambert, Sutherland, Asbill & Brennan, James A. Orr, Paul, Hastings, Janofsky & Walker, Janet L. Kishbaugh, for appellee.


author: Andrews, Judge.

text:
    A95A0112.
    KATZ v. HARRIS.
    (457 SE2d 239)
   Andrews, Judge.

After Ira Katz died intestate on September 16, 1992, Seth Katz, as administrator of the Estate of Ira Katz (the estate), brought suit against William Harris contending: (1) that Harris was holding funds given by Katz to Harris and held by Harris in an implied trust; (2) that Harris was holding personal property jointly purchased by Katz and Harris and held by Harris in an implied trust; (3) that there was a confidential and fiduciary relationship between Katz and Harris such that Harris owed Katz’s estate a formal accounting as to such funds and property; (4) that Harris breached his fiduciary duty to the estate by failing to render an accounting and deliver to the estate all funds and property entrusted by Katz to Harris; (5) that Harris converted to his own use property solely owned by Katz, which the estate was entitled to recover; and (6) that the estate was entitled to compensatory and exemplary damages.

The trial court granted Harris’ motion for summary judgment, denied the estate’s motion for partial summary judgment, and granted Harris’ motion for the award of litigation costs and attorney fees pursuant to OCGA § 9-15-14. The estate appeals from these rulings.

1. We agree with the trial court that the record contains no evidence to support the estate’s claim that Harris was holding funds or jointly purchased property in a trust, or that the estate was entitled to a court-ordered accounting from Harris on the basis that Harris owed a fiduciary duty to Katz’s estate.

By Harris’ description, he and Ira Katz “were involved in a monogamous, committed, homosexual relationship during the continuous time period of 1983 until Ira’s death on September 16, 1992.” The evidence showed that Harris and Katz lived together, had separate incomes, and maintained separate banking accounts. They each contributed money to pay for joint household expenses such as rent, utilities, and food. Typically, Harris would write a check for joint bills from his account, and Katz would reimburse him for a share of the expenses. They made no attempt to keep a formal accounting of their respective contributions.

On several occasions, Harris and Katz deposited money into Harris’ credit union account to save for two vacations they intended to take together. The record shows that these funds were spent on one vacation they took together, and that the remaining funds were used for joint living expenses after the second vacation trip was cancelled. Katz and Harris also jointly contributed about $1,500 each for a $3,000 downpayment on the purchase of a house they intended to buy together. The sales contract on the house was terminated shortly before Katz died, and, when the downpayment was refunded, Harris gave $1,500 to the estate.

As to the financial relationship between Harris and Katz, Harris produced all of his bank and credit union records for inspection by the estate, and he reviewed all of Katz’s records provided to him by the estate. There is no evidence that Harris is holding any funds in which the estate has an interest.

Harris and Katz also jointly purchased various household furnishings and furniture. Harris gave the estate a list of these items, an accounting of the shares that he and Katz contributed to the purchase of each item, and provided purchase receipts and estimated fair market values of the items for purposes of dividing the jointly owned property with the estate. There is no evidence that Harris and Katz owned any other jointly purchased property.

Harris provided the estate with complete records to account for his financial relationship with Katz, and provided detailed records accounting for jointly owned property. There is no evidence to support the estate’s claim that Harris is holding funds given by Katz to Harris. There is no evidence that Harris has possession of jointly owned property not described by him in the record, nor does the record show that Harris has breached any duty to the estate with respect to such jointly owned property. Accordingly, the trial court correctly granted Harris’ motion for summary judgment to the extent it sought a ruling that he had not breached any duty to the estate as to such funds and jointly owned property. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The trial court also properly granted Harris’ motion for summary judgment to the extent it sought a ruling that Harris did not have a fiduciary duty to render a further accounting to the estate, and correctly denied the estate’s motion for summary judgment seeking a court-ordered accounting. Based on the record, we find no abuse of discretion on the part of the trial court in refusing to order Harris to render a further accounting in addition to the detailed records and testimony he provided to the estate. Stapelton v. Sky Valley, Inc., 184 Ga. App. 818 (363 SE2d 48) (1987).

2. As to the estate’s claim that Harris converted items of personal property solely owed by Katz at the time of his death, we find an issue of fact remains. The estate contended that there were a few items of personal property solely owned by Katz at the time of his death that were not included in the personal property that was turned over to the estate by Harris. The estate gave Harris a list of this property prior to commencement of the lawsuit and asked for Harris to return the items. When filed, the lawsuit by the estate did not include a conversion count. After the suit was commenced, the estate again communicated that these items of personal property, which belonged solely to Katz, appeared still to be in Harris’ possession. A demand was made for the return of the items, along with a statement that a count for conversion would be added to the suit if the items were not returned.

Subsequently, at his deposition, Harris was questioned about the list of jointly owned property he had provided to the estate. He testified that there were no items of jointly owned property not on the list. After discussing the list of jointly owned property, Harris was asked if he had any other personal property in his possession not on the list of jointly owned property in which Katz had an interest. He answered that he had “knowledge of some items that have been addressed by the [estate],” and that he was holding this property until all the issues in the suit were settled. A conversion claim for the return of the items solely owned by Katz was subsequently added to the complaint and included in the pre-trial order.

In addressing the conversion claim on summary judgment, we must construe the evidence in favor of the estate and against Harris. So construed, there was evidence that Harris was in possession of property owned by Katz at the time of his death, to which Katz’s estate had a right of immediate possession, and that Harris refused the estate’s demand to return the property. “Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. . . . It is immaterial that such dominion was exercised in good faith, for whoever meddles with another’s property . . . does so at his peril. . . .” (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (356 SE2d 877) (1987); see Adams & Adams, Ga. Law of Torts, § 2-7. Although it appears that the property at issue consists of personal items largely of sentimental value, we are, nevertheless, constrained by the record before us to conclude that there was some evidence supporting the estate’s claim for conversion. Although the trial court’s order on summary judgment does not specifically address the conversion claim, Harris moved for summary judgment on this issue, and the motion was granted. The trial court’s order granting summary judgment in favor of Harris erred to the extent it eliminated the estate’s conversion claim.

Decided April 14, 1995.

Schreeder, Wheeler & Flint, Debra A. Wilson, for appellant.

Russell & Herrera, Ann J. Herrera, for appellee.

3. The estate contends that the trial court erred by granting attorney fees and litigation costs to Harris under OCGA § 9-15-14. Harris’ motion was filed under OCGA § 9-15-14 (e) (effective April 5, 1994), which provides that a motion for attorney fees and expenses may be made “at any time during the course of the action but not later than 45 days after the final disposition of the action.” The award, made pursuant to OCGA § 9-15-14 (b), does not state the specific conduct that authorized the award. See Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31) (1991). Accordingly, the award is vacated and the case remanded to the trial court for consideration of the award of attorney fees and expenses in light of the partial reversal of summary judgment in this opinion. Id. at 422; MacDougald v. Phillips, 213 Ga. App. 575 (445 SE2d 357) (1994); Rolleston v. Huie, 198 Ga. App. 49, 52 (400 SE2d 349) (1990).

Judgment affirmed in part, reversed in part and remanded.

McMurray, P. J., and Blackburn, J., concur.

       The present action did not seek partition of the jointly owned property, so this issue was not before the court. See OCGA §§ 44-12-1; 44-6-120 et seq.

       As to appellate jurisdiction of this issue, “the mere fact of a prayer for an accounting does not call into action the equity powers of a court. Peeples v. Peeples, 193 Ga. 358 (2) (18 SE2d 629) (1942). There being no showing that a remedy at law would be inadequate if an accounting were had, appellate jurisdiction lies in this court. Universal Garage Co. v. Fowler, 184 Ga. 604 (192 SE 299) (1937).” (Citations and punctuation omitted.) Stapelton, supra.

       The statements of counsel for the estate at the hearing on the motions for summary judgment make clear that the conversion claim related to property solely owned by Katz, and not to jointly owned property.


author: Pope, Presiding Judge.

text:
    A95A0588.
    THE STATE v. LAMB.
    (456 SE2d 769)
   Pope, Presiding Judge.

Defendant-appellee was charged with driving under the influence of alcohol, driving with an unlawful alcohol concentration and operating a vehicle without headlights. The trial court granted defendant’s motion to suppress the results of state-administered blood and breath tests, and the State appeals.

The arresting officer testified at the motion to suppress hearing that he initially stopped defendant because she was driving without her headlights on, and that he placed defendant under arrest for driving under the influence after she failed a series of field sobriety tests. The arresting officer testified that he did not read defendant the implied consent warning until they arrived at the police precinct and defendant had been seated at the Intoximeter 3000 breath machine. The officer stated that the reason he did not read the warning at the time of defendant’s arrest was because he preferred to read the warning in the presence of a witness. The officer further testified that defendant first refused to take the breath test, so he again advised her of the consequences if she refused. The officer testified that defendant appeared confused, so he reread the implied consent warning and asked her to submit to both blood and breath tests. According to the officer, defendant then consented to take the tests, and requested an additional blood test.

Defendant also testified at the suppression hearing. According to defendant, more than 30 minutes elapsed between the time she was placed in the police car and her arrival at the police precinct. Defendant further testified that the arresting officer never read her the implied consent warning, and that the only implied consent warning information she received was from the intoximeter operator, who informed her that her license could be suspended for a year if she did not take the breath test. Defendant testified that neither the arresting officer nor the intoximeter operator told her she had a right to an additional test, but that she knew about that right because she had been a hospital administrator and worked in health care for 18 years. Defendant testified that she requested a blood alcohol test, and that she did not know that the State had also conducted a chemical analysis of her blood until the day of the motion hearing.

Following the hearing, the trial court indicated on the record that it was granting the motion to suppress on the basis that the implied consent warning had not been given at the time of defendant’s arrest.

OCGA § 40-6-392 (a) (4) requires the arresting officer to advise the accused of the right to an additional test at the time of the arrest, and our Supreme Court has held that absent circumstances warranting a delay, strict compliance with that Code section is mandated. Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). In Vandiver v. State, 207 Ga. App. 836 (429 SE2d 318) (1993) a majority of this court held that not advising the person arrested of his implied consent rights until after he had been transported to the police station, simply because that was the department’s standard practice, did not constitute a circumstance warranting the delay. We find Vandiver to be controlling here. The testimony of the arresting officer at the motion hearing established that the only reason he did not advise defendant at the time of her arrest was because he “preferred” to read the implied consent warning in the presence of a witness; the record discloses no circumstances surrounding the arrest which authorized a delay in advising the defendant of her right to additional testing. Clapsaddle v. State, 208 Ga. App. 840 (432 SE2d 262) (1993); cf. Martin v. State, 211 Ga. App. 561 (440 SE2d 24) (1993). The trial court did not err in suppressing the results of the state-administered blood and breath tests under these facts.

Decided April 17, 1995.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellant.

Harrison & Harrison, Samuel H. Harrison, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0338.
    RAMPELL v. WILLIAMS.
    (457 SE2d 224)
   Blackburn, Judge.

We granted Nancy Rampell’s application for interlocutory review to determine whether she can recover monetary damages for the alleged limitations on her ability to maintain, change, and acquire additional medical and disability insurance coverage as a result of the permanent injuries she received in an automobile collision.

On September 17, 1991, Rampell, a licensed neurologist, sustained permanent injuries to her thoracic and cervical spine when the vehicle that she had been driving struck a telephone pole allegedly as a result of Mary Helen Williams’ negligence. At the time of the collision, Rampell maintained medical insurance coverage through a group policy which also covered her staff. She also had in place a group disability insurance policy for the maximum amount that she was entitled to maintain at her then income level.

After the collision, Rampell sought to and did increase her group disability coverage limits, but discovered that such additional disability insurance excluded coverage for any disability related to her thoracic/cervical spine which was permanently injured in the automobile collision. Because of unrelated changes in her office staff, Rampell no longer needed group coverage and investigated the feasibility of switching to an individual medical insurance policy. Rampell discovered that no company of whom she inquired would issue a policy which provided coverage for future treatment related to her thoracic/ cervical spine or otherwise arising out of her permanent injuries. She therefore elected to continue the existing group medical insurance coverage and accepted the additional group disability insurance which included the above-described exclusions.

Rampell commenced the instant action against Williams seeking general and special damages and other expenses. Although Rampell did not specifically pray for special damages for the impact of her permanent injuries upon her ability to contract for insurance benefits, in response to interrogatories propounded by Williams, she claimed that she incurred additional expenses as a result of said impairment. To avoid the prejudicial impact which would result from the introduction of insurance at trial on the issue of liability and other elements of damages, Rampell moved the court to bifurcate the trial on the insurance issues, including the increased cost of medical insurance and the exclusion of additional disability coverage for her permanent injuries. Williams later filed a second motion in limine to prohibit any reference to or the introduction of any evidence on any claims related to the increased cost or reduced coverage for health and disability insurance.

Following a hearing on both motions, the trial court granted Williams’ second motion in limine and denied Rampell’s motion to bifurcate the trial, finding that the special, compensatory, and general damages sought by Rampell were too remote and speculative to warrant recovery.

1. Initially, we must address Williams’ challenge to Rampell’s brief which fails to contain a statement of the method used in preserving the enumerated errors, a statement on the standard of review, or a statement of jurisdiction as required by former Court of Appeals Rules 15 and 21. Williams also questions the format of Rampell’s brief. See former Court of Appeals Rule 11 (b). Parties are required to follow the rules of this court in the preparation and handling of appeals in this court. Any party who fails to follow this court’s rules in the preparation of an appeal or response thereto stands the risk of having their filings struck in the discretion of this court. However, we will exercise our discretion and consider the merits of this appeal. See Henderson v. State, 211 Ga. App. 102 (1) (438 SE2d 181) (1993); Johnson v. State, 207 Ga. App. 34 (2) (427 SE2d 29) (1993).

2. “There are four elements to any tort action: duty, breach, causation, and damages. With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant’s action was both the cause in fact and the proximate cause of her injury.” (Citation and punctuation omitted; emphasis supplied.) Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (2) (443 SE2d 837) (1994). “ ‘On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff . . . must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to [grant judgment] for the defendant.’ [Cit.]” Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (396 SE2d 9) (1990).

Rampell has not established that the automobile collision was the cause in fact of any limitations on her ability to modify her medical and disability coverage. Rampell’s disability and medical insurance coverage has not been cancelled as a result of the collision or the injuries she received therein, and she does not contend that she has been unable to maintain the same level of coverage that she had at the time of the collision. Her decision to investigate changing her coverage from group coverage to an individual policy was based upon personnel changes unrelated to the collision, and upon a substantial increase in her income. Rampell has not established that she would not have experienced an increase in insurance premiums based upon these unrelated factors in the absence of the collision. Hence, there is nothing more than mere speculation that the collision caused the economic injuries alleged. Moreover, any claim for damages for pain and suffering and mental and emotional distress as well as damages for future medical expenses are recoverable from the defendant if proven at trial. See generally Massie v. Ross, 211 Ga. App. 354 (1) (439 SE2d 3) (1993). To allow Rampell to recover damages for her inability to purchase insurance coverage for those elements of damage for which she has already recovered (assuming a successful trial result) would result in a double recovery which the law does not permit. Under the facts of this case, Rampell cannot recover for her inability to obtain increased insurance coverage or for any increased cost thereof.

Therefore, the trial court did not abuse its discretion in granting Williams’ motion in limine and denying Rampell’s motion for a bifurcated trial on this matter. See Southern Guaranty Ins. Co. v. Nixon, 194 Ga. App. 398 (1) (390 SE2d 638) (1990). “A judgment that is right for any reason will be affirmed by this court. [Cit.]” Auto Alignment Svcs. v. Bray, 214 Ga. App. 53, 55 (446 SE2d 753) (1994).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Decided April 5, 1995

Reconsideration denied April 19, 1995

George R. Dean, for appellant.

Berlon & Timmel, James T. Perry, for appellee.

       Williams’ first motion in limine is not included in the appellate record and is not the subject of this action.

       Although Williams also asserted in her brief that Rampell failed to provide citations to the record and transcript in her brief, Rampell filed a reply brief which included citations to the record.


text:
    A95A0837, A95A0838.
    PECAN SHOPPE OF FREDERICKSBURG et al. v. BANK OF DODGE COUNTY (two cases).
    (457 SE2d 223)
   Blackburn, Judge.

Appellants/cross-appellees/plaintiffs, Pecan Shoppe of Fredericksburg, d/b/a Pecan Shoppe of Thornburg and Stuckey’s Pecan Shoppe (referred to collectively as Stuckey’s) brought the underlying action against appellee/cross-appellant/defendant Bank of Dodge County (bank) to recover damages for the bank’s negligent issuance of money orders in the amount of $83,000 to Stuckey’s accountant and financial affairs manager, Donald R. Purser. The complaint alleged: the bank was on notice of Purser’s breach of fiduciary duty because it had cashed and deposited checks which Purser had drawn on Stuckey’s accounts and made payable to the bank; the bank was negligent by failing to determine why such checks were made payable to the bank and by treating them as bearer paper; and the bank’s acts and omissions constituted commercial bad faith and the conversion of monies belonging to Stuckey’s. The bank answered and filed a cross-claim against Purser’s estate and a third-party complaint against Stuckey’s co-owners.

Following discovery, the parties filed cross-motions for summary judgment in the principal case. Thereafter, the parties agreed by stipulation that the question of whether the bank’s cross-claim against Purser’s estate sounded in contract or tort should be submitted to the trial court along with their motions for summary judgment. The trial court denied the motions for summary judgment and found that the bank’s cross-claim against Purser’s estate was a claim ex contractu. Thereafter, we granted the parties’ applications for interlocutory review.

1. On appeal, the parties argue that the trial court erred in denying their motions for summary judgment. In particular, Stuckey’s asserts that its motion for summary judgment should have been granted because the bank, as a matter of law, lacked status as a holder in due course.

Decided April 5, 1995

Reconsideration denied April 19, 1995

Sell & Melton, Edward S. Sell III, Buckner F. Melton, Michelle W. Johnson, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellees.

OCGA § 11-3-302 (1) (c) pertinently provides that to be a holder in due course, a holder must take a negotiable instrument “[wjithout notice ... of any defense against or claim to it on the part of any person.” While OCGA § 11-3-304 (2) indicates that a purchaser takes an instrument with notice of a claim against it when the purchaser knows that a fiduciary has negotiated the same to pay for a personal debt in breach of a fiduciary duty, it is unclear that the bank should here be charged with such knowledge. A genuine issue of material fact exists as to whether or not the facts herein constitute notice to the bank, and the trial court properly denied the motions for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

2. The parties further argue that the trial court erred by failing to grant partial summary judgment as to punitive damages and the cost of litigation. The question of entitlement to punitive damages and the amount thereof is a jury question. Accordingly, the trial court properly denied the parties’ motions for summary judgment in this regard.

3. Finally, Stuckey’s contends that the trial court erred in granting a partial summary judgment to the bank by holding that the bank’s cross-claim against Purser’s estate is ex contractu. The parties stipulated this issue for determination by the court and its ruling is supported by the evidence. See Nat. Chemco v. Union Camp Corp., 209 Ga. App. 317, 318 (433 SE2d 691) (1993).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Purser is now deceased.


author: Birdsong, Presiding Judge. Smith, Judge,

text:
    A95A0265.
    CAMPOS et al. v. WILLIAMS.
    (457 SE2d 243)
   Birdsong, Presiding Judge.

Appellants, Quirino Campos et al., appeal the state court’s order granting appellee Dairyland Insurance Company’s motion for summary judgment against appellants Campos and Jose Gonzalez, and dismissing the complaint of said appellants/plaintiffs.

Suit for damages was brought by Campos, Gonzalez and Porfirio Vasquez for injuries sustained in an automobile accident when a Nissan pickup driven by Willie Williams allegedly ran a red light and collided with a Ford pickup which was making a left turn. Gonzalez and Campos were passengers in the Ford pickup; Vasquez was the driver. The whereabouts of defendant Willie Williams are unknown and he has been served with process by publication. Dairyland Insurance Company has been served as the purported uninsured motorist carrier of plaintiff Porfirio Vasquez. Pursuant to OCGA § 33-7-11 et seq., Dairyland filed an answer in its own name averring settlement, accord and satisfaction, release, and payment of the claims of Campos and Gonzalez. Thereafter, Dairyland moved for summary judgment based on releases executed by Campos and Gonzalez who have never tendered return of the consideration received for the releases. Appellants’ sole enumeration is that the trial court erred in granting summary judgment in favor of appellee Dairyland Insurance Company. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. The enumeration of error does not reasonably encompass a claim that the trial court erred in dismissing “the complaint of [appellants/plaintiffs] Quirino Campos and Jose Gonzalez.” Accordingly, the only appellate issue preserved by the enumeration is whether the trial court erred in granting summary judgment in favor of Dairyland Insurance Company. Jones v. Sauls, 213 Ga. App. 55, 58 (443 SE2d 693) (issue not reasonably contained within the enumeration of errors).

3. Separate documents entitled “Indemnity and Hold Harmless Agreement” were signed by appellants Campos and Gonzalez. These documents executed in consideration of a certain sum contained both release and hold harmless agreements. The release agreements are ambiguous in that the printed portion of each agreement purports, inter alia, to release and forever discharge, “Dairyland Insurance Company, Zamorano Porfirio Vasquez, and Porfirio Vasquez . . . from any and all, and all manner of, actions and causes of action . . . suits . . . judgments ... claims and demands whatsoever in law or equity . . . and especially from all liability arising out of an occurrence that happened on or about September 19, 1991, at or near Chamblee, Atlanta, Ga.” Immediately thereafter there appears this inserted typewritten sentence: “Notwithstanding the above, this release only applies to Porfirio Vasquez and is not to be construed as a release of any other parties including Willie Williams.” Thereafter, in a numbered paragraph, the agreement contained a hold harmless clause whereby appellants Campos and Gonzalez agreed to indemnify and hold harmless the certain parties released from any and every claim or demand of every kind and character which may be asserted by said appellants regarding or resulting from the incident. After signing the documents, appellants Campos and Gonzalez negotiated the settlement checks tendered by Dairyland; printed on the face of each check, in a block captioned “payment covers,” were the words, “FULL AND FINAL SETTLEMENT OF ALL CLAIMS.”

The release portion of the agreement is ambiguous whether only Porfirio Vasquez was released or whether Dairyland Insurance Company, Zamorano Porfirio Vasquez, and Porfirio Vasquez all were released thereby. Clearly each of these persons was “named” in the release within the meaning of Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902). A release or settlement agreement is a form of contract subject to construction by the court. Darby v. Mathis, 212 Ga. App. 444 (1) (441 SE2d 905). Even ambiguous contracts are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308).

Appellants, however, assert that in this case the controlling rule of contract construction is OCGA § 13-2-2 (7), which provides that when a contract is partly printed and partly written, the latter part is entitled to most consideration. Thus, appellants assert that the added typewritten portions of the contract must control over the printed portions of the agreement. We find, under the attendant circumstances, that this rule of construction is not controlling in this case. At the outset, we note that the major portion of the agreement not only was printed but had been tailored to list expressly in their printed portions the names of persons, including Dairyland, who were to be released, and the specific incident for which the release was to apply. The indemnity and hold harmless portions of the agreement were not merely part of a fill-in-the-blanks form. Accordingly, we find that the typewritten portions of the form were not necessarily intended by both parties to be controlling. Neither can we look to the basic rule that an ambiguous contract is to be construed against the maker, as the affidavit of the attorney who negotiated the releases for appellants reveals that the releases were modified after discussion with a representative of Dairyland. The only reasonable inference to be drawn from these facts is that the typewritten modification to the form either was made by appellants’ negotiating attorney or, at a minimum, was the product of a joint effort between the parties. In either event, the ambiguity is not to be construed against Dairyland; we find the issue of who drafted the contract, in this instance, is at best a neutral factor. The cardinal rule of contract construction is to ascertain the intent of the parties. OCGA § 13-2-3. Pretermitting the issue whether Dairyland and the appellants all shared a common intent to release Dairyland from any and all claims arising from the incident is whether appellants Campos and Gonzalez knew of Dairy-land’s intent that it be so released and proceeded to sign the agreement, and subsequently to negotiate the settlement check. Either viewing the agreement on its four corners or viewing the agreement in its totality together with all relevant parol evidence of record, we reach the same result. Both appellants knew at the time they signed their respective release and hold harmless agreements that Dairyland. intended to be released thereby. “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4; Borders v. Global Ins. Co., 208 Ga. App. 480, 483-484 (2) (430 SE2d 854). “[A] grant of summary judgment must be affirmed ... if it is right for any reason.” Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61); accord Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741).

Decided April 19, 1995.

Cruz & Associates, Daniel J. Castan, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellee

Judgment affirmed.

Johnson, J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

While I concur in the result, I write specially to note a potential problem with the majority’s interpretation of OCGA § 13-2-2 (7). I believe the exclusion of computer-generated forms from the scope of this Code section is unnecessary to a decision in this case and could create difficulties in the area of contract interpretation.

As the majority acknowledges, a cursory examination of the contract in question shows it was prepared by Dairyland with the assistance of a computer word processing program allowing the insertion of names and phrases into an existing form document. This document is no less a “form” because it exists in a computer’s memory rather than on paper. I believe it is reasonable to conclude, contrary to the majority’s assertion, that this computer-generated document is the modern equivalent of the offset-printed “fill-in-the-blanks form,” which shows signs of following the Linotype, carbon paper, and the scrivener into obscurity. A holding that forms generated by computer are somehow not forms will cause unanticipated and sometimes severe consequences in businesses which have already adopted these forms for general use.


author: Johnson, Judge. Andrews, Judge,

text:
    A94A1967.
    SACKER v. PERRY REALTY SERVICES, INC. et al.
    (457 SE2d 208)
   Johnson, Judge.

Sandra Sacker filed this action against Perry Realty Services, Inc., and D’Youville Condominium Association, Inc., for injuries sustained when she fell while walking through the parking lot of the condominium where she resides. Perry Realty and D’Youville moved for summary judgment, which the trial court granted. Sacker appeals.

Sacker contends the trial court erred in granting the defendants’ motions for summary judgment because genuine issues of material fact exist as to whether Perry Realty, as agent for D’Youville, was negligent in maintaining the parking area. We agree and reverse.

Viewed in the light most favorable to Sacker as the respondent in a motion for summary judgment, the evidence shows Sacker owns and resides in a condominium unit at D’Youville Condominium. Sacker normally parked her car in the garage behind her unit and her husband parked his vehicle in the parking lot in front of the unit. One evening Sacker went to retrieve a case of soft drinks from her husband’s car. The lighting in the parking area was poor and Sacker was unable to see the ground. As Sacker carried the drinks, she tripped over a railroad tie, fell over a retaining wall and was injured. The railroad ties were used as parking space indicators. The tie Sacker tripped over was out of place at the time of the accident. Sacker knew prior to the accident that the lighting in the area was poor, but she had never seen the railroad ties out of place.

The condominium association retained Perry Realty to manage the property. Robert Powser, Perry Realty’s on-site manager, was responsible for inspecting and supervising maintenance of common areas at D’Youville. As part of his duties, Powser visited the property two days each week. He admitted on deposition that the railroad ties were not secured and that he regularly found them out of place. Powser and the landscaping crew repositioned the ties about four to six times each week. Powser also admitted that the day after the fall he found the tie which was located in front of Sacker’s unit to be out of place. In addition, Powser testified that the lighting in the parking lot was “not . . . superior to the new pink lights,” that there were shadows in the parking lot, and that he wanted to upgrade the lights for “looks” and for “better lighting.” Powser deposed that he only learned about any lighting problem after the accident, though he visited the complex one night each month.

Sacker argues that because she owns a condominium at D’Youville, she was an invitee of the common area rather than a mere licensee as Perry Realty claims. “Whether a person is an invitee or licensee depends upon the nature of his relation or contact with the owner of the premises. ... If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. The enterprise must be mutual to the extent that each party is lawfully interested therein; or that there is common interest or mutual advantage involved.” (Citations and punctuation omitted.) Walker v. Daniels, 200 Ga. App. 150, 154 (1) (407 SE2d 70) (1991). As is evident from the Declaration of Condominium, there exists a clear mutuality of obligations and interests between Sacker and D’Youville. Sacker was therefore an invitee. D’Youville therefore had a duty to exercise ordinary care to protect her from unreasonable risks of which it had superior knowledge. See Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992).

In this case, the property manager for the condominium association was on notice that the railroad ties were not secured and regularly became displaced, yet the only action he took was to move them back into position when he noticed them out of place and to inform the landscaping crew to do the same. Sacker’s testimony that she had never noticed the ties out of place and that the darkness prevented her from seeing the displaced tie was uncontradicted. “The question of a violation of the duty to exercise ordinary care to afford [invitees] premises that are reasonably safe ... is a question of negligence and this court is bound by the rule that such matters are for the jury except in plain, palpable and indisputable cases.” (Punctuation omitted.) Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1) (318 SE2d 235) (1984). The evidence in this case, considering the reasonable inferences that may be drawn therefrom, presents matters which should be resolved by the jury. See Waits v. Makowski, 191 Ga. App. 794, 796 (1) (383 SE2d 175) (1989). A genuine issue of material fact exists as to whether Perry Realty and D’Youville were negligent in maintaining unsecured railroad ties in a dimly lit parking area. See id. at 814 (1).

Perry Realty’s argument that Sacker successfully negotiated the condition for 11 years and therefore knew of the danger is without merit. It is true that a person who has successfully negotiated a dangerous condition on a previous occasion is presumed to have knowledge of it and cannot recover for resulting injuries. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 125 (1) (444 SE2d 341) (1994). However, there is no evidence Sacker ever negotiated this particular hazard. Her testimony was that she did not regularly use the front parking area and had never seen the railroad ties out of place. Therefore, the fact that she managed to avoid tripping over the ties when they were properly positioned or during daylight hours does not mean she had knowledge of or had successfully negotiated the dangerous condition which caused her to fall that night. “It is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” (Punctuation omitted; emphasis in original.) Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994). Sacker knew there were railroad ties in the area but not that they were out of place, a dangerous condition exacerbated by the poor lighting.

Contrary to Perry Realty’s argument, there is evidence that Sacker exercised ordinary care. Sacker testified that she was looking where she was going, including toward the ground, but that darkness prevented her from seeing the ground in front of her. The evidence created a factual issue as to whether Sacker exercised reasonable care and whether Perry Realty exercised ordinary care in making the premises safe for its invitees. See Burke v. Bi-Lo, 212 Ga. App. 115, 116 (441 SE2d 429) (1994). In moving for summary judgment, Perry Realty had the burden of showing that no genuine issue of material fact existed as to its lack of superior knowledge of the danger created by the railroad ties. Id. at 118. We cannot decide that Sacker had equal knowledge of the hazard as a matter of law. Therefore, the trial court erred in granting Perry Realty’s and D’Youville’s motions for summary judgment.

Finally, we do not agree with D’Youville’s assertion that summary judgment in its favor was mandated because Perry Realty was an independent contractor. Even assuming Perry Realty is an independent contractor, D’Youville would not necessarily be relieved of all liability to Sacker. “To the general rule of the employer’s nonliability for the torts of independent contractors codified in OCGA § 51-2-4, there are several exceptions. One of those exceptions, codified in OCGA § 51-2-5 (3); is where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing, he cannot evade liability by employing another to do that which he has agreed to perform.” (Citations and punctuation omitted.) Crispens Enterprise v. Halstead, 209 Ga. App. 133, 134 (2) (433 SE2d 353) (1993). In the Declaration of Condominium, D’Youville is expressly obligated to maintain and keep the common areas in good repair. See generally Fleetwood v. Wieuca North Condo. Assn., 182 Ga. App. 15, 16 (1) (354 SE2d 623) (1987). Sacker has an independent obligation to pay fees which enable the association to perform those services. D’Youville may not escape liability by arguing that the company it employed to perform its obligations was an independent contractor.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Blackburn and Ruffin, JJ., concur. Birdsong, P. J., Pope, P. J., and Andrews, J., dissent. Smith, J., not participating.

Andrews, Judge,

dissenting.

I respectfully dissent.

Sacker deposed that she walked out of her condominium to retrieve a case of soft drinks from her husband’s car, which was located in the condominium parking lot. It was about 7:00 p.m. at the time and was dark outside. The parking lot in front of her condominium was elevated about five to six feet above the ground level of the condominium, and was separated from the condominium by a five to six foot high retaining wall. The top of the retaining wall was roughly at the level of the parking lot. The parking lot was designed so that cars were parked in spaces close to the edge of and directly facing the retaining wall. Photographs identified by Sacker and attached as exhibits. to her deposition show that, on the night of the fall, Sacker’s husband’s car was parked directly in front of the retaining wall with the front bumper of the car even with or hanging slightly over the top of the retaining wall.

Railroad ties were periodically placed parallel to the retaining wall to act as parking space indicators. The photographs show that the railroad tie in front of her husband’s car was slanted away from the retaining wall toward the driver’s side of the car. Sacker testified that, although it was too dark for her to see the railroad tie when she tripped over it, she assumed that the photographs showed the approximate position of the tie on the night she tripped and fell. She made this assumption on the basis that, “when [she] ran into the tie, [she] was farther away from the wall than [she] should have been.” She testified that, after she picked up the case of soft drinks from the backseat of the car, she walked along the driver’s side of the car toward the retaining wall and tripped over the tie. Based on the position of the railroad tie in the photographs and Sacker’s testimony, it is evident that she encountered the tie about one step away from the top of the retaining wall. Sacker testified that, having walked in that area of the parking lot about once a week for 11 years, she knew that the railroad ties were there and that they were normally placed “[p]robably 4 to 6 inches or something like that” away from and parallel to the retaining wall. Although there was evidence that the railroad ties were not affixed to the ground and occasionally were found out of position, Sacker testified that she had never before seen a tie slanted out of position away from the wall. Sacker testified that, on the night she fell, she did not “remember consciously looking for the tie because I knew where they were, I thought.” In explaining the manner in which she tripped and fell Sacker testified that: “I walked toward the wall and hit the railroad tie and went flying, landed on the wall on my knee . . . [f]ainted and rolled off the wall onto the ground 5 feet or 6 feet below.”

Sacker testified that there was a parking lot light in the area of her husband’s car that illuminated the parking lot and gave her sufficient light to walk up the steps leading from the condominiums to the elevated parking lot area. Although the photographs attached to her deposition do not reflect it, Sacker testified that, on the night of her fall, another car was parked alongside the driver’s side of her husband’s car. When she got to the top of the steps, she walked around the car parked adjacent to her husband’s car, then walked between the two cars “to the rear door of my husband’s car, opened it, lifted out the case of drinks, closed the door, and walked toward the wall.” Instead of walking back into the lighted parking lot area to the rear of the car and around the adjacent car to the lighted steps, Sacker walked in the narrow corridor between the two cars, carrying the case of soft drinks, toward the edge of the six-foot drop-off at the retaining wall. She did so with the intention of placing the soft drinks on the top of the wall so that her husband, waiting in front of the condominium, could reach them from below the wall and carry them inside. Sacker did not testify that the parking lot area in general was inadequately lighted for walking in at night. Rather, she testified that the car parked immediately adjacent to her husband’s car blocked the light in the parking lot from shining into the narrow corridor in which she walked between the two parked cars. She testified that when she looked down in the narrow corridor between the cars it was so dark that she could not see the tie or even where she was putting her feet on the ground as she walked toward the retaining wall.

Powser, the property manager for the defendants, testified on deposition that he inspected the parking lot area twice a week on Mondays and Thursdays, and during those inspections specifically checked for and re-positioned any railroad ties that were out of place. He testified that he would typically find four to six ties out of place in various areas of the 40-acre condominium property during each inspection. He observed that the tie over which Sacker tripped was slanted about six inches out of position the day after the fall. Powser’s undisputed testimony was that no one prior to Sacker had ever tripped or fallen over one of the railroad ties.

Powser testified that, since the present lawsuit had been filed, the lights, which were leased from Georgia Power, had been discussed, but that Georgia Power had refused to upgrade all the lights in the complex from white lights to the new, more energy efficient pink or peach colored lights. Powser did testify that there were shadows in the parking lot, but nothing he considered unusual. There was no testimony that the lights in the parking lot were inadequate.

Based on these facts, the defendant proprietors were entitled to summary judgment.

1. There was no evidence that the defendants had superior actual or constructive knowledge of the defects alleged to be the proximate cause of Sacker’s injuries. The basis for imposing liability in this case is the proprietors’ superior knowledge of a condition or hazard that was the proximate.cause of Sacker’s injuries. Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). Sacker alleges that there were two conditions or hazards working in combination: the out-of-position railroad tie and the absence of lighting in the corridor between the adjacent parked cars.

The existence of darkness on the ground at night in the narrow space between two adjacent parked cars in an otherwise lighted parking lot is not a defect, but a condition which is commonly encountered and to be anticipated by those exercising ordinary care for their own safety. In any event, Sacker was at least equally aware of the darkness between the cars.

As to the out-of-position tie, assuming this was a condition which exposed Sacker to an unreasonable risk of harm, in order to recover, Sacker would be required to show that the defendants had superior actual or constructive knowledge that the tie at issue was out of place. There was no evidence that the defendants had any actual knowledge that the tie at issue was out of place. As to proof of constructive knowledge, “[i]n general, there are two classes of cases supporting claims that a defendant had constructive knowledge of a defect. The first class involves a claim that the defendant had a duty to exercise reasonable care to inspect and keep the premises safe and that the defect had existed for a sufficient period of time to afford the defendant a reasonable opportunity to conduct such an inspection and discover and remove the defect. The second class . . . involves a claim that an employee of the defendant was in the immediate area of the hazard and had the means and opportunity to have easily seen and removed the hazard. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968); Mitchell v. Food Giant, 176 Ga. App. 705, 708-709 (337 SE2d 353) (1985).” Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 863-864 (449 SE2d 348) (1994).

There was no evidence that an employee of the defendants was in the area and had the means and opportunity to have seen the out-of-position tie and re-position it. As to any claim that the defendants had constructive knowledge because they failed to exercise reasonable care in inspecting the premises to keep it safe, to sustain such a claim it is necessary to present evidence showing the period of time the tie was out of place. Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 51 (443 SE2d 871) (1994). There was no evidence as to the period of time the tie had been out of place. “Without such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Emphasis omitted.) Id. Although there was evidence that the defendants had previously found ties out of position, that does not create a duty on the part of the defendants to provide a constant patrol to prevent a tie from moving out of position, especially where there had been no previous trips or falls involving an out-of-position tie. Elliott v. Burkhalter, 173 Ga. App. 749 (327 SE2d 858) (1985). “Where there are no conditions making the premises unusually dangerous, the law does not require the proprietor to provide a constant patrol.” (Punctuation omitted.) Id. The evidence showed that, under the circumstances, the defendants adhered to a reasonable schedule of inspecting the premises.

In the absence of any evidence that the defendants had superior actual or constructive knowledge that the tie was out of position, the trial court properly granted summary judgment in favor of the defendants. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Even if it could be concluded that the defendants had knowledge of the out-of-position tie, they were still entitled to summary judgment in this case.

“The owner or occupier of land is liable in damages to invitees for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. [OCGA § 51-3-1.] However, the [proprietor] is not an insurer of the safety of his [invitees], but what the law requires is such diligence toward making the premises safe as the ordinarily prudent businessman in such matters is accustomed to use. Emory University v. Williams, 127 Ga. App. 881 (195 SE2d 464).” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) (1976). “This includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. The true ground of liability in such a relationship is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations and punctuation omitted.) Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).

The facts in this case show that the railroad ties, apparently when bumped by cars parking at the edge of the six-foot high retaining wall, would occasionally move out of position by slanting in one direction or another away from the wall. As the photographs attached to Sacker’s deposition show, this condition posed no hazard to anyone getting into or out of the front or back seat of a parked car, even at night, as long as they entered and exited, as would be expected, in the normal path past the rear of the car through the lighted parking lot area. In fact, no one prior to Sacker had ever been injured by an out-of-position tie. The only way to encounter a railroad tie in this area, even one slanted out of position, is to walk past the front door of the car toward the edge of the six-foot-high precipice. Sacker did precisely this when she deviated from the path normally taken to enter and exit the car to walk in an obviously darkened corridor between two cars to the edge of the wall so that she could place the case of soft drinks on top of the wall. Even if the defendants had knowledge of the alleged hazardous conditions, it was not foreseeable that these conditions would cause injury to an invitee. Accordingly, these were not conditions which exposed an invitee to a foreseeable unreasonable risk of harm. See Barksdale, supra; Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 349-350 (349 SE2d 241) (1986).

Moreover, while walking in the dark, in an area where she knew she was approaching the railroad tie and the edge of the wall, it was Sacker’s duty to anticipate the presence of the tie, which she encountered only about one step prior to where she thought it would be. See Jones v. Richardson, 178 Ga. App. 49 (342 SE2d 12) (1986). “This would be especially true where, as here, the parking lot user elected to follow what was her own ‘short cut’ rather than to avail herself of a usual and available route for exit.” Id. Under these circumstances, this case is more properly in the category with those cases where the obstructions encountered by the plaintiffs while walking in darkness were non-defective obstructions which the plaintiff knew about or should have reasonably anticipated. “It is an act of negligence to go on and over premises where it is to be reasonably expected that obstructions incident to a business activity exist and are concealed by darkness. In such circumstances, one who chooses to walk in the darkness does not exercise ordinary care for his own safety.” (Citations and punctuation omitted.) Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535, 537 (414 SE2d 694) (1992); Braun v. Wright, 100 Ga. App. 295, 296 (111 SE2d 100) (1959); compare Kreiss v. Allatoona Landing, 108 Ga. App. 427, 431-435 (133 SE2d 602) (1963) and Hatcher v. City of Albany, 147 Ga. App. 843, 846 (250 SE2d 537) (1978) (discussing liability where plaintiffs walking in darkness encountered dangerous or defective conditions on the premises).

Since the facts of this case show plainly and indisputably that the defendants have discharged their duty of ordinary care to Sacker, and that Sacker failed to exercise ordinary care for her own safety, the trial court properly granted summary judgment for the defendants.

I am authorized to state that Presiding Judge Birdsong and Presiding Judge Pope join in this dissent.

Decided March 31, 1995

Reconsideration denied April 20, 1995

David C. Cole, Ford & Felton, James L. Ford, Terry D. Jackson, for appellant.

Swift, Currie, McGhee & Hiers, Robin F. Clark, Stephen L. Cotter, Chambers, Mabry, McClelland & Brooks, W. C. Brooks, for appellees.

       We note that Sacker is not precluded from bringing a negligence action against the association by virtue of her ownership of an interest in the common area or by her membership in the association. See OCGA § 44-3-106 (g).


author: McMurray, Presiding Judge.

text:
    A93A2312.
    THE STATE v. SCHUMAN.
    (457 SE2d 247)
   McMurray, Presiding Judge.

Defendant Victor Schuman was charged via indictment with two counts of theft by taking. He was also charged with one count of theft by deception, in that he obtained more than $500 with the intent to deprive its owner of said property, by the deceitful means of “representing to Judith Rausher that he would provide her with a first mortgage on certain real property ... in exchange for $300,000.00 which representation was false and which the accused knew or believed to be false.” Defendant filed a pre-trial motion to dismiss the indictment, arguing that the prosecution was in truth an attempt by a “disgruntled business associate” to employ criminal process to collect a debt, in contravention to Art. I, Sec. I, Par. XXIII of the Ga. Const, of 1983. After a hearing, the trial court agreed with this interpretation of events and concluded there was “insufficient evidence of the Defendant’s criminal intent.” Consequently, the trial court ordered that the indictment be “dismissed with prejudice.”

The State appealed and this court reversed, holding that the substance of defendant’s motion to dismiss was that of a speaking demurrer which was not a proper procedural vehicle to authorize the trial court’s dismissal of the indictment “ ‘with prejudice.’ ” State v. Schuman, 212 Ga. App. 231, 232 (1), 233 (441 SE2d 466). On certiorari, the Georgia Supreme Court agreed that a speaking demurrer generally “presents no authority for quashing an indictment and is void.” Schuman v. State, 264 Ga. 526 (448 SE2d 694). Nevertheless, the Supreme Court held there was no procedural error in deciding defendant’s motion after argument and a summary of the evidence by both parties, because the parties had consented to that procedure. Id. Accordingly, the Supreme Court reversed and remanded the case to the Court of Appeals of Georgia “to determine whether, under the facts stipulated by the parties, the trial court properly dismissed the indictment.” Id. Held:

Decided April 20, 1995.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Assistant District Attorney, for appellant.

Michael K. McIntyre, for appellee.

In substance, this was a bench trial, i.e., the presentation of stipulated facts to the trial court for a determination of the State’s “entire case, including the question of [criminal] intent].]” Schuman v. State, 264 Ga. 526, n. 1, supra. In a bench trial, the court sits as the trier of fact and its findings shall not be set aside unless clearly erroneous. Womack v. State, 193 Ga. App. 186, 187 (387 SE2d 336), reversed on other grounds, Womack v. State, 260 Ga. 21 (389 SE2d 240). In the case sub judice, it was not error for the trial court to dismiss the indictment where it was shown to the satisfaction of the court that the “evidence [of criminal intent] would be insufficient as a matter of law to establish [that element] of the offense charged.” State v. Finkelstein, 170 Ga. App. 608 (317 SE2d 648). This is exactly as if the trial court had entered a judgment of acquittal based upon the insufficiency of the evidence. Such a ruling is not ordinarily an appealable judgment within the purview of OCGA § 5-7-1. See State v. Lawrence, 208 Ga. App. 588 (431 SE2d 409).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Ruffin, Judge.

text:
    A93A2547.
    EVANS v. THE STATE.
    (457 SE2d 250)
    Decided April 20, 1995.

      Arleen E. Gardenhire, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt,

      Assistant District Attorney, for appellee.
   Ruffin, Judge.

In accordance with the judgment of the Supreme Court in State v. Evans, 265 Ga. 332 (454 SE2d 468) (1995), the decision of this court in Evans v. State, 212 Ga. App. 805 (443 SE2d 296) (1994), is reversed, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

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


text:
    A95A0674.
    HUFF et al. v. VALENTINE et al.
    (457 SE2d 249)
   Birdsong, Presiding Judge.

This is an interlocutory review of the order of the trial court denying appellants/defendants’ motion to serve a third-party complaint on the grounds that “defendant has a federal action pending against this third-party defendant, Fruehauf Trailer Corporation, and may not prosecute two actions at the same time against the same defendant. See OCGA § 9-2-5.”

Appellees filed suit for damages arising when a collision occurred between the tractor-trailer driven by appellant Tony D. Huff and a pickup truck driven by appellee Lewis Scott Valentine. At the time of the incident, appellant Huff was hauling a load of steel coil; when negotiating a curve, the Fruehauf trailer began to overturn and the load broke loose striking the pickup truck. Huff filed suit against Fruehauf Trailer Corporation in Barrow County but the suit was removed by Fruehauf to federal court. Shortly thereafter, appellees filed this suit in Fulton County against appellants for damages sustained due to the averred negligent operation of the tractor-trailer by appellant Huff. Appellant Huff moved to dismiss his pending action in federal court but the United States District Court denied the motion. Appellants then filed a joint motion to serve a third-party complaint against Fruehauf; the third-party complaint avers, inter alia, a claim of right to contribution or indemnity in the event liability is adjudged against any or all of appellants/defendants, and averred, inter alia, claims for property, medical, and lost wage damages sustained by appellant Huff. Held:

1. OCGA § 9-2-5 (a) provides: “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.”

OCGA § 9-2-44 (a) provides: “A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.”

Pretermitting whether the federal suit involves the same parties and the same cause of action within the meaning of OCGA §§ 9-2-5 (a) and 9-2-44 (a), is the question whether these statutes pertain to prior suits filed in federal court. OCGA §§ 9-2-5 (a) and 9-2-44 (a) are closely related in effect and are to be considered and applied together. Jones v. Rich’s, Inc., 81 Ga. App. 841, 844 (60 SE2d 402); cf. Roth-stein v. Consuegra, 153 Ga. App. 620 (266 SE2d 309). In Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (1) (96 SE 424), after recognizing that federal courts and state courts may be considered courts of separate jurisdictional sovereignties, it was concluded that “[t]he general rule is that the pendency of a prior suit in a District Court of the United States is not a bar to a suit in a state court between the same parties and for the same cause of action.” Accord Fludd v. Tiller, 184 Ga. App. 93 (360 SE2d 647) (outright dismissal due to pendency of a prior federal action was inappropriate). Appellees’ contention that the precedent of McQuarie, supra, applies only to OCGA § 9-2-44 (a) and not to OCGA § 9-2-5 (a) overlooks the repeated decisions of this court which have considered and applied these two statutes together in various case dispositions; to apply the precedent of McQuarie, supra, only to OCGA § 9-2-44 (a) would lead to an inconsistent result. “We have long ago departed that realm of law where runes and sigils supplant reason and substance.” Tuggle v. Tuggle, 251 Ga. 845, 846 (310 SE2d 224). Additionally, appellees’ contention overlooks the fact that the prohibition “contained in O.C.G.A § 9-2-5 (GCA § 3-601) is procedural, and the proper way to seek remedy for its abuse is a plea in abatement.” Ga. Prac. & Proc. (6th ed.), p. 13, § 1-7, n. 2. The trial court abused its discretion in denying appellants’ motion on the grounds of OCGA § 9-2-5.

The various cases cited by appellants, where a prior suit was not filed in federal court, are distinguishable and not controlling.

Appellees attempt to rely on the appellate principle that a correct ruling of a trial court will not be reversed regardless of the reason therefor. This general rule of appellate practice, however, is not without a well-settled exception; “ ‘[o]rdinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error.’ ” (Emphasis supplied.) Ayers v. Yancey Bros. Co., 141 Ga. App. 358, 361 (2) (233 SE2d 471); accord Derbyshire v. United Bldrs. Supplies, 194 Ga. App. 840, 843 (1) (392 SE2d 37) and cases cited therein. The trial court based its ruling, at least in substantial part, upon an erroneous legal theory resulting in reversible error.

2. In view of our holding in Division 1 above, we need not address the remaining issues which we had requested the parties to discuss in their briefs. Though, in the interest of judicial economy we note, as a general rule, “‘[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.’” Cohen v. McLaughlin, 250 Ga. 661, 662 (2) (301 SE2d 37); see also OCGA §§ 9-11-18 (a); 9-11-14 and 51-1-32. However, “a claim properly joined as a matter of pleading need not be tried together with other claims, ‘if fairness or convenience justifies separate treatment.’ ” Cohen, supra at 663. We decline to issue an advisory opinion addressing the scope of a trial court’s discretion in this regard, except to recognize in order to protect and effectuate our judgment (Ga. Const. 1983, Art. VI,

Decided April 20, 1995.

Dennis, Corry, Porter & Gray, William E. Gray II, Pamela J. Gray, for appellants.

James A. Goldstein, Patrick R. Matarrese, for appellees.

Sec. I, Par. IV) that such authority could not be used as a means of preventing appellants from filing a timely third-party complaint for indemnity and contribution.

Judgment reversed.

Johnson and Smith, JJ., concur.