author: Beasley, Judge. Banke, Presiding Judge,

text:
    76093.
    McCLENDON v. THE STATE.
    (371 SE2d 139)
   Beasley, Judge.

Appellant’s three enumerations of error, aimed at the denial of the motion for directed verdict, the denial of new trial, and the verdict, all complain that there was no evidence corroborating the victim’s testimony that she was raped by him when she returned from school on the afternoon of February 13, 1986. The issue, in this appeal from a conviction for statutory rape, is thus the sufficiency of the evidence. See Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The statute cautions that “no conviction shall be had for [statutory rape] on the unsupported testimony of the female.” OCGA § 16-6-3 (a). As framed by appellant, the only question is whether there is evidence to corroborate the child’s testimony, which is direct evidence. She testified that “[h]e stuck his penis in me” after he helped her from the school bus and into the house on her return from school. There is evidence to support this statement.

First, there is physical evidence. The doctor who examined the then-13-year-old child in the emergency room, after she finally revealed her experience to her teacher the next morning, testified that her hymen was ruptured and that her vagina was bleeding due to a recent injury. He discounted menstrual bleeding as the source.

Her teacher witnessed the bleeding and testified that there was also swelling. She discovered the child’s condition when she finally took her to the bathroom around 11 a.m. after noticing her squirming as though she had a need to go around 10 a.m. and being assured by the child that she did not. The child, who was orthopedically handicapped and could not walk on her own or fully use her left arm, cried when the teacher discovered blood and asked what happened. She told the teacher what she later repeated to the investigating officer in the principal’s office and again in court. The testimony that there was no bleeding noticed in the morning when the child was dressed by her mother for school, does not as a matter of law conclusively exclude the reasonable inference that the bleeding started while at school as a result of aggravation of the trauma caused by the wheelchair-bound child’s squirming.

There was also other circumstantial corroborating evidence. The defendant had access to the child. He lived with her mother and the mother’s common law husband in one side of the duplex where the child stayed with her grandmother. He was the boyfriend of a woman who died before trial but was “like a sister” to the child’s mother. He helped with the child, such as getting her to the school bus in her wheelchair.

Thus there was evidence to corroborate the child’s testimony, and slight circumstances are sufficient. Chambers v. State, 141 Ga. App. 438, 440 (233 SE2d 818) (1977), rev’d on other grounds, State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977).

The jury was authorized to reject the defendant’s alibi of having been walking all afternoon with the child’s mother and aunt on an errand to get food stamps, fish, and bread. OCGA § 24-9-80; Kilgore v. State, 177 Ga. App. 656, 658 (1) (340 SE2d 640) (1986). There were inconsistencies among the witnesses who testified in support of it, as to sequence of places visited, timing, and location of various persons at different times that afternoon. In addition, there was no explanation other than the child’s of who other than appellant helped the child off the school bus and into the house when she returned from school.

It was also up to the jury to determine whether the child had been prevented from crying out during the episode, when the DFAC’s worker was at the front door, by the defendant’s hand over her mouth. Kilgore, supra. It was likewise within the jury’s domain to accept the child’s testimony, regarding her effort to hide the event, that she was afraid to tell her mother or any other person with whom she had contact before the teacher’s discovery. “On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.” Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382) (1984).

We must follow the lead of the Supreme Court in deciding a case such as this, demonstrated when it applied the controlling principle in Burnett v. State, 236 Ga. 597, 598 (225 SE2d 28) (1976): “If there is any corroborating evidence, we will not go behind the jury and pass upon its probative value. [Cits.]” The appellant even concedes in his brief that sufficiency of corroboration “is a matter for the jury to decide.”

Considering both the jury’s function and ours, and the rules governing corroborating evidence in statutory rape cases, there is “ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Pope, and Benham, JJ., concur. Banke, P. J., and Sognier, J., dissent.

Banke, Presiding Judge,

dissenting.

The prosecutrix testified that she was raped by the appellant upon her return home from school on the afternoon of February 13, 1986. Specifically, she stated that the appellant undressed her at that time, placed his penis inside of her, and kept it there for “[a]bout 30 minutes.” She began bleeding from her vagina late the following morning, while she was at school. We are asked to treat the latter occurrence as a circumstance tending to corroborate the child’s account of the alleged rape. See generally OCGA § 16-6-3 (a).

It is undisputed that no vaginal bleeding occurred during the afternoon or the evening following the alleged intercourse, although the prosecutrix testified that she had been involved in a game of jump rope during this period of time. Indeed, it is undisputed that the child experienced no bleeding at any time before she left for school the following morning. (Although the majority implies that the child was attempting to conceal the bleeding at the time of its discovery at school, her teacher’s testimony was to the contrary.)

The physician who examined the child following the discovery of the bleeding attributed it to a ruptured hymen. He testified that the rupture appeared to have occurred “fairly recently, because it was still bleeding.” (Emphasis supplied.) He responded in the affirmative when asked whether the injury could have occurred earlier that day; however, he did not testify, and indeed he was not asked, whether the injury could have occurred the previous day. He stated that he had “absolutely no idea” what had caused the rupture.

Decided June 24, 1988.

Richard L. Hodge, for appellant.

Hobart M. Hind, District Attorney, Mary Jane R. Palumbo, Assistant District Attorney, for appellee.

The majority speculates that the child’s hymen, weakened by the 30 minutes of intercourse which had supposedly taken place some 18 hours earlier, might finally have ruptured “as a result of aggravation of the trauma” caused by her “squirming” in her wheelchair at school. This is preposterous. We are required on appeal merely to resolve all doubts and conflicts in favor of the jury’s verdict, not to abandon all vestiges of common sense.

The prosecutrix admitted that she had harbored a personal animus against the appellant prior to the occurrence of the alleged rape, testifying that she had not liked him from the first day she saw him “because he looked a little strange.” The child’s mother, the mother’s husband, and several other witnesses supported the appellant’s testimony that he was not at home on the afternoon the alleged rape was supposed to have occurred. Being unable to find any trace of independent evidence in this case tending to corroborate the child’s testimony that she was involved in an act of sexual intercourse on the afternoon in question, I would reverse the appellant’s conviction.

I am authorized to state that Judge Sognier concurs in this dissent.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    75945.
    PODSKOC v. THE STATE.
    (372 SE2d 11)
    Decided June 27, 1988.

      Joseph N. Anderson, for appellant.

      William A. Foster III, District Attorney, Donald N. Wilson, Blanchette C. Holland, Assistant District Attorneys, for appellee.
   Birdsong, Chief Judge.

This appeal is dismissed as improvidently granted.

Appeal dismissed.

Banke, P. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    76516.
    ELROD’S CUSTOM DRAPERY WORKSHOP, INC. v. CINCINNATI INSURANCE COMPANY.
    (371 SE2d 144)
   Sognier, Judge.

Trowbridge Interiors, Inc. (Trowbridge) brought suit against Elrod’s Custom Drapery Workshop, Inc. (Elrod’s), seeking damages resulting from the rejection by Trowbridge’s customers of certain draperies laminated and finished by Elrod’s from fabric furnished by Trowbridge, which draperies Trowbridge alleged were defectively constructed by Elrod’s. Elrod’s filed a third-party complaint against its insurer, the Cincinnati Insurance Company, alleging coverage under a comprehensive general liability (CGL) policy. The insurer denied liability because of certain exclusions in the policy, and both it and Elrod’s moved for summary judgment. The trial court granted the insurer’s motion for summary judgment and denied that of Elrod’s, and Elrod’s appeals.

Appellant contends the trial court erred by granting summary judgment to appellee because the exclusions in its CGL policy were ambiguous, thereby creating a question of fact as to whether some, or all, of the claims made upon appellant by Trowbridge were covered. We find this contention, and this case, controlled by this court’s decision in Gary L. Shaw Bldrs. v. State Auto. Mut. Ins. Co., 182 Ga. App. 220 (355 SE2d 130) (1987), and consequently, we affirm the trial court’s decision.

The policy involved in this case is a standard comprehensive general liability policy used extensively throughout the country. In Gary L. Shaw, this court adopted the view of the majority of courts that the “ ‘purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.’ [Cit.]” Id. at 223. Appellant argues that despite the fact that the claim here is for losses resulting from defective workmanship, Gary L. Shaw is distinguishable from the case sub judice because, unlike those in Gary L. Shaw, the exclusions here are ambiguous. However, comparison of the language of the exclusions in the policy sub judice with the language quoted by the court in Gary L. Shaw leaves no doubt that the clauses are identical.

Accordingly, we hold that here, as in Gary L. Shaw, supra, the exclusions in the policy “clearly and unambiguously exclude coverage for property damage resulting from the insured’s negligently constructed work product. [Cit.]” Id. at 222 (1). Although appellant claims that it was the understanding of appellant that it would be covered for damages such as those sought here, “[w]here an insurance policy is unambiguous, parol evidence as to what was said by parties at the time application for the policy was taken is inadmissible to vary or alter the terms of the policy. [Cit.]” Id. Because all the damages sought in this action, including damage to Trowbridge’s reputation and any lost profits, arise exclusively from faulty workmanship and not from some insurable event as defined in the policy, we find that appellee properly denied coverage, and the trial court properly granted appellee’s motion for summary judgment.

Decided June 27, 1988.

Lewis M. Groover, Jr., for appellant.

C. Wade McGuffey, Jr., Denise L. Dunham, Frederick W. Ajax, Jr., for appellee.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs in the judgment only.


author: Deen, Presiding Judge.

text:
    76817.
    HICKS v. THE STATE.
    (371 SE2d 145)
   Deen, Presiding Judge.

Jackie Hicks appeals from his conviction of violating the Georgia Controlled Substance Act, contending that the trial court erred in failing to sustain his objection to the admissibility of evidence regarding the State’s failure to show a proper chain of custody of the evidence. Held:

Appellant objected to the testimony of the State Crime Laboratory’s forensic chemist on the ground that the State failed to establish a proper chain of custody for the cocaine which was alleged to have been purchased from him.

The evidence showed that the narcotics investigator who purchased the cocaine had it in his custody from July 31, 1985, until August 4, 1985. He testified that he initialed the small bag containing the suspected contraband in red ink on a corner of the bag, placed it in inside a large plastic bag, placed an evidence tag on it, and filled out the evidence tag. He then delivered it to Tony Reeves, one of the two evidence custodians. Reeves placed it in a drug container. Vickie Steed, the other evidence custodian, testified that only she and Reeves had keys to the evidence room, that when evidence is turned over to them it is already bagged and labeled and has a property receipt form attached. They keep the original copy of the form in the evidence room, and copies go to the investigating officers. Steed further testified that she and Reeves together transport the evidence to the crime lab. She transported the evidence in question and turned it over to Charlie Bevel, the forensic chemist who testified at trial. Bevel testified that he received the evidence from Steed.

Decided June 27, 1988.

Robert F. Dangle, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

When the State seeks to introduce fungible material into evidence, “it must show a chain of custody which is adequate to preserve the identity of the evidence [Cit.] Hence, the burden is on the prosecution ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution’ [Cit.] However, the State need not negate all possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. [Cits.]” Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987). The fact that the evidence was in the officer’s possession for four days before it was turned over to the evidence room custodians does not indicate tampering. There was absolutely no evidence of tampering after it was delivered to the evidence room. The chain of custody was sufficiently proved, and the testimony of the State’s expert witness was properly admitted. See also Hester v. State, 187 Ga. App. 46 (369 SE2d 278) (1988).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    76275.
    MOORE v. THOMPSON.
    (371 SE2d 111)
   Beasley, Judge.

This case was previously before us on interlocutory appeal. Thompson v. Moore, 174 Ga. App. 331 (329 SE2d 914) (1985); aff'd in part, rev’d in part, 255 Ga. 236 (336 SE2d 749) (1985). It was subsequently voluntarily dismissed and brought again in a different court. It now appears after trial and verdict for plaintiff Thompson.

Judgment was entered for plaintiff on June 24, 1987. Because of the court’s desire to further consider the question of prejudgment interest, it was not addressed in the judgment. Plaintiff thereafter filed a “Motion for Prejudgment Interest and Costs.” The court considered it at a hearing on July 29 and entered an order granting the motion and directing the clerk to issue a fi. fa. Defendant appealed from this order.

In his enumeration of error and sections 2 and 3 of argument, defendant contends that the order awarding interest is procedurally infirm. We agree.

OCGA § 51-12-14, the Unliquidated Damages Interest Act, provides that a plaintiff may make written demand for interest in an unliquidated damage tort case and, if awarded more than the amount of demand, recover interest thereon. It further provides that “[e]vidence or discussion of interest... as well as evidence of the offer, shall not be submitted to the jury. Interest shall be made a part of the judgment upon presentation of evidence to the satisfaction of the court that this Code section has been complied with and that the verdict of the jury ... is equal to or exceeds the amount claimed in the notice.” (Emphasis supplied.)

Decided June 8, 1988

Rehearing denied June 28, 1988

William D. Temple, Sr., David S. Thomson, for appellant.

Robert D. Cheeley, James E. Butler, Jr., for appellee.

Here, the court did not wait until after the hearing on the interest to enter judgment, as contemplated by the statute, but proceeded to enter judgment and then address the interest issue.

The terms of the State Court of Fulton County begin on the first Monday in January, March, May, July, September, and November. Ga. Laws 1983, pp. 4,501-4,502. The judgment on the jury’s verdict was entered in the May term, while the order seeking to alter it was entered in the July term. Where a judgment is entered on a jury’s verdict, it may not be altered outside the term of court in which it was entered. Dept. of Transp. v. Kenney, 238 Ga. 173, 174 (231 SE2d 767) (1977); Pitts Truck Air v. Mack Trucks, 173 Ga. App. 801, 803 (4) (328 SE2d 416) (1985). Even when a non-jury verdict decree is involved, after the expiration of the term at which it is entered it is out of the power of the court to modify or revise it in any manner of substance or in any manner affecting the merits. City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971); see Pitts Truck Air, supra.

In addition, there was no motion to set aside the judgment pursuant to OCGA § 9-11-60, only the motion for interest which sought to add to the judgment already entered. See Stamps Tire Co. v. Powers, 104 Ga. App. 860, 861 (123 SE2d 203) (1961). This motion provided no vehicle for the court to add interest to the judgment already entered. Phillips v. Bowen, 206 Ga. 268, 269 (1) (56 SE2d 503) (1949); see Long v. Long, 247 Ga. 624, 625 (278 SE2d 370) (1981).

Judgment reversed.

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


author: Banke, Presiding Judge.

text:
    76353.
    SHORE et al. v. LOOMIS et al.
    (371 SE2d 96)
   Banke, Presiding Judge.

The appellees sued Mr. and Mrs. Shore to recover damages for their alleged breach of a lease contract. The trial court directed a verdict in the appellees’ favor, and the Shores filed this appeal.

Mrs. Shore entered into negotiations with an agent of appellee McKee Realty, Inc., to lease a house owned by appellee Loomis. A preliminary rental application reflecting Mr. Shore’s income and credit references was completed and signed by Mrs. Shore with her husband’s signature, and a lease agreement was subsequently executed by Mrs. Shore as lessee and McKee Realty as lessor. The lease was for a term of approximately nine months, beginning on August 20, 1985, and concluding on May 31, 1986, at a rental rate of $600 per month. It also provided for a $300 security deposit. The lease contained the following pertinent termination provisions: “If the Lessee vacates said premises before the expiration of said term, without the written consent of the Lessor or his agents, the Lessor may re-enter and re-let same . . . and the Lessee shall make good to the Lessor, the difference, if any, between the total as provided in the within contract and the total rental collected and remitted from such sub-tenant or tenants. . . . Deposit not refundable if lease [is] broken.” With regard to the deposit, the lease further specified: “Deposit refundable only if rent paid to date and house left in good condition.”

Rent was paid through November of 1985, at which time the Shores vacated the premises without the written consent of the lessor. The appellees sued for unpaid rent, attorney fees, and costs of litigation. At the conclusion of the evidence, the trial court directed a verdict in favor of the appellees, while denying motions made on Mr. Shore’s behalf to amend his answer to delete an admission that he had been a party to the lease and to obtain a directed verdict in his favor on the basis of the evidence introduced on this issue at trial. Mr. Shore himself was neither present at trial nor under subpoena to appear. Held:

1. The trial court correctly determined that, under the terms of the lease agreement, the lessor was entitled to recover unpaid rent in the event the lessee vacated the premises prior to the expiration of the lease. Although Mrs. Shore testified that she had been told by the leasing agent before signing the lease that the retention of the security deposit would be considered liquidated damages in the event the lessee chose to terminate the lease prior to its expiration, the trial court correctly concluded that any such pre-lease discussions had been superseded by the written document and that any subsequent agreement contrary to the written language was unenforceable because it was unsupported by consideration. The court also correctly determined that, interpreted consistently with the other provisions of the lease, the language, “deposit refundable only if rent paid to date,” could only mean that the deposit would be refunded at the expiration of the lease term if the rent payments were current at that time.

The proper construction of a written contract is generally a question of law for the court. OCGA § 13-2-1; Peachtree &c. Investors v. Reed Drug Co., 251 Ga. 692, 694 (308 SE2d 825) (1983). “[A] contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe it as to reconcile its different parts and reject a construction which leads to contradiction, in order to ascertain the true intention of the parties, which is the real purpose of the judicial construction of contracts. [Cit.]” Wofac Corp. v. Hanson, 131 Ga. App. 725, 727-28 (206 SE2d 614) (1974). We hold that the application of the rules of construction set forth at OCGA § 13-2-2, with particular reference to subsection (4), specifying that the construction which will uphold all of the terms of the contract is to be preferred over a construction which will not, eliminated any ambiguity with regard to the meaning of the contractual provisions governing the return of the deposit and supported the interpretation placed on the agreement by the trial court.

2. Although in his answer Mr. Shore admitted having signed the lease agreement, the evidence introduced by the appellees at trial indicated without dispute that he had not in fact been a party to the agreement. At the conclusion of the trial, a motion was consequently made to conform the pleadings to the evidence by withdrawing the prior admission contained in his answer. Mr. Shore contends on appeal that the trial court erred both in denying this motion and in denying the subsequent motion for a directed verdict made on his behalf. We agree that the trial court should have allowed the admission to be withdrawn under the circumstances, but we hold that Mr. Shore’s motion for directed verdict was nevertheless properly denied.

“[Ajdmissions made in pleadings constitute a conclusive presumption of law, unless and until altered by amendment. Even though such admissions be so altered or withdrawn, they can still be used as evidence on the trial, but, in such event, not as solemn admissions in judicio so as to estop the party making them from denying them. [Cits.]” Panter v. Miller, 165 Ga. App. 266, 267 (299 SE2d 185) (1983). Thus, Mr. Shore’s answer would have continued to provide at least some evidence upon which he could be held liable on the lease, even had the trial court allowed him to amend it. See generally United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329 (304 SE2d 131) (1983).

3. For the foregoing reasons, we conclude that there was no conflict in the evidence with regard to Mrs. Shore’s liability under the lease and that the trial court was accordingly authorized to direct a verdict against her. However, because there was substantial evidence to support Mr. Shore’s contention that he was not a party to the lease, we hold that the direction of a verdict against him was not authorized, and the judgment against him is accordingly reversed.

Decided May 19, 1988

Rehearing denied June 28, 1988.

C. Ronald Patton, for appellants.

Timothy A. Pape, for appellees.

4. The appellees’ motion for the imposition of damages against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge. Benham, Judge,

text:
    76053.
    ELCAN INVESTMENTS, INC. v. KIRK.
    (371 SE2d 146)
   McMurray, Presiding Judge.

On October 20, 1984, plaintiff Kirk (f/k/a Cash) entered into a lease of a washing machine from defendant Elcan Investments, Inc. The term of the lease was one week. The contract provided that plaintiff as lessee, “at its option, may renew this lease for an additional term at the conclusion of each term or rental period, by the payment to the lessor of the rental payment. Payment by the lessee of an additional rental payment, on or before the last day of each term shall renew this agreement for an additional term. However, in no event shall the lessee be obligated for any rental payment beyond any term for which it has made a rental payment, unless the lessee retains possession of the leased goods beyond such term, in which case it shall be liable for rental payments at the daily rate for each such day it retains possession until it returns the leased goods, or unless it renews the lease for an additional term.” The contract also provided that plaintiff as lessee, “at its option may at any time terminate this agreement, without further obligation or penalty, by surrender of the property to the lessor in its present condition, fair wear and tear excepted.” Defendant’s right to terminate was limited to where plaintiff failed to make a renewal rental payment or by breach by plaintiff of any agreement, condition or representation of the lease. The lease contract also provided for the transfer of ownership of the subject property if plaintiff renewed the lease for 26 successive lease terms, but that plaintiff would not acquire any ownership rights in the property during any term of the lease unless the lease was renewed for 26 successive lease terms. The weekly rental payment was $10. Due to a problem with a leak in the washing machine described in the October 20, 1984, lease, there was an exchange so that on February 4, 1985, the parties entered into a second contract for a different washing machine. The terms of the second contract were the same as the first, except that under the second contract, for the transfer of ownership, renewal of the lease for 38 successive lease terms was required. In this connection, plaintiff testified that defendant applied her payments made on the first contract to the second contract. Subsequently, after making more than 60 percent of the weekly renewal payments necessary for the transfer of ownership, plaintiff failed to renew by paying the weekly rental and defendant repossessed the washing machine.

Plaintiff’s amended complaint alleges that the contract between the parties is covered by the Uniform Commercial Code — Secured Transactions, OCGA § 11-9-101 et seq., and that defendant converted her washing machine by failing to comply with certain provisions of the Uniform Commercial Code — Secured Transactions, particularly OCGA § 11-9-504 et seq. Defendant contends that the contract is a “true lease” and that no security interest is created therein.

At trial the uncontroverted evidence showed that there was no compliance with the repossession provisions of OCGA § 11-9-504 et seq. Thus, the crux of plaintiff’s case rested on whether the lease created a security interest so that the provisions of OCGA § 11-9-504 et seq., would be applicable. The plaintiff moved for directed verdict in part and defendant moved for a directed verdict. Defendant’s motion was denied and plaintiff’s motion was granted, the trial court holding that the contract created a sale with security interest.

The case was sent to the jury on the issue of damages. The jury returned a verdict for plaintiff of $1 nominal damages and $4,000 punitive damages. Defendant appeals contending the trial court erred in denying its motion for directed verdict and in granting plaintiff’s motion for directed verdict in part and in submitting the issue of punitive damages to the jury. Held:

Plaintiff argues that the case sub judice is governed by OCGA § 11-1-201 (37), particularly phrase (b) which provides that: “an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.”

We hold that, due to the terminability of the lease contract at issue, phrase (b) of OCGA § 11-1-201 (37) did not become applicable. Since plaintiff could end the lease by not renewing it prior to the 38th renewal, and thereby fully comply with the lease without the transfer of ownership provision ever becoming operative, there was no conditional sale or security interest. Matter of Marhoefer Packing Co., 674 F2d 1139, 1142 (1, 2, 3 and fn. 5); In re Huffman, 63 B.R. 737, 739; In re Pledger Roy Wood, 7 B.R. 543. Also, see generally 76 ALR3d 11. Therefore, the provisions of OCGA § 11-9-101 et seq. are inapplicable and plaintiff’s claim is without merit. The trial court erred in granting plaintiff’s motion for directed verdict in part and in denying defendant’s motion for directed verdict. Defendant’s remaining enumeration of error is moot.

Decided June 28, 1988.

J. Samuel Choate, Jr., Thomas L. Swift, for appellant.

Ivan H. Nathan, for appellee.

James D. Walker, Jr., Edward J. Coleman III, amici curiae.

Judgment reversed.

Pope, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

While I agree wholeheartedly with the majority’s reversal of the judgment below, I specially concur to point out that the termination clause is only one factor to consider in determining whether an instrument is a true lease or a conditional sales contract with the lease serving as the security interest.

“ ‘(W)hether a lease is intended as security is to be determined by the facts of each case. . . . Facts that the courts have found relevant include the total amount of rent the lessee is required to pay under the lease [cit.]; whether the lessee acquires any equity in the leased property [cit.]; the useful life of the leased goods [cit.]; the nature of the lessor’s business [cit.]; and the payment of taxes, insurance and other charges normally imposed on ownership. [Cits.] Consideration of the facts of this case in light of these factors leads [me] to conclude that the lease in question was not intended as security.’ ” Matter of Marhoefer Packing Co., 674 F2d 1139, 1145 (1982).


text:
    76476.
    LOWE v. THE STATE.
    (371 SE2d 238)
   Birdsong, Chief Judge.

Laron Lowe, Jr. was convicted on two counts of armed robbery. His appeal asserts the general grounds, to wit, that the verdict is contrary to and without evidence; that it is against the weight of evidence; and that it is contrary to law and the principles of justice and equity. He also argues he was denied effective assistance of counsel. Held:

1. Appellant complains of misidentification, there having been some varying accounts of what he wore during the two successive robberies of the same store and on the third occasion when he came to the store and was detained by the owner; and whether he had a beard or mustache.

The evidence showed that Eui Suk Lee and his wife, He Ok Lee, owners of a small neighborhood grocery store, were robbed at gunpoint by the same man on November 12, 1986, and again (with two others) on November 14, 1986. In December 1986, appellant entered the store and, being recognized as the robber, was immediately detained at gunpoint by the owner. On this occasion, appellant had no gun. This third time when appellant came into the store and was arrested, he wore a blue jacket with a red stripe identified by the Lees as having been worn by the robber. Mrs. Lee testified she had at all times been absolutely positive the appellant was the same man who robbed the store twice, and that she always carefully observed everyone who came into the store. The store was brightly lit and the victims got a good look at the robber. The robber stood at arm’s length to Mrs. Lee during the second robbery and his face was not disguised; she clearly identified appellant as being that robber, and the same man who, with two others, had robbed her earlier. At the first robbery, the robber came “right up to [Mr. Lee’s] face,” and stood close enough to Mr. Lee to put the gun to his neck. The second time Mr. and Mrs. Lee were robbed, Mr. Lee had no doubt this was the same man who had robbed him two days before; he testified this was the same man who returned to the store 16 days later, wearing the same jacket; and he testified he had no doubt this was appellant Lowe. A witness who was in the store on November 12 was standing right at the cash register when the robber approached Mr. Lee and stuck the gun at his neck. This woman, in shock, thought the man had found the gun in the store and was playing a joke; and she actually told him “that he couldn’t do it,” and asked where he got the gun. In court she testified the appellant looked “pretty similar” to that robber. Her recollection of the details of the robber’s face and dress was not acute.

Appellant’s girl friend Pam Williams testified that appellant had been with her all day on November 12 and 14. On December 1, she drove him to the Lees’ store and waited outside while he went in to get potato chips. She sat for 15 minutes and never saw him come out, but she saw other people arrive with guns; so she drove away and called appellant’s grandmother and then returned to the store to inquire about appellant. She said the police questioned her about whom she was looking for, and she told them. However, the investigating officer testified that no one who identified herself as Pam Williams came into the store and made an inquiry. Ms. Williams testified, however, that although she had visited appellant often in jail, she never told the police that appellant had been with her on November 12 and 14.

Viewing the evidence in the light most favorable to the jury’s verdict, as we are required to do on appeal, (Jackson v. State, 182 Ga. App. 826 (357 SE2d 143)), we find it is clear the jury believed beyond a reasonable doubt that Mr. Lee and Mrs. Lee correctly identified the appellant as the man who had robbed them twice. Credibility of an eyewitness, like any other issue of fact, is a matter for the jury. See Lyons v. State, 247 Ga. 465, 467 (277 SE2d 244); Brooks v. State, 182 Ga. App. 144, 145 (355 SE2d 435). The evidence authorized the jury rationally to conclude beyond a reasonable doubt that, having seen the robber twice two days apart at very close range in circumstances likely to encourage close observation, in a brightly-lit store, both Mr. and Mrs. Lee accurately identified the robber when he entered their store a third time wearing the same jacket. The verdict is thus sustained under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The plea of ineffective assistance was specially heard by the trial court.

Appellant was initially represented by appointed counsel, who investigated the case and prepared for trial. On March 19, however, appellant’s family retained private counsel (Atkins). Appellate counsel contends this private counsel’s assistance was ineffective in part because between March 19 and April 8 (the day of trial), she spent only about three hours in preparation, including speaking to appellant for 30 minutes. During all this time, the trial court had instructed the appointed counsel from the public defender’s office to remain in the case only because there was confusion as to who was appellant’s counsel — the attorney hired by his family, of whom appellant himself seemed to be not much aware; or the public defender’s office appointed by the court. The trial judge stated at the hearing that he did not do so to imply the private counsel was not competent. The public defender (appointed counsel) stated to appellant she was unable to “do anything further” because some alibi witnesses had been instructed, presumably by retained counsel, not to talk to appointed counsel.

Several days before trial, the trial judge learned that appointed counsel was ill, and he thus appointed another attorney to sit with retained counsel, and asked the first appointed attorney to advise the substitute of everything she knew about the case. This first counsel testified at the special hearing that she interviewed the witnesses, including the victims, and that a public defender’s investigator investigated the case and that, having represented hundreds of criminal defendants, she had, in her judgment, advised appellant to plead guilty. Evidently this was when appellant’s family hired private counsel. On March 19, three days after being retained, private counsel requested a copy of the indictment and list of witnesses. It was never “crystal clear'’ to appointed counsel that the trial judge wanted her to stay in the case, but she got the impression this was expected because the trial court wanted appellant to get a fair trial. Private counsel sent appointed counsel a copy of her request for indictment and witness list, but the two never conferred.

Private counsel testified she was a member in good standing of the State Bar of Georgia, had been a member of the Bar for 38 years; she estimated she had represented defendants in 3,000 criminal cases, in perhaps 1,500 jury trials. She testified she met with defendant the week before trial. She asked him “to give [her] everything that he pos.sibly could”; he was cooperative and provided her with the names of defense or alibi witnesses. She testified that appellant told her of some persons he had apparently been intending to play cards with on the night he was arrested, but he did not give her their names and she did not call them as witnesses. She used other witnesses’ investigative statements in cross-examining them, and conferred throughout trial with appointed counsel. She estimated her total preparation time was two and one-half to three hours. She moved for a continuance of the trial in view of the short period of time remaining before trial since she was retained, but the motion was denied. She did not interview State’s witnesses because, she said, “It is just my practice [not to do so]. ... I guess it is old fashioned, but I stick to it”; however, the record shows apparently she did have the victims’ statements. She made no discovery motions, because she had only three weeks to prepare and was in court in other trials during that time. She testified her closing argument to the jury was simple, based on “the logics of the thing” as appellant had told her, which was that if he had been in the store earlier committing armed robbery, he would not have stopped there a few days later for a bag of potato chips, and that it was a case of mistaken identity. Further, she testified after her argument she asked (substitute) appointed counsel whether he could think of anything else to say. She also discussed with appellant his right to testify or not.

The first appointed counsel (who was not present at the criminal trial) testified on cross-examination to the effect that she understood the trial court had asked her to remain in the case because (she inferred) the private counsel was incompetent; and that she (appointed counsel) and an investigator were the only ones who really knew anything about the case, but she testified she never talked to private counsel. She agreed (“yes and no”) that this was a relatively simple and straight-forward eyewitness identification case, but “there were some tough choices to be made in defense strategy [such as whether] to put alibi witnesses on, whether to put the defendant on, whether to put nothing on or one or the other.”

The “substitute” appointed counsel, who sat in consultation at the trial, testified that he had defended literally hundreds of criminal cases and that the first appointed counsel was his assistant in the public defender’s office; and although he knew very little of the case, he had the first appointed attorney’s file when he sat in at the trial. He attempted to talk to the alibi witnesses in the hall and they refused to talk with him. This second appointed counsel testified that he was simply a substitute consultant and that if he had been asked to defend this case alone he would not have been ready to try it; but to this the trial court interjected that “if [the appointed attorney had] told me he wasn’t prepared I wouldn’t have put him on trial. ... At no time did the district attorney’s office ever approach me and suggest that the public defender sit on this case because they were concerned about ineffective assistance [of counsel]. The public defender sitting on the case was my idea . . . because there was confusion about who was representing [appellant],” and because the public defender’s office had done a lot of investigation in the case.

The substitute appointed attorney (supervisor of the appointed attorney) identified certain written notes and testified that there had been two days of trial, and “[t]his would be my first day of trial notes which I made notes of [the private counsel’s] representation of [appellant], what I felt was happening. . . .” He explained that he had begun to feel that private counsel was not fully prepared when she told him before trial it was not her custom to interview State’s witnesses; he also testified, however, that private counsel did have copies of the incident report and the statements of the State witnesses contained therein.

He complained that the private counsel had, on voir dire, asked a juror embarrassing questions about the murder of the juror’s stepson before accepting him; and had asked in the presence of the jury that appellant be allowed to go to the bathroom, which of course meant he had to be escorted by a deputy sheriff; that she failed to object to the argumentativeness of the DA’s opening statement that witness’s description (identification) of appellant would be “[e]tched in the mind of the witness forever”; and that her initial statement to the court that she would reserve her own opening statement and her subsequent change of mind “shows a lack of her knowledge of trial procedure, at least, or awareness . . . [and] confusion on her part as to basic trial tactics”; and he made other criticisms of her opening statement which cannot be studied since there is no record of the opening statements.

He also complained that “I have a note here [that] there was no general voir dire,” but it does not appear he attempted to correct this problem during his own tenure as defense attorney and consultant. He conceded that her motion for continuance was denied. He said there were several leading questions to which she did not object, and some hearsay questions “that were later cleared”; and complained of her failure to turn the storekeepers’ statements as to loss of business after two robberies into a motive for identifying a person as the robber, and that he wrote in his own notes: “I really can’t figure out her defense strategy. Either, Number one, rely on alibi, or, Number two, keep the jury ignorant”; and he explained how patiently and laboriously he had instructed her in detail about how to read the convenience store diagrams and how she should use them; further, that in his interpretation of a conversation he concluded she did not know whether an alibi witness could be impeached with a misdemeanor conviction. The substitute appointed counsel also allowed that he knew or thought beforehand that the defendant had not been prepared to take the stand, but did not specify how the private counsel’s lack of such preparation had damaged appellant’s defense or deprived him effective assistance. He alluded to some “misstatements” or erroneous inferences of fact, and her failure to object to some such misstatements or erroneous inferences (one of which was that the victim had detained appellant by use of a handgun, not a shotgun). The State pointed out: “[W]e are all hampered by not having the exact record here of some of this,” and that if private counsel made a misstatement of fact, such as whether appellant’s car had been impounded, it presumably had been told to her by the appellant. The appointed counsel conceded: “I know this: She must have gotten most of the facts right or you [the ADA] would have really hammered her more than you did in your final argument.” He also conceded she did put up the defenses that he would have put up, and could not state that there were any exculpatory documents or evidence in the State’s file which she did not obtain; she followed his advice about reserving charge objections and there were no jury charges defendant was entitled to that he did not get; but he thinks she “still to this date probably doesn’t know why I asked her to observe [sic] objections until the time of motion for new trial.”

In fact, none of this business discussed, except the denial of private counsel’s motion for continuance based on lack of preparation time, is the subject of an alleged error in the trial below.

Appellant on appeal contends that “[private counsel’s] lack of readiness must lead to a presumption that appellant was denied effective assistance of counsel,” under United States v. Cronic, 466 U. S. 648 (104 SC 2039, 80 LE2d 657); Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674); and particularly under House v. Balkcom, 725 F2d 608 (11th Cir. 1984), where this same attorney and her partner had been found derelict in providing effective assistance of counsel. However, her “lack of readiness” in this case is not proven; beyond the appointed counsel’s refrain that she was “not prepared,” no specific instance of harm or prejudice is pointed out here, as it was in House v. Balkcom. She put up the proper defenses; no exonerating or exculpatory fact was omitted in appellant’s defense. Appellate counsel has not alleged any error with respect to the jury charge. The relevant documents or evidence it was implied she did not obtain in fact did not exist, or were not essential to due process. We find that not one instance of clearly or indisputably harmful misfeasance or error occurred to deprive appellant of adequate representation by the private counsel Atkins. It was, in fact, a case of identification with one alibi witness and no fingerprints, blood, hair or bullets to test, no exculpatory evidence or defendant’s statements to obtain through a discovery process. The public defender who sat in consultation with the private counsel was in fact consulted at every turn. The hearing transcript shows either he had no criticism to contribute, or he gave advice which she did not fail to follow; or that if he was unprepared, he himself failed to so advise the court.

In Strickland v. Washington, supra at 694, the Supreme Court held that a convicted defendant alleging ineffective assistance of counsel must show not only failure to provide reasonably effective assistance, but also that his errors were so serious as to deprive the defendant of a fair trial, by showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The appellant has not shown this counsel rendered ineffective assistance. He has not shown she committed errors so serious as to deprive the defendant of a fair trial, and cannot do so because he has shown nothing to suggest “a reasonable probability that, but for counsel’s unprofessional errors, the result. . . would have been different.” Id. Such would apparently be difficult to show in this case because the public defender who initially represented the appellant had, based on her own vast experience, urged him to plead guilty. Since the appointed counsel who sat at trial could find no defense left out, and no due process denied, and since he gave her counsel which evidently was accepted, the claim of ineffectiveness of counsel does not sit well. The facts of this case are nothing like those in House v. Balkcom, supra, and neither that case nor any other justifies general suspicions and allegations of incompetence of an attorney in another case.

3. The evidence given at the special hearing on ineffectiveness of counsel shows, too, that the trial court in its discretion did not err in denying private counsel’s motion for continuance. It is clear the appellant had two attorneys; that even if private counsel had arguably not been ready for trial, the appointed counsel was ready to proceed because he failed to indicate otherwise, and he gave assistance and consultation to private counsel throughout the trial. The decision was one for the trial court’s discretion, and absent a showing of abuse of that discretion, we will not overturn it. Cole v. Jordan, 158 Ga. App. 200 (279 SE2d 497).

Decided June 29, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Helen A. Pryles, R. Stephen Roberts, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76745.
    McKEOWN v. THE STATE.
    (371 SE2d 243)
   Deen, Presiding Judge.

The appellant, Timothy McKeown, was convicted of driving under the combined influence of alcohol and a drug. On appeal, Mc-Keown contends that the trial court erred in admitting into evidence the results of a urine test and in failing to charge the jury on the law of circumstantial evidence.

At the trial, Officer Stephen Foster of the DeKalb County Police Department testified that on February 8, 1987, at approximately 1:15 a.m., he observed McKeown drive his car at a high rate of speed on Memorial Drive, make a sudden turn onto another road, and then make a sudden turn into a private driveway. The officer followed Mc-Keown after the sudden turn onto the road, and had to brake abruptly to avoid striking McKeown’s vehicle when the latter turned into the driveway. The officer stopped McKeown after the latter had exited his vehicle and started walking away hurriedly, and observed that McKeown was unsteady on his feet, had a strong odor of alcohol about him, and had glassy, bloodshot eyes. After McKeown unsatisfactorily performed three field sobriety evaluations, the officer placed him under arrest for driving under the influence, and advised him of his implied consent rights. McKeown agreed to a breath test, which was administered shortly afterwards at a nearby police station and revealed a blood alcohol content of .04 grams percent.

Because McKeown’s impairment was far greater than a blood alcohol content of .04 grams percent would normally indicate, the officer again advised McKeown of his implied consent rights and requested that he submit to blood and urine tests. McKeown consented in writing to the blood and urine tests, and also requested another breath test. Blood and urine samples were obtained, followed by the requested second breath test, which indicated a blood alcohol content of .03 grams percent. The urinalysis subsequently performed by the forensic laboratory revealed the presence of marijuana and/or its metabolites. The blood analysis indicated an alcohol content of .04 grams percent; not enough blood was obtained to perform a test for the presence of any drug in the blood. Held:

1. McKeown contends that the trial court erred in admitting into evidence the results of the urinalysis, on the grounds that (1) the police officer had failed to inform McKeown of his implied consent rights separately before each blood and urine test, and (2) obtaining the urine sample was an unreasonable search and seizure under the Fourth Amendment. We find no merit to either contention.

OCGA § 40-5-55 (a) provides that “any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his blood, breath, or urine or other bodily substances, for the purpose of determining the alcoholic or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391. The test or tests shall be administered at the request of a law enforcement officer . . , .” OCGA § 40-6-392 (a) (4) provides that “[u]pon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section . . . .” Nothing in this statutory scheme prohibits an officer from advising a person of his implied consent rights and requesting multiple tests at one time.

McKeown claims that the police officer’s request for additional tests violated the Fourth Amendment as an unreasonable attempt to “shop” through his bodily fluids in search of evidence. The police officer’s requests were authorized by OCGA §§ 40-5-55 and 40-6-392, and were not unreasonable; the same statutory scheme also allowed McKeown to refuse to submit to these tests, and he was informed of that right of refusal. See generally Allen v. State, 254 Ga. 433 (330 SE2d 588) (1985). If McKeown had been concerned about such a “shopping” spree, he could have prevented it simply by refusing the tests.

2. At trial the arresting officer testified that he had observed Mc-Keown proceed east-bound on Memorial Drive and make a sudden left turn onto another road; on cross-examination, defense counsel brought out the fact that on the police report the officer had indicated that McKeown was travelling west-bound on Memorial Drive and made a sudden right turn onto the other road. McKeown contends that this discrepancy impeached the officer’s entire testimony, which was the only direct evidence of McKeown’s impairment, and thus rendered reversible error the trial court’s refusal to instruct the jury on when circumstantial evidence alone may support a conviction. Stanley v. State, 239 Ga. 260 (236 SE2d 611) (1977). However, this minor and immaterial discrepancy between the report and the memory of the officer certainly did not impeach his entire testimony. Since there was the direct evidence provided by the officer’s testimony, as well as the other direct evidence in the case, it was not error to refuse to give the requested jury instruction on circumstantial evidence. Galloway v. State, 165 Ga. App. 536 (301 SE2d 894) (1983).

Decided June 29, 1988.

W. Steven Harrell, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Ann M. Elmore, Assistant Solicitors, for appellee.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in Division 2 and in judgment.


text:
    76917.
    JORDAN v. THE STATE.
    (371 SE2d 245)
   Deen, Presiding Judge.

The appellant, Michael Jordan, was convicted of two counts of kidnapping, three counts of aggravated assault, false imprisonment, aggravated sodomy, rape, and possession of a firearm by a convicted felon. Two different victims were involved. On appeal, Jordan contends that the trial court erred in admitting Jordan’s custodial statement into evidence, and that the evidence does not support the convictions.

On the night of June 1, 1986, the first victim was at a car wash adjoining a small shopping center, when Jordan approached her and asked if she could make change for him. When she told him no, he walked away and she proceeded to wash her truck. Jordan then grabbed her from behind, holding a knife to the back of her head, and forced her into his car. He drove to an area behind the shopping center, where, with knife still in hand, he forced her to place her mouth on his penis and briefly had sexual intercourse with her. He then let her get out of the car and drove off.

On the evening of September 1, 1986, Jordan was killing time at a convenience store with the second victim and the second victim’s boyfriend, who worked at the store. (They were recent acquaintances.) Jordan asked for a ride home so that he could get a “painkiller” and then return to the store. The victim agreed to drive him there. Jordan had her go the long way around, explaining that he did not want to drive past his grandmother’s house. When they got to his house, he ran in and out, and got back in the car. Shortly afterwards, on the way back to the store, Jordan grabbed the steering wheel, causing the car to go into a ditch. They got out of the car, at which time the victim observed that a gun fell out of Jordan’s pocket. Jordan ran towards the victim with the gun; the victim screamed; and Jordan warned her that she better not scream anymore. Jordan grabbed, pushed, and shoved her off the road into some woods, where he led her through a series of trails.

Eventually they came upon a pasture, where the victim observed bones lying on the side of the trail, and Jordan told her that they were the bones of other girls he had brought there. (The bones were actually those of cows.) Further on they came upon a house, and Jordan instructed the victim to stay put while he went in for a minute. When Jordan approached the house, the victim ran back towards the woods, but Jordan caught up with her, holding a bag. Jordan then led her to a barn, threw the bag up into the loft, and made the victim get up there. Jordan removed a blanket from the bag, spread it out, and told the victim to sit on it. She asked him to take her home but he refused. He then removed a skirt from the bag and told the victim to put it on. When she refused, he told her that if she did not put the skirt on, he would do it for her. Jordan took out the gun from his pocket, pushed her back, and started to unzip and remove her pants. She resisted and Jordan desisted. Also while they were in the loft, Jordan removed some handcuffs from the bag and asked the victim how she would like to be tied up with them; he pointed the gun at the victim’s feet and pulled the trigger twice; and he threw a knife at the board next to which the victim stood.

They eventually got down from the loft, and Jordan told the victim to go down in the well. When she refused, he went down in it. The victim started to run off, and Jordan got out of the well, chased her down, and pushed her back to the well. Then he got back in the well; the victim ran off again; and Jordan got out of the well, chased her down, and pushed her back to the well again. The victim told Jordan to take her home, and this time he agreed.

They began walking and soon afterwards heard someone hollering. The victim hollered back. The other voice turned out to be that of her boyfriend who was searching the area for her. The boyfriend and his companion forcibly transported Jordan back to the convenience store, although they had to stop on the way because Jordan tossed his gun onto the roadside. Back at the store, the police were summoned and Jordan was arrested. Later that day at the sheriffs department, Jordan gave a statement, which was subsequently admitted into evidence during his trial.

Because of the similarities of Jordan’s appearance and the description of the assailant given by the victim of the June incident, the deputy sheriff later arranged a photo line-up including Jordan’s picture and showed it to the first victim. She immediately and positively identified Jordan, as she did at a subsequent regular line-up. The first victim also identified Jordan’s knife, found at the barn where he held the second victim captive, as like the one used by her assailant. Held:

Decided June 29, 1988.

Stephen A. Delaney, for appellant.

Rafe Banks III, District Attorney, Wallace W. Rogers, Jr., Assistant District Attorney, for appellee.

1. A Jackson-Denno hearing was held to determine the admissibility of the custodial statement given by Jordan. At that hearing, the interrogating police officer testified that he advised Jordan of his Miranda rights; that Jordan signed a waiver of those rights; and that no threats or promises were made to obtain Jordan’s statement. Jordan, however, testified that the officer had told him that “things could become rough” if he did not give a statement. In this type of situation, where the testimonial evidence concerning the factual circumstances of a statement is in direct conflict, the trial court is the trier of fact, whose resolution of factual issues such as the credibility of witnesses shall not be overturned unless clearly erroneous. Mathews v. State, 183 Ga. App. 224 (358 SE2d 639) (1987). We do not find the trial court’s finding in this case to be clearly erroneous.

2. Viewing the evidence in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Jordan 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.

Carley and Sognier, JJ., concur.


text:
    76284.
    SHAW v. LEE.
    (371 SE2d 187)
   Beasley, Judge.

We granted interlocutory appeal to consider the denial of defendant Shaw’s motion for summary judgment in a second suit.

Shaw and his employer were originally sued in Clayton County for injuries suffered by Lee in a traffic accident on March 16, 1984. The return of service reflects that service was attempted on Shaw by leaving a copy with his mother. Thereafter, the employer was granted summary judgment and Shaw moved to dismiss for improper venue, filing an affidavit denying that he lived in Clayton County with his mother at the time of service of the lawsuit and stating that he had lived in Henry County since May 1984.

Decided June 7, 1988

Rehearing denied June 30, 1988.

That motion was denied, but the case was ordered transferred to Henry County pursuant to USCR 19. Due to plaintiff’s failure to pay court costs and transfer costs, the case was dismissed on November 5, 1986. USCR 19.1 (G). There is nothing in the record to indicate that these costs were ever paid.

On December 19, 1986, Lee filed a complaint in Henry County. Shaw answered, after service on April 1, 1987, asserting the statute of limitations, OCGA § 9-3-33, and filed the motion for judgment on the pleadings or summary judgment, denial of which is claimed as error.

OCGA § 9-3-33 provides that suits for personal injury must be brought within two years of their accrual. Plaintiff Lee asserts that his filing of the second suit within six months of the first’s dismissal preserves his action pursuant to OCGA § 9-2-61 (a): “When any case has been commenced in ... a state . . . court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later;. . . .”

In order to obtain the benefit of this statute, however, a plaintiff must comply with OCGA § 9-11-41 (d), requiring that costs be paid in the first action before the second is initiated. This condition precedent to filing the second action is jurisdictional and, even though not raised by defendant, precludes the second suit since, in the absence of payment of costs in the first suit, there is no suit pending and the statute of limitations is not tolled. Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984); Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983); Combel v. Wickey, 174 Ga. App. 758 (332 SE2d 18) (1985). The costs referred to in OCGA § 9-11-41 (d) include those authorized by USCR 19.1 (F) and (G).

Although the dismissal here was an involuntary one, OCGA § 9-11-41 (b), it was not on the merits and, with regard to the payment of costs, must be treated in the same way as a voluntary dismissal, OCGA § 9-11-41 (a). See Little, supra.

Therefore, defendant was entitled to summary judgment, and we need not address the ground raised by him.

Judgment reversed.

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

Kent T. Stair, Douglas A. Wilde, for appellant.

Jerry L. Patrick, Jr., for appellee.


author: Birdsong, Chief Judge. Beasley, Judge,

text:
    76399.
    In the Interest of C. A. A.
    (371 SE2d 247)
   Birdsong, Chief Judge.

C. A. A., age 15, was adjudicated delinquent upon a petition alleging a violation of the Georgia Controlled Substances Act by having in his possession “less than an ounce [of marijuana], in his vehicle when the vehicle was searched by police officers.” Appellant complains on appeal only on the general grounds, that the finding is contrary to the law and the evidence and not supported by the evidence. Held:

The investigating officer testified he received information from a confidential informant about a gray Pontiac Trans Am, with a certain license plate number, which stopped at Dye’s Tavern in Albany. Two white youths and a black youth were in it. The black youth got out, went into the tavern and returned with marijuana. With this information, the officer and his partner drove to Dye’s Tavern and saw this very same car pull up to Dye’s Tavern again. The officer watched through binoculars. A black male got out and went into the tavern. There was no testimony that he appeared to have anything with him when he came out of the tavern and got in the car. The police officers could not see inside the car. The car’s driver got out and looked under the hood as if something was wrong. At this point, the officer drove up behind the Trans Am and he and his partner got out of their car. They identified themselves as police officers and asked the occupants of the Trans Am to get out and, when they did so, patted them down.

The appellant, C. A. A., had been sitting in the backseat directly behind the driver. When the group emerged from the car, the officer asked who owned the car and C. A. A. said he did. When the officer told C. A. A. he had information about some drugs and he wanted to search the car, C. A. A. said, “Fine, go ahead.” The officer found, directly under the seat behind the driver’s seat, two manila envelopes of what tested to be marijuana.

The officer testified he never ran a license check on C. A. A. to see if he had a driver’s license. He testified on cross-examination that C. A. A. did state to him sometime during the conversation that his mother owned the car, but the officer was not sure whether C. A. A. imparted this information before or after they arrived at the police station. In fact, the officer testified he did not know who owned the car. The officer testified that C. A. A. did not act differently than anyone else, that he never saw C. A. A. with the marijuana, and in fact could not see in the car at all. The other three persons in the car, two males and a female, were in fact adults, and the officer indicated on the stand that he did not know at the time that C. A. A. was a juvenile.

We do not find this circumstantial evidence sufficient to authorize a rational trier of fact to find this juvenile himself possessed the marijuana beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

The appellant juvenile was in the backseat of a car with three adults. There is no evidence C. A. A. knew the marijuana was in the car. The car was being driven by another adult. It was not proven who owned the car; although the officer testified C. A. A. at first said the car was his, he also testified C. A. A. said the car was his mother’s. The officer did not, according to the evidence, see the black male return from the tavern with two manila envelopes; in fact, he could not see inside the car at all and saw C. A. A. engage in no suspicious behavior. In fact, he did not see anyone indulge in suspicious behavior, except that the adult black male went into the tavern and then came out, which was suspicious only because the confidential informer had just told the officer he had seen a gray Trans Am with three persons in it and one, a black male, got out and returned from the tavern with marijuana. The only evidence tying C. A. A. to possession of the marijuana under the seat behind the driver’s seat is his presence in the car and his proximity to the seat.

Ordinarily, the factfinder is in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. Harris v. State, 236 Ga. 242 (223 SE2d 643); Lewis v. State, 149 Ga. App. 181 (254 SE2d 142); Gee v. State, 146 Ga. App. 528 (246 SE2d 720); Pless v. State, 142 Ga. App. 594 (236 SE2d 842); Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). In this case the finder of fact stated that “there is no doubt [C. A. A.] was in his mother’s car,” and that he was most impressed with this redoubtable fact, since there is “a legal presumption that if you own the car or have possession of the car or the car is in your control, that you are supposed to know what is in it. . . . And you are responsible for what is in [it].” This is not the law.

In Farmer v. State, 152 Ga. App. 792, 795 (264 SE2d 235) (cert. den.), we held, after examining the rule in many cases, “ ‘ “Where immediate and exclusive possession of an automobile, locker room, or other premises is shown, the inference is authorized that the owner of such property is the owner of what is contained therein, and this inference has been referred to as a rebuttable presumption. [Cits.]” However, “(a)s to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it. [Cit.]” ’ (Emphasis supplied.)” Where as here the evidence shows other persons had equal access to the contraband, and there is no evidence C. A. A. had complete possession and control of the car at any time the application of a presumption of possession of any contraband found in it is not “a sound, abstract principle of law” and is “ ‘a dangerous rule for the numerous owners of motor vehicles.’ ” Id.; Shepherd v. State, 77 Ga. App. 857, 858 (50 SE2d 111). The Farmer rule just stated was reaffirmed in Fears v. State, 169 Ga. App. 172 (312 SE2d 174). C. A. A. was not driving the car, nor was he even in the front seat so as to exercise control over the operation of the car. The fact that C. A. A. told the officer at one point it was his car and also told him at another point it was his mother’s, and the fact that he gave permission to search the car, altogether do not prove or tend to prove he had complete control and possession of the car for any period of time before the marijuana was found. That the marijuana was found under the loose seat where C. A. A. was sitting establishes only proximity or presence. These circumstances, considering the greater control the three adults might have had, and the equal access they did have, do not permit the application of any presumption that C. A. A. was in possession of the marijuana.

The State concedes that there is no presumption of possession and control where other persons have had equal access to the contraband, but argues that this contraband was located in a place in the car where only appellant could have had access to it, as it was “underneath the seat directly where he was sitting.” However, the evidence also showed the backseat was loose. It certainly cannot be said as a matter of law that none of the three adult persons in the car had equal access to have put it where it was found, and there was nothing in the evidence from which the factfinder could conclude they did not have equal access to it as a matter of fact.

Moreover, there is no evidence at all as to how or when this marijuana came to be lodged under the back seat, or even that the adult male whom the officer saw entering the tavern bought the marijuana while he was in there, since there is no evidence the officer saw him emerge with any object in his hands.

Even assuming C. A. A. had been in “immediate and exclusive control” of the vehicle, no presumption of possession arises where there is evidence of equal access by others. Id. p. 796. Without the presumption of possession and control, what is left is mere presence at the scene of a crime or, more to the point, mere presence near hidden contraband. As a matter of law, this is not enough to support a finding of criminal possession of the contraband beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. See Brown v. State, 250 Ga. 862, 864 (302 SE2d 347). See esp. Denham v. State, 144 Ga. App. 373, 374-375 (241 SE2d 295).

Decided June 30, 1988.

Mary M. Young-Cummings, for appellant.

Robert H. Revell, for appellee.

Accordingly, we find this adjudication cannot be sustained under Jackson v. Virginia, supra.

Judgment reversed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The real problem here is not so much possession of the car but possession of the marijuana. The evidence supports a reasonable inference that the youth was not a mere passenger and otherwise unconnected to the car but instead had procured it for the foursome from his mother and to that extent controlled it and its contents.

However, there was no probative evidence that the marijuana was brought into the car and placed under the back seat where he was sitting while he was in the car, or that he otherwise knew it was there. The evidence that it was recently obtained by the black male from the tavern and, by inference, hidden right behind appellant’s feet, was inadmissible to prove appellant’s guilty knowledge. The reason is that this evidence was hearsay, based totally on what the confidential informant related to the officer. The informant did not testify.

The factfinder would have had to rely on this evidence to draw the inference that appellant participated in secreting the two 2”x3” manila envelopes and the 6 Vis” by 3 Vis” package of rolling papers or at least that he knew they were beneath his seat and attempted to bluff the officer by exhibiting some naive bravado in permitting the search. Thus, neither constructive possession in violation of OCGA § 16-13-2 (b) nor aiding and abetting in the commission of the same (OCGA § 16-2-20 (b) (3)) could be supported.

With this addition, I concur fully with the opinion.


text:
    76551.
    DELTA CHEVROLET, INC. v. WELLS et al.
    (371 SE2d 250)
   Banke, Presiding Judge.

The appellees, Grailyn Wells and Carrol Akin, each leased a Chevrolet Corvette automobile from General Motors Acceptance Corporation (GMAC). The appellant, Delta Chevrolet, Inc., acted as GMAC’s agent in negotiating the leases. Both the appellees were college educated, both had substantial prior experience in leasing and purchasing automobiles, and both had “shopped” for a Corvette at various dealerships prior to doing business with Delta Chevrolet. The lease agreements which they signed clearly disclosed the “total payment due at inception,” the “total monthly payment,” and the “total of monthly payments.”

The appellees brought the present action against GMAC and Delta Chevrolet seeking to void the transactions and recover damages based on allegations of fraud in the inducement, violations of the Fair Business Practices Act, mutual mistake of fact, and unconscionability. Both the defendants moved for summary judgment, and GMAC’s motion was granted while Delta Chevrolet’s motion was denied. The case is now before this court pursuant to our grant of Delta Chevrolet’s application for an interlocutory appeal. Held:

1. The record reveals no basis for the appellees’ claims of fraud in the inducement. In this regard, the appellees complain that Delta Chevrolet’s agents failed to disclose the correct monthly payment figures to them prior to the preparation of the written lease agreements. However, the actual lease terms were clearly set forth in the writings, and neither appellee has alleged any misrepresentation which would have prevented him or her from reading the contract prior to signing it. With regard to the appellees’ claims that they were fraudulently induced into purchasing an extended warranty protection plan, the evidence demonstrates that each of them signed a separate document specifically requesting such coverage. Finally, with respect to appellee Wells’ contention that he was told prior to executing the lease that he would receive a $1,000 credit for his trade-in vehicle, we note that he conceded in his deposition that he had underestimated the loan balance on that vehicle and that the actual loan balance in fact exceeded the value he himself had placed on the vehicle.

The two lease agreements, which were prepared on identical printed forms, each contained a provision specifying that the writing constituted the entire agreement between the parties and that neither the lessor nor any of its employees were authorized to make any oral or written promise, affirmation, warranty or representation not reflected in the written lease. Having alleged no fraud which would have prevented them from reading the written lease agreements before signing them, the appellees are now bound by the terms of the writings and may not seek to avoid their obligations because they believe they made an unfavorable bargain. See Blum v. Gen. Motors Acceptance Corp., 185 Ga. App. 714 (365 SE2d 474) (1988); Salome v. First Nat. Bank of Atlanta, 162 Ga. App. 394, 395 (291 SE2d 452) (1982). We consequently hold that the trial court erred in denying the appellant’s motion for summary judgment with respect to the appellees’ fraud claims. Accord Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983).

Decided June 30, 1988.

Richard C. Freeman III, for appellant.

Robert M. Goldberg, for appellees.

2. We similarly conclude that the trial court erred in denying the appellant’s motion for summary judgment with respect to the appellees’ claims that the transactions violated the Georgia Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq.

“[A] claimant who alleges the FBPA was violated as the result of a misrepresentation must demonstrate that he was injured as the result of the reliance upon the alleged misrepresentation. Therefore, under [OCGA § 10-1-399] when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. [Cit.]” Zeeman v. Black, 156 Ga. App. 82, 87 (273 SE2d 910) (1980). “ ‘The FBPA is no panacea for the congenital ills of the marketplace. . . .’ [Cit.] The Act does not instantly convert every alleged breach of contract into a violation of the FBPA.” DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (248 SE2d 193) (1978).

From our conclusion that the appellees alleged no artifice or fraud which would have prevented them from reading the lease agreements prior to signing them, it necessarily follows that they have alleged no misrepresentations which would give rise to a cause of action for damages for violation of the FBPA.

3. Based upon our review of the evidence of record, we hold that the appellant was also entitled to summary judgment with respect to the appellees’ claims for recovery under the theories of mutual mistake and unconscionability.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    76241.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. FEDERICK.
    (371 SE2d 204)
   McMurray, Presiding Judge.

Roscoe D. Federick (plaintiff) brought an action against Metropolitan Atlanta Rapid Transit Authority (MARTA) and David Lee Hubbard (defendant Hubbard), seeking damages which allegedly arose after plaintiff was struck by a MARTA bus that was being operated by defendant Hubbard. Defendants MARTA and Hubbard answered and denied the material allegations of the complaint. Plaintiff subsequently amended his complaint and added a second count against MARTA, alleging that MARTA is self-insured, that MARTA failed to pay plaintiff’s claim for no-fault benefits under the Georgia Motor Vehicle Accident Reparations Act and that more than 60 days has elapsed since MARTA received plaintiff’s no-fault claim, thereby subjecting MARTA to statutory penalties in accordance with OCGA § 33-34-6 (b) (c).

A “CONSENT ORDER OF BIFURCATION” was entered, directing separate trials on plaintiff’s tort claim (Count 1) and plaintiff’s no-fault claim (Count 2). The no-fault claim was tried before a jury and the trial court “directed a verdict in favor of Plaintiff in the sum of $2,500.00 medical expense benefit pursuant to the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-1 et seq.), and the jury . . . found in favor of [MARTA] on all the remaining issues.”

MARTA did not satisfy the judgment on plaintiff’s no-fault claim within 60 days and plaintiff amended his complaint and added a third count seeking statutory damages against MARTA pursuant to OCGA § 33-34-6 (b) (c). MARTA filed a motion to dismiss Count 3 of plaintiff’s complaint, arguing that it was not obligated to satisfy the non-final judgment on plaintiff’s no-fault claim before final adjudication of plaintiff’s tort claim.

The trial court denied MARTA’s motion to dismiss and conducted a bench trial on Count 3 of the complaint. At trial, MARTA’s attorney stated in his place that MARTA’s refusal to pay the judgment on plaintiff’s no-fault claim was not in bad faith, but that the judgment was left unsatisfied in contemplation of a direct appeal after adjudication of plaintiff’s tort claim. MARTA’s counsel explained that he did not pay the judgment on behalf of his client based on OCGA § 9-11-54 (b), which provides that a judgment as to fewer than all the claims is not final and is therefore not directly appealable absent an express determination by the trial court “that there is no just reason for delay and upon an express direction for the entry of judgment.” In further support of its position, MARTA presented expert legal testimony to the effect that MARTA’s refusal to pay plaintiff’s no-fault claim was not in bad faith in light of . the non-final judgment determining MARTA’s liability to plaintiff for no-fault benefits. The trial court did not agree and a judgment was awarded to plaintiff for $29,340, comprising statutory damages, attorney fees and punitive damages. A jury trial was then conducted on plaintiff’s tort claim and a verdict was rendered in favor of plaintiff for $370,000. This appeal followed. Held-.

1. In its first enumeration of error, MARTA contends the trial court erred in failing to dismiss plaintiff’s second no-fault action (Count 3) and proceeding to trial on the issue of bad faith, arguing that MARTA’s decision not to satisfy the $2,500 judgment entered on plaintiffs first no-fault action (Count 2) before adjudication of plaintiffs tort claim (Count 1) was, as a matter of law, “in good faith.” We agree.

“Only a final judgment can be enforced. Wright, Miller & Kane, Federal Practice and Procedure, Civ.2d §2661; 6 J. Moore, Federal Practice 54.42; Redding & Company v. Russwine Constr. Corp., 417 F.2d 721 (D.C. Cir. 1969). A judgment is final only when it disposes of the entire controversy, leaving nothing for the Court to do in the case. Anastasiadis v. S. S. LITTLE JOHN, 339 F.2d 538 (5th Cir. 1964). ... In cases involving multiple claims and/or parties, FRCP 54 (b) [OCGA § 9-11-54 (b)] specifically provides that the Court may enter a final judgment if the Court makes ‘an express determination that there is no just reason for delay’ and makes ‘an express direction for the entry of judgment.’ A judgment entered in a multiple party and/or multiple claims case prior to the disposition of the entire case is not enforceable unless the requirements of Rule 54 (b) are followed. Wright, Miller & Kane, Federal Practice & Procedure, Civ.2d, § 2661; 6 J. Moore, Federal Practice 54.52; Redding & Company v. Russwine Constr. Corp., supra.Gauthier v. Crosby Marine Svc., 590 FSupp. 171, 175, 176 (1984).

In the case sub judice, the trial court did not follow the requirements of OCGA § 9-11-54 (b) to finalize the $2,500 judgment on plaintiff’s first no-fault claim (Count 2). Consequently, the non-final judgment was unenforceable and MARTA, as a matter of law, did not act in bad faith in failing to pay the judgment before final adjudication of plaintiff’s tort claim. However, even if MARTA failed to pay in error, its position was not so unreasonable so as to warrant bad faith penalties. See Gauthier v. Crosby Marine Svc., 590 FSupp., supra at 176. In any event, the trial court erred in entering judgment against MARTA for penalties under OCGA § 33-34-6 (b).

2. Next, MARTA contends the trial court erred in failing to give its written request to charge that “[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.” Although this instruction is an accurate statement of law as codified in OCGA § 40-6-91 (b), the trial court informed MARTA’s attorney that the charge would be excluded because it did not conform to the facts adduced at trial.

“ ‘It is the indisputable right of a litigant to have given in the charge a pertinent legal charge timely requested in writing.’ Summer v. Boyd, 208 Ga. 207, 209 (66 SE2d 51). It is especially important that this right be recognized when the case is ‘a close one under the evidence.’ Metropolitan St. R. Co. v. Johnson, 90 Ga. 500, 501 (16 SE 49).” Harris v. Cates, 105 Ga. App. 178, 180 (3), 181 (123 SE2d 703), reversed on other grounds at 217 Ga. 801 (125 SE2d 649). From this perspective, the pivitol issue in the case sub judice is whether there was any evidence to support MARTA’s theory that plaintiff was drunk at the time of the accident and that he negligently stumbled and fell into the bus as it was moving away from the bus stop. In this vein, Ms. Sandra Reese, a passenger on the MARTA bus at the time of the collision, testified that she observed plaintiff running through a nearby parking lot as the bus was approaching the bus stop and, after “the bus driver [defendant Hubbard] stopped, made his stop, his normal stop, then as he proceeded to pull off, there was a hit at the back of the bus; and he [defendant Hubbard] stopped and got off the bus [to investigate].” Ms. Reese further testified that she observed plaintiff lying in the street behind the bus after the accident. Defendant Hubbard testified that he had a clear view of the bus stop before approaching it and that he did not see plaintiff until after the apparent collision.

Other evidence which supported MARTA’s claim showed that plaintiff had a blood alcohol content of .387 percent about an hour and a half after the accident. In fact, plaintiff admitted on cross-examination that he was “under the influence” at the time of the collision and that he had consumed a half-gallon of beer and had shared a half pint of gin or vodka with two co-workers before the collision. Further, Tom Allen, a “paramedic” who arrived at the scene of the collision, testified that plaintiff “reeked of alcohol” and Dr. Paul G. Jenko, one of the Grady Hospital physicians who treated plaintiff after the collision, testified that plaintiff appeared to be intoxicated and that plaintiff had “slurred speech, was refusing to follow commands, smelled terribly of alcohol, both on his breath and about his face [and that plaintiff refused] to answer questions or was not answering questions.”

Contrary to plaintiff’s contentions, we find the above evidence sufficient to authorize an instruction on a pedestrian’s duty with regard to walking or running into the path of a vehicle. Consequently, since “[t]he charge requested by [MARTA] set out a correct statement of law [,] Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 [(5 SE2d 214),] [t]herefore the court’s failure to charge as requested was reversible error.” Harris v. Cates, 105 Ga. App. 178, 180 (3), 181, supra.

3. In light of Division 2 of this opinion, it is not necessary to address MARTA’s remaining enumerations of error.

Decided June 13, 1988

Rehearing denied July 1, 1988

Donald P. Edwards, Jeffrey E. Tompkins, for appellant.

Thomas H. Nickerson, David E. Tuszynski, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.

       Plaintiff’s argument that the trial court’s severance of his no-fault claim and tort claim under OCGA § 9-11-42 (b) circumvents the requirements of OCGA § 9-11-54 (b) is without merit. “OCGA § 9-11-42 (b) seeks to further judicial convenience or avoid prejudice, not to circumvent the requirements of OCGA § 9-11-54 (b) . . .” Cable Holdings of Battlefield v. Lookout Cable Svc., 173 Ga. App. 355, 356 (326 SE2d 552).


text:
    76239.
    VURGESS v. STATE OF GEORGIA.
    (371 SE2d 191)
   Beasley, Judge.

Pursuant to OCGA § 16-13-49, the State petitioned to condemn $7,442 in cash claimed to belong to Vurgess which had been seized along with stolen goods and drugs when a search warrant for an apartment was executed. After a bench trial, the lower court entered judgment in favor of Vurgess and dismissed the State’s petition. Four days later, Vurgess’ attorney obtained the money from the custodian. The State appealed the court’s adverse determination. This Court reversed the trial court, holding that it erred in failing to dismiss Vurgess’ answer to the condemnation petition because it was untimely and that inasmuch as the answer was filed too late the funds should have been condemned. State of Ga. v. Vurgess, 182 Ga. App. 544 (356 SE2d 273) (1987). The remittitur was filed with the trial court on May 15, 1987.

On June 4, Vurgess was served summons through his attorneys to appear before the trial court on June 19 at 10:00 a.m. and to pay into the court registry the $7,442 which had been condemned.

Vurgess did not come to court on June 19; instead, his attorney made a “special appearance” arguing that Vurgess had not been properly served. The court heard argument and took under advisement the matter of Vurgess’ failure to comply with the summons. After submission of briefs, the court on October 30 ordered Vurgess to pay into the court registry $7,442 within ten days, from which order Vurgess appeals.

1. The State moves to dismiss the appeal on the grounds that the order appealed from is not a final judgment and that the record does not contain a certificate of immediate review. However, “even though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of [OCGA § 5-6-34 (a) (1)] where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. [Cit.]” Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981). The State’s motion is denied.

Decided June 8, 1988

Rehearing denied July 5, 1988.

John B. Achord, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

2. Appellant contends that service of the summons was defective under OCGA § 9-11-4 because his attorney was served rather than he, and that the trial court no longer exercised jurisdiction over him because the condemnation action is an in rem proceeding and “[t]he voluntary payment by the custodial agent of the state therefore concludes any action against the specific res and renders any action to recover the specific ‘cash’ moot.”

OCGA § 9-11-4 governs process at the initiation of a civil action and is not applicable. Reading the word “party” to include claimants in forfeiture proceedings, the controlling statute is OCGA § 9-11-5 (b). It requires service on the attorney of pleadings and other papers subsequent to the original complaint. The determination at issue was not a new action but rather the finale in the State’s suit to condemn the funds, so service on Vurgess’ attorney was proper.

3. Appellant’s contention that any attempt to recover the cash is rendered moot because the money was already disbursed is likewise without merit. As we quoted in the previous case, he enforced the judgment “at his peril” by doing so during the 30-day appeal period. State of Ga. v. Vurgess, supra at 545 (1).

Vurgess questioned the trial court’s power to direct him to return the funds. As the State quite aptly observes, the condemnation action was not ended merely because Vurgess “won the race to the money before a final judgment was rendered thereon” and appeal was concluded or opportunity for the same expired. Such a rationale would cut both ways, for the State could do the same when condemnation is approved and thereby leave the owner without an effective appeal. See State of Ga. v. Vurgess, supra at 545 (1). There is no precedent for emasculating the right to review and correction of error in such a way. Nor did the lack of physical presence of the funds in the court’s registry render the court without power to enforce the judgment. OCGA § 15-1-3 (3); Ga. Const. 1983, Art. VI, Sec. I, Par. IV. Requiring return of the condemned amount of money here merely implemented what had been judicially determined to be a valid condemnation, so that the money could be disbursed as provided by law. OCGA § 16-13-49 (f) (2).

Judgment affirmed.

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


author: Benham, Judge.

text:
    76247.
    McKINNEY v. THE STATE.
    (371 SE2d 196)
    Decided June 8, 1988
    Rehearing denied July 5, 1988

      R. Allen Hunt, Thomas R. Moran, for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Benjamin H. Oehlert III, Margaret H. Earls, Assistant District Attorneys, for appellee.
   Benham, Judge.

Appellant was indicted for two counts of aggravated child molestation. A jury found him not guilty on first count, but did find him guilty of child molestation on the second count. After judgment was entered, appellant moved for a new trial. His motion was denied, and he appeals.

Appellant’s notice of appeal was filed one day late, and so we must consider whether we have jurisdiction to hear the appeal. Timely filing of a notice of appeal in compliance with OCGA §§ 5-6-38 (a) and 5-6-39 is essential to confer jurisdiction. Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987). Since timely filing was not accomplished here, we must dismiss the appeal.

Appeal dismissed.

McMurray, P. J., and Pope, J., concur.


author: Carley, Judge.

text:
    76549.
    JONES v. MEDICAL ARTS CLINICS OF AMERICA, INC.
    (371 SE2d 214)
   Carley, Judge.

Appellant-defendant entered into an agreement to purchase appellee-plaintiff’s business. In connection with the sale, appellant executed a $45,000 promissory note in favor of appellee. When appellant stopped making payments on the note, appellee brought suit. Appellant answered, asserting several affirmative defenses. After a period of discovery, appellee filed a motion for summary judgment which the trial court granted. Appellant appeals from the trial court’s order granting summary judgment in favor of appellee.

Since it is undisputed that appellant executed the promissory note, the only issue for resolution is whether the trial court correctly held that appellee had successfully pierced the affirmative defenses asserted by appellant in his answer. See OCGA § 11-3-307 (2). “While the burden at trial is upon appellant to establish the existence of an [affirmative defense], the burden was on appellee, as the party who made the motion for summary judgment, to establish that no material issues of fact remained for trial.” Jones v. Fed. Deposit Ins. Corp., 151 Ga. App. 619, 620 (1) (260 SE2d 751) (1979).

Decided June 15, 1988

Rehearing denied July 5, 1988.

Richard W. Stephens, T. Matthew Mashburn, for appellant.

W. Christopher Bracken III, for appellee.

1. Discovery established that appellant’s affirmative defense of accord and satisfaction was based on several conversations which had allegedly occurred between himself and the president of appellee. According to appellant, the president of appellee had agreed that the amount which appellant had previously paid on the note would be accepted by appellee as full and complete payment. The law provides, however, that “[i]n the absence of a bona fide dispute, mere surrender by the debtor of money already paid or property already admittedly belonging to the creditor, where no advantage or benefit accrues to the creditor beyond that which exists under the original contract, will not constitute an accord and satisfaction.” Mortgage Purchase &c. Co. v. Williamson, 55 Ga. App. 92 (189 SE 293) (1936). See also Taylor v. Central of Ga. R. Co., 99 Ga. App. 224, 227 (2) (108 SE2d 103) (1959). Accordingly, assuming without deciding that appellee’s president had authority to “forgive” the unpaid balance of the note, no genuine issue of material fact remains as to appellant’s affirmative defense of accord and satisfaction.

2. For the reasons discussed, appellee pierced appellant’s affirmative defense of accord and satisfaction. A review of the record shows that there is no remaining factual issue as to any of appellant’s other affirmative defenses. It follows that the trial court’s grant of summary judgment in favor of appellee was correct.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.