text:
    75168.
    BLUM v. GENERAL MOTORS ACCEPTANCE CORPORATION et al.
    (365 SE2d 474)
   Pope, Judge.

In response to an advertisement published in the local newspaper, plaintiff Mark Robert Blum visited defendant Central Chevrolet, Inc. to shop for a Chevrolet Celebrity automobile. The advertisement listed a Celebrity for a base price of $6,997 plus other charges including options. The advertisement offered 7.7 annual percentage rate financing from “GM” or a forty-eight-month, closed-end lease at $108.31 per month plus options and other charges. Plaintiff obtained a price quotation of $11,626.61 on a certain automobile which included options and other charges. Plaintiff also obtained a proposed lease agreement, prepared by the dealership on behalf of defendant General Motors Acceptance Corporation, on the same automobile for monthly payments of $260.66. One or two days later plaintiff returned to the dealership, executed the lease agreement and took delivery on the automobile. Some weeks later plaintiff became concerned that the lease payments were higher than he expected them to be. After performing mathematical calculations, plaintiff concluded that his lease payments were equivalent to finance payments of a higher rate than those offered in the advertisement. Plaintiff brought an action against the dealership and GMAC alleging common law fraud, violation of the Georgia Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq., and violation of the federal Consumer Leasing Act, 15 USC §§ 1667-1667e. Plaintiff appeals from the grant of summary judgment to defendants.

1. Plaintiff’s first two enumerations of error relate to whether the allegations of the complaint set forth a violation of the federal Consumer Leasing Act, 15 USC §§ 1667-1667e, or the applicable federal regulations which accompany that act. We find no violation is set forth in the complaint.

Essentially, plaintiff argues the lease agreement failed to make three disclosures mandated by Regulation M of the Truth in Lending Regulations, 12 CFR § 213.1 et seq. First, plaintiff claims the lease failed to disclose the value credited for a trade-in allowance as required by 12 CFR § 213.4 (g) (2). The pre-printed lease form used by defendants in this case included a line item for trade-in allowance which was marked “n.a.,” presumably for “not applicable.” This notation could not be a violation of the regulations since plaintiff admitted at deposition that he was allowed no credit for his trade-in vehicle because he held no equity in that vehicle.

Secondly, plaintiff argues the lease improperly failed to disclose the value of the automobile at the inception of the lease. Where the lessee’s liability at the end of the lease term is based upon the estimated value of the leased property, the lease must disclose the value of the property at the consummation of the lease, the total obligation at the end of the lease and the difference between these two figures, 12 CFR § 213.4 (g) (15). By definition, this requirement applies only to any open-ended lease. “An open-end or finance lease is one in which the lessee’s liability at the end of the lease term is based on the difference between the estimated value of the leased property and its realized value.” Official Staff Commentary to Regulation M, 12 CFR Part 213, Supp. 1, Appendix C — Model Forms, par. 2. In the case at hand, liability for early termination of the lease is based on the difference between a designated residual value and the net proceeds of sale at wholesale. However, the lessee has no financial obligation whatsoever upon return of the vehicle in good condition at the end of the lease term. Therefore, this is a “closed-end” lease. See Official Staff Commentary to Regulation M, supra at par. 3. Even the model closed-end lease provided in Regulation M does not include a line item for the initial value of the property. 12 CFR Part 213, Appendix C-2. By way of contrast, the model open-ended lease does include this item. 12 CFR, supra at Appendix C-l. The fact that the lease in question does not identify the initial value of the leased automobile does not constitute a violation of federal law.

Finally, plaintiff argues the lease violates federal law and the applicable regulations because it stipulates the use of wholesale value for calculating the lessee’s liability for early termination of the lease but stipulates a presumably higher value (i.e., the average of the wholesale and retail value) for determining the price if the lessee elects to purchase at the end of the lease. By statute, the estimated residual value of the leased property must be a “reasonable approximation of the anticipated actual fair market value.” 15 USC § 1667b (a). The term “fair market value” is not defined in the statute or the applicable regulations, although the legislative history of the Consumer Leasing Act of 1976 reveals an intention by the drafters to define the term as “the value the property would have when sold in a commercially reasonable manner in the customary market for such property.” S. Rep. No. 94-590, 94th Cong., 2d Sess. 6, reprinted in (1976) U. S. Code Cong. & Ad. News 431, 436. We find nothing in the statute or regulations which would prevent the lessor of an automobile from stipulating wholesale as opposed to retail value for calculating the lessee’s liability for early termination. In fact, the staff comments to the model closed-end lease clearly establish that the lessor may stipulate either wholesale or retail value for determining liability for early termination of the lease. 12 CFR Part 213, Appendix C-2, Instructions, Item 13. Neither the statute nor the applicable regulations require the lessor in a closed-end lease to use the same basis for calculating the residual value of the automobile at early termination as it uses for calculating the price of the automobile if the lessee elects to purchase at the expiration of the lease.

2. Plaintiffs remaining enumerations of error relate to his allegations of fraud and violation of the Georgia Fair Business Practices Act. Essentially, plaintiff argues the advertisement in question was false and misleading. In effect, the advertisement made three separate offers: a base price for a Chevrolet Celebrity without options and other charges; a finance rate of 7.7 percent; or a forty-eight-month lease with monthly payments of $108.31 on the base price model, not counting options or other charges. The advertisement clearly stated that optional equipment and other charges would be added both to the base price and to the monthly lease payments. Plaintiff admits he ordered an automobile with optional equipment and that tax and other charges were added as part of his transaction. Nevertheless, plaintiff argues the advertisement implied the lease payments would be equivalent to 7.7 percent financing and that the increased monthly lease payments for an automobile with additional options would be directly proportionate to the advertised lease payment for a base price model. Although plaintiff may have misunderstood the distinction between the various offers made in the advertisement, we find no merit in the claim that the advertisement was misleading or deceptive.

Decided January 19, 1988

Rehearing denied February 2, 1988.

Robert W. Scholz, for appellant.

John G. McCullough, Gregson T. Haan, Henry E. Scrudder, Jr., J. Wayne Pierce, for appellees.

First, the advertisement contains no representation that the lease will be offered at a rate of 7.7 percent. Plaintiff admitted he understood the difference between a financed sale and a lease. An automobile lease is not an automobile loan and therefore the monthly rental charge cannot be, and in this case was not, expressed as a finance rate. In fact, the advertisement clearly offered either the annual finance rate of 7.7 percent or a forty-eight-month lease.

Second, the advertisement contains no representation that the monthly lease payment for an automobile with different equipment will be directly proportionate to the monthly payment for the base price model. We note that the same advertisement contained an offer of a different model vehicle for the same base price but with a slightly greater monthly lease payment. It also contained an offer of another model with a base price $1,000 less than the Celebrity but with a greater monthly lease payment. Obviously, the lease payment, like the sales price, was dependent upon the particular automobile ordered by the customer. It was or should have been obvious to plaintiff that he ordered and received price quotations on a different automobile than that advertised in the newspaper. Plaintiff accepted the offer to lease the vehicle at a certain price and may not alter the terms of that contract because he now believes he made an unfavorable bargain.

Judgment affirmed.

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

       Again, the disclosure requirements are different for a closed-end lease than for an open-end lease. The comments which accompany the open-end lease indicate the basis for calculating the residual value of the automobile at early termination of the lease (either wholesale or retail) should be identical to that used for calculating the price of the automobile if the lessee elects to purchase at expiration of the lease. 12 CFR Part 213, Appendix C-1, Instructions, Item 14.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    75357.
    THE STATE v. STOKES.
    (365 SE2d 477)
   Pope, Judge.

Appellee Bernard Anthony Stokes was indicted on a charge of possession of a firearm by a convicted felon. The State brings this appeal from the lower court’s grant of appellee’s motion to suppress evidence.

Lake City Police Sergeant Ratteree testified on behalf of the State; Lake City Police Officer Maslanka testified on behalf of appellee. Distilled to its essence, this testimony showed that at approximately 11:30 p.m. on July 23, 1986 Sgt. Ratteree was off-duty and headed home. He observed appellee make an illegal u-turn on a major thoroughfare, crossing four lanes of traffic. Sgt. Ratteree radioed Officer Maslanka, who was on-duty, and advised him of the situation. Appellee continued to á retail establishment, parked his car in the parking lot, and headed toward a nearby soft drink machine. Officer Maslanka then arrived, approached appellee and requested appellee’s driver’s license and proof of insurance. The license was produced, but appellee stated that he had recently purchased the car and the previous owner was allowing him to drive on his insurance. Appellee was placed in the back seat of Maslanka’s patrol car for further questioning (he was not under arrest at this time) when Sgt. Ratteree arrived at the scene. Ratteree observed in plain view the subject firearm, a .22 caliber rifle, in the passenger area of the front seat of appellee’s car; Maslanka also observed the rifle. Neither officer knew appellee. Appellee was then placed under arrest for the improper u-turn and failure to have insurance on his car. His car was impounded pursuant to police department policy and the rifle seized during the subsequent inventory.

At the close of the hearing on appellee’s motion, the lower court made the following observations concerning the evidence presented: “[I]t’s a tough case. The discrepancies between the two witnesses’ testimonies . . . are astounding and they can’t be explained away very well. Number one, location of the weapon. Sergeant Ratteree says it was on the front seat along with a number of rounds of ammunition. Patrolman Maslanka says it was in the floorboard and makes no mention of ammunition. The third source of any evidence to the Court is the State’s Exhibit One which says, ‘While inventorying the auto, a twenty-two caliber semi-automatic rifle with the stock cut down to a pistol grip loaded with eleven rounds of live ammunition was found on the right side of the car in front of the front seat.’ The report itself doesn’t mention anything being observed concerning the weapon. Sergeant Ratteree is very certain in his testimony that Patrolman Maslanka called him over. Patrolman Maslanka says he didn’t even know where Ratteree was. Sergeant Ratteree says that Patrolman Maslanka told him about the gun being in the automobile. . . . Patrolman Maslanka says that he didn’t see the gun at first and only knew it was there as a result of Sergeant Ratteree calling his attention to the fact that the gun was there. So who found the weapon is in total dispute between the two witnesses.

“Where Stokes was — total dispute. Sergeant Ratteree says that Stokes and Patrolman Maslanka were outside the vehicle, never mentions Stokes being inside the patrol car. . . . Patrolman Maslanka says that Mr. Stokes was inside the vehicle.

“Pm going to sustain the motion to suppress based on just the absolute discrepancies in the testimony that I don’t believe that . . . it’s evidence that should be used in a case with the discrepancies that exist.” The lower court found the search of appellee’s car was “illegal, without probable cause, and that the firearm was not in plain view.” We find this ruling patently erroneous.

Our review of the record discloses neither the existence nor severity of some of the “discrepancies” noted by the lower court. However, assuming, for the sake of argument, the accuracy and materiality of the lower court’s observations, we find no basis for upholding the ruling made below. The issue for resolution at a suppression hearing is the legality vel non of the subject search and seizure. OCGA § 17-5-30; see Kelly v. State, 145 Ga. App. 780 (2) (245 SE2d 20) (1978). “The credibility of [witnesses] is for the trial judge’s determination. His judgment will not be disturbed by a reviewing court if there is any evidence to support it. Therefore, where there is a conflict in the evidence on the motion to suppress, the ruling of the trial [judge] will be upheld where there is any evidence to authorize a finding in support of his order.” (Citations and punctuation omitted.) Brisendine v. State, 130 Ga. App. 249, 250 (203 SE2d 308) (1973); see Jacobs v. State, 71 Ga. App. 808 (1) (32 SE2d 430) (1944).

The trial court obviously had serious doubts as to the credibility of both witnesses in this case. Nevertheless, their testimony stands as unrefuted and establishes a prima facie showing of the legality of the search and seizure in this case. See, e.g., Douglas v. State, 145 Ga. App. 42 (3) (243 SE2d 298) (1978); Highland v. State, 144 Ga. App. 594 (241 SE2d 477) (1978); Lackey v. State, 137 Ga. App. 358 (3) (223 SE2d 755) (1976). “ ‘Direct and positive testimony . . . which is given by an unimpeached witness as to the existence of facts apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or indirectly by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a . . . trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth.’ ” Thomas v. Lockwood, 198 Ga. 437, 446 (31 SE2d 791) (1944); see Green, Ga. Law of Evidence (2nd ed.) § 82.

Decided January 19, 1988

Rehearing denied February 2, 1988

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellant.

Janet G. Scott, for appellee.

We find that the lower court had no right to arbitrarily assume that the witnesses were unworthy of credit, or for any other reason to disregard their testimony. See Western & A. R. Co. v. Beason, 112 Ga. 553 (1) (37 SE 863) (1901). Therefore, under the facts in this case, the lower court erred in granting appellee’s motion to suppress. See State v. Gilchrist, 174 Ga. App. 499 (1) (330 SE2d 430) (1985). See generally Rutland v. State, 46 Ga. App. 417 (167 SE 705) (1933).

Judgment reversed.

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


text:
    75418.
    SIMS v. JOHNSON.
    (365 SE2d 532)
   Pope, Judge.

Plaintiff sued defendant for injuries incurred in an automobile accident. The jury returned a verdict in favor of defendant, and plaintiff brings this appeal assigning error to that portion of the trial court’s jury charge on equally balanced evidence. After charging on the burden of proof and the preponderance of the evidence, the court charged: “I instruct you that if in the opinion of the jury the evidence on each side is equally balanced, if you the jury believe the witnesses on each side equally credible, if you the jury believe the evidence is just as strong on one side as the other, then the Plaintiff would not have carried the burden of proof as to such issues by a preponderance of the evidence, and on such issues you find this condition to exist, . . . you should find in favor of the Defendant.”

We first note that although plaintiff objected to this charge during the charge conference, she raised no objections whatsoever upon inquiry by the trial court following the charge. “An objection to an instruction which is made during a charge conference, but which is not made or reiterated following the giving of the charge, fails to preserve the matter for review by an appellate court. The requirement is that there be a proper objection after the court instructed the jury and before the jury returned a verdict. [A]n objection made only at a charge conference is insufficient to preserve an issue for appeal. . . .” (Citations and punctuation omitted.) Brown v. Sims, 174 Ga. App. 243, 244 (329 SE2d 523) (1985); Caudell v. Sargent, 118 Ga. App. 405 (164 SE2d 148) (1968).

Decided February 2, 1988.

Sonja L. Salo, for appellant.

Robert B. Hocutt, for appellee.

Furthermore, “[n]othing appears to bring the [enumeration] within the scope of [OCGA § 5-5-24 (c)], which eliminates the necessity of an objection to instructions which show substantial error as a matter of law, explained ... as ‘blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it.’ [Cit.]” Atlanta Americana &c. Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 710 (161 SE2d 342) (1968). As in the case at bar, “[w]here there is no affirmative defense, or no plea in the nature of confession and avoidance, the burden of proof is upon the plaintiff, and [s]he is not entitled to recover, unless, in the opinion of the jury, the preponderance of the evidence is in [her] favor. The charge excepted to was ... in harmony with this principle, and, under the facts of the case . . . was [not] cause for a new trial.” Courson v. Pearson, 132 Ga. 698 (2) (64 SE 997) (1909). Accord Garner v. Driver, 155 Ga. App. 322 (2) (270 SE2d 863) (1980); Evans v. DeKalb County Hosp. Auth., 154 Ga. App. 17 (3) (267 SE2d 319) (1980); see also Whitley v. Wilson, 90 Ga. App. 16 (3) (81 SE2d 877) (1954). Cf. Parsons v. Harrison, 133 Ga. App. 280 (3) (211 SE2d 128) (1974), wherein a charge similar to that cited here was found to be erroneous because the defendant asserted several affirmative defenses.

Judgment affirmed.

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


author: Benham, Judge.

text:
    75547.
    WELLS v. THE STATE.
    (365 SE2d 873)
   Benham, Judge.

Appellant was convicted of burglary and aggravated assault. On appeal, he raises three enumerations of error. We affirm the judgment of conviction.

1. While the trial court was calling the calendar, it called a case against appellant other than the case involved in this appeal. Appellant moved for a postponement or a continuance, contending that the prospective jurors were prejudiced against him by having heard the announcement of another case against him. The trial court denied the motion, and appellant contends that denial was reversible error. We disagree.

As appellant acknowledged in his brief, all motions for continuance are addressed to the discretion of the trial court and denial of such motions will not be reversed by this court unless an abuse of discretion is shown. OCGA § 17-8-22; Hammonds v. State, 157 Ga. App. 393 (2) (277 SE2d 762) (1981). The trial court, in making its ruling, pointed out that the calendar call was addressed to the members of the bar who were present, and not to the prospective jurors. Although he could have done so during voir dire, appellant made no effort to show that those prospective jurors who were eventually selected to hear appellant’s case heard and were influenced by the trial court’s calling of the other case. Since he failed to make such a showing, we find no abuse of the trial court’s discretion in denying appellant’s motion. This case is distinguishable from Smith v. State, 177 Ga. App. 504 (340 SE2d 28) (1986), upon which appellant relies, because in Smith, the impaneled jury was specifically given written documentation of a defendant’s indictment for an offense unrelated to that for which he was being tried, with no limiting instruction as to the purpose for the evidence. The trial court here did not err in denying appellant’s motion. Davis v. State, 143 Ga. App. 329 (4) (238 SE2d 289) (1977).

2. During the cross-examination of the county sheriff’s chief investigator, one of the State’s witnesses, appellant’s counsel asked, “When was the defendant arrested? Do you have that information?” The witness responded, “On — on this charge, sir?” Appellant’s counsel then moved for a mistrial on the grounds that by implication the witness told the jury that appellant had been arrested on charges other than the one for which he was being tried. The trial court denied the motion, and appellant contends that the denial was error. We find no such error. “Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it. [Cit.]” Cole v. State, 156 Ga. App. 6 (2) (274 SE2d 64) (1980). If there was any error, it was induced by defense counsel, and therefore cannot be complained of on appeal. Id. at Division 5.

3. The victim testified on direct examination that he was in an office one day and he “saw three mug shots as I call them.” After several more questions, he stated that he recognized one of the pictures as that of appellant, the man who shot him. At that point, appellant’s counsel moved for a mistrial, contending that the identification by the witness of the photographs as mug shots was prejudicial to his client because it placed his character in issue. The trial court refused to grant a mistrial, and appellant claims reversible error occurred with that denial. “The testimony that a photograph is a ‘mug shot’ from the files of the police department does not put the defendant’s character in issue. [Cits.]” Hunter v. State, 170 Ga. App. 356, 357 (317 SE2d 332) (1984).

Decided February 2, 1988.

James E. Peugh, for appellant.

Joseph H. Briley, District Attorney, Alberto Martinez, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Divisions 1, 3 and in judgment.


text:
    75645.
    GIARGIARI v. NATIONAL RAILROAD PASSENGER CORPORATION et al.
    (365 SE2d 875)
   Pope, Judge.

Appellant Louise C. Giargiari was injured when she jumped from a moving AMTRAK train operated by appellees, and sued for damages. Her appeal is from the grant of appellees’ motion for summary judgment.

Mrs. Giargiari presented deposition and affidavit evidence showing that on the morning of July 1, 1984, she accompanied an elderly friend to board the train at Brookwood Station in Atlanta. The train was an hour late and when it arrived there was no one available to load the luggage, so Mrs. Giargiari assisted her friend aboard. The train normally stops in Atlanta for 20 to 30 minutes before continuing on to New Orleans, and a whistle is sounded to signal its departure. On this day, however, no signal was heard and after Mrs. Giargiari reached her friend’s compartment with his luggage, she glanced out of the train window and was shocked to see that it was moving slowly. She ran down the aisle to the car’s entrance where she saw the car attendant and a man who had also helped his wife aboard. Mrs. Giargiari and the man requested the attendant to stop the train and let them off, but the attendant told them the train could not be stopped and they would have to wait until they reached the next scheduled stop. Although the next stop would have been in Austell, neither of them sought to ascertain the location, but decided to jump off the train onto the platform. Mrs. Giargiari swore that the car attendant lowered the steps for them, thereby indicating that they could safely step off the train. The attendant testified that the steps had never been raised after the train began moving. There was no evidence as to the speed the train was going although in the attendant’s opinion it was “not extremely fast, because [she] could still see some of the station and there was still cement. Whenever there is cement, we are not going too terribly fast.” The man then jumped safely to the platform from the steps, followed by Mrs. Giargiari who lost her balance and fell, hurting her knees and breaking her wrist. From this evidence the trial court found that it was plain, palpable and indisputable that Mrs. Giargiari’s injuries were solely caused by her own decision to jump from the train, and that reasonable minds could not differ as to such a conclusion so that summary judgment was proper as a matter of law.

Mrs. Giargiari contends on appeal that the proximate cause of her injuries was the negligent acts of the car attendant in neither warning the non-passengers aboard the train that it would not stop for the customary time nor announcing its departure, and in allowing her to leave the train when it was moving. She also argues that where both parties are negligent, under the railroad comparative negligence statute (OCGA § 46-8-291) the question of the plaintiff’s recovery is to be determined exclusively by a jury. We do not agree.

It has long been established that OCGA §§ 46-8-291 and 51-11-7 are to be construed in pari materia. Southern R. Co. v. Nichols, 135 Ga. 11 (4) (68 SE 789) (1910). In so analyzing the two code sections, the Supreme Court concluded: “It seems to be the clear meaning of our law that the plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could by ordinary care, after the negligence of the defendant began, or was existing, have avoided the consequences to himself of that negligence.” Americus, Preston &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 SE 105) (1891). Accord Central of Ga. R. Co. v. Roberts, 213 Ga. 135 (97 SE2d 149) (1957).

In Savannah, Fla. &c. R. Co. v. Watts, 82 Ga. 229 (9 SE 129) (1889), the plaintiff jumped off a train going three miles per hour when it failed to make a scheduled stop at his station. He contended that from the speed it was traveling and under the circumstances, he thought it was “prudent” to get off when he did. The railroad’s motion for nonsuit was denied and the jury returned a verdict for the plaintiff, but the Supreme Court reversed, holding that the evidence was sufficient to support a nonsuit in favor of the railroad. Similarly, in Watson v. Ga. Pacific R. Co., 81 Ga. 476 (7 SE 854) (1888), the plaintiff undertook to step off a slowly moving train which failed to stop at her designated place of departure. Her father had safely removed himself and her two young children, but when she stepped off she “fell or was thrown” to the ground. The Supreme Court affirmed a grant of nonsuit to the railroad, holding that the plaintiff’s testimony “clearly [showed] that she could have avoided the consequences to herself by the use of ordinary care. If she had just kept her seat in the car, she would not have been hurt. According to her testimony, she took the risk of getting off, and we think, as she took the risk, she must take the consequences. Her departure from the train, under the circumstances, showed no want of diligence on the part of the railroad company.” Id. at 478. Accord Barnett v. East Tenn. &c. R. Co., 87 Ga. 766 (1) (13 SE 904) (1891); see also Johns v. Ga. R. & Elec. Co., 133 Ga. 525 (66 SE 269) (1909). See generally Bailey v. Ga. & Fla. R., 144 Ga. 139, 141 (86 SE 326) (1915) (Fish, C. J., concurring specially).

We think the reasoning expressed by this court in Southern R. Co. v. Williams, 19 Ga. App. 462, 465-66 (91 SE 894) (1917), is decisive of the issue presented here. “The general doctrine that it is not, as a matter of law, negligence to attempt to alight from a moving train at or near a station at which it is the duty of a railroad company to bring its train to a stop, unless it appears that the danger attending the attempt to alight is so great as to be obvious to any person of common prudence and ordinary intelligence, is established beyond question, both by the decided cases in this State and upon general authority. Something more is necessary in order to fix liability on the railroad company. The passenger may not be negligent in attempting to step from a moving train, where the railroad company has violated its duty to stop its train at the proper destination of the passenger, or where the train has not stopped a sufficient length of time to enable the passenger to alight. Excusing him from any imputation of negligence, he must allege some act of negligence in the operation of the train at the time of the infliction of the injury, which produced, as the prime or proximate cause, his injury. The act of negligence committed by the railroad company in failing to stop its train a sufficient length of time to enable the passenger to alight is not, without more, the proximate cause of a physical injury to the passenger in attempting to step from the moving train.”

Noting that in cases involving jerks or sudden starts where negligence in the operation of the train may be imputed, the Williams court further observed that where one alights from a moving train by order of the conductor the consequences chargeable to the conduct of the conductor will also be imputed to the company. It reasoned, however, that “[i]n the absence of negligence on the part of the carrier in the operation of the train, or on the part of its servants in control thereof in directing, requesting, or permitting the passenger to attempt to alight from the train while in motion, its antecedent negligence in merely failing to stop the train long enough for the passenger to alight, can not rightly be regarded as the proximate cause of an injury such as was received under the circumstances appearing in this case.” Id. at 468. In the instant case, as in Williams, the car attendant exercised no control over the movement or management of the train, and she specifically advised Mrs. Giargiari to remain on the train until it stopped at the next station. We agree with the trial court that in the circumstances shown, the car attendant’s actions did not constitute an inducement to Mrs. Giargiari to attempt to leave the train while in motion. Accordingly, summary judgment was properly granted to the appellees.

Decided February 2, 1988.

L. Lynn Hanna, Ann N. Dettmering, for appellant.

Edgar A. Neely, Jr., Tami L. Brown, for appellees.

Judgment affirmed.

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


text:
    75772.
    THE STATE v. CASEY.
    (365 SE2d 878)
   Benham, Judge.

Following the execution of a search warrant at his home, appellee was indicted for possession of cocaine, possession of less than one ounce of marijuana, and possession of an article with an altered identification number. Appellee sought suppression of the contraband on the ground that sufficient facts had not been placed before the magistrate to conclude that probable cause existed to search appellee’s house. The trial court ordered suppression, and the State appeals from that order. See OCGA § 5-7-1 (4).

The affiant/police officer presented to the magistrate an affidavit in which the officer swore that he had been sent to appellee’s house by an investigator to deliver the investigator’s business card to appellee. The officer knocked on the door and was told to enter. While in the house, the officer “observed in plain view a package of rolling papers and a smoking pipe with marijuana residue. These items are similar and consistent with items affiant has seen in the past utilized in the inhalation of marijuana.” The officer then left the premises in order to obtain a search warrant.

After conducting a hearing on appellee’s motion to suppress, the trial court ruled that the affiant’s “observation of ‘rolling papers’ and a ‘smoking pipe,’ without more, would not constitute probable cause to believe that marijuana was being stored in [appellee’s] home.” Addressing the affiant’s assertion that he had seen marijuana residue in a pipe, the trial court concluded that “it is unrealistic to suggest that an officer could look at a residue in the bowl of a pipe and tell that it was marijuana, and not some similar substance such as tobacco.”

The trial court was correct in its conclusion that the observation of cigarette rolling papers and a smoking pipe did not constitute probable cause to believe the marijuana was in appellee’s house. See L. B. B. III v. State, 129 Ga. App. 163 (198 SE2d 895) (1973); Ivins v. State, 129 Ga. App. 865 (201 SE2d 683) (1973). The question is whether the assertion of the affiant/officer that he saw marijuana residue in the pipe established probable cause to believe appellee’s home contained marijuana. “ ‘The fact that contraband was present in the house may well furnish probable cause for the issuance of a search warrant. . . .’” Rowe v. State, 184 Ga. App. 437 (1) (361 SE2d 705) (1987). However, the affiant/officer’s assertion that he had seen contraband (marijuana residue) in appellee’s house is conclusory, and the affidavit contains no information concerning the affiant’s ability to distinguish marijuana residue from tobacco residue. “Mere conclusions have no probative value and are not admissible in evidence. [Cit.]” Ivins v. State, supra at 866. While we adhere to the principle that the affidavit “is not insufficient merely because it fails to show how the [affiant] knew that the substance he saw was a narcotic” (State v. Hill, 135 Ga. App. 214 (1) (217 SE2d 190) (1975)), we must also recognize that in cases cited by the State the contraband was in a form in which it was recognizable (State v. Hill, supra, marijuana; Rowe v. State, supra, marijuana), or the person seeing it had a background that established a “fair probability” that the person recognized the spotted contraband. See State v. Farmer, 177 Ga. App. 18, 19 (338 SE2d 489) (1985). Since the record does not contain the distinguishing characteristic that might have made this residue readily recognizable as marijuana residue rather than tobacco residue, we must affirm the trial court’s grant of appellee’s motion to suppress. As stated by the trial court, “[w]hile it might be reasonable to assume that a police officer could identify a plant or a green leafy substance as marijuana, it is unrealistic to suggest that an officer could look at a residue in the bowl of a pipe and tell that it was marijuana, and not some similar substance such as tobacco.”

Decided February 2, 1988.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellant.

Christopher J. Walker III, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Deen, Presiding Judge.

text:
    76009.
    BOOSE v. THE STATE.
    (365 SE2d 534)
    Decided February 2, 1988.

      John J. Pilcher II, for appellant.

      James C. Abbot, Solicitor, for appellee.
   Deen, Presiding Judge.

Dennis Keith Boose was convicted of driving under the influence and appeals, enumerating only the general grounds.

The evidence showed that appellant was riding on a motorcycle after admittedly having too much to drink. The sole question for the trier of fact was whether appellant was driving the motorcycle. A passerby noticed the motorcycle lying partially on the street and partially on its side. Appellant was noticed lying on the ground nearby. The passerby reported it to the police as an accident. When an officer who was in the immediate area heard the report on his radio and looked up, he saw appellant struggling to pick up the motorcycle. Neither the woman who reported the incident nor the officer noticed anyone else at the scene. Appellant, his wife, and her sister-in-law, however, claimed that the motorcycle was being operated by a person known to them only as “Tex,” and that appellant was a passenger.

Circumstantial evidence may be used in establishing guilt when the accused is charged with driving under the influence. Glisson v. State, 134 Ga. App. 380 (214 SE2d 386) (1975); Stephens v. State, 127 Ga. App. 416 (193 SE2d 870) (1972). The credibility of the witnesses is solely a question for the trier of fact. Barnes v. State, 181 Ga. App. 581 (353 SE2d 76) (1987). We find from the evidence that a rational trier of fact could find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Carley, Judge.

text:
    75383.
    OSTROM et al. v. KAPETANAKOS.
    (365 SE2d 849)
   Carley, Judge.

Pursuant to a written contract, appellant-defendants engaged appellee-plaintiff as an employee. After seven months, appellee’s employment was terminated by appellants. Appellee brought this suit, seeking to recover compensation which was allegedly earned by him, but which was unpaid by appellants. Appellee also sought an award of attorney’s fees pursuant to OCGA § 13-6-11. Appellants answered and asserted, among their other defenses, a failure of consideration in that appellee had not performed his obligations under the written contract.

After a jury trial, a verdict was returned in favor of appellee awarding him $1,500 in general damages and $1,370 in attorney’s fees as against each appellant. Appellants filed this direct appeal from the judgment that was entered by the trial court on the jury’s verdict. In their sole enumeration, appellants assert that the trial court erroneously denied their motion for directed verdict as to the issue of attorney’s fees.

1. Appellee has moved this court to dismiss appellants’ appeal for lack of jurisdiction. Appellee’s contention is that, insofar as each appellant ultimately seeks only the reversal of the $1,350 judgment for attorney’s fees, their appeal is from a judgment for “$2,500.00 or less” and must, therefore, be deemed to be discretionary pursuant to OCGA § 5-6-35 (a) (6). However, the final judgment which was entered as against each appellant is in the total amount of $2,850 and the fact that their enumerations of error address only a portion of that judgment will not serve to render their appeal discretionary. Under OCGA § 5-6-35 (a) (6), it is the amount of the underlying final judgment from which an appeal is taken, not the enumerations of error, which determines the direct or discretionary appealability of any given case. “By its own terms OCGA § 5-6-35 (a) (6) applies when there is an action for damages and the result is a judgment of $2,500 or less. [Cit.] We interpret this to mean that an application is required when a party seeking a money judgment prevails, that is[,] a judgment for some sum is obtained but the award is $2,500 or some lesser sum.” Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986). Appellants each seek to appeal from a judgment in excess of $2,500. Therefore, no applications for a discretionary appeal were required and this court has jurisdiction over this direct appeal. Compare Vaughn v. Cable East Point, 185 Ga. App. 203 (363 SE2d 639) (1987.)

2. As indicated, appellants’ sole enumeration is that the trial court erred in failing to grant their motion for a directed verdict on the issue of attorney’s fees.

There is some question whether it is former or existing OCGA § 13-6-11 that is the controlling statutory authority. All relevant events in this case occurred prior to February 3, 1984, the effective date of existing OCGA § 13-6-11, but this case was not tried until afterwards. Under both former and existing OCGA § 13-6-11, a recovery of attorney’s fees would be authorized as against a defendant who has been shown to have acted in bad faith, or to have been stubbornly litigious, or to have caused the plaintiff unnecessary trouble and expense. However, existing OCGA § 13-6-11, unlike former OCGA § 13-6-11, contains no specific limitation of proof as to the defendant’s bad faith “in making the contract.” However, a thorough review of the transcript in this case shows that there is ultimately no need to determine whether it is former or existing OCGA § 13-6-11 that is controlling authority. To recover under the “bad faith” portion of either statutory provision would obviously require that appellee make a showing of the existence of appellants’ “bad faith” at some point in time. The most that appellee showed was that appellants had failed to pay such compensation as, according to him, he was entitled to receive. “Mere failure to pay a claim is not bad faith.” Raybestos-Manhattan, Inc. v. Friedman, 156 Ga. App. 880, 883-884 (2) (275 SE2d 817) (1981). See also Glenn v. Fourteen West Realty, 169 Ga. App. 549, 551 (2) (313 SE2d 730) (1984). It would necessarily follow under the “bad faith” portion of neither former nor existing OCGA § 13-6-11 would the issue of appellee’s entitlement to a recovery of attorney’s fees have been correctly submitted to the jury.

Accordingly, only if appellee produced some evidence of appellants’ “stubborn litigiousness” or that they caused him “unnecessary trouble and expense” would the issue of attorney’s fees have correctly been submitted to the jury in this case. “Stubborn litigiousness refers to situations where a defendant forces suit where no ‘bona fide controversy’ exists. [Cit.]” Bank South v. Harrell, 181 Ga. App. 64, 67 (3) (351 SE2d 263) (1986). “Where no defense exists [to the suit or the contract], . . . forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ [Cits.]” Sawgrass Bldrs. v. Realty Cooperative, 172 Ga. App. 324, 326 (2) (323 SE2d 243) (1984). See also Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 524 (191 SE2d 317) (1972); Nestle' Co. v. J. H. Ewing & Sons, 153 Ga. App. 328, 333 (4) (265 SE2d 61) (1980). Our review of the transcript of this case clearly reveals that there existed a bona fide controversy as to appellee’s performance under the contract and as to the extent to which appellants were contractually liable to compensate appellee for that performance. Accordingly, appellants were not without a defense to appellee’s action seeking to recover under the terms of the contract. If a recovery of attorney’s fees was authorized in this case, attorney’s fees would be recoverable in any breach of contract action wherein the plaintiff prevailed notwithstanding the existence of an actual controversy and the defendant’s presentation of a viable but unsuccessful defense. Accordingly, “[u]nder the facts of this case, we conclude that it was error for the trial court to submit to the jury the issue of attorney[’s] fees in that there was no evidence to support such a verdict.” Turner v. Wilmouth, 161 Ga. App. 2, 3 (2) (288 SE2d 839) (1982).

3. For the reasons discussed in Division 2, the $1,350 judgments against appellants and in favor of appellee for attorney’s fees are reversed. There being no enumeration of error as to the $1,500 judgments against appellants and in favor of appellee for general damages, those judgments are affirmed.

Decided January 12, 1988

Rehearing denied February 3, 1988.

Gene Burkett, for appellants.

Fred J. Stokes, for appellee.

Judgments affirmed in part and reversed in part.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    75416.
    TUBMAN v. THE STATE.
    (365 SE2d 879)
   Sognier, Judge.

Tubman appeals from his conviction of aggravated assault with a motor vehicle, operating a motor vehicle without insurance, and failure to stop at or return to the scene of an accident.

1. Appellant alleges error in denial of his motion for a continuance until new jurors could be empaneled after one of the prospective jurors, on voir dire, under oath and in the presence of other jurors, allegedly stated that appellant appeared to be the person who had robbed the juror and his girl friend. While the voir dire examination was not recorded in the transcript, the transcript indicates that the juror in question stated he was prejudiced because the defendant “looked like” the man who robbed his girl friend about a year ago. On the basis of this statement appellant requested that the court continue the case and bring in another panel from which to select a jury. The court stated that without a further showing of the impact on the remaining forty-six jurors it could not grant appellant’s motion; however, the court stated that appellant was free to inquire on voir dire as to the effect of the statement on the other jurors. The juror who made the statement was then replaced by another juror.

The grant of a motion for continuance is within the sound discretion of the trial judge, and this court will not interfere unless it is shown clearly that the trial judge abused his discretion. Terry v. State, 160 Ga. App. 433 (1) (287 SE2d 360) (1981). While this court has held that statements by jurors on voir dire examination which are clearly prejudicial require empaneling a new jury, Lingerfelt v. State, 147 Ga. App. 371, 372 (1) (249 SE2d 100) (1978); Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980), this does not mean that all statements which might be prejudicial require such action. See, e.g., Stone v. State, 170 Ga. App. 234, 235 (1) (316 SE2d 836) (1984); Giles v. State, 253 Ga. 144, 145 (2) (317 SE2d 527) (1984). The juror’s statement here, that appellant “looked like” the person who robbed his girl friend, was not a statement that appellant did, in fact, rob the juror’s girl friend. As such, we do not find the statement clearly prejudicial. Rather, we find the statement more akin to the statement in Stone, supra, where a prospective juror stated that “ T had a similar incident and I’m not sure if it is the same man or not.’ ” In holding that it was not error to deny Stone’s motion for a continuance, we stated: “The uncertain and subjective nature of the statement at issue left it within the discretion of the trial court, and we find no abuse of that discretion here.” In the absence of anything in the transcript indicating that the juror’s remark contaminated the other prospective jurors, we find our holding in Stone to be applicable to the facts of the instant case. Accordingly, we find no abuse of discretion by the trial court in denying appellant’s request for a continuance until a new jury could be empaneled.

2. Appellant contends the trial court erred by denying his request to charge on circumstantial evidence. He argues that the evidence against him was all circumstantial, and thus, such a charge was required. We do not agree, as there was direct evidence that immediately before appellant’s car struck the victim, appellant was driving the vehicle. There was also direct evidence that immediately after the accident, appellant was identified as the person who got out of his car, removed the license plate therefrom and departed on foot. Where there is some direct evidence involved in the case it is not error to refuse to charge on circumstantial evidence. Houston v. State, 180 Ga. App. 267, 269 (4) (349 SE2d 228) (1986).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but arrive by a somewhat different route in each division.

1. With respect to the prospective juror’s statement, it is important to point out further aspects of the context in which the trial court is claimed to have erred. The court reporter’s after-the-fact rendition, included in the transcript but not related in open court where it could be challenged, is that: “A juror replied that he was prejudiced because the defendant looked like the man who robbed his girl friend about a year ago.”

Defense counsel’s rendition, given in open court, referred to: “the announcement of this juror in responding to the question about any knowledge before he came in here and the fact that he responded that my client appeared to be the person that robbed he [sic] and his girl friend about a year ago,...” Thus the record does not show precisely what the juror said, and there is a material difference between saying someone resembles someone else and someone is that previously encountered person.

In either event, we conclude that the statement was not inherently prejudicial, as were the statements in Lingerfelt v. State, 147 Ga. App. 371, 372 (1) (249 SE2d 100) (1978), and Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980). See Stone v. State, 170 Ga. App. 234, 235 (1) (316 SE2d 836) (1984); Scott v. State, 177 Ga. App. 474, 476 (2) (339 SE2d 718) (1985). Thus defendant had to demonstrate that it caused bias among the other prospective jurors.

The court gave defendant that opportunity, stating that without further showing the motion would have to be denied but that counsel could freely inquire during the voir dire in progress and the court would rule again, in effect, if defendant desired. After the voir dire was concluded, defendant did not raise the issue again so apparently conceded that he could not show that any juror was infected. Nor did he ask the court for any limiting or cautionary instructions on the subject.

Consequently, I agree that on the record in this case, the trial court committed no reversible error in this regard.

2. As to the refusal to give instructions with respect to a wholly circumstantial case, even if it was error it does not require a new trial. The State concedes that it would have been better to give the charge. It admits that the central issue was the identity of the person who was driving the vehicle when it struck the bike rider and dragged him along the street and then fled.

There was no direct evidence of this fact. The two waitresses saw the defendant drive the vehicle when it left the motel parking lot. They lost sight of it before it hit the victim some distance away. The security guard who chased the vehicle and lost it for awhile could not identify the driver at all. Another vehicle came upon defendant’s, but when he found it stopped with the victim underneath, no one was in it. He left, and when he came back, he saw defendant come out of the car and take the license tag off the back. So he, too, as well as the woman in front of whose home the defendant’s car stopped, did not see the person driving so as to identify him as such. Thus the charge was warranted.

However, the proximity in time and place of the positive identifications of defendant overwhelmed his only defense, that he was in an entirely different location during the whole evening. Reviewing the whole charge as we must, Felker v. State, 252 Ga. 351, 381 (16) (314 SE2d 621) (1984), and considering the evidence, the omission was harmless error at best, and defendant is not entitled to a new trial at which the charge is given. Hawes v. State, 240 Ga. 327, 330 (3) (240 SE2d 833) (1977); Stoker v. State, 177 Ga. App. 94, 96 (338 SE2d 525) (1985). This is not a “close and doubtful” case where failure to give the charge would be reversible error. Germany v. State, 235 Ga. 836, 840 (2) (221 SE2d 817) (1976); Playmate Cinema v. State, 154 Ga. App. 871, 872 (3) (269 SE2d 883) (1980).

Decided February 3, 1988

Richard E. Allen, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    75666.
    WILSON et al. v. CUNNINGHAM et al.
    (365 SE2d 534)
   Banke, Presiding Judge.

This suit was filed by “D & E Construction Company” to recover a balance of approximately $5,500 allegedly owed by the appellees for work performed pursuant to two construction contracts. Both these contracts were signed by Ernest Wilson as president of “D & E Construction Company, Inc.” Because there was in fact no such corporation in existence, the complaint was later amended to substitute as plaintiffs “Ernest Wilson and Deadra T. Wilson, doing business under the tradename of D & E Construction Company.” The appellee defendants thereupon filed an amended answer asserting that their contracts were with D & E Construction Company, Inc., and not with a general partnership comprised of Ernest and Deadra Wilson, and that because no such corporation existed they could not be held liable under the contracts. Immediately prior to the scheduled trial of the case, the trial judge granted a motion by the appellees for the dismissal of the action based on this defense. The present appeal followed. Held:

1. In Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983), the Georgia Supreme Court held that where “the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment.” Accord Dixon v. Farmers Furniture, 180 Ga. App. 463 (1) (349 SE2d 468) (1986); Youmans v. Riley Properties, 180 Ga. App. 176 (349 SE2d 1) (1986). See also Motorcycle Stuff v. Bryant, 182 Ga. App. 554 (356 SE2d 521) (1987).

It is alleged in the amended complaint that the appellees retained the appellants, doing business as D & E Construction Company, to perform certain work on their property and that the appellants subsequently performed such work. It follows that the appellants have asserted a claim in quantum meruit to recover for their services, irrespective of the validity of the written contract itself. Accord Starling, Inc. v. Housing Auth. of Atlanta, 162 Ga. App. 852 (2) (293 SE2d 392) (1982).

Decided February 3, 1988.

Kirby G. Bailey, for appellants.

Gail T. Joyner, for appellees.

“A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiffs [cit.], plaintiff can establish no set of facts that would entitle it to relief against the defendant. [Cits.]” News-Press Pub. Co. v. Kalle, 173 Ga. App. 411, 412 (2) (326 SE2d 582) (1985). We accordingly hold that the trial court erred in dismissing the appellants’ action.

2. The trial court additionally ruled that appellant Deadra T. Wilson was “an improperly joined party plaintiff lacking any interest in the subject alleged contracts.” Based on the foregoing considerations, this ruling must also be reversed.

Judgment reversed.

Carley and Benham, JJ., concur.


text:
    75672.
    CRUMPTON v. THE STATE.
    (365 SE2d 536)
   Pope, Judge.

Appellant Michael Crumpton was indicted for burglary and two counts of theft by receiving stolen property. The jury returned a verdict of not guilty on the burglary count and guilty on both counts of receiving stolen property. The trial court found that the State failed to prove that the value of the property involved in Count 2 exceeded $500, and that conviction was changed to a misdemeanor rather than a felony prior to sentencing. On appeal Crumpton contends that the evidence introduced to establish the burglary charge for which he was acquitted was so “inextricably intertwined” with the evidence utilized to gain the two convictions for receiving stolen property that it must also be considered insufficient to establish each and every element of those offenses. Held:

We do not agree. The State showed that three establishments had been burglarized of truck tires and various tools and other automotive products which were listed and described by the proprietors. Some of these items were recovered by police from a man who bought them and were identified as their property by the burglary victims. The man who bought the items positively identified Crumpton from a photographic lineup as the person who sold them to him, and Crumpton’s car was also identified. Charlie Johnson testified that he, Crumpton and another man had committed one of the burglaries, and that Crumpton was the one who handled the sale of the stolen items. Although Crumpton’s mother and his girl friend both offered somewhat conflicting alibi testimony for his presence on the night this burglary occurred, the jury was not required to believe them. There being support for the jury’s determination in that the evidence was sufficient for any rational trier of fact to find appellant guilty beyond a reasonable doubt of the two charges of theft by receiving stolen property as defined by OCGA § 16-8-7 (a), but innocent of burglary, we will not disturb their verdict. Accord Preston v. State, 183 Ga. App. 20 (1) (357 SE2d 825) (1987); Perry v. State, 180 Ga. App. 273 (349 SE2d 25) (1986).

Decided February 3, 1988.

Reginald C. Wisenbaker, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    75680.
    HOPKINS v. CLANTON MOTOR COMPANY, INC.
    (365 SE2d 882)
   Beasley, Judge.

Appellant Hopkins as executrix of the estate of Alexander M. Hopkins appeals from the denial of a new trial following a verdict and judgment in favor of plaintiff Clanton Motor Company, Inc. in its suit on an account for auto repairs.

Hopkins contends that the trial court erred in failing to grant a new trial because the verdict was contrary to law and the evidence, it granted relief not prayed for in the pleadings, and “it was evident the jury was confused to such an extent as to justify the inference of gross mistake and [undue bias].” She argues that the verdict cannot stand because the award was for more money than prayed for, and there was no evidence to warrant an award of fees under OCGA § 13-6-11.

The complaint alleged that defendant, appellant’s decedent was indebted on the open account in the amount of $4,041.33, that demand for the sum had been made, that defendant had refused to pay, and that the refusal was in bad faith so as to justify an award of expenses of litigation including but not limited to reasonable attorney fees. Plaintiff prayed for judgment of $4,041.33 plus the expenses of litigation and reasonable attorney fees.

As Hopkins concedes, there was evidence at trial that the business’ payment records showed that decedent owed $4,041.30 which included interest on the account, that he received a statement every month and was aware of the interest being charged per the terms of the account agreement, that he never gave any .indication that he did not consider himself liable for the finance charge, and that as of the day of trial the total due was $6,213.90. There was also evidence of attorney fees in the amount of $932. The verdict and judgment were for $6,550 plus $940 attorney fees.

As to the principal award, appellee Clanton asserts that the difference between the jury verdict and the prayer was permissible interest on a liquidated debt.

1. “[0]pen accounts bear interest from their due date, at which time they are considered liquidated demands. [Cits.]” Intercompany Svcs. Corp. v. Kleeb, 140 Ga. App. 512, 513 (4) (231 SE2d 505) (1976). Interest on the liquidated claim is recoverable as a matter of law and is payable from the due date, OCGA § 7-4-15, but that does not end the matter.

As Hopkins points out, there was no prayer for such interest. Moreover, “there was no charge to the jury concerning interest. [Cit.] Furthermore, where liquidated damages are involved, as in the instant case, it is required ‘that the jury expressly find interest, and, by their verdict, specify as a separate sum the interest found to be due on the principal sum in order that the [plaintiff] be entitled to recover interest.’ [Cits.] The jury did not specify a separate amount as interest in the instant case.” Jackson v. Layton, 167 Ga. App. 450, 451 (306 SE2d 716) (1983).

Although there is evidence to support a verdict for Clanton, the evidence does not support a verdict in the whole principal amount rendered. Id. However, appellant has not demonstrated that the excess gives rise to a reasonable inference that it was the result of gross mistake or undue bias. Therefore, we affirm this portion of the judgment up to $6,213.90, the amount supported by the evidence.

2. Appellant also asserts that attorney fees were not allowed because the mere failure to pay a claim does not constitute bad faith and there was no evidence to warrant such an award.

“Bad faith is bad faith arising out of the transaction upon which the complaint is based and refers to a time prior to the institution of action. [Cit.]” Brannon Enterprises v. Deaton, 159 Ga. App. 685 (285 SE2d 58) (1981). While it is true that, “[t]he mere failure of a defendant to pay a claim does not constitute bad faith, [Cit.]” Beacon Indus. v. Vanderbunt Concrete, 172 Ga. App. 573, 576 (2) (323 SE2d 871) (1984), this is not the entire situation here.

Decided February 3, 1988.

J. Kenneth Royal, for appellant.

Robert C. Harper, for appellee.

There was evidence that during the course of defendant’s accrual of the debt he did not dispute it and refuse to pay but rather gave Clanton a note to pay up the account, that Clanton took the note to a bank, co-signed on it and was advanced the money, and that defendant did not pay the note but renewed it with another note and failed to pay the latter when due. Clanton was notified of defendant’s failure to pay and it had, to make good on the note. This was sufficient for the jury to infer bad faith on the part of the debtor. Since an award of attorney fees of $932 is supported by the evidence, we will not disturb it to that extent. Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33) (1981).

To sum up, the judgment is affirmed but only on the express condition that within ten days of the date of the remittitur, the excesses in the main award and in the award of attorney fees be stricken from the judgment and the award is reduced to $6,213.90 plus $932 attorney fees; otherwise the judgment is reversed. Jackson v. Layton, supra.

3. Appellee’s motion for the imposition of damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed on condition.

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


text:
    75876.
    In the Interest of D. H. C.
    (365 SE2d 884)
   Banke, Presiding Judge.

The appellant, a juvenile, is charged with murdering his half sister. On May 14, 1987, the Superior Court of Paulding County issued an order “assuming jurisdiction” of the case and confining the appellant to a youth detention facility. On May 19, 1987, a petition alleging the appellant to be a delinquent and deprived child was filed by his attorney in the Juvenile Court of Paulding County. The state moved to dismiss this petition on the grounds that it was not properly endorsed and that the superior court had already retained jurisdiction. A juvenile court referee granted the state’s motion, and that ruling was upheld by the superior court judge, acting in his capacity as juvenile court judge. This appeal followed. Held:

1. The appellant enumerates as error the failure of the superior court to allow him to have counsel or a guardian present at the time of his initial appearance before the court on the day that he was arrested, citing, in support of this enumeration of error, OCGA § 15-11-30 (b), which provides in pertinent part as follows: “[A] party is entitled to representation by legal counsel at all stages of any proceedings alleging delinquency, unruliness, or deprivation and if, as an indigent person, he is unable to employ counsel, he is entitled to have the court provide counsel for him.” Pretermitting whether the court appearance in question constituted a “critical stage” of the appellant’s murder prosecution, this enumeration of error quite clearly establishes no basis upon which to attack the dismissal of the juvenile court petition. See T. K. v. State of Ga., 126 Ga. App. 269, 275 (190 SE2d 588) (1972), holding that a showing of a lack of representation at a detention hearing is relevant only to finding “whether beyond a reasonable doubt lack of counsel did or did not result in harm or prejudice to his fair trial rights at the jury trial.”

Decided February 3, 1988.

Edward T. Murray, Jeffery R. Nabors, for appellant.

William A. Foster III, District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

2. The appellant’s second and third enumerations of error are directed to the juvenile court’s refusal to assume jurisdiction of the case. The record reflects that the petition filed by the appellant did not contain the endorsement of “the court or a person authorized by the court” stating that the filing of the petition was in the best interest of the public and child, as required by OCGA § 15-11-23. See Lane v. Jones, 244 Ga. 17, 19 (257 SE2d 525) (1979). It follows that the petition was properly dismissed. Additionally, it is apparent from the record that the superior court had already taken jurisdiction of the case pursuant to OCGA § 15-11-5 (b) at the time the petition was filed; and it has been held that “whichever court first takes jurisdiction over the matter in question may retain it.” Relyea v. State, 236 Ga. 299, 300 (223 SE2d 638) (1976).

3. In his final enumeration of error, the appellant asserts that the juvenile court erred in failing to hold a transfer hearing pursuant to OCGA § 15-11-39. The provisions of this statute pertain to the transfer of a case from juvenile court to superior court, and since we have already determined that jurisdiction was properly vested in the superior court at the outset, it follows that this enumeration is also without merit.

Judgment affirmed.

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


text:
    75903.
    THE STATE v. EAVES.
    (365 SE2d 535)
    Decided February 3, 1988.

      Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Richard H. Taylor, Assistant District Attorneys, for appellant.

      Grayson P. Lane, for appellee.
   Banke, Presiding Judge.

The trial court granted the appellee-defendant’s motion for new trial in this criminal case, concluding that it had erred in allowing certain rebuttal testimony offered by the state. The state responded by filing this appeal. Held:

Pursuant to OCGA § 5-7-1, the state’s authority to take a direct appeal is limited to “the following instances: (1) From an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction upon legal grounds; (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; or (4) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.”

Inasmuch as the grant of a motion for new trial is not included in any of these categories, and inasmuch as no application for interlocutory appeal was filed, the present appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

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


author: Sognier, Judge.

text:
    75355.
    BOSTON v. THE STATE.
    (365 SE2d 885)
   Sognier, Judge.

Appellant was tried jointly with Sandra Bell and Glen Sharp; appellant was convicted of possession of marijuana with intent to distribute and possession of cocaine, in violation of the Georgia Controlled Substances Act. He appeals from those convictions.

1. In his first three enumerations of error appellant contends it was error to deny his motion for a directed verdict of acquittal, which was based on the general grounds. The evidence disclosed that Michael Wheat, an investigator with the Bibb County Sheriffs Department, was told by a reliable confidential informant that if Wheat went to 745 Womack Street in Macon, a duplex occupied by appellant, there was a black female selling marijuana and some cocaine at that location, and the drugs belonged to appellant. Based on this information Wheat obtained a search warrant for appellant’s premises, and he and four other officers went to the premises to execute the warrant. As they approached the front door they heard the word “police”; as Wheat entered the house he saw an unidentified man and a black woman, later identified as Bell, running toward the back door. Wheat followed them and the man jumped over a fence and disappeared. Before reaching the back door Wheat saw a plastic bag go through the air (outside the door) from right to left and land in a chicken coop. When he went out the back door Bell was standing to the right of the door Wheat exited. Bell was arrested and taken into the house; Wheat assisted another officer, Godbee, in getting over the fence into the chicken coop, where he found a plastic bag containing nineteen small packets of marijuana. Wheat and Godbee went back into the house to complete the search of the residence. The residence contained three rooms in a line from front to back; appellant was sitting on a bed in the center room when the police first entered the residence, and had been detained there by another officer. When the residence was searched the police found a matchbox containing a bag of white powder near the head of the bed where appellant was sitting, several syringes about six to eight inches from the matchbox, a set of scales on a bar in the living room, and a small bag of white powder under the mattress at the foot of the bed on which appellant was sitting. The white powder and the bags of green leafy substance found in the chicken coop were analyzed at the State Crime Laboratory in Macon, and were found to contain cocaine and marijuana, respectively.

Both appellant and Bell testified they were in the other half of the duplex where Bell lived (747 Womack) when the police arrived, and went out the back door to see what was going on. Appellant also testified that he did not live at 745 Womack, but lived with his mother. The State introduced rent receipts found in appellant’s briefcase, which was sitting next to his bed, showing that appellant paid the rent on both the 745 and 747 Womack residences. Additionally, a food stamp application signed by Bell stated that her residence was 745 Womack.

We find the evidence summarized above sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

2. In his next two enumerations appellant alleges error by the court in denying his motion to suppress evidence and his motion to sever his case from the trials of his co-defendants. While both motions are contained in the record, we find nothing in the record to show that the court ruled on the motions other than a passing comment by counsel on his motion to suppress, made in connection with objections to State exhibits. Thus, there is nothing for us to review. Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985). Even should we assume that the motions were denied, in the absence of a transcript of a hearing on the motions, we cannot consider enumerations of error based on the evidence or other proceedings at trial. Brown v. State, 223 Ga. 540, 541 (2) (156 SE2d 454) (1967); Tauber v. State, 168 Ga. App. 53 (308 SE2d 419) (1984).

Decided February 4, 1988.

3. Appellant asserts error by the court in denying appellant the right to final closing argument. In this regard, appellant’s co-defendant, Bell, tendered an exhibit into evidence that was admitted without objection. The exhibit was a diagram used by Bell’s counsel in cross-examination of Wheat, who marked the positions of various persons in and around the residence at the time of the arrests and search. At the conclusion of all evidence, Bell’s counsel requested that the exhibit be withdrawn from evidence so the defendants would not lose their right to make the closing arguments. That request was denied, and the defendants were not allowed to make the final closing arguments.

Generally, if the defendant in a criminal case introduces ño evidence at trial, he is entitled to present arguments to the jury both before and after the State makes its argument, and this right is not forfeited when he testifies in his own behalf, provided he introduces no other evidence. OCGA § 24-9-20 (c); McDuffie v. Jones, 248 Ga. 544, 546 (2) (283 SE2d 601) (1981). “However, the right of a defendant introducing no evidence at trial to open and close the final argument is not absolute. If one defendant offers evidence in the trial of co-defendants, the right to make the closing argument is lost to all defendants, even those introducing no evidence . . .” Id. at 546-547. Although McDuffie applied this rule to cases where a defendant examines a witness called by a co-defendant, which was not the case here, we have held that “[although in McDuffie, the defendant was held to have lost his right to closing argument when he examined a witness called by a co-defendant, something which did not occur here, the rule set forth in that case has been held to apply even where no such cross-examination occurs. [Cits.]” Stephens v. State, 170 Ga. App. 267, 268 (3) (316 SE2d 847) (1984). Thus, the trial court did not err by denying appellant the right to make the closing argument.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

R. Robider Markwalter, for appellant.

Willis B. Sparks III, District Attorney, Virgil Adams, Assistant District Attorney, for appellee.


author: Birdsong, Chief Judge.

text:
    75685.
    In the Interest of L. E. J.
    (365 SE2d 537)
   Birdsong, Chief Judge.

This is an appeal by L. E. J., a minor child, who was adjudicated delinquent of two allegations of burglary and one charge of motor vehicle theft, and committed to the custody of the Department of Human Resources. Held:

1. Appellant’s first enumerated error is that based on the totality of the circumstances, the juvenile court erred by allowing into evidence L. E. J.’s out-of-court statement. Before the juvenile court, appellant’s counsel objected to the admission of the out-of-court statement on the grounds that the statement was obtained without L. E. J.’s parents, custodian, or other legal guardian being present. We can find no other specific grounds for objection being made to the admissibility of the statement.

Examining the hearing, transcript and enumerations of error on their four corners, we are satisfied that in this instance appellant has adequately preserved for review the issue of voluntariness of waiver. However, we caution all counsel of the need to base their objections at trial on specific grounds. See Allen v. State, 152 Ga. App. 481 (2) (263 SE2d 259).

In Riley v. State, 237 Ga. 124, 128 (226 SE2d 922), the Supreme Court rejected a per se exclusionary rule to confessions and incriminating statements given outside the presence of a juvenile’s parents. Thus, the court declined to hold that the taking of a juvenile’s statement without his parents (or guardian) being present would automatically result in prejudicial error. Rather, the court redefined the issue raised as being “whether there was a knowing and intelligent [voluntary] waiver of constitutional rights by appellant”; it concluded that the answer depended on the “totality of the circumstances”; and, it opined that the “state has a heavy burden in showing that the juvenile did understand and waive his rights.” The court then adopted the nine-factor test of West v. United States, 399 F2d 467, 469, cert. den. 393 U. S. 1102 to analyze waiver voluntariness. Riley, supra at 128; J. E. W. v. State, 256 Ga. 464 (349 SE2d 713).

Accordingly, we will analyze the issue before us using the Riley nine-factor test.

(a) Age of the appellant: At the time of his interrogation, appellant was sixteen years of age. However, it appears that when Detective Brock initially went to execute the arrest warrants, he was informed by appellant’s aunt or cousin, “Shirley,” that appellant was age seventeen. Detective Brock testified that appellant’s brother confirmed the women’s statement as to appellant’s age. He also referred to a note that he had from her concerning appellant’s age, but that note apparently was not offered in evidence. The trial judge noted for the record that all petitions for arrest contained appellant’s correct date of birth. Detective Brock was questioned by appellant’s counsel regarding a document, which the detective identified as an arrest warrant listing appellant’s actual date of birth. This document, called Defense Exhibit “B” for identification, is not attached to the record and apparently was not admitted in evidence. A supplemental investigative report, attached to the record, reflects that when appellant was being booked, he gave his date of birth as May 17, 1970 (appellant’s birth certificate shows that his correct date of birth is May 18, 1970).

(b) Education of appellant: Although the transcript is silent as to appellant’s intelligence level, it does reflect that he successfully completed the tenth grade.

(c) Appellant’s knowledge of the substance of the charges, and the nature of his rights to consult with an attorney and to remain silent: Although the transcript reflects that Detective Brock did “advise [appellant] of his rights,” it does not reflect how this was accomplished so that the accuracy of this advice is not expressly reflected in the transcript. Further, the transcript does not expressly reflect whether appellant was advised before making a statement as to the nature of the charges, although it is clear that the detective did talk to appellant “about the stolen vehicle.” The transcript does, however, currently contain appellant’s express testimony that he was not advised that he could have a parent or guardian present during his interrogation; that his parent or guardian was not present when he was questioned; that he was unaware Detective Brock was going to use what was “written down” in his statement; and that Detective Brock did not advise appellant of his right to have an attorney present during interrogation. Detective Brock was asked, during appellant’s testimony and without formally being recalled as a witness, whether he had a rights waiver in writing. Although the detective responded in the affirmative, the document was not introduced in evidence. Neither appellant’s confession nor the written rights waiver are attached to the trial record or transcript. Thus, we are unable to analyze the content of these documents. The transcript further is silent as to whether appellant’s guardian was advised that she could be present during appellant’s questioning (we assume, based on information in the trial record, that the guardian was Shirley Taylor, appellant’s grandmother, aunt or cousin). However, it appears that such did not occur as Detective Brock testified that he believed appellant was age seventeen at the time of arrest.

(d) Whether appellant was held incommunicado or allowed to consult with relatives, friends or an attorney: The trial transcript does not provide sufficient information to enable this court to reach a decisive conclusion concerning this factor. However, appellant was taken into custody in, at least, technical violation of the procedures of OCGA § 15-11-19.

(e) Whether the accused was interrogated before or after formal charges had been filed: The record contains the juvenile court complaint, which was filed/received on May 27, 1987. Detective Brock testified that appellant was originally charged as an adult, but he did not provide any information regarding the date of such charges. He also testified that warrants were taken for appellant’s arrest and that at least one of them listed appellant’s age as sixteen.

(f) Methods used in interrogation: Only Detective Brock interrogated the appellant; interrogation took place in a “little room”; and, no promises or threats were made to the appellant.

(g) Length of interrogation: Interrogation commenced sometime in the afternoon and a statement was obtained by 5:00 p.m.

(h) Whether appellant gave a statement on any prior occasion: He did not.

(i) Whether appellant repudiated an extrajudicial statement at a later date: Appellant testified in court and repudiated his extrajudicial statement made to Detective Brock.

“A confession from a juvenile is scanned with more care and is received with greater caution than an adult.” Bussey v. State, 144 Ga. App. 875 (243 SE2d 99); see In re Gault, 387 U. S. 1, 45 (87 SC 1428, 18 LE2d 527). The posture of the evidence at the hearing on the voluntariness of the juvenile’s statement did not fully address the nine factors of Riley, supra. Compare the factors known to exist in this case with the facts in Crawford v. State, 240 Ga. 321 (240 SE2d 824).

However, at this time, we need not reverse this juvenile adjudication solely on account of this deficiency. The posture of the evidence is such, regarding the issue of voluntariness of rights waiver, that it is possible that the State could overcome the evidentiary deficiency during a post-trial hearing in a juvenile proceeding. In Crawford, the Supreme Court recognized that “[u]nder ordinary circumstances a post-trial hearing [in a juvenile proceeding] might be adequate to show the totality of the circumstances and the admissibility or inadmissibility of the confession.” (Emphasis supplied.) Crawford, supra at 325; see Bussey v. State, supra (post-trial hearing directed to determine issue of compliance with former Code § 24A-1402 (a)). Accordingly, we follow this course and reverse the delinquency adjudication and remand with direction to the trial court to vacate the order of commitment and the order of disposition, and to hold a post-trial hearing limited to the receipt of evidence concerning and the resolution of the issue whether the State can meet its heavy burden of establishing appellant’s voluntary waiver of rights under the nine-factor test of Riley. The trial judge is authorized after this hearing to issue new orders of commitment and disposition if he finds compliance. However, the parties may then enter an appeal, if they wish, pursuant to the law of Georgia.

Decided February 4, 1988.

Stephen S. Goss, for appellant.

Robert H. Revell, Jr., for appellee.

2. In the light of the foregoing, we intentionally do not pass on the issue of lack of corroboration of appellant’s out-of-court statement.

Judgment reversed with direction.

Deen, P. J., and Pope, J., concur.


text:
    75716.
    BACKUS CADILLAC-PONTIAC, INC. v. BROWN et al.
    (365 SE2d 540)
   Pope, Judge.

Plaintiffs brought this action against defendant seeking, inter alia, recovery of $2,650 for damages to their automobile, which had been left with defendant for repair, as well as attorney fees pursuant to OCGA § 13-6-11. Defendant appeals a jury verdict in favor of plaintiffs awarding $1,800 in damages and $1,500 in attorney fees.

Defendant is an automobile dealership located in Savannah. Construed most strongly in favor of the verdict, the evidence showed that in June 1984 plaintiffs had their 1976 Cadillac towed to defendant’s garage for repair. Defendant diagnosed the problem to be water within the fuel tank and fuel lines. Defendant also ordered a part which took five weeks to arrive and which did not remedy the problem. When the installation of the part failed to correct the problem, plaintiffs were notified that the engine had “locked” (or “seized” or “frozen up”) because of water intrusion. They were advised that the necessary new engine would cost about $1,800. Plaintiffs testified that defendant’s agent acknowledged that the “locking” of the engine was caused by defendant and that defendant would repair it. The agent denied making such an admission and such a commitment. The agent testified that the damage to plaintiffs’ auto occurred after defendant had taken possession of the vehicle, that the engine was not “locked” when it was delivered to defendant by the plaintiffs, and that had defendant worked on the engine the first week the auto had been brought in by plaintiffs, the engine would not have “locked.”

1. Defendant’s first enumeration of error challenges the denial of its motion for new trial as to the award of attorney fees “because the pleadings, the pre-trial ruling of the court, the withdrawal of count two of plaintiffs’ recast complaint, and the ruling of the trial court granting defendant’s motion for directed verdict on the plaintiffs’ claims for loss of use and negligent repairs acknowledged and affirmed the existence of a bona fide controversy and as a matter of law a reasonable defense.” Defendant’s second enumeration asserts that there was no evidence of bad faith, stubborn litigiousness or unnecessary trouble and expense.

Under OCGA § 13-6-11 “expenses of litigation are generally not allowed as a part of damages, but if the defendant has acted in bad faith, has been stubbornly litigious or has caused the plaintiff[s] unnecessary trouble and expenses the jury may allow them. . . . For the plaintifffs] to recover [they] need only show any one of the three conditions to exist.” Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (301 SE2d 493) (1983). A judgment awarding such attorney fees should be affirmed if there is any evidence to support it, unless it can be said as a matter of law that there was a reasonable defense. Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980).

We find no record evidence of bad faith on the part of defendant. See generally General Refractories Co. v. Rogers, 240 Ga. 228 (2) (239 SE2d 795) (1977); Glen Restaurant v. West, 173 Ga. App. 204 (325 SE2d 781) (1984); Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218 (2) (308 SE2d 564) (1983). “When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to [the statute] if a bona fide controversy clearly exists between the parties. [Cits.] Thus, in a case where bad faith is not at issue, attorney fees are not authorized under OCGA § 13-6-11 [cit.] if the evidence shows that ‘a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue. . . .’ Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 525 (191 SE2d 317) (1972).” Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224-225 (312 SE2d 386) (1983). The evidence in part was in sharp conflict and as to some of the items for which recovery was sought by plaintiffs the trial court ruled in favor of defendant as a matter of law. In our opinion, the evidence does not authorize a finding by the jury that the defense of the action brought caused plaintiffs unnecessary trouble and expense or that defendant was being stubbornly litigious. That is, the evidence shows a reasonable defense, a bona fide controversy, as a matter of law. E.g., Glenn Restaurant v. West, supra at 205-206; Biltmore Constr. Co. v. Tri-State Elec. Contractors, 137 Ga. App. 504 (5) (224 SE2d 487) (1976); Colbert Co. v. Newsom, 125 Ga. App. 571 (8) (188 SE2d 266) (1972). Therefore, the award of attorney fees is reversed.

Decided February 4, 1988.

Owen H. Page, for appellant.

Malcolm MacKenzie III, W. Paschal Bignault, for appellees.

2. Having held, for the reasons discussed above, that no award of attorney fees was authorized under the evidence, we need not address defendant’s remaining assertions of error with regard to that award.

3. Applying the any evidence test to the jury’s award of damages to plaintiffs’ automobile, we find no basis for reversal.

Judgment affirmed in part; reversed in part.

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


text:
    75841.
    DADE v. THE STATE.
    (365 SE2d 543)
   Banke, Presiding Judge.

The appellant was tried for kidnapping, armed robbery, and rape but was found guilty only of rape. On appeal, his primary contention is that his acquittal of the kidnapping charge was inconsistent with and repugnant to his conviction of the rape charge. While the appellant recognizes that the inconsistent verdict rule was abolished in criminal cases in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986), he contends that the Milam decision should not be given retroactive effect. Held:

1. Pretermitting whether the Milam decision should be given retroactive effect, it is clear that the jury’s verdicts in the present case were not inconsistent. “ ‘The jury is entitled to believe a part of the testimony of a witness and disbelieve other parts.’ (Cit.) ‘The determinative factor in judging whether jury findings are inconsistent is “whether the acquittal of one charge necessarily includes a finding against a fact that is essential to conviction for the other charge.” (Cit.)’ ” Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985). Accord Cowart v. State, 177 Ga. App. 107 (338 SE2d 534) (1985).

The appellant argues that by acquitting him of the kidnapping charge, the jury necessarily determined that he had not held the victim against her will and that this determination cannot be reconciled with a determination that he had intercourse with her “forcibly, and against her will.” OCGA § 16-6-1 (a). This argument, however, assumes a definition of the offense of kidnapping which is incomplete and therefore erroneous. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). (Emphasis supplied.) Obviously, the jury in the present case was not required to find that the appellant had abducted the victim in order to find that he had had intercourse with her against her will. Consequently, the verdicts were not in irreconcilable conflict.

Decided February 4, 1988.

O. L. Collins, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. The evidence, construed most favorably towards the verdict, was sufficient to have enabled a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    75930.
    HAMILTON v. THE STATE.
    (365 SE2d 542)
   Banke, Presiding Judge.

The appellant filed this appeal from the denial of his motion for new trial after being found guilty of trafficking in cocaine. At trial, the appellant admitted that he had been in possession of the cocaine in question but maintained that he had found it by the side of the road and placed it in the trunk of his vehicle without knowing what it was. Held-.

1. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty of trafficking in cocaine beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in failing to charge the jurors, without request, that if they believed the arresting officer had searched the trunk of his vehicle without his consent they should disregard all testimony regarding the fruits of the search and find him not guilty. Prior to trial, the appellant filed a motion to suppress the contraband, and this motion was denied by the trial court following an evidentiary hearing. The correctness of that ruling is not contested on appeal. Pursuant to OCGA § 17-5-30 (b), all questions, both factual and legal, raised by a motion to suppress are addressed to the trial judge rather than the jury. See Rogers v. State, 155 Ga. App. 685 (2) (272 SE2d 549) (1980). Thus, the trial court did not err in failing to submit the issue of the legality of the search to the jury in the present case.

Decided February 4, 1988.

John W. Davis, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

3. The appellant contends that the trial court erred in failing to charge the jurors, again without request, that they should find him innocent if they determined that he had been in constructive possession of the cocaine at the time of his arrest rather than actual possession. Possession of a controlled substance may be either actual or constructive for purposes of a criminal prosecution. It follows that this enumeration of error is also without merit. See, e.g., Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985).

4. The appellant’s remaining 11 enumerations of error concern the trial court’s failure to give charges which, unlike the charges at issue in the previous two enumerations of error, were requested by him in writing in accordance with OCGA § 5-5-24 (b). The sum total of the argument offered with respect to each of these enumerations of error consists merely of a statement of the number, but not the substance, of the requested charge, followed by the bare citation of one or more Georgia cases. We have reviewed each of these enumerations of error and have determined each to be without merit.

Judgment affirmed.

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