author: Mikell, Judge. Blackburn, Chief Judge,

text:
    A01A0527.
    BOLDEN v. THE STATE.
    (552 SE2d 533)
   Mikell, Judge.

We granted Gordie Bolden’s application for discretionary appeal to consider whether the trial court properly considered her plea of nolo contendere to a subsequent offense when it vacated her first offender status and resentenced her. Because we find that a nolo contendere plea may be considered for the limited purpose of resentencing a defendant under the first offender provisions of OCGA § 42-8-60, we affirm.

After entering a guilty plea to one count of possession of marijuana and one count of sale of cocaine, Bolden was sentenced as a first offender. While on probation, Bolden entered a nolo contendere plea to a charge of theft by taking. The state filed a probation revocation petition based on Bolden’s commission of a subsequent offense. At the hearing, the state introduced a certified copy of Bolden’s nolo contendere plea to the theft by taking charge. The court vacated Bolden’s first offender status, entered an adjudication of guilt, and resentenced her.

Relying on OCGA § 17-7-95, Bolden argues that the trial court erred in considering her nolo contendere plea. We reject Bolden’s argument, however, and find that her plea was admissible in the narrow context of resentencing her.

OCGA § 42-8-60 governs probation prior to adjudication of guilt and allows the court to grant first offender status to a defendant who has not been previously convicted of a felony. First offender status merely affords a defendant the opportunity to defer further proceedings and to be placed on probation. Such status may be revoked based on any violation of the conditions imposed on the defendant in connection with the first offender sentence.

In this case, when Bolden was sentenced as a first offender, her sentence provided that further proceedings were deferred, but that upon violation of her conditions of probation, the court could enter an adjudication of guilt and sentence her accordingly. Therefore, when Bolden came before the trial judge again, although the procedure might be referred to as a hearing on revocation of first offender status, it is more accurately characterized as a resumption of her deferred sentencing proceeding. Although the appealed order is contained on a pre-printed form entitled “Probation Revocation Order,” it does not provide that Bolden’s probation has been “revoked”; rather, the order provides: “First Offender Status & Sentence Vacated; Adjudication of Guilt Entered,” and further specifies the terms of her resentence.

Furthermore, OCGA § 17-10-2 (a), which specifically allows the consideration of nolo contendere pleas for sentencing purposes, applies to first offender resentencing. Bolden was notified that the hearing would concern her charge of theft by taking, as required by the statute. Thus, in the narrow circumstances of this case, the trial court was entitled to consider Bolden’s nolo contendere plea in resentencing her under the first offender provisions of OCGA § 42-8-60. Accordingly, we affirm.

Judgment affirmed.

Pope, P. J., Johnson, P. J., Eldridge and Miller, JJ, concur. Blackburn, C. J., and Andrews, P. J., dissent.

Blackburn, Chief Judge,

dissenting.

Because I do not agree that nolo contendere pleas may be considered in probation revocation proceedings, I must respectfully dissent.

After entering a guilty plea to one count of possession of marijuana and one count of sale of cocaine, Bolden was sentenced as a first offender to three years, to serve sixty days, and to complete the Intensive Probation Program. While on probation, Bolden entered a nolo contendere plea to a charge of theft by taking. The State filed a probation revocation petition based upon the commission of a subsequent offense. At the revocation hearing, the only evidence introduced was a certified copy of Bolden’s nolo contendere plea to the theft by taking charge. Bolden’s attorney objected to its use, citing OCGA § 17-7-95.

OCGA § 17-7-95 (c) pertinently provides: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.” In State v. Rocco, the Supreme Court of Georgia recognized other situations wherein the law specifically provided for the use of nolo contendere pleas: OCGA §§ 40-5-63 (a) (2) and 40-5-58 (d) allow for the consideration of nolo contendere pleas to determine DUI recidivism. Id. Additionally, OCGA § 17-10-2 (a) allows consideration of a defendant’s record for sentencing purposes, including nolo contendere pleas. However, there is no legislative enactment which otherwise allows for the consideration of nolo contendere pleas in probation revocation hearings.

The plain language of OCGA § 17-7-95 (c) provides that Bolden’s nolo contendere plea cannot be used against her for any purpose, except as provided by law. As the law does not provide for the use of such pleas for the purpose of probation revocation, the trial court erred in considering the plea as the factual basis of the commission of the subsequent crime.

Although the trial court is authorized to find a violation of probation by only a preponderance of the evidence, OCGA § 42-8-34.1 (a), such evidence must be admissible evidence. “Inadmissible evidence is no evidence at all.” Amiss v. State. Because of the clear mandate of OCGA § 17-7-95 (c), Bolden’s nolo contendere plea was not admissible evidence of the theft by taking charge in these circumstances.

The majority’s reliance upon OCGA § 17-10-2 (a) is untenable. OCGA § 17-10-2 (a) provides for the admission of nolo contendere pleas at presentence hearings. However, it is clear from the face of the statute that it exclusively applies to hearings where “the only issue shall be the determination of punishment to be imposed.” (Emphasis supplied.) At Bolden’s hearing, however, the evidence was offered for more than the determination of “punishment.” The nolo contendere plea was admitted as the sole evidence of the initial determination that a probation violation had occurred. See OCGA § 42-8-34.1 (a) (“no court may revoke any part of any probated or suspended sentence unless . . . the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation”). Since the evidence was offered to support more than just the determination of punishment, the admission of Bolden’s nolo contendere plea did not fall within the exception of OCGA § 17-10-2 and was therefore inadmissible under OCGA § 17-7-95 (c).

Furthermore, the majority’s reliance upon Gilbert v. State is misplaced. First, the language in Gilbert is dicta and is not binding on the court. Further, Gilbert is distinguishable because it did not involve the first offender statute, it did not involve the admissibility of nolo contendere pleas, and it did not involve the revocation of probation. Second, Gilbert’s dicta is not inconsistent with this dissent. That court stated that OCGA § 17-10-2 applied “in those cases in which sentence is imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender.” (Emphasis supplied.) Id. at 546 (2). Here, the nolo contendere plea was not offered during the sentencing after the revocation of probation, but was offered as evidence for the initial determination of a violation. No court has applied OCGA § 17-10-2 to admit nolo contendere pleas during the initial determination of a probation violation in first offender revocation proceedings. We should not ignore the clear mandate of OCGA § 17-7-95 (c) and allow for such an admission here. I would reverse the trial court’s holding.

I am authorized tó state that Presiding Judge Andrews joins this dissent.

Decided July 16, 2001

Reconsideration denied July 31, 2001

Gerard B. Kleinrock, for appellant.

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

       OCGA § 17-7-95 (c) provides: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.”

       See Gilbert v. State, 245 Ga. App. 544, 546 (2) (538 SE2d 104) (2000).

       OCGA § 17-10-2 (a) provides that “only such evidence in aggravation [of punishment] as the state has made known to the defendant” shall be admissible.

        State v. Rocco, 259 Ga. 463, 464 (384 SE2d 183) (1989).

        Amiss v. State, 135 Ga. App. 784, 787 (219 SE2d 28) (1975).

        Gilbert v. State, 245 Ga. App. 544 (538 SE2d 104) (2000).


source: Caselaw Access Project

author: Miller, Judge. Blackburn, Chief Judge, Pope, Presiding Judge,

license: Public Domain

text:
    A01A0576.
    JONES v. THE STATE.
    (553 SE2d 24)
   Miller, Judge.

The question on appeal is whether the defendant’s numerous continuances and leaves of absence, which left only a seven-day window for trying the case during the second term, and his consenting to a notice resetting the case over to the next term, waived his speedy trial demand. We hold such actions did waive the demand and therefore affirm the trial court’s decision not to discharge the defendant on these grounds.

On February 28, 2000, within the January through March 2000 term of the DeKalb County State Court, the solicitor-general filed a formal accusation charging Brad Jones with driving under the influence of alcohol and disregarding a red light. Although Jones filed a request for a speedy trial pursuant to OCGA § 17-7-170, the case was not tried during either that term or the subsequent April through June term of court. Jones appeals the denial of his motion for discharge and acquittal on that ground.

The facts show that the case was scheduled for arraignment on March 6, 2000. On March 2, Jones, through his attorney, waived arraignment and signed notice for the April 7, 2000 trial calendar call. On March 9, the same counsel filed an entry of appearance, several motions (including a motion to suppress), discovery requests, and a demand for a “trial by jury pursuant to . . . OCGA § 17-7-170.” On that same day, counsel also filed a notice of leave of absence covering the periods of March 20-31, April 3-7, May 29-June 2, and June 19-30.

On March 16, the court scheduled Jones’s case for a motions hearing on April 4. Jones’s counsel filed a conflict letter covering the April 4 hearing, in which he requested that the matter be rescheduled if he could not appear. On April 4, Jones appeared personally and signed a notice to reschedule his motions hearing to May 2. On April 26, Jones’s counsel filed another conflict letter covering the May 2 motions hearing, in which he again requested that the matter be rescheduled if he could not appear. Meanwhile, on May 1, counsel filed an amended motion to suppress that challenged the constitutionality of the implied consent warning. On May 2, Jones again appeared personally and signed another notice that the motions hearing would be rescheduled, this time to July 5, with the trial scheduled for July 7. These dates fell outside of the April through June 2000 term of the DeKalb State Court. There is no dispute that jurors were impaneled during both the January and April terms of court.

At the July 5 motions hearing, counsel appeared and withdrew all motions. On July 7, at the trial calendar call, counsel announced the filing of the motion for discharge and acquittal for failure to provide a speedy trial. After a hearing, the court denied the motion. The court held that “[t]he continuances by virtue of the conflict letters coupled with the notice of leaves filed when Defendant’s Counsel first entered the case made Defendant’s Counsel unavailable for hearings and trial during a substantial portion of both terms. . . . The entire course of conduct of delay was caused by defendant’s Counsel.” Jones appeals this order.

“If a defendant who filed a demand for trial under OCGA § 17-7-170 (a) is not tried during the term in which the demand was filed or the next succeeding regular term of court and jurors were impaneled and qualified to try the defendant in both terms, the defendant must be absolutely discharged and acquitted. OCGA § 17-7-170 (b).” “A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand.” The State bears the burden of showing waiver.

The following chart shows the trial court’s criminal schedule for March, April, May, and June 2000:

March — Arraignment 3/6; Motions 3/7; Calendar Call 3/10; Trials 3/20-31.

April — Arraignment 4/3; Motions 4/4; Calendar Call 4/7; Trials 4/17-28.

May — Arraignment 5/1; Motions 5/2; Calendar Call 5/5; Trials 5/22-6/2.

June — Arraignment 6/5; Motions 6/6; Calendar Call 6/9; Trials 6/19-30.

The State argues that by their actions, Jones and his counsel waived Jones’s right to automatic discharge. The issue of when requested continuances and leaves of absence by the defense waive the speedy trial demand and the automatic discharge is of utmost importance in an ordered constitutional system of providing timely justice to defendants while preserving the trial court’s control over its docket. We must guard against manipulations that would allow defense counsel the power to force the trial court to try the case during a short window between defense leaves of absence and continuances. On the other hand, we do not hold that any leave of absence request waives the speedy trial demand, for such is too harsh and would ignore the problem of forcing defense counsel to forgo even a single short leave of absence request or else face the forfeiture of the client’s right to a speedy trial.

Two independent reasons mandate the holding that Jones’s actions waived the speedy trial demand. First, Jackson v. State held that a six-week continuance granted to defense counsel so he could try a separate federal case waived the speedy trial demand where the continuance effectively foreclosed the State’s opportunity to try the defendant until the last impaneled jury. “If such continuances did not constitute a waiver of a speedy trial demand, defendants would be in the position to manipulate the trial courts’ calendars.” Here, the defense continuances and leaves of absence resulted in only a short window being available to try the case during the second term. Specifically, one leave of absence covered the entire period during which jury trials were scheduled in June 2000, and another covered all but seven days during which jury trials were scheduled in May 2000. On May 2, 2000, as the end of the second term approached and while these two defense leaves of absence were yet to take place, Jones appeared before the trial court at a scheduled motions hearing. Because his attorney was not present (having earlier informed the court of a conflict), and in light of the impending leaves of absence, the court reset the motions hearing to July 5, 2000, and the trial to the July 7, 2000 trial calendar. In our view, defense actions waived the speedy trial demand and the right to automatic discharge.

Second, Jones consented to the resetting of his trial outside the second term. Beyond obtaining the continuances and leaves of absence during the first and second terms of court, Jones on May 2 consented to the court’s resetting the case to a time outside the period allowed by the demand. State v. Davis held that “counsel’s request for a continuance and consent to reset the trial to a time outside the period allowed by the demand for speedy trial waived defendant’s right to automatic discharge and acquittal under OCGA § 17-7-170 (b).” Jones’s consent waived his right to automatic discharge. Accordingly, we affirm.

Judgment affirmed.

Andrews, P. J., Johnson, P. J., and Mikell, J., concur. Blackburn, C. J., and Eldridge, J., concur and concur specially. Pope, P. J., dissents.

Blackburn, Chief Judge,

concurring specially.

Although I concur fully in Judge Miller’s opinion, I write separately to further discuss the balance of rights and duties between State and defendant intended by our speedy trial jurisprudence. In this case, we cannot allow this precarious balance to be upset by defense counsel’s interplay of motions, leaves of absence, and conflict letters which were used to both manipulate and abuse the system.

OCGA § 17-7-170 (b) provides:

If the person [who has properly filed a demand for speedy trial] is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

In this case, Jones filed his demand for a speedy trial on March 9, 2000, thereby requiring that he be tried either in the January-March term or the April-June term of the DeKalb County State Court.

This right to an automatic discharge is not absolute. It may be waived by either the defendant or his attorney.

The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.

(Punctuation and emphasis omitted.) Ballew v. State.

Here, the rescheduling of Jones’ case was precipitated by the interplay of his attorney’s leaves of absence and conflicts. The time-line of pertinent events, as revealed by the record, follows:

First Term (January-March)

February 28, 2000: Accusation filed against Jones for DUI and running a red light

March 2, 2000: Jones waives arraignment set for March 6, 2000, and his counsel signs notice for case being set on April 7, 2000 trial calendar

March 9, 2000: Jones’ counsel files the following pertinent documents: (1) Defendant’s Waiver of Formal Arraignment, Entry of Not Guilty Plea, and Demand for Jury Trial (including a speedy trial request); (2) two motions to suppress evidence; and (3) Notice of Leave of Absence (covering March 20-31, April 3-7, May 29-June 2, and June 19-30)

March 10, 2000: Calendar call for March trials in DeKalb

March 16, 2000: Trial court issues rule nisi setting a motions hearing for Jones on April 4, 2000

March 20-31, 2000: Dates for March trials in DeKalb

March 20-31, 2000: Jones’ counsel on leave of absence

March 30, 2000: Jones’ counsel files a conflict letter covering the April 4 motions hearing requesting that the hearing be rescheduled if he cannot appear

Second Term (April-June)

April 3-7, 2000: Jones’ counsel on leave of absence

April 4, 2000: Date for April motions hearings in DeKalb

April 4, 2000: Jones appears before trial court and signs a notice to reschedule his motions hearing to May 2, 2000, the next date for hearings on the trial court’s calendar

April 7, 2000: Calendar call for April cases in DeKalb

April 17-28, 2000: Dates for April trials in DeKalb

April 26, 2000: Jones’ counsel files a conflict letter covering the May 2 hearing requesting that the hearing be rescheduled if he cannot appear

May 1, 2000: Jones files an amended motion to suppress evidence, challenging the constitutionality of implied consent warnings based on a case pending before the Supreme Court of Georgia

May 2, 2000: Date for May motions hearings in DeKalb

May 2, 2000: Jones appears before the trial court and signs a notice to reschedule his motions hearing to July 5, 2000, and his trial to July 7, 2000 trial calendar

May 5, 2000: Calendar call for May trials in DeKalb

May 22-June 2, 2000: Dates for May trials in DeKalb

May 29-June 2, 2000: Jones’ counsel on leave of absence

June 2, 2000: Date for June motions hearings in DeKalb

June 9, 2000: Calendar call for June trials in DeKalb

June 19-30, 2000: Dates for June trials in DeKalb

June 19-30, 2000: Jones’ counsel on leave of absence

July 5, 2000: Jones’ counsel appears in court and withdraws all pending motions

July 7, 2000: Jones files motion for acquittal and discharge pursuant to OCGA § 17-7-170

August 20, 2000: Trial court denies Jones’ motion for acquittal and discharge

The actions taken by Jones’ counsel must be considered to waive Jones’ right to a speedy trial, because such actions undermine the purpose of OCGA § 17-7-170. As an initial matter, through leaves and conflicts, Jones’ counsel was not available on the date for hearing motions in April or May. In addition, counsel was not available at all for trial in March, he was available in April, he was available for one week in May, and he was completely unavailable in June. In light of Jones’ desire to have his suppression motions heard prior to trial and the amended filing made in May, Jones’ counsel presented the trial court with a virtually impossible task of scheduling his trial.

On March 2, 2000, Jones’ counsel signed a notice placing Jones’ case on the April 7, 2000 trial calendar despite the fact that he had already filed for a leave of absence which included both that date and the date for hearing Jones’ motion to suppress. In addition, Jones’ counsel filed a conflict letter prior to the motions hearing asking that it be rescheduled, and, in accordance with this request, the trial court rescheduled Jones’ motion for the next available hearing date, May 2, 2000, with which, once again, Jones’ counsel had a conflict.

And when Jones’ counsel filed this letter of conflict on April 26, 2000, he knew the following: (1) he had a conflict with the May 2, 2000 hearing date; (2) only one date for hearings on motions remained in the two-term period, namely June 6, 2000; (3) that, following this last date for motions hearings, the only dates for trial were June 19-30, 2000; and (4) that he had a leave of absence for the entire two weeks of trial dates. In other words, at the time that he filed his last conflict letter, Jones’ counsel knew that, based on the official court calendar and the dates of his approved leave, Jones’ motions and trial could not be heard within the two terms of court applicable to Jones’ speedy trial demand. As a matter of ethics, Jones’ counsel should have notified the trial court of this situation that he had precipitated. Instead, by conflicting out, Jones’ counsel played the system, and, at the motions hearing on July 5, 2000, he announced checkmate.

Check, however, should be all that Jones’ counsel achieved, because OCGA § 17-7-170 was intended to insure the prompt trial of criminal defendants, not create a system by which lawyers can manipulate the system for the purpose of avoiding trial.

Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal (Sykes [v. State] (defendant waived speedy trial demand by not appearing, without justification, when his case was called to trial); Jackson v. State (defendant waived speedy trial demand where defense counsel sought a six-week continuance that precluded State from trying defendant’s case until the last empaneled jury of the term)) as well as dilution of the right to a speedy trial by conditioning it on the convenience or ingenuity of the State in scheduling the case.

(Punctuation omitted.) Fisher v. State.

And, contrary to Jones’ counsel’s arguments, Fisher, supra, does not require a different outcome in this case. In Fisher, our Supreme Court stated: “[S]ince the filing of a notice of conflicts is mandatory under the rules, it cannot be evidence that defendant consented to have his case tried at a later term.” Id. at 722. In this case, however, the scheduling difficulty was caused, not just by a conflict letter, but also by a clever interplay of motions and leaves of absence in addition. Therefore, Jones’ counsel’s argument that the filing of his last conflict letter cannot be considered a waiver lacks merit in this case. And, Jones’ counsel’s argument that he precluded a finding of waiver by calling the trial court to report after his conflict equally lacks merit. At the time of Jones’ counsel’s inquiry, his client’s hearing had already been postponed. As such, in this case, Jones’ counsel’s phone call is ultimately irrelevant to the outcome herein.

In this case, Jones’ counsel’s constant unavailability precipitated the delays which occurred in having his client’s case heard. Jones’ counsel, in a remarkable display of chutzpah, places all of the blame on the trial court, going so far as to argue that his leave of absence should have been revoked to ensure that his client received his trial. It is doubtful that a trial court would ordinarily have the authority to revoke a leave of absence once granted. Lawyers may well find trial courts reluctant to grant leaves of absence in the future where speedy trial demands have been filed by such lawyers.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. Although the defense attorney’s actions suggest an attempt to manipulate the system to obtain an acquittal, in this case the record shows that it was the court that chose to schedule the case for trial outside of the speedy trial period, and that it did so for a reason that does not constitute waiver by Jones.

“A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand.” Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994). But, the defendant’s actions must show that he “affirmatively sought to avoid trial.” Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989). The burden of showing such waiver is on the State. Id.

On April 26, Jones’ counsel filed a conflict letter covering the scheduled May 2 motions hearing, in which he requested that the matter be rescheduled if he could not appear. Then, on May 1, counsel filed an amended motion to suppress that challenged the constitutionality of the implied consent warning, which the court referred to as a “Klink motion.” See Klink v. State, 272 Ga. 605 (533 SE2d 92) (2000). On May 2, Jones’ counsel did not appear because of the conflict. But Jones did appear, personally, and he signed a notice from the court showing that the motions hearing would be rescheduled to July 5, with the trial scheduled for July 7. These dates fell outside of the April through June 2000 term of the DeKalb State Court. In its order denying the motion to acquit, the court acknowledged that it continued the case until July in the hopes that the Supreme Court would have decided the issue raised in the Klink motion by that time.

Requests for continuance that do not postpone the trial to outside of the two available terms do not generally constitute waiver of the speedy trial demand. Weidlund v. State, 191 Ga. App. 668, 670-671 (382 SE2d 709) (1989); State v. McNeil, 176 Ga. App. 323, 325 (335 SE2d 728) (1985). Here, Jones did not request a continuance outside of the speedy trial demand period — the request specified no certain time. Nor was the court forced, in response to the request, to choose a time outside of that period. The court could have scheduled the matter for trial in May and heard Jones’ motion before trial. (Jones’ counsel’s pending leave of absence did not cover all of the court’s May trial calendar.) The fact that neither Jones nor his counsel objected to the court continuing the trial until outside of the term, even if the court acted out of a concern for Jones, standing alone, is not an affirmative action of waiver. Ballew v. State, 211 Ga. App. 672, 673-674 (440 SE2d 76) (1994). And, we cannot conclude that the May 2, 2000 notice of hearing signed by the defendant constituted a request for continuance.

Decided July 16, 2001

Reconsideration denied July 31, 2001

Monte K. Davis, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Theresa S. Starkes, Assistant Solicitor-General, for appellee.

Finally, the court’s own decision to continue the case from May 2 until July 5, in an attempt to wait until the Supreme Court decided the law relevant to the KLink motion, does not constitute a waiver by Jones of his speedy trial demand. State v. McNeil, 176 Ga. App. at 326 (removal of case from trial calendar in order to await appellate resolution of an evidentiary issue in a different case should not act as a waiver of speedy trial demand).

State v. Davis, 243 Ga. App. 867 (534 SE2d 159) (2000), is easily distinguished. In that case, the defense attorney requested a special setting outside of the speedy trial term — a clear waiver — and that is the context in which the term “consent to reset the trial” was used in the quotation from that case found in the majority opinion. There is a great difference between a lawyer requesting a special setting outside of the term, and a defendant signing a notice from the court that the court is rescheduling the case to outside of the term.

In short, the court had an option to schedule the case for trial in May rather than postpone it until July. (And, it earlier had the option of scheduling the trial during the April trial calendar with the motions hearing immediately preceding.) The State has the burden of showing waiver by the defendant, and it did not show that Jones waived the available trial dates in May. While manipulation of the judicial system is a great concern, the law nevertheless requires acquittal here.

       See Klink v. State, 272 Ga. 605 (533 SE2d 92) (2000).

        Sykes v. State, 236 Ga. App. 518, 519-520 (2) (511 SE2d 566) (1999).

        Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994).

        Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989).

       See Jackson v. State, 222 Ga. App. 700, 701 (475 SE2d 717) (1996) (defense continuances which foreclose State’s opportunity to try defendant until last impaneled jury waived speedy trial demand). Cf. Fisher v. State, 273 Ga. 721, 723 (545 SE2d 895) (2001) (citing Jackson for the proposition that Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal).

       Supra, 222 Ga. App. at 701.

       Id.

       243 Ga. App. 867, 868 (534 SE2d 159) (2000).

        Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994).

        Sykes v. State, 236 Ga. App. 518 (2) (511 SE2d 566) (1999).

        Jackson v. State, 222 Ga. App. 700 (475 SE2d 717) (1996).

        Fisher v. State, 273 Ga. 721, 723 (545 SE2d 895) (2001).

       The document on its face does not purport to be a request but simply a notice of court action. The fact that the defendant signed it does not change that fact. Our reading of the document indicates that the purpose of the signature is simply to show that Jones received notice of the court’s rescheduling of the hearing.


author: Blackburn, Chief Judge.

text:
    A01A0657, A01A0748.
    THREATT et al. v. FORSYTH COUNTY (two cases).
    (552 SE2d 123)
   Blackburn, Chief Judge.

These two appeals arise out of a condemnation action brought by Forsyth County against property owned by James W. Threatt, Jr. and Thomas A. Threatt. The valuation issue was submitted to arbitration. In connection with the confirmation of the arbitration award, the trial court issued orders concerning prejudgment and postjudgment interest owed by the County to the Threatts. The Threatts appeal these orders, contending that the trial court erred in failing to grant their motion for prejudgment interest and by allowing the premature abatement of postjudgment interest.

The underlying facts are not in dispute and are adopted from the trial court’s order. On June 4,1996, Forsyth County filed a petition to condemn approximately 315 acres for the construction and maintenance of wastewater treatment facilities. The special master awarded $7,327,840 as the fair market value of the property on August 15, 1996. This amount was paid into the registry of the trial court on August 23, 1996, thereby vesting title to the property in the County. See OCGA § 22-2-110 (b). The Threatts filed a notice of appeal in superior court, and on November 5, 1996, entered into a consent order submitting the issue of just and adequate compensation to binding arbitration. The arbitration hearings took place from approximately December 1996 through January 1997. The arbitrator’s award was issued on October 26, 1999, in the amount of $16,500,000 “as just and adequate compensation for the condemnation of the property described in this case.”

On March 14, 2000, the Threatts filed a motion to confirm the arbitration award and requested prejudgment interest. The County opposed the motion for prejudgment interest arguing that the issue of prejudgment interest was before the arbitrator. The parties entered into a consent order confirming the arbitration award and reserving the ruling on the prejudgment interest issue. Thereafter, the trial court determined that the issue of prejudgment interest should have been decided by the arbitrator because the condemnees’ right to interest flowed from the constitutional guaranty of just compensation for the condemnees’ property and would therefore be included in a determination of the “just and adequate compensation” of the property.

Case No. A01A0657

1. The issue presented in Case No. A01A0657 is whether the trial court erred by failing to allow the recovery of prejudgment interest and in holding that the arbitrator’s award precluded additional prejudgment interest.

(a) As an initial matter, we must determine whether the Threatts are entitled to prejudgment interest pursuant to OCGA § 22-2-113 (c). This Code section is an eminent domain statute which governs condemnation proceedings generally and provides:

If the amount awarded by the special master or the special master panel, if such a panel exists, is less than that found by the verdict of the jury, the condemnor shall be bound to pay the sum so finally adjudged less the amount previously deposited as provided in Code Section 22-2-110 plus lawful interest on the difference from the date of such deposit, in order to retain the property.

OCGA § 22-2-113 (c).

The County argues, citing Kuhl v. Shepard, that because OCGA § 22-2-113 (c) references the verdict of the jury, the Threatts are not entitled to prejudgment interest as their claim was arbitrated rather than being submitted to a jury. In Kuhl, this Court was interpreting a provision of the Unliquidated Damages Interest Act which provided for prejudgment interest after a verdict of the jury or the award by the judge trying the case without a jury. Therein, the parties had submitted their claims to an arbitrator and received an award, but the arbitrator’s award had not been confirmed and a judgment had not been entered thereon. We determined that because there was no “judgment entered within one year of the arbitrator’s award, the imposition of prejudgment interest was error as prejudgment interest never began to accrue.” Id. at 441.

Our holding in Kuhl is distinguishable from the present case, however, because here, the arbitrator’s award has been confirmed and a judgment entered. We did not address the present issue in Kuhl. Additionally, we have held that “[a]n arbitration award is not unlike the verdict of a jury. Thus, if an award is confirmed the judgment must be entered in conformity with the award.” (Citation omitted.) Thacker Constr. Co. v. A Betterway Rent-A-Car.

In the present case, the parties agreed to arbitrate the issue, and the trial court ordered that the issue outlined in the arbitration agreement be arbitrated according to the agreement; and, furthermore, the arbitration award has been confirmed and a judgment issued. Although eminent domain statutes must be strictly construed, see Thomas v. City of Cairo, the strict construction is meant to favor the private land owner. Such construction ensures that the needs of the state are appropriately balanced against the fundamental right of private ownership. We therefore find that the requirements of OCGA § 22-2-113 (c) for prejudgment interest have been met in the present case.

(b) Having determined that OCGA § 22-2-113 (c) is applicable to the present case, we turn to whether the trial court erred by failing to enforce the mandatory requirement of prejudgment interest. This is not a case in which the right to prejudgment interest is in question. OCGA § 22-2-113 (c) requires, under the circumstances herein, that prejudgment interest be paid in order for the governing authority to keep the property.

In Haddon v. Shaheen & Co., we recognized an arbitrator’s inherent power to award prejudgment and postjudgment interest in the absence of a contrary provision in the arbitration agreement. However, in the present case, the right to prejudgment interest is established by statute. Prejudgment interest is allowed only when the subsequent award is more than that awarded by the special master. OCGA § 22-2-113 (c). Because it is uncontroverted that evidence of the special master’s award is not allowed during a subsequent jury trial and was not before the arbitrator, he could not have determined the appropriate amount of interest and included it within the $16.5 million award. See OCGA § 22-2-110 (d). The Threatts submitted to the trial court the affidavit of the arbitrator in which he explains that he did not consider that the issue of prejudgment interest was before him. Forsyth County moved to strike the affidavit. The trial court denied the motion, finding that the issue was moot because it determined that, despite the fact that the arbitrator had not determined prejudgment interest, the issue was within the arbitrator’s jurisdiction and the Threatts should have moved to modify the arbitrator’s award pursuant to OCGA § 9-9-11.

The trial court’s ruling fails to consider the mandatory nature of prejudgment interest in the case at bar. An arbitrator’s jurisdiction is limited to the terms of the arbitration agreement. Haddon, supra. Arbitrators improperly overstep their authority by determining matters outside the scope of the controversy presented. Id. at 598. See also OCGA § 9-9-13 (b) (3).

In the present case, the arbitration agreement submitted the issue of just and reasonable compensation for certain property to the arbitrator. In Dept. of Transp. v. English, we approved the trial court’s charge to a jury regarding the determination of compensation for condemned property, to wit:

In estimating the value of property taken for public use, generally it is the market value of the property which is to be considered. In estimating its value, all the capability of the property and all the uses to which it may be applied, or to which it is adapted, may be considered, and not merely the condition it is in at the time and the use which it was then applied by the owner. The owner is to be paid just and adequate compensation for his property; that is, the value to him, not its value to the condemnor. The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the loss sustained by the landowner, taking into consideration all the purposes for which the property is available. Generally speaking, the measure of damages is the market value of the property to be taken, and when this would give just and adequate compensation to the owner, this rule should be applied; the measure of damages for the part of the property actually taken by the Highway Department is the difference between the market value of the whole property just before the taking and the market value of the remainder immediately after the taking.

(Punctuation omitted.) Id.

Therefore, just and adequate compensation for condemned property is generally the market value of the property. And, market value is to be determined from the date of the taking. In R. E. Adams Properties v. City of Gainesville we reiterated that “[wjhen private property is condemned for public use the owner is entitled to receive just and adequate compensation as of the date of the taking, and not as of the date of the announcement of the taking, and the value of the property should be fixed at the time of its taking.” (Punctuation and emphasis omitted.) Id. The arbitrator did exactly what was asked of him; he determined the fair market value of the Threatts’ property as of the date of the taking. After such a determination has been confirmed and a judgment rendered, the amount of prejudgment interest pursuant to OCGA § 22-2-113 (c) can be ascertained. There can be no issue as to whether the owner is entitled to such interest because it is mandatory under the statute.

Although, as the trial court determined, we previously held that the condemnee’s right to interest flows from the constitutional guaranty of just compensation for property condemned, see City of Atlanta v. Lunsford, in the present case we are dealing with mandatory interest pursuant to OCGA § 22-2-113 (c). Such interest is for the taking of the property prior to payment of the full compensation because the condemnee only gets interest on the amount over the special master’s award. In Lunsford, the issue was whether the governing authority could require interest where the jury awarded less than the previous special master had awarded as the value of the condemned property. Lunsford is distinguishable from the present case because the condemnation code did not provide a basis for interest under such circumstances. Again, the present case is governed by a mandatory statute requiring interest.

Based on the foregoing, the trial court erred in failing to follow the mandates of OCGA § 22-2-113 (c) which required the payment of interest from the date of the taking on the difference between the special master’s award and the arbitrator’s award.

Case No. A01A0748

2. In Case No. A01A0748, the Threatts appeal the trial court’s order on postjudgment interest, contending that it prematurely abated such interest.

On May 25, 2000, the parties entered into a consent judgment by which the issue of prejudgment interest was reserved and judgment on the arbitration award was entered as of June 16, 2000. The consent judgment specifically set June 16, 2000, as the day that prejudgment interest, if any, was concluded and provided that on such date “[¡judgment shall be deemed entered for purposes of determining the date of commencement of postjudgment interest.” On June 16, 2000, Forsyth County filed an emergency motion to deposit the amount of the judgment into the court’s registry pursuant to OCGA § 9-11-67. Such motion remained pending and was not granted until October 4, 2000. However, the trial court gave its October 4, 2000 order retroactive effect to June 16, 2000.

Citing St. Joseph Hosp. v. Black, the County initially argues that, because the Threatts had a motion for reconsideration of the trial court’s October 4, 2000 order pending below at the time they filed their notice of appeal here, this Court had no jurisdiction to consider their case. This argument is meritless, and, for the reasons set forth below, we must overrule Black in part.

In Black, the trial court granted the plaintiff’s petition to perpetuate testimony pursuant to OCGA § 9-11-27 (a). The defendant filed a motion for reconsideration of the order granting the petition on April 18, 1996, and, while that motion was still pending, filed a notice of appeal with this Court on April 24, 1996. In defendant’s notice of appeal, St. Joseph separately appealed both the original grant of the petition and the denial of the motion for reconsideration of the original grant which, apparently, occurred after the notice of appeal was filed.

Although defendant’s appeal of the original grant of the petition was found jurisdictionally proper, its appeal of the denial of the motion for reconsideration was dismissed because “(a) notice of appeal from (a) judgment, filed while a motion for (reconsideration of judgment) is pending . . . confers no jurisdiction in the appellate court and results in (the) dismissal of the appeal.” (Punctuation omitted.) Black, supra. This quotation was pulled from Auld v. Weaver and was erroneously modified to refer to motions for reconsideration rather than motions for new trial. Weaver, contrary to Black, provides no precedent regarding pending motions for reconsideration. Therefore, this rule set forth in Black is hereby overruled.

While it is true that a notice of appeal filed during the pendency of a motion for new trial confers no jurisdiction on this Court, see Weaver, supra, the same rule does not apply to motions for reconsideration. A motion for reconsideration does not extend the time for filing a notice of appeal, and, necessarily, this Court generally has jurisdiction over a notice of appeal of the judgment underlying the notice of appeal. Westbury Square Townhouses Assn. v. Bryan. In Black, the trial court’s initial decision to grant the plaintiff’s petition was before us while the denial of the motion for reconsideration was not before us because that motion was decided after the defendant filed its notice of appeal. That notice of appeal, in turn, divested the trial court of its jurisdiction over the motion for reconsideration before the trial court rendered its decision. See generally Styles v. State (notice of appeal divests trial court of jurisdiction to alter judgment while on appeal). As such, the appeal regarding the motion for reconsideration in Black was appropriately dismissed, although for the wrong reason.

In general, a pending motion for reconsideration does not block this Court’s jurisdiction over a notice of appeal regarding the efficacy of the order underlying the motion for reconsideration, as opposed to the separate order granting or denying the motion for reconsideration itself. Accordingly, this Court has jurisdiction over the Threatts’ appeal of the trial court’s October 4, 2000 order.

OCGA § 9-11-67 provides:

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.

Decided July 10, 2001

Reconsideration denied July 31, 2001

Gambrell & Stolz, Irwin W. Stolz, Jr., George E. Butler II, for appellants.

In the absence of compliance with the terms of OCGA § 9-11-67, interest does not abate. Sacha v. Coffee Butler Svc.

In the present case, the parties failed to comply with the terms of OCGA § 9-11-67. The funds were not deposited by order of the court until October 4, 2000. See Gunnin v. Parker (depositing hinds without order of court does not comply with requirements of OCGA § 9-11-67). Additionally, the trial court’s comments at the July 11, 2000 hearing indicate that the trial court was unaware that the money had been deposited into the court’s registry. The court stated: “Well, maybe /all can decide that when I decide whether or not I’m going to let it be paid into Court.” Pursuant to OCGA § 9-11-67, after the money is deposited, it is subject to withdrawal at any time. Under these circumstances, the funds were not subject to withdrawal as of June 16, 2000. As the requirements of OCGA § 9-11-67 were not complied with, interest thereon did not abate until October 4, 2000, when the trial court issued its order. The trial court had no authority to modify the terms of OCGA § 9-11-67 or to make its order retroactive to June 16, 2000. See Great Southern Midway v. Hughes.

Based on the foregoing, the trial court erred in allowing retroactive effect of its order dated October 4, 2000, to June 16, 2000.

Judgments reversed and cases remanded for disposition consistent with this opinion.

Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ., concur.

Jarrará & Davis, Kenneth E. Jarrará, Angela E. Davis, Rachel K. Iverson, for appellee.

        Kuhl v. Shepard, 226 Ga. App. 439, 440 (487 SE2d 68) (1997).

        Thacker Constr. Co. v. A Betterway Rent-A-Car, 186 Ga. App. 660, 663 (368 SE2d 178) (1988).

        Thomas v. City of Cairo, 206 Ga. 336 (57 SE2d 192) (1950).

        Haddon v. Shaheen & Co., 231 Ga. App. 596, 599 (1) (b) (499 SE2d 693) (1998).

        Dept. of Transp. v. English, 135 Ga. App. 425, 427-428 (7) (218 SE2d 134) (1975).

        R. E. Adams Properties v. City of Gainesville, 125 Ga. App. 800, 803 (1) (189 SE2d 114) (1972).

        City of Atlanta v. Lunsford, 105 Ga. App. 247, 249 (124 SE2d 493) (1962).

         St. Joseph Hosp. v. Black, 225 Ga. App. 139 (483 SE2d 290) (1997).

        Auld v. Weaver, 196 Ga. App. 782 (397 SE2d 51) (1990).

        Westbury Square Townhouses Assn. v. Bryan, 223 Ga. App. 885, 887 (1) (479 SE2d 190) (1996).

        Styles v. State, 245 Ga. App. 90 (537 SE2d 377) (2000).

        Sacha v. Coffee Butler Svc., 215 Ga. App. 280, 281 (1) (450 SE2d 704) (1994).

        Gunnin v. Parker, 198 Ga. App. 864, 865 (1) (403 SE2d 822) (1991).

        Great Southern Midway v. Hughes, 223 Ga. App. 643, 644 (478 SE2d 400) (1996).


text:
    A01A0729.
    CITY OF STATHAM v. DIVERSIFIED DEVELOPMENT COMPANY.
    (550 SE2d 410)
   Blackburn, Chief Judge.

The City of Statham (the City) brought the underlying action against Diversified Development Company seeking an injunction which would require that Diversified remove four billboards which were erected in violation of city ordinances. The parties filed competing motions for summary judgment, and the trial court granted Diversified’s motion. The City appeals. “We review a trial court’s grant of summary judgment de novo, and we view the evidence in the light most favorable to the nonmovant. On de novo review, we ‘owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.’ ” (Footnotes omitted.) Delta Air Lines v. Clayton County Bd. of Tax Assessors.

In the present case, when Diversified applied for four permits to construct outdoor advertising signs on its property located in Stat-ham, the City denied the permits based upon a moratorium on billboard permits it had recently adopted. Diversified sued the City, and, in that action, the trial court determined that the moratorium was invalid and ordered the City to issue “the requested permits and perform any and all other administrative action necessary to allow [Diversified] to erect the proposed outdoor advertising signs.” Thereafter, the City issued the requested permits, noting on each permit that it was issued specifically pursuant to the trial court’s order dated January 14, 1999.

As Diversified began to build the billboards, the City realized that the billboards were being constructed in violation of local ordinances, in that the billboards: (1) exceeded the 50-foot height limitation; (2) were being built within the 50-foot setback required from the highway; and (3) were being built on easements that were not properly recorded. It is clear that the City was aware that the proposed billboards violated the height requirement when the permits were originally requested, and the City relied upon the moratorium in denying the permits. It is unclear, however, whether the City was aware of the other alleged violations prior to construction. The City issued a stop-work order on January 7, 2000. After Diversified failed to stop work on the billboards, the City filed the underlying action seeking an injunction to halt construction.

In granting Diversified’s motion for summary judgment, the trial court determined that res judicata barred the City’s enforcement of the violated ordinances because, in the first action, the City had filed a pleading affirming Diversified’s position that, but for the moratorium, the permits would be issued. Although this pleading is not in the record, the trial court specifically refers to it in its order, and the City does not dispute this fact. Additionally, in granting Diversified’s motion for summary judgment, the trial court determined that the failure to record the easement on which the billboards were being placed was not a violation which would support an injunction.

1. In its first enumeration of error, the City contends that the trial court erred in failing to grant an injunction against Diversified’s billboards after incorrectly ruling that res judicata prevents it from enforcing its ordinances.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” In deciding whether OCGA § 9-12-40 operates to bar a claim in the present case, we must consider: “(a) whether there is a valid antecedent judgment; (b) whether there is identity of parties; (c) whether there is identity of issues; and (d) whether reasons of public policy militate against a strict application of the above statute in this case.” Fierer v. Ashe.

Here, there is no question that a valid antecedent judgment exists which arose out of a case involving the same parties and in which the same matters either were in issue or could have been put in issue. Therefore, we must consider whether public policy precludes the strict application of the doctrine of res judicata under the facts of this case.

In a long line of cases, the Supreme Court of Georgia has held that “[w]here a permit is issued by a governing body in violation of an ordinance, even under a mistake of fact, it is void, and its holder does not acquire any rights.” Matheson v. DeKalb County. See Corey Outdoor Advertising v. Bd. of Zoning Adjustment &c. Although the issue in Matheson, supra, and Corey Outdoor, supra, involved whether the governing authority was estopped from asserting the ordinance violations rather than the application of res judicata, we must determine whether the underlying principles discussed therein support the same conclusion in the present case.

In Corey Outdoor, supra, Corey Outdoor Advertising, Inc. was issued a permit by the City of Atlanta to erect a billboard within 300 feet of a historic property. After determining that the billboard violated an ordinance prohibiting general advertising signs within 300 feet of the boundaries of certain historic property, including the property in question, the City of Atlanta issued stop-work orders. Corey ignored the stop-work orders and completed construction of the billboard.

In determining whether the City of Atlanta was estopped from enforcing the ordinance, the Supreme Court of Georgia determined that “ ‘[t]here is no sucb doctrine known to the law as a set-off of wrongs. Not even estoppel can legalize or vitalize that which the law declares unlawful and void. If so, the conduct of individuals, whether independently or collusively, could render any and all laws invalid and impotent.’ ” Corey Outdoor, supra at 224 (3). Additionally, in determining that the building permit created no constitutionally protected right, the Court held, “ ‘[a] permit issued for a use or structure which is forbidden by the ordinance is beyond the power of the officer to issue; consequently, it has no legal status, is invalid, and is itself entirely without power to clothe its holder with any legal rights thereunder.’ ” Id. at 225 (4).

Municipalities act in both a governmental and a proprietary capacity, and an estoppel is not asserted if such will embarrass a municipality in its capacity as a governing body or operate to prevent it from exercising its police power. In regulating zoning, a municipality is exercising its police power. It is a governmental function for which the municipality, for instance, is not liable in negligence. OCGA § 36-33-1. Even zoning based merely on aesthetic interests is a reasonable and proper exercise of the city’s police power. The continued existence of the [appellee’s] billboard violates a city ordinance and interferes with the city’s governmental powers; therefore, under an equitable balancing of interests, estoppel cannot be asserted against the city.

(Citations and punctuation omitted.) Corey Outdoor, supra at 224-225 (3).

Although the underlying issue in Matheson, supra, and Corey Outdoor, supra, dealt with estoppel, the same balancing of interests militates against the strict application of the doctrine of res judicata in the present case. If Diversified’s billboards violate city ordinances, then they are illegal. The cases addressing the estoppel argument recognize a burden on the developer to assure that its construction complies with existing ordinances. Developers cannot benefit from their own negligent or intentional submission of building permit requests which seek to authorize violations of ordinances, except as provided by law. Developers have been required to move whole houses that were built within the set-back zones. See Gray v. DeKalb County.

The trial court erred in applying the doctrine of res judicata to the present case and in granting Diversified’s motion for summary judgment. Because the trial court did not rule on whether Diversified’s billboards violated the size and location ordinances as claimed by the City, we remand the case for consideration of the City’s motion for summary judgment on those issues.

2. In its second enumeration of error, the City contends that the trial court erred in failing to grant an injunction against Diversified’s billboards after incorrectly ruling that the billboards do not violate the City’s zoning and development ordinances. As discussed in Division 1, after applying res judicata, the trial court did not address whether the billboards violated the City’s zoning ordinances. Therefore, that issue is not before us. However, the trial court did determine that the City was not entitled to an injunction based upon its argument that Diversified’s billboards were illegal because the easements were not shown on the final plat and were therefore unapproved and that the transfer of the tracts from Diversified to other buyers was illegal due to the lack of a final, correct, and approved plat. The trial court’s order denying the City’s motion for summary judgment on these issues is affirmed.

Without citation to authority, the City contends that the billboards are illegal because they are constructed on easements which are not recorded. However, recording statutes are for the benefit of third parties “acting in good faith and without notice who have acquired an interest in the same property.” Leeds Bldg. Products v. Sears Mtg. Corp. See Reidling v. Holcomb. An easement between a buyer and seller is valid between that buyer and seller regardless of whether it is recorded; if unrecorded, the easement is merely a personal contract. Moore v. Dixon. Furthermore, it is undisputed that at the time Diversified obtained its permits, it was the sole owner of the property. Under these facts, the City is without standing to pursue its claimed error. The City claimed that Diversified’s billboards were illegal because (1) the easements were not shown on the final plat and were therefore unapproved and (2) the transfer of the tracts from Diversified to other buyers was illegal due to the lack of a final, correct, and approved plat. The trial court correctly granted Diversified’s motion for summary judgment on these issues.

Decided May 18, 2001

Reconsideration denied July 31, 2001

Jenkins & Nelson, Peter R. Olson, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellee.

The trial court’s order granting summary judgment to Diversified is affirmed in part and reversed in part.

Judgment affirmed in part, reversed in part and case remanded.

Pope, P. J., and Mikell, J., concur.

        Delta Air Lines v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225, 226 (539 SE2d 905) (2000).

        Fierer v. Ashe, 147 Ga. App. 446, 448 (249 SE2d 270) (1978).

        Matheson v. DeKalb County, 257 Ga. 48, 49 (3) (354 SE2d 121) (1987).

        Corey Outdoor Advertising v. Bd. of Zoning Adjustment &c., 254 Ga. 221, 224 (3) (327 SE2d 178) (1985).

        Gray v. DeKalb County, 230 Ga. 95, 97 (195 SE2d 914) (1973).

        Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300, 302 (1) (477 SE2d 565) (1996).

        Reidling v. Holcomb, 225 Ga. App. 229, 230 (1) (483 SE2d 624) (1997).

        Moore v. Dixon, 264 Ga. 797, 798 (1) (452 SE2d 484) (1994).


author: Eldridge, Judge.

text:
    A00A1502.
    WILLIS et al. v. FIRST DATA POS, INC.
    (553 SE2d 319)
    Decided July 31, 2001.

      King & Croft, F. Carlton King, Jr., for appellants.

      Sutherland, Asbill & Brennan, Thomas A. Cox, Kristen J. Indermark, for appellee.
   Eldridge, Judge.

In First Data POS v. Willis, 273 Ga. 792 (546 SE2d 781) (2001), the Supreme Court reversed the judgment of Division 3 of this Court’s opinion in Willis v. First Data POS, 245 Ga. App. 121 (536 SE2d 198) (2000). Therefore, we vacate Division 3 of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Blackburn, C. J., and Barnes, J., concur.


text:
    A01A0235.
    WALLACE et al. v. STRINGER et al.
    (553 SE2d 166)
   Blackburn, Chief Judge.

After an employee of Wal-Mart Stores, Inc. accused Mary Ann Wallace of shoplifting a baby blanket, Mary Ann and Kelvin Wallace filed the underlying action, asserting several claims against WalMart and its employee, Charlene Stringer. The trial court granted summary judgment to Wal-Mart and Stringer on several of the Wallaces’ claims including assault and false imprisonment. A jury returned a verdict of $50,000 on the Wallaces’ remaining claims. The Wallaces appeal contending that the trial court erred by (1) granting summary judgment on their assault and false imprisonment claims and (2) denying their motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. For the reasons set forth below, we reverse.

1. The Wallaces’ complaint alleged several causes of action against the defendants including: false imprisonment or false arrest, malicious prosecution, libel, intentional infliction of emotional distress, tortious misconduct, negligent hiring, conversion, assault, respondeat superior, and loss of consortium. The trial court granted the defendants’ motion for summary judgment on the Wallaces’ claims for false arrest, false imprisonment, libel, assault, and intentional infliction of emotional distress. Of these complaints, the Wallaces appeal the trial court’s ruling only with regard to their claims for assault and false imprisonment. We therefore will limit our review to such complaints in this enumeration.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Lau’s Corp. v. Haskins. On appeal from a grant of summary judgment, this Court conducts a de novo review of the record. Id.

In the present case, viewed in the light most favorable to the Wallaces, the evidence revealed that as Wallace and her baby were leaving Wal-Mart with her purchases, Stringer stopped her and, indicating her baby’s blanket, asked her, ‘Where did you get this?” Wallace told Stringer that it was her blanket. Stringer actually picked up the blanket and said, “No, it’s not.” Stringer told Wallace that she needed to come back into the store to clear up the blanket “deal.” Wallace did not understand exactly why she was being asked to come back into the store, but she turned her stroller around and followed Stringer. Wallace deposed that Stringer was using a screaming voice and getting up in her face. Wallace continued to ask Stringer why they needed to go back into the store. And Stringer responded, “I watched you from the time you set foot in this store. I know you have something that’s not yours.” A male Wal-Mart employee joined Stringer, but he did not say anything and was a passive observer. As Wallace followed Stringer and the employee to the back of the store, Stringer continued to “yell” at Wallace regarding coming to the back of the store. Wallace continued to explain that she had not taken anything. Wallace deposed that, at that point, she had not been physically forced to follow Stringer to the back of the store. Stringer had picked up the blanket in question at the front of the store and continued to hold it until they got to the layaway department.

At the layaway department, Wallace became scared of continuing with Stringer. Wallace deposed that she was afraid and that she did not trust Stringer with her baby’s life. At this point, Stringer told Wallace that she was going to come to the back of the store or that Stringer would get someone to physically take her back. Stringer gave Wallace the blanket and left to get management.

Stringer returned in about three minutes with a male member of management. The man was polite and professional and said that Wallace would need to come to the back office with him. Wallace complied with these instructions. At this point, the blanket was in Wallace’s possession and she tried to reason with Stringer. Wallace tried to show Stringer that the blanket was used, it had baby spit-up on it, and it had long black hairs on it. Stringer would not listen; she continued to say that Wallace was lying. Stringer called other Wal-Mart employees into the room and asked if they had seen Wallace come into the store with the blanket.

Wallace decided to go look in her truck to make sure that she had brought the blanket with her and that she had not mistakenly picked up the blanket in the store. Stringer and the male employee went with her. After going to the truck, Stringer apologized for getting loud and told Wallace that she could leave. Wallace said she did not want to leave, that she wanted to call the police and her husband. Stringer changed her attitude after Wallace said she was not leaving. Stringer then told Wallace that she could not leave because she had taken the blanket.

The police arrived, and the officer refused to write a ticket. He looked at the blanket and expressed surprise that anyone would think it was a new blanket. The police officer told Wallace she was free to go. Notwithstanding the police officer’s actions, Wal-Mart criminally prosecuted Wallace on a shoplifting charge which was dismissed by the recorder’s court judge who heard the case. The recorder’s court judge, however, bound Stringer over to superior court on a warrant on false imprisonment charges.

The trial court granted summary judgment to defendants on Wallace’s assault claim, because she “failed to point to evidence that demonstrates that Mrs. Wallace was physically touched by Stringer or that Stringer or any other employee used force against her.”

(a) OCGA § 51-1-14 provides that “[a]ny violent injury or illegal attempt to commit a physical injury upon a person is a tort for which damages may be recovered.” Black’s Law Dictionary (6th ed.) provides that “[a]n assault may be committed without actually touching, or striking, or doing bodily harm, to the person of another.” Georgia case law also establishes that an actual touching is not a necessary element of the tort of assault. “To constitute an assault no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so.” (Punctuation omitted.) Reeves v. State; Godboult v. State. Wallace contends that Stringer’s actions constituted an assault. Given Stringer’s conduct in shouting and threatening Wallace, including her threats to have her dragged to the office in the back of the store, coupled with her apparent ability to accomplish the threatened assault, we cannot say as a matter of law that Wallace was not the victim of an assault. This is a matter for a jury to determine. The trial court erred in granting summary judgment to defendants on Wallace’s assault claim, and that ruling is reversed.

(b) The defendants contend that the trial court properly granted summary judgment to them on Wallace’s claim of false imprisonment because (1) Wallace was never arrested and (2) Wallace was not restrained or prevented from leaving. However, issues of fact remain which preclude the trial court’s finding that Wallace was not restrained or prevented from leaving.

False imprisonment is defined by statute as the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty. OCGA § 51-7-20. Our courts have held that the only essential elements of the tort are the detention and its unlawfulness. The restraint used to create the detention must be against the plaintiff’s will and be accomplished by either force or fear. The restraint may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries. An individual may be imprisoned when [her] movements are restrained ... or when [she] is compelled to go along with the defendant.

(Citations and punctuation omitted.) Wideman v. DeKalb County. Although Wallace deposed that she was not physically forced to accompany Stringer to the back office, the evidence shows that Stringer was in possession of Wallace’s blanket while they were walking to the back of the store and that she had threatened to have her dragged there if she resisted. Additionally, Wallace deposed that at some point while she was in the back of the store, she asked if she could go to the bathroom. Stringer replied, “No, you’re not going anywhere.”

In Burrow v. K-Mart Corp., this Court first discussed the issue of whether the detention of a person’s property is the detention of the person. Therein, the plaintiff had purchased two lamps which were not in their original boxes. Id. at 284. The store greeter took the boxes to search them and demanded to review the receipt. Id. This Court determined that “[t]he exercise of dominion over the property serves also to exercise dominion over the person owning such property,” and that a jury issue was created as to whether the greeter’s words and acts “[acted] upon the plaintiffs will so as to restrain her.” Id. at 289 (3).

In the present case, Stringer’s dominion over Wallace’s blanket and her alleged refusal to allow Wallace to go to the bathroom are sufficient to create a jury issue on Wallace’s claims of false imprisonment.

(c) Defendants contend that Wallace’s claims for false imprisonment and malicious prosecution are mutually exclusive. We cannot agree. The cases cited by defendants all involve the actual arrest of the plaintiff pursuant to a warrant or based upon probable cause. Such cases are distinguishable from the facts herein. Furthermore, in Brown v. Super Discount Markets, we noted that false arrest and false imprisonment claims were not mutually exclusive. See also Simmons v. Kroger Co.

Therefore, the trial court erred in granting the defendants’ motion for summary judgment on Wallace’s assault and false imprisonment claims, and that ruling is reversed.

2. In her second enumeration of error, Wallace contends that the trial court erred by denying her motion for judgment n.o.v. or, in the alternative, motion for new trial. Wallace argues that the jury’s verdict was wholly inadequate with relation to the evidence presented.

“The question of damages is ordinarily for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience.” (Citations and punctuation omitted.) Sykes v. Sin, 229 Ga. App. 155, 159 (4) (493 SE2d 571) (1997).

J. B. Hunt Transport v. Brown.

After reviewing the record, we cannot say that the trial court erred in this ruling or that an award of $50,000 was inadequate for the issues tried. Wallace claimed medical expenses of $13,217.81 and attorney fees of $18,000. Therefore, the trial court did not err in denying Wallace’s motion for judgment n.o.v. or, in the alternative, motion for new trial for those issues which were tried.

However, because the trial court had granted summary judgment to defendants on the assault and false imprisonment claims, those issues were not before the jury for consideration. The jury did, however, hear the underlying evidence on these issues during the trial of the remaining claims. As summary judgment had been granted to defendants on the assault and false imprisonment claims, these claims by plaintiffs were not considered by it and the trial court gave no charges on the relevant law. We cannot say that the jury’s verdict was not affected by the evidence on these issues, and thus a new trial must be had on all issues in light of our ruling in Division 1.

Decided July 31, 2001

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, for appellants.

McLain & Merritt, Albert J. Decusati, Lucian Gillis, Jr., Hall, Booth, Smith & Slover, Anthony A. Rowell, for appellees.

We therefore vacate the jury’s verdict and remand this case for a new trial, as requested by Wallace.

Judgment reversed in part, vacated in part and remanded for new trial.

Pope, P. J., and Mikell, J., concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Because Kelvin Wallace’s claim includes only a loss of consortium claim, references to “Wallace” refer to Mary Aim Wallace. All references to Kelvin Wallace will include his first name or his status as Mary Ann’s husband.

        Reeves v. State, 128 Ga. App. 750, 751-752 (197 SE2d 843) (1973).

        Godboult v. State, 38 Ga. App. 137, 138 (142 SE 704) (1928).

        Wideman v. DeKalb County, 200 Ga. App. 624, 628 (1) (b) (409 SE2d 537) (1991).

        Burrow v. K-Mart Corp., 166 Ga. App. 284, 287-289 (3) (304 SE2d 460) (1983).

        Brown v. Super Discount Markets, 223 Ga. App. 174, 175 (477 SE2d 839) (1996).

        Simmons v. Kroger Co., 218 Ga. App. 721, 722 (1) (463 SE2d 159) (1995).

        J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 637 (3) (512 SE2d 34) (1999).