author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0812.
    CUNNINGHAM v. THE STATE.
    (471 SE2d 273)
   Blackburn, Judge.

Robert Cunningham appeals his convictions of felony obstruction, simple battery, and driving under the influence.

On July 25, 1993, Cunningham was pulled over by an Athens-Clarke County police officer for speeding. When asked for his license, Cunningham handed the officer a paper license bearing the name Kim Tarpkins. Because the officer smelled a strong odor of alcoholic beverage coming from Cunningham’s person, the officer performed various field sobriety tests. Specifically, the officer performed the “finger-to-nose” test and asked Cunningham to recite the alphabet. Cunningham failed both tests, and another officer was called to the scene to help place Cunningham under arrest for driving under the influence.

Cunningham attempted to flee on foot, and a struggle ensued. The first officer testified, and the second officer confirmed, that Cunningham hit, kicked, punched, bit him and attempted to grab his gun. Cunningham alleges that he used only the amount of force necessary to escape from the police, whom Cunningham alleges were using excessive force.

1. Cunningham contends that the trial court erred in failing to charge the jury that Cunningham had no burden to prove his defense.

The trial court charged the jury: “[T]his Defendant is presumed to be innocent until proven guilty. The Defendant enters upon the trial of the case with the presumption of innocence [sic] in his favor, and this presumption remains with the Defendant in the nature of evidence until it is overcome by the State of Georgia with evidence which is sufficient to convince you beyond a reasonable doubt that the Defendant is guilty of the offense charged. I charge you that no person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt.” This burden of proof charge is more than sufficient. See Blair v. State, 179 Ga. App. 519 (347 SE2d 337) (1986) (setting forth the necessary requirements for a valid presumption of innocence charge).

2. Cunningham contends the trial court erred in failing to charge the jury that “[i]t is a defense to a prosecution for driving under the influence that the person’s manner of driving was not unsafe.” Cunningham, however, has failed to cite to any authority in support of this proposition.

Cunningham was charged with, and convicted of, driving under the influence in violation of OCGA § 40-6-391 (a) (1), which provides “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” Cunningham freely admits that he violated this statute. In fact, Cunningham testified that he was so drunk that he was unable to remember exactly what happened on the night in question. Therefore, this enumeration is without merit.

3. Cunningham contends that the trial court erred in failing to charge the jury that “it is a defense to the offenses of simple battery and felony obstruction that these acts were committed by the defendant to resist the use of excessive force by a police officer even in the making of a lawful arrest.”

The trial court charged the jury: “[A] police officer in making a lawful arrest is authorized to use only that degree of force which is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made does not give the officer the right to use excessive force or an unlawful degree of force upon the person arrested. I charge you that a person being arrested, even though the arrest itself is lawful, has the right to resist the use of excessive and unlawful force by those making the arrest to the extent that the person reasonably believes that the degree of resistance used is necessary to defend himself against the officer’s use of unlawful or excessive force. In resisting, the person being arrested would not be authorized to use force which is unlawful or disproportionate to the amount of force necessary to prevent the unlawful force being used against the person.” Cunningham has failed to provide any argument why this charge was inaccurate or insufficient. Therefore, this enumeration is without merit.

4. Cunningham contends that there was insufficient proof to support his convictions.

We find that the evidence was sufficient to allow a rational trier of fact to find Cunningham guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J, concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I fully concur but believe it important to point out that, although defendant does not cite the Georgia Constitution as support for his position, it applies. The Bill of Rights provides: “nor shall any person be abused in being arrested, while under arrest, or in prison.” Ga. Const. 1983, Art. I, Sec. I, Par. XVII. The court’s charge on excessive force comported with this important right, which guards the lone arrestee from the unnecessary use of the physical power of the State. And the evidence did not, as a matter of law, require a finding of abuse.

Decided May 8, 1996.

Adrienne R. McFall, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A0386.
    In the Interest of R. L. M. et al., children.
    (471 SE2d 245)
   Smith, Judge.

The mother of R. L. M., T. D. M., J. P. M., J. L. M., and D. M., Jr., appeals from the orders of the Juvenile Court of Madison County terminating her parental rights to all five children, ranging in age from five to nine years old. Although she raises six enumerations of error, all six challenge the sufficiency of the evidence presented at the termination hearing to support the various findings required for termination of parental rights.

Termination of parental rights under OCGA § 15-11-81 is a two-step process. The court must first determine whether clear and convincing evidence exists of parental misconduct or inability. The court then determines whether termination is in the best interest of the child. In the Interest of C. D. P., 211 Ga. App. 42, 43 (3) (438 SE2d 155) (1993). On appeal, the standard of review is “whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.” (Citations and punctuation omitted.) Id. at 43-44 (3). After reviewing the record, we conclude that clear and convincing evidence exists to support terminating the mother’s parental rights, and we affirm.

1. Parental misconduct or inability must be shown by findings that the child is deprived; that lack of proper parental care or control by the parent in question is the cause of that deprivation; that such deprivation is likely to continue and will not likely be remedied; and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A).

These requirements were amply demonstrated by the evidence presented at the termination hearing. The Department of Family & Children Services (DFACS) of Madison County first became involved with these children in 1990 when they received reports of neglect. Except for six to eight months during which the two oldest children were briefly and unsuccessfully reunited with their mother, the children have been in foster care since March 1991, when the mother acknowledged she was unable to care for them and agreed to foster care for 90 days. Their father was convicted of various crimes involving child molestation, and is currently incarcerated for violating parole. His visits with the children were required to be supervised, but the mother admitted that the children’s father spent time at her home and that she permitted him to visit with the children unsupervised during her own visitation periods.

Several witnesses, including counselors, day care providers, teachers, and school principals described the children’s lack of cleanliness, poor nutrition, and behavior problems, including sexual acting out following visits with their mother. The mother was evaluated by a psychologist, who found the mother to have borderline intelligence, delayed personality development, a narcissistic personality disorder, and a passive/aggressive disorder. She had a strong reluctance to participate in psychotherapy.

The three oldest children were also evaluated. D. M. was found to function in the borderline educable to mentally retarded range. The next two oldest children were also evaluated by the psychologist, who found them to be borderline to mildly mentally retarded. J. L. M.’s emotional development was also stunted by his being forced to care for his siblings. The psychologist opined that all three children had special needs that will require skilled parenting, and that their mother was not able to provide the appropriate care for them.

For four and one-half years, DFACS developed numerous case plans with the goal of reunification of the family. These plans required the mother to obtain stable housing and employment, and to provide support for her children as well as basic living needs. Several counselors worked with the mother extensively to improve her parenting skills. Despite her efforts, and possibly because of her documented deficiencies, the mother was unable to comply with these goals. The mother does not have stable housing or a stable job. In her present job she works swing shifts. Her parenting skills have not improved sufficiently; she admitted at the hearing that she still needs help and would not be able to care for the children herself. Finally, the February 16, 1995 case plan mandated that the children must have permanency, and the termination petitions were filed.

This evidence showed that the children were deprived; that the mother’s inability to care for them was the cause of that deprivation; that despite both the mother’s and the Department’s best efforts the deprivation was not likely to be remedied; and that it was likely to cause serious harm to the children. The finding of parental misconduct or inability was supported by clear and convincing evidence.

2. Turning to the second step, we also find that the juvenile court did not err in concluding that termination of the mother’s parental rights was in the children’s best interest. Such a finding is, in essence, a finding that the specifics of the mother’s default that were otherwise found to exist were of such magnitude as to warrant the conclusion that the children themselves would be better served by terminating the mother’s parental rights. See In the Interest of B. P., 207 Ga. App. 242, 245 (427 SE2d 593) (1993). It follows that the same factors that support the finding of parental misconduct or inability can also support a finding that termination is in the children’s best interest. Id. Our review of the record shows that clear and convincing evidence existed to support the juvenile court’s finding in this regard. The orders terminating the mother’s parental rights are therefore affirmed.

Decided May 2, 1996

Reconsideration denied May 9, 1996

James A. Dunlap, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Fitzpatrick & Camp, Thomas A. Camp, Graham & Associates, Billy I. Daughtry, Jr., John A. Kupris, for appellee.

Judgment affirmed.

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

       The father’s parental rights were also terminated, but he has not appealed.


author: Beasley, Chief Judge.

text:
    A96A0085.
    A96A0273.
    A96A0915, A96A0916.
    THOMAS v. HOLT et al. THOMAS v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. HOLT et al. v. THOMAS; and vice versa.
    (471 SE2d 300)
   Beasley, Chief Judge.

Plaintiff Thomas was employed by MARTA as a fare collector when he was arrested for theft of revenue by MARTA police officers Holt, Montrose, and Wiley. After a jury found Thomas not guilty of all criminal charges, he filed this action against MARTA and the three officers for damages.

The evidence introduced at trial showed that Thomas had been employed by MARTA for approximately 20 years. He most recently worked as a fare collector at MARTA’s Brookhaven station. On May 15, 1993, Thomas was placed under surveillance by the defendant officers, who were investigating the possible theft of revenues.

After Thomas had finished collecting fares, the officers observed him take his fare box into a locked room which he opened with a key. Officer Wiley, while standing outside the room, heard a loud scrubbing noise. Officer Montrose joined him and opened the door with her key. The two officers observed that the fare box was open, plaintiff was adjusting his clothing, and there was a bulge at his waistline.

Thomas closed the fare box and exited the room. With some difficulty, he rolled the fare box up a flight of stairs to a platform where MARTA riders enter and exit trains. While he was ascending the stairs, the lock came off the fare box. Officers Holt and Montrose approached him when he arrived on the platform and asked to speak with him in a staff room downstairs.

They entered the room and a scuffle ensued. According to Thomas, it resulted from the officers’ efforts to physically restrain him because he attempted to leave. Wiley testified that during the course of the scuffle, a bag containing money came out of Thomas’ pant leg; Thomas testified it came out of his pocket. After the money was discovered, Thomas was handcuffed.

According to Holt and Montrose, Thomas voluntarily accompanied them to the staff room, but Thomas said the two officers physically forced him to go with them. They also contradicted Thomas’ testimony that he had collected fares by hand; they testified that he did not collect any money from MARTA patrons by hand but rather would direct them to place their fares in the fare box.

Thomas sought damages for personal injuries arising during and after his arrest, malicious prosecution, slander, and civil rights violations under 42 USC § 1983. The jury found in favor of the defendants on the claims for personal injuries and slander. As to the claim for malicious prosecution, the jury awarded $56,000 in general and special damages, $219,000 in punitive damages, and $2,500 in attorney fees against MARTA, Holt, and Montrose. On Thomas’ § 1983 claims, the jury awarded $1.25 in general and special damages and $1.25 in punitive damages, against Holt and Montrose.

After the jury returned its verdict, Thomas moved for an award of attorney fees under 42 USC § 1988. Judgment was later entered against Holt and Montrose for all damages awarded by the jury and against MARTA for all but punitive damages. Every party but Wiley moved for j.n.o.v. and new trial, and the court denied Thomas’ motion for attorney fees. Among other things, the court concluded that Thomas was not a “prevailing party” under § 1988, because he received only nominal damages on his § 1983 claims. Several months after entry of the attorney-fee order, the court denied all the motions for j.n.o.v. and new trial. MARTA has not appealed, but instead has satisfied that part of the judgment for which it, Holt, and Montrose are liable (i.e., on the malicious prosecution claim, all but punitive damages).

In Case No. A96A0085, Thomas appealed from the judgment as well as from the denial of his motion for attorney fees. He only enumerates error in the latter. In Case No. A96A0915, Holt and Mont-rose appealed the denial of their motion for j.n.o.v. Case No. A96A0916 is Thomas’ cross-appeal, which again contends that the court erred in denying Thomas’ motion for attorney fees. Case No. A96A0273 is an appeal by Thomas from an order denying a motion to require Holt and Montrose to post a supersedeas bond.

We have consolidated Case Nos. A96A0085 and A96A0915 because our decision in the latter case controls the former. We dismiss Case No. A96A0916 because it is duplicative of Case No. A96A0085. See McClure v. Gower, 259 Ga. 678, 680 (385 SE2d 271) (1989). We did not expedite Case No. A96A0273, as Thomas made no request for expedition; we now consolidate this appeal with the remaining appeals and dismiss it as moot.

1. The defendant officers contend that the trial court erred in denying their motion for directed verdict on Thomas’ § 1983 claim because of their qualified immunity. It was based upon the theory that by seizing him on the MARTA platform and requiring him to accompany them to the staff room downstairs, they arrested him without probable cause and thus illegally.

According to Holt, Thomas was asked to accompany the officers to the staff room because the MARTA platform was crowded, noisy with trains coming in and out, and unsafe in that it was unenclosed and the tracks were unprotected. According to Montrose, the officers did not intend to arrest Thomas but rather to summon his supervisor so the supervisor could question him. Montrose testified the officers believed they were authorized to place Thomas in investigative detention based on a reasonable suspicion of criminal activity.

We apply the principles expressed in the following cases.

“Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. [Cit.]” Lee v. State, 201 Ga. App. 827, 829 (2) (412 SE2d 563) (1991).

“Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Cits.]” (Footnote omitted.) Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993). “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U. S. 800, 818, 102 S.Ct. 2727, 2738, 73 LE2d 396 (1982); [cits.] . . . Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. [Cit.] . . . For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law. [Cit.]” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F3d 1146, 1149 (11th Cir. 1994). “[P]laintiffs must prove the existence of a clear, factually-defined, well-recognized right of which a reasonable police officer should have known. [Cit.]” Barts v. Joyner, 865 F2d 1187, 1190 (1) (11th Cir. 1989). “Objective legal reasonableness is the touchstone.” Lassiter, supra at 1150.

In moving for a directed verdict on Thomas’ § 1983 claim, the officers argued that they had not violated any clearly established constitutional right of Thomas’. At trial and on appeal, Thomas insists that it has been clearly established that an officer cannot remove an individual, even an employee, from a public transportation facility to a private room for interrogation on mere suspicion.

However, “[i]t is recognized that no ‘bright line’ rule or ‘rigid time limitations’ can be imposed in determining whether detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. [Cits.]” DiSanti v. State, 190 Ga. App. 331, 334 (1) (378 SE2d 729) (1989), citing United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 84 LE2d 605) (1985). “Terry carefully notes that the limitations placed upon a brief investigatory stop depended on the facts and circumstances. They would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer’s conduct.” White v. State, 208 Ga. App. 885, 888 (2) (432 SE2d 562) (1993).

As authority in support of his position, Thomas relies upon Bothwell v. State, 250 Ga. 573 (300 SE2d 126) (1983), and the cases cited therein. Bothwell approvingly cited United States v. Berry, 670 F2d 583, 601-602 (5th Cir. 1982), for the proposition “that if an individual who has been seized is required, without his consent, to accompany the police from the airport concourse to an airport office, this is a full-blown arrest requiring probable cause rather than mere reasonable suspicion.” (Emphasis supplied.) Id. at 578 (4).

However, in United States v. Espinosa-Guerra, 805 F2d 1502, 1509 (7) (11th Cir. 1986), the court read Berry as not being contrary to the Sharpe admonition against per se rules for when a seizure becomes an arrest. Consequently, the court in Espinosa-Guerra held that a DEA agent did not exceed the bounds of an investigative stop by requesting that a suspect who could not speak English accompany him from an airport boarding area to an airline office. Id. at 1509-1510 (8). In Barts, supra at 1191, the court held that “Berry is an airport stop case and what was said there must be read in that unique context. [Cit.]”

In this case, we hold that on the basis of the officers’ observations of the employee in the locked room in the downstairs area of the MARTA station and thereafter, they did not act unreasonably by requiring him to accompany them from the MARTA platform back to a staff room in the downstairs area so that the status quo could be maintained pending his questioning by his supervisor. Therefore, they did not violate a right of his of which a reasonable police officer should have known.

There is no merit in Thomas’ argument that this was not the type of brief encounter which the courts have held to constitute a seizure rather than an arrest, in that it would have taken Thomas’ supervisor approximately 20 minutes to arrive at the Brookhaven MARTA station. “In United States v. Sharpe, [supra] the Supreme Court determined that a 20-minute detention of an automobile driver did not exceed the bounds of an investigative stop.” State v. Grant, 195 Ga. App. 859, 863 (3) (394 SE2d 916) (1990).

Accordingly, the trial court erred in denying the motion for directed verdict on Thomas’ § 1983 claim.

2. Defendants also contend that the court erred in denying their motion for j.n.o.v. as the award of punitive damages is not supported by the evidence.

We do not reach this issue, because defendants did not move for a directed verdict on this ground. The j.n.o.v. must be based on grounds raised in the motion for directed verdict. Dee v. Sweet, 218 Ga. App. 18, 21 (2b) (460 SE2d 110) (1995), interpreting OCGA § 9-11-50 (b).

3. In view of our holding in Division 1, the court did not err as a matter of law in denying Thomas’ motion for attorney fees on the ground that he was not a “prevailing party” within the contemplation of § 1988.

In pertinent part, § 1988 states that in any § 1983 action, “ ‘the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.’ ” Hensley v. Eckerhart, 461 U. S. 424, 426 (103 SC 1933, 76 LE2d 40) (1983); Maine v. Thiboutot, 448 U. S. 1, 9 (100 SC 2502, 65 LE2d 555) (1980). Thomas has not prevailed for fee purposes under § 1988 if his federal civil rights claims have been decided adversely to him. See Finch v. City of Vernon, 877 F2d 1497, 1507 (21) (11th Cir. 1989) (plaintiff not entitled to an award of attorney fees under § 1988 because he was not successful on his § 1983 claims even though he ultimately prevailed on his state tort claims); Huffman v. Hart, 576 FSupp. 1234 (N.D. Ga. 1983) (plaintiff not entitled to an award of attorney fees under § 1988 when both a § 1983 and a pendent state-law claim are presented to a jury and the party prevails on the pendent claim only); compare Hensley v. Eckerhart, supra, 461 U. S. at 433 (plaintiff entitled to an award of attorney fees under § 1988 if, in bringing suit challenging the constitutionality of treatment and conditions at the forensic unit of a state hospital, they succeeded on any significant issue in federal civil rights litigation which achieved some of the benefits the parties sought in bringing suit; no state law claims involved); Allen v. District of Columbia, 503 A2d 1233, 1236 (1) (D.C. App. 1986) (plaintiff is a prevailing party under § 1988 where jury returned a verdict on both a common-law tort claim and a civil rights claim, although the jury chose to award damages on tort claim only); Williams v. Thomas, 692 F2d 1032, 1036 (3) (5th Cir. 1982) (court avoids deciding difficult issue relating to constitutional claim, by holding that plaintiff who prevailed on pendent state tort claim entitled to recover attorney fees under § 1988 since civil rights claim and state claim arose out of common nucleus of operative facts); Woodard v. Hardee’s Restaurant, 643 FSupp. 691, 693 (3) (W.D. Mo. 1986) (fee award is appropriate when the state law claim upon which a plaintiff actually prevails is accompanied by a substantial though undecided federal claim arising from the same nucleus of facts).

Decided May 9, 1996.

Robert M. Goldberg, Michael E. Bergin, for appellant.

Miriam D. Lancaster, for appellees.

In this instance, the state law malicious prosecution claim and the § 1983 unlawful seizure and arrest claim are not by their nature directly analogous, as was the situation in Woodard, or arising out of a common nucleus of operative facts, as occurred in Williams. Thomas’ federal claim should not have gone to the jury in the first place, and thus he was not a prevailing party on any federal civil rights claim. “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances. H.R. Rep. No. 94-1558, p. 1 (1976).” Hensley, supra, 461 U. S. at 429.

In sum, the judgment for malicious prosecution stands, the judgment on § 1983 is reversed, the denial of attorney fees under § 1988 is affirmed, and the denial of the supersedeas bond is moot.

Judgment in Case No. A96A0085 affirmed. Judgment in Case No. A96A0915 affirmed in part and reversed in part. Case Nos. A96A0273 and A96A0916 dismissed.

Birdsong, P. J, and Blackburn, J., concur.

       Thomas did not sue Montrose and Holt in their official capacities. See Fitzgerald v. McDaniel, 833 F2d 1516, 1520 (11th Cir. 1987). For the distinction in federal law, see Kentucky v. Graham, 473 U. S. 159 (105 SC 3099, 87 LE2d 114) (1985). To compare with Georgia law, see Gilbert v. Richardson, 264 Ga. 744, 748 (4) (452 SE2d 476) (1994).

       The reason this immunity is given is that it has been decided that it is “unfair — and, as a matter of public policy, unwise — to impose personal liability on government officers unless the officers had advance notice that what they were doing was unlawful.” (First emphasis supplied.) Lassiter, supra at 1152. The purpose was explained in Harlow, supra at 819: “The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ [Cit.]” (Footnotes omitted.)


text:
    A96A0143.
    UNDERWOOD et al. v. NATIONSBANC REAL ESTATE SERVICE, INC.
    (471 SE2d 291)
   Beasley, Chief Judge.

Appellant Cheryl Underwood worked as a bookkeeper for Underwood & Moore Construction Company (there is no family relationship between the appellants and the construction company and Cheryl Underwood was nothing more than a salaried employee). On April 4, 1990, the construction company borrowed $80,000 from the predecessor of NationsBanc Real Estate Service to finance construction of a home for a person named Bennett. In addition to the usual financing and security instruments, the bank was given a guaranty of the $80,000 debt signed by Cheryl Underwood and her husband Alvin, as well as by the construction company’s principals, Moore and Underwood. In a separate note dated December 4, 1990, the bank loaned the construction company an additional $7,000.

The construction company may have requested additional funds and it is contended the bank made advances under the “Bennett” property note to cover interest payments on other debts the construction company owed to the bank, avoiding default on those debts. Eventually the company defaulted on the “Bennett” debt, and Bennett bought the property at foreclosure for $66,500. The foreclosure sale was confirmed and left a deficiency of $28,839.70. The bank sued Cheryl and Alvin Underwood, but apparently not the company’s principals, on the guaranty for the deficiency. The appeal is from the grant of summary judgment to the bank.

Contrary to the Underwoods’ claim, they did not merely agree to guarantee payment of $80,000 and “nothing else,” but rather guaranteed payment of contractually defined “Liabilities,” which included: a) the $80,000 real estate note and its interest, b) extensions or renewals of it, c) any advances to preserve priority of it, d) late charges, etc., under it, and e) “all other monies” owed to the bank by the construction company. This description, and other language in the contract, refutes the Underwoods’ arguments.

They contend the contract is ambiguous and must be construed against the bank or presented to a jury. There is nothing ambiguous about these straightforward terms: “Undersigned hereby unconditionally guarantees the full and prompt payment of. . . (e) the payment of all other monies which shall at any time be owing to Lender from Borrower, its successors or assigns, either directly or indirectly.” Nor is any of the following language ambiguous: “Lender may, from time to time, without notice to Undersigned, and without affecting, diminishing or releasing the liability of Undersigned . . . (c) . . . increase or decrease the indebtedness of Borrower”; “Undersigned hereby expressly waives:. . . (b) notice of the existence or creation of any of the Loan Documents or all or any of the Liabilities or Obligations”; “It is fully understood that until each and every one of the covenants and agreements of this guaranty is fully performed, [U]ndersigned’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this provision of this guaranty, be deemed a legal or equitable discharge of a surety or guarantor, . . . or by reason of any action taken or omitted by Lender, whether or not such action or failure to act varies or increases the risk of, or affects the rights of, Undersigned . . . and Undersigned hereby expressly waives and surrenders any defense to the performance of its undertakings hereunder based upon any of the foregoing acts, omissions, things, agreements or waivers of any of them”; “[a]ny amount received by Lender from whatever source and applied by it toward payment of the Liabilities shall be applied in such order of application as the Lender may from time to time elect.”

The Underwoods contend the court failed to properly apply OCGA § 10-7-21 (“Any change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him”) and OCGA § 10-7-22 (“Any act of the creditor . . . which injures the surety or increases his risk or exposes him to greater liability shall discharge him”). They argue the December 4, 1990 note for $7,000 was a new obligation of the construction company beyond the original $80,000 note and was both a novation and an increase in risk imposed without their consent, so as to discharge them from any liability on the guaranty.

Even if the language of the guaranty allowed such an additional note to be considered a novation or an increase in risk, the protection of the cited Code sections can be waived by the guarantor’s consent to a novation or additional risk; consent can be given in advance, even at the time the guaranty is signed. Overcash v. First Nat. Bank, 115 Ga. App. 499, 501-502 (155 SE2d 32) (1967); Bobbitt v. Firestone Tire & Rubber, 158 Ga. App. 580, 581-582 (2) (281 SE2d 324) (1981). See also Dunlap v. C & S DeKalb Bank, 134 Ga. App. 893, 895-896 (3, 4) (216 SE2d 651) (1975). As noted above, the language of the guaranty specifically contemplated increase in the company’s debt and the creation of new obligations, and it included waivers of any “legal or equitable discharge” and of any defense based upon an increase in risk. See Casgar v. C & S Nat. Bank, 188 Ga. App. 234, 236 (4) (372 SE2d 815) (1988).

In a related argument, the Underwoods contend the bank misappropriated funds by advancing funds under the “Bennett” note and applying them to other debts the construction company owed the bank to prevent the company defaulting on those, thereby increasing the Underwoods’ risk. This argument fails because they specifically agreed that the bank could take funds received “from whatever source” and apply those funds to the company’s debts as it saw fit.

They also contend that Georgia law prevents anything in the guaranty from operating as a waiver of any bank conduct beyond “simple negligence,” see Turner v. Walker County, 200 Ga. App. 565, 566 (2) (408 SE2d 818) (1991); Harris v. Nat. Evaluation Sys., 719 FSupp. 1081, 1084 (N.D. Ga. 1989), affirmed without opinion, 900 F2d 266 (11th Cir. 1990), and that the assignment of funds was gross negligence or wanton and wilful conduct. This is not a tort case involving a release. Compare Turner, supra; Harris, supra. The bank’s obligations to the Underwoods are governed by the terms of the contract of guaranty, not by tort concepts of duty of care. As shown above, the agreement permitted the bank’s actions, and the protections afforded by OCGA §§ 10-7-21 and 10-7-22 can be, and were, waived.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided May 9, 1996.

Buzzell & Pinkston, R. William Buzzell II, Loretta L. Pinkston, for appellants.

Lane & Jarriel, Walter J. Lane, Jr., for appellee.

       The court’s order states that the Underwoods contend Cheryl, not Alvin, signed his name. It is not argued that there is any error concerning this issue and the Underwoods state in their brief that both executed the guaranty.


author: Ruffin, Judge.

text:
    A96A0160.
    HERRINGTON v. STATE OF GEORGIA.
    (471 SE2d 289)
   Ruffin, Judge.

The State filed a complaint instituting in rem forfeiture proceedings pursuant to OCGA § 16-13-49 against a 1991 Chevrolet Silver-ado truck owned by David Herrington. The State instituted the proceedings after a May 1995 search of the vehicle produced 3.96 ounces of marijuana. After a bench trial, the trial court determined that the vehicle stop and search were valid and that the vehicle was being used to facilitate a sale of marijuana. The trial court forfeited the property to the State. Herrington appeals, alleging an illegal pretextual stop. For the reasons which follow, we affirm.

1. In his first enumeration of error, Herrington contends the trial court erred in finding that police executed a legal stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion of criminal conduct, not probable cause. State v. Thomason, 153 Ga. App. 345 (1) (265 SE2d 312) (1980). An officer may conduct a brief investigatory stop of a vehicle if that stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Evans v. State, 216 Ga. App. 21 (2) (453 SE2d 100) (1995). This specific, articulable suspicion must be based on the totality of the circumstances, including objective observations, known information about the individual, patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel. See Cheatham v. State, 204 Ga. App. 483 (1) (419 SE2d 920) (1992).

The police had the following information in this case. David Smith, a confidential informant, arranged to purchase one-half pound of marijuana from Herrington. Smith testified he had purchased marijuana from Herrington on several occasions in the past four years. On prior occasions, Smith would place the order and Herrington would meet him somewhere. Herrington always arrived in a black, mid-sized Chevrolet truck with tinted windows. On this occasion, Herrington instructed Smith to meet him at a specific car wash in approximately 15 minutes.

Smith informed Officer Brown, with the Multiagency Narcotics Squad, of the deal. Brown instructed Smith not to go to the location and requested assistance from Investigators Martin, Meredith, Potts and Gentry. Officer Scott positioned himself between Herrington’s residence and the car wash, where he observed Herrington’s truck headed in the direction of the car wash a short time later. Investigators Brown, Meredith and Martin drove to the car wash in an unmarked car and observed Herrington from various surveillance positions.

Herrington arrived at the car wash in a black 1991 Chevrolet Silverado pickup truck. He sat in the truck for some time, then began vacuuming the truck. While vacuuming, Herrington removed a brown paper bag from the front left portion of the truck’s bed and placed it on the ground. Herrington washed his vehicle and then placed the brown paper bag back in the truck in the same location. He waited approximately ten more minutes, then left the car wash.

Officer Martin advised other officers in the area of Herrington’s departure in the pickup truck with a Purple Heart tag. Officer Gentry radioed Officer Potts with the same information when Herrington passed him.

Officer Ralston, with the Barrow County Sheriff’s Department, was in the area and heard some conversation over the radio regarding a black pickup truck. Officer Ralston saw a black truck in front of him and noticed that Officer Potts was trying to proceed in the same direction as the truck, but was blocked by traffic. Officer Ralston, therefore, proceeded to follow the truck.

Officer Ralston testified he “didn’t know if the man was drunk or on drugs or what it was. When he went around the curve to go to the red light, he sort of hit the grass. I guess he was looking at the DUI Task Force Unit and me behind him or whatever.” Officer Ralston further testified, “I seen it weave. That’s the reason I did stop it. . . . I stopped it because it did weave.”

When Herrington exited the truck, Officer Ralston asked for his driver’s license and insurance. Officer Potts arrived shortly thereafter and ran a check on Herrington’s driver’s license number. Herrington denied possessing any illegal contraband and consented to a search of his truck. The search revealed a brown paper bag on the driver’s side back bed. Inside the paper bag was a plastic bag containing 3.9 ounces of marijuana.

Based on this evidence, the trial court did not err in finding the police had specific, articulable facts sufficient to give rise to reasonable suspicion of criminal conduct. Evans, supra at 23. Smith’s identification of Herrington as the supplier of the marijuana and his description of Herrington’s vehicle, coupled with Herrington’s presence at the designated car wash, “remove the police’s actions beyond the realm of either the ‘unparticularized suspicion or hunch’ standard articulated in Terry ... or ‘mere caprice or arbitrary harassment.’ [Cit.]” Burdette v. State, 210 Ga. App. 471, 473 (436 SE2d 502) (1993).

Decided May 9, 1996.

Barry M. Hazen, for appellant.

Timothy G. Madison, District Attorney, James L. Moss, Jr., Robin R. Riggs, Assistant District Attorneys, for appellee.

Furthermore, Officer Ralston testified he pulled the car over because he saw it weave onto the grass. Even though the officer did not cite Herrington with a traffic offense, the trial court could have determined that a reasonable officer would have made the stop under the same circumstances. Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994). “It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense. [Cit.]” Hines, supra at 477.

Accordingly, we affirm the trial court’s finding that the stop was reasonable.

2. Herrington next asserts that the consent he gave to search his truck was involuntary in that it was tainted by the illegal stop. It is not disputed that Herrington consented to a search of his truck. Herrington contends, however, that since the stop was pretextual, proof of voluntary consent alone is insufficient to eliminate any taint from the illegally seized marijuana. See Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). Since we have already determined that the stop was not pretextual, this claim lacks merit.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A0299.
    HERRIN v. THE STATE.
    (471 SE2d 297)
   Beasley, Chief Judge.

After a jury trial, Herrin was convicted of cruelty to children by maliciously causing excessive physical pain through failing to seek proper medical attention. OCGA § 16-5-70 (a). He was acquitted on charges of malice murder, OCGA § 16-5-1 (a), and the lesser included offense of battery, OCGA § 16-5-23.1 (a); felony murder by committing the felony of cruelty to children by maliciously causing excessive physical pain by striking a child, OCGA §§ 16-5-1 (c), 16-5-70 (b); felony murder by committing the felony of cruelty to children by maliciously causing excessive physical pain through failing to seek proper medical attention, OCGA §§ 16-5-1 (c), 16-5-70 (a); aggravated battery, OCGA § 16-5-24 (a); and the lesser included offense of battery, OCGA § 16-5-23.1 (a). His only assertion of error is that the court allowed the State to exercise its jury strikes in a discriminatory manner to exclude males.

The charges against Herrin arose from the death of his girl friend’s three-year-old daughter. Herrin had been involved with the mother for approximately six weeks before the death of the child, who had suffered physical abuse from her mother over some months. She and her mother stayed at Herrin’s home for at least four days before her death. Medical testimony showed that she suffered trauma to various parts of her body during her last few days and hours. She died of blunt force trauma to the head that was consistent with a blow or blows and not consistent with a normal fall or falls. The fatal trauma probably occurred in her final 48 hours, and symptoms of sleepiness, nausea, and unconsciousness would have exhibited themselves within eight hours after injury.

On the day she died, the child was alone with her mother from about 8:00 to 11:00 a.m. and alone with Herrin from about 1:00 to 6:00 p.m. She was dead when she arrived at the hospital at 7:00 p.m., but earlier medical attention might have saved her life. Her mother pled guilty to felony murder and aggravated battery.

Herrin, a male, contends the court improperly allowed the State to exercise all of its peremptory strikes against males. In J. E. B. v. Alabama, 511 U. S. _ (114 SC 1419, 1429-1430, 128 LE2d 89) (1994), the United States Supreme Court advanced its holding in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).

Claims that jury strikes were based on gender are reviewed under the same standards as apply to race. See Jackson, supra. “Bat-son directs a three-step process for evaluating a claim of [gender] discrimination in the State’s use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of [gender]; (2) the burden then shifts to the prosecutor to articulate a [gender]-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.” Kelly v. State, 209 Ga. App. 789, 790 (1) (434 SE2d 743) (1993). The explanation need not justify a challenge for cause, but it must be neutral, related to the case to be tried, and constitute a clear and reasonably specific legitimate reason or reasons. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

After the jury was selected, counsel addressed the court in an unrecorded conference during which, apparently, Herrin made a motion based on a claim that the State’s exercise of its strikes discriminated against males. Although the clerk was not called to testify concerning the composition of the panel and the parties’ exercise of their strikes, the parties do not dispute as fact that the State used only five of its six available peremptory strikes, all five against males. After counsel for both sides discussed the strikes and the composition of the jury panel, the court stated that a prima facie case of discrimination was made. The State then explained each strike and the court denied Herrin’s motion. Herrin contends that the explanations were insufficient as a matter of law as to . three of the five stricken jurors.

By denying Herrin’s Batson motion, the trial court implicitly determined that the State had met its burden of showing a gender-neutral basis for excluding each juror and that Herrin had not met his burden of proving purposeful discrimination. Ellerbee v. State, 215 Ga. App. 102, 107 (9) (449 SE2d 874) (1994). That finding is entitled to great deference and must be affirmed unless clearly erroneous. Hernandez v. New York, 500 U. S. 352, 364-365 (111 SC 1859, 114 LE2d 395) (1991) (plurality opinion); Gamble v. State, supra. According to counsel’s statements at trial, the original 30-member jury panel was composed of 12 males and 18 females. The State used five strikes, all on men. Herrin used eleven strikes, nine on men. The resultant jury was composed of five men and seven women.

In explaining the strikes, the prosecutor stated he had earlier obtained a list of the jury panel members and made inquiries about them with local law enforcement personnel. As to one of the three strikes of which Herrin complains, the State’s explanation was that law enforcement personnel stated the juror had been accused of a crime, although there was no indictment or conviction. As to another, law enforcement personnel informed the State that they “had had trouble” with him. Striking a prospective juror because of prior difficulties with law enforcement personnel is a gender-neutral rationale and does not violate Batson or its extensions. See Werts v. State, 196 Ga. App. 452, 453 (1) (395 SE2d 922) (1990); Jackson, supra.

As to the fifth juror struck by the State, the prosecutor explained he was struck “because he is a white male, single, has no children. He was a question mark because I had already used so many strikes. However, [a police officer] advised me that this was a person he was familiar with, this was a person that would not be a good State’s juror and I used one of my peremptory strikes on him.” Despite the prosecutor’s wording, it is obvious that he was not stating that a rea son he struck the juror was “because he is . . . male.” The wording was in the context of simply identifying the juror for discussion purposes, in recognition that this was someone for whom he would have to justify the strike. Although the discussion concerned only the five males the State struck, the prosecutor also identified another juror as a white male, and it does not appear there was any other significance attached to the identification. Defendant’s counsel himself so referenced another juror.

Herrin, represented on appeal by the same counsel as at trial, does not suggest that the prosecutor’s remark was an admission that gender was a consideration. Had the trial judge who heard it understood it as such, it would have been automatically an unconstitutional strike. As the district attorney stated, “the issue is males.” Since the court denied Herrin’s motion, it obviously concluded the remark did not convey a reason for the strike, and it appears all parties understood the recitation of the juror’s gender to be for identification purposes only. Further, the court heard the explanation repeated at the hearing on Herrin’s motion for new trial, and it was not remarked upon. Herrin did not argue at the hearing that this reference indicated an improper reason, but rather focused on what he considered to be the prosecutor’s acquiescence to the wishes of a third party. An officer who knew the juror was used as a resource, not as decision-maker.

Second, the officer’s information was not the only reason advanced by the State. The juror was single with no children, characteristics that are case-related and gender neutral. In a case involving the death of a child through a parent’s beating and failing to seek medical attention, the jury’s ability to perceive the circumstances of the very young victim and realize the consequences of failing to seek proper attention are relevant considerations. Parenthood bears upon that ability and sensitivity. The juror, being childless and unmarried, could more easily empathize with defendant through those common characteristics, jeopardizing neutrality.

“Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminating] extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury.” (Citations and punctuation omitted.) Holland v. Illinois, 493 U. S. 474, 484 (110 SC 803, 107 LE2d 905) (1990). The prosecutor indicated that being married and/or having children were factors he considered in deciding whom to strike. These were not unconstitutional bases for excluding a potential juror. See Bess v. State, 187 Ga. App. 185, 187 (1) (369 SE2d 784) (1988). They do not deny equal protection but are facially valid, which is all that is required. Purkett v. Elem, 514 U. S._(115 SC 1769, 131 LE2d 834, 840) (1995). See Crutchfield v. State, 218 Ga. App. 360, 362 (3) (461 SE2d 555) (1995). Nothing in the record suggests that the State’s concern about the potential jurors’ marital and parental background was not genuine. See Purkett, supra; Bess, supra. The trial court’s ruling was not clearly erroneous.

Decided May 9, 1996

Krontz & Bowen, Kenneth W. Krontz, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A0502.
    ROBIN v. BELLSOUTH ADVERTISING & PUBLISHING COMPANY.
    (471 SE2d 294)
   Beasley, Chief Judge.

Robin, a Savannah attorney, sued BellSouth Advertising & Publishing Company (“BAPCO”) over a feature called “Real Consumer Tips” found in its Savannah yellow pages advertising. The trial court dismissed his case for failure to state a claim, and we affirm because Robin cannot succeed, as a matter of law, on his claims for breach of contract, tortious interference with prospective business relations, and violations of the Fair Business Practices Act, OCGA § 10-1-390 et seq.

Tucked amid large and small advertisements for attorneys, “Real Consumer Tips” displays invite perusers of BAPCO’s “Real Yellow Pages” to call a certain number for “free consumer information” on topics such as “selecting an attorney,” “pre-nuptial agreements,” and “what to look for in a personal injury attorney.” Apparently, those who call these numbers also hear an advertisement from certain attorneys who pay BAPCO for this service. Robin had a yellow pages listing himself, but his practice was not featured in any Real Consumer Tips message.

Robin does not allege he was refused access to this advertising service; rather, he contends BAPCO’s method of communicating the telephonic advertisements damaged him. He alleges that because the attorney advertisements included in the “consumer tips” messages do not reveal that attorneys paid for the ads, BAPCO creates the impression that the featured attorneys are more qualified or that BAPCO endorses them. His claims are based on that allegation. We take as true all the factual allegations of his complaint, as required when determining the merits of a motion to dismiss. Morgan v. Vitrified Brick & Clay Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990).

1. The trial court properly dismissed Robin’s claim under the Fair Business Practices Act, OCGA § 10-1-390 et seq. Robin alleges BAPCO violated OCGA § 10-1-393 (b) (3) by creating “actual confusion . . . as to [the] affiliation, connection, or association with or certification by another” of these attorneys. BAPCO is exempt from this statute pursuant to OCGA § 10-1-396 (2) because the allegedly improper acts were committed in the course of its business as the publisher of an advertising periodical. Robin did not allege, and it does not appear, that BAPCO has any direct financial interest in the law practice of the featured attorneys. Although Robin argues that BAPCO receives compensation for these ads, the mere fact that it charges lawyers for advertising does not give it a financial interest in any lawyer’s practice, including Robin’s.

2. Robin’s claim for breach of contract also fails. That claim is based on his argument that because he had a contract with BAPCO as a Real Yellow Pages advertiser, BAPCO breached its implied duty of dealing with him in good faith by “actively recommending potential clients” to attorneys featured in the Real Consumer Tips messages. Robin does not allege, and it does not appear, his contract with BAPCO prevented the company from accepting advertisements from other attorneys or even from recommending them. “[T]here can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do. [Cit.]” (Punctuation omitted.) Southern Business Machines &c. v. Norwest Financial Leasing, 194 Ga. App. 253, 256 (2) (390 SE2d 402) (1990); compare Re/Max of Ga. v. Real Estate Group &c., 201 Ga. App. 787 (412 SE2d 543) (1991) (breach of exclusive contract).

3. The trial court properly dismissed Robin’s claim that BAPCO tortiously interfered with his future client base by driving prospective clients to attorneys mentioned in Real Consumer Tips. To succeed on that claim, he would have to show he could, under some set of facts, prove BAPCO: 1) placed these audio advertisements improperly and without privilege; 2) did so without justification or legal excuse in an effort to damage Robin; 3) induced potential clients to avoid Robin; and 4) caused him injury. Renden, Inc. v. Liberty &c. Partnership III, 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994); Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (4) (442 SE2d 843) (1994).

As this involves a motion to dismiss, we assume Robin could produce live witnesses to establish they were “fooled” by BAPCO into choosing another attorney over him, depriving him of valuable legal fees. Morgan, supra at 780 (1). We do so recognizing the difficulties of such proof. See Bankers Health &c. Co. v. Fryhofer, 114 Ga. App. 107, 110 (1) (150 SE2d 365) (1966), which held the testimony of an attorney as to his lost future business was wholly speculative, and Jenkins v. General Hosps. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990), which rejected the tortious interference claim of a doctor who could not name a single patient he failed to acquire because of a hospital’s actions. Even with the assumptions, Robin’s claim fails because he does not allege BAPCO maliciously intended to damage him.

The Restatement 2d of Torts, § 766B, Comment d states that a tortfeasor has the requisite “intent” to interfere with another’s prospective contractual relations when he “desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.” Robin does not allege BAPCO intentionally tried to drive clients away from him. Even if these “tips” may have been more effective in attracting clients to certain attorneys, as he argues, they do not support the claim that BAPCO directly induced any clients to patronize attorneys other than Robin. See St. Mary’s Hosp. of Athens v. Radiology Prof. Corp., 205 Ga. App. 121, 124-125 (2) (421 SE2d 731) (1992). If an effective ad touting only one lawyer’s talents could be considered part of an intentional scheme to drive clients away from other attorneys, all successful advertisers could be subject to suit because of their success. Under the circumstances of this case, BAPCO was not an “intermeddler.” Renden, supra at 336 (2).

Robin is correct that an action may be “malicious” when it is unauthorized and without legal excuse. Green, supra at 660 (4). But we reject Robin’s argument that the advertisements were improper and “unauthorized” because they did not notify callers that subscribing attorneys paid for them, in violation of DR 2-101 (C) (5) of the State Bar’s Directory Rules. That provision states: “A public communication for which a lawyer has given value must be identified as such unless it is apparent from the context that it is such a communication.” State Bar Rules do not apply to lay persons, and violations of those rules do not subject a lay person to discipline or form the basis of a civil suit for damages. Davis v. Findley, 262 Ga. 612, 613 (422 SE2d 859) (1992); Stevens v. Thomas, 257 Ga. 645, 648 (1) (361 SE2d 800) (1987); Bergen v. Martindale-Hubbell, 248 Ga. 599, 600 (285 SE2d 6) (1981). Furthermore, it is obvious from the context in which these advertisements are presented that they are just that — paid advertisements.

None of the printed display ads featured on the same yellow pages as the Real Consumer Tips number indicate they are paid, either. It is general knowledge that information contained in the yellow pages constitutes advertising, not endorsement. BAPCO’s yellow pages also classify attorneys by specialty, and some attorneys’ ads tout their special talents. To hold that such classification constitutes endorsement would be to invite suits from disenchanted clients whose attorneys were not so expert in a field as their Real Yellow Pages ad indicated.

Decided May 9, 1996

Savage & Turner, Brent J. Savage, Robert B. Turner, Simon, Booth & Cook, William M. Simon, for appellant.

Bouhan, Williams & Levy, Leamon R. Holliday III, Timothy H. Edwards, for appellee.

BAPCO’s actions were further privileged as fair competition and free speech. American Bldgs. Co. v. Pascoe Bldg. Sys., 260 Ga. 346, 348 (2) (392 SE2d 860) (1990); S & W Seafoods v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233, 237 (5) (390 SE2d 228) (1990). Even if BAPCO knew its “Tips” clients would receive more business than other Yellow Pages subscribers, that fact would not make its actions any less privileged or proper. Restatement 2d Torts, § 766B, Comment d. BAPCO must be free to offer its customers a wide variety of advertising selections. Some attorneys choose a simple listing of their name and phone number, while others take the entire back page of the phone book. Obviously, only one attorney per year can occupy the back of BAPCO’s Savannah phone directory; the taped messages in Real Consumer Tips provide yet another advertising option. BAPCO’s directory is a private publication which may accept or reject advertising as it chooses. Loring v. BellSouth Advertising &c., 177 Ga. App. 307 (339 SE2d 372) (1985). Even if it is subject to some limitations by reason of its quasi-public nature, which was the view in the concurring opinion in Loring, supra at 313, BAPCO is not required to ensure that every Yellow Pages advertisement attracts an equal number of potential clients for its subscribers. See Miami Herald Pub. Co. v. Tornillo, 418 U. S. 241, 256-257 (94 SC 2831, 41 LE2d 730) (1974).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1099.
    OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
    (471 SE2d 287)
   Beasley, Chief Judge.

This case first came before this Court in 1989 (Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61)), and then again in 1990 (Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (405 SE2d 884)). Judgment was thereafter entered on a jury verdiet for Ogletree but she moved for new trial on the issue of damages. Navistar moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied Ogletree’s motion and granted Navistar’s j.n.o.v. motion. Ogletree appealed both rulings.

Navistar then brought to the trial court’s attention OCGA § 9-11-50 (c) (1) and case law interpreting it. The statute provides: “If the motion for judgment notwithstanding the verdict provided for in subsection (b) of this Code section is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for the new trial.” Navistar requested the trial court to correct this procedural oversight, but Ogletree vigorously opposed the request and the trial court took no action.

Ogletree has now moved this court to remand the case for a conditional determination of Navistar’s motion for new trial. Navistar argues that equitable considerations should prevent Ogletree from advocating the position she opposed before the trial court, but the law, and the sound administration of it, counsel otherwise. Where the trial court has not made the conditional ruling, the case must be remanded with direction that it be done, as we do here. OCGA § 9-11-50 (c) (1); Melton v. Elbert Sales Co., 181 Ga. App. 61 (351 SE2d 261) (1986), and cases cited therein.

This is the proper procedure, rather than reversal of the trial court’s order or dismissal of the appeal. Speer v. Gemco Elevator Co., 134 Ga. App. 360, 364 (214 SE2d 425) (1975), overruled on other grounds Smith v. Telecable of Columbus, 140 Ga. App. 755 (232 SE2d 100) (1976).

In Jackson v. Williams, 209 Ga. App. 640, 643 (3) (434 SE2d 98) (1993), this Court reviewed the ruling on the j.n.o.v. motion, even though in granting the motion the trial court had concluded that the motion for new trial was rendered moot and did not rule on it. In deciding the appeal, this Court held that the grant of j.n.o.v. was not error so there was, as we pointed out, “no harm.” We decline to take that approach. Not only does it ignore the dictates of OCGA § 9-11-50 (c) (1), but it increases costs, delay and fragmentation of appeals and requires the court to address the merits of the trial court’s j.n.o.v. ruling and only give final resolution to the case if the decision is to affirm. If the decision on the merits is to reverse the j.n.o.v., then it is necessary to remand for reinstatement of the verdict and a trial court consideration and determination of whether a new trial should be granted. When that is ruled on, another appeal could follow. All of the delaying and expensive shuffling back and forth is precluded by the simple expedient of deciding both motions at once. See Speer, supra. When the Speer case returned, we ruled, predictably, that we were compelled to affirm the grant of j.n.o.v. even though it was ordered solely on a question of law. Speer v. Gemco Elevator Co., 136 Ga. App. 235 (220 SE2d 714) (1975).

Ruling on both alternatives at the same time also promotes a decision when the content of the trial is most fresh in the trial court’s mind. That court has a broad discretion to grant a new trial on the general grounds, OCGA § 5-5-50, and we cannot assume that its discretion was exercised in this case and that it denied the motion sub silentio. Only general grounds provided in OCGA §§ 5-5-20 and 5-5-21 were urged. Appellate review of rulings on such grounds is very limited, but there must be assurance that the discretion was exercised. Ricketts v. Williams, 240 Ga. 148 (240 SE2d 41) (1977), vacated on other grounds, 438 U. S. 902 (98 SC 3118, 57 LE2d 1145) (1978). The trial courts, on the other hand, have a duty which carries with it a commensurate power far greater than that accorded to the appellate courts. “Ours is a function merely to see that the law is followed. Theirs is the solemn responsibility to see to it that justice is administered according to the evidence as well as the law.” Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939).

It was peculiarly important for the trial judge to have ruled on both motions in this case, because she has been appointed to the superior court in the interim. Of course, when the case is remanded, the two courts could arrange for her to rule on the motions as a matter of expediency, due to her unique familiarity with the case. OCGA § 15-1-9.1.

Navistar had argued to the trial court that the dicta in Housing Auth. &c. of Atlanta v. Geter, 252 Ga. 196 (312 SE2d 309) (1984), means Ogletree’s appeal did not act as supersedeas for the narrow purpose of deciding the motion for new trial, so that the trial court could rule on the motion without the appeal being remanded. In Geter the Supreme Court decided “the unique question of the effect of a notice of appeal upon a subsequent motion for new trial which is filed within the statutory period,” and held: “In the event a motion for new trial is timely filed . . . the effectiveness of the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.” Id. at 197. This holding only addresses instances where a motion for new trial has been filed after a notice of appeal, not cases involving OCGA § 9-11-50 (c) (1), and its object is “to protect the integrity of the trial courts in their efforts to do substantial justice and discourage races to the courthouse for the purpose of playing legal slapjack with notices and motions.” Id.

Decided May 9, 1996.

Winburn, Lewis & Barrow, Gene M. Winburn, John J. Barrow, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Jeffrey S. Burton, for appellee.

On the other hand, when a motion for new trial is made in conjunction with a motion j.n.o.v. pursuant to OCGA § 9-11-50, and the trial court grants j.n.o.v. but fails to rule on the motion for new trial, the trial court loses jurisdiction when the notice of appeal is filed.

As this case must be remanded, it is not necessary to consider appellant’s enumerations of error.

Case remanded with direction.

Birdsong, P. J., and Blackburn, J., concur.

       The Supreme Court reversed this Court’s ruling in Smith on other grounds, which does not affect the principle applied in this case. 238 Ga. 559 (234 SE2d 24) (1977).


author: Pope, Presiding Judge.

text:
    A96A0188.
    CHATHAM COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES et al. v. WILLIAMS.
    (471 SE2d 316)
   Pope, Presiding Judge.

As the result of a work-related injury which occurred in 1983, claimant Joann Williams requires 16-hour-a-day attendant care, which is provided by members of her family. The administrative law judge (ALJ) issued an award requiring the employer to pay for 16 hours of family-provided attendant care per day, and this award was adopted by the State Board of Workers’ Compensation and affirmed by the superior court. On appeal, the employer argues that the Board’s most recent fee schedule, which provides for only 12 hours of family-provided attendant care per day, precludes an award of 16 hours of care even though the claimant’s injury preceded the effective date of the fee schedule. While we agree with the employer that new rules affecting the scope of care should be applied in ongoing workers’ compensation cases, we nonetheless affirm because the fee schedule at issue here is not a rule, but merely a guideline establishing what is presumptively reasonable.

1. Administrative rules and regulations, like statutes, will generally not be applied retroactively unless they are purely procedural or clearly intended to be applied retroactively. See Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988); Hall v. Hartford Ins. Group, 146 Ga. App. 751 (247 SE2d 570) (1978). An ongoing workers’ compensation case provides a unique context for retroactivity analysis, however, since once an employer’s obligation to pay for a work-related injury is established, the case may continue for decades. During this time the Board will be promulgating and changing rules which define and redefine the scope of the employer’s obligations and the worker’s rights with respect to medical care; and it would not make sense to freeze those obligations and rights as they were at the time of the injury when the need for medical care continues. Accordingly, workers’ compensation statutes and rules which do not render compensable an injury which would not otherwise be compensable, but which merely affect the scope of treatment required, will be applied to ongoing cases where the injury preceded the effective date of the law. Interchange Village v. Clark, 185 Ga. App. 97, 99 (2) (363 SE2d 350) (1987); Hopson v. Hickman, 182 Ga. App. 865, 866 (1) (357 SE2d 280) (1987); Thompson v. Wilbert Vault Co., 178 Ga. App. 489 (343 SE2d 515) (1986).

Decided May 10, 1996.

We have discussed this situation in terms of retroactivity because the parties and earlier cases have done so. It is important to note, however, that when we say a rule affecting the scope of treatment will be retroactively applied, we are not saying that the rule will be applied to treatments provided before the effective date of the rule, but only that the rule will be applied to treatments after the effective date in ongoing cases beginning before the effective date. Thus, it is arguable that the use of the term “retroactivity” is misleading, and that it is preferable to simply say that in determining the applicability of a new rule affecting the scope of treatment, courts will look to the date of the treatment rather than the date of the original injury.

2. We nonetheless affirm the trial court’s ruling that the current fee schedule does not preclude an award of 16 hours of family-provided attendant care. The fee schedule is promulgated pursuant to OCGA § 34-9-205. This Code section authorizes the Board to issue a fee schedule of charges which will be “presumed reasonable,” but it also gives the Board the discretion to approve other charges as reasonable. Thus, the fee schedule is a guideline rather than a “rule” which must be followed, and the Board’s approval of charges beyond those on the fee schedule can be challenged only on abuse-of-discretion grounds. In this case, the Board effectively approved 16 hours as reasonable by adopting the ALJ’s award, and it did not abuse its discretion in doing so.

Judgment affirmed.

Andrews and Smith, JJ., concur.

Barrow, Sims, Morrow & Lee, Charles W. Barrow, for appellants.

James W. Brown, for appellee.


text:
    A96A0443.
    KESSLER v. THE STATE.
    (471 SE2d 313)
   Pope, Presiding Judge.

Frank Kessler was convicted of two violations of the Georgia Controlled Substances Act. Here, he claims that the trial court erred in denying his motion to reveal the identity of the confidential informant, which was raised in the context of a motion to suppress challenging the sufficiency of a search warrant affidavit. We reject Kessler’s argument and affirm.

On September 27,1994, narcotics agent David Spillers swore out an affidavit in order to obtain a search warrant for Kessler’s residence. In the affidavit, Spillers stated that he had reason to believe that Kessler was concealing certain drugs and drug-related articles at his residence. Spillers set forth his law enforcement and drug investigatory experience and stated that between September 18 and September 27,1994, he had been contacted by an informant whom he considered reliable. Spillers stated that the informant said that he had observed Kessler with amphetamine powder and various items relating to the use and distribution of drugs.

Spillers stated that the informant was reliable in that he had previously provided information which led to the issuance of at least two search warrants; that the informant had provided information which led to the arrest of at least three persons for felony drug violations; and that the informant had provided information which led to the seizure of amphetamine powder and marijuana. Spillers stated that for at least three years, he had not known the informant to lie, and that everything the informant had told him during that time was true and correct. Spillers stated that the informant feared harm if its identity were made known and wanted to remain anonymous. The affidavit stated that the informant’s directions to Kessler’s premises and the description of the premises were true and correct. Spiller stated that he had also checked a directory, which corroborated the informant’s information regarding the premises. Finally, Spillers stated that he had probable cause to believe that drugs were being kept at Kessler’s premises.

On September 27, the warrant issued for a search of Kessler’s person and property. The warrant was executed the same day, and in the ensuing search of Kessler’s residence, several bags of methamphetamine, marijuana, and various devices associated with the distribution and use of such drugs were discovered. There is no allegation that the informant was involved in the search in any manner. Based on the evidence seized, Kessler was charged with the two violations of the Georgia Controlled Substances Act for which he was subsequently convicted.

Kessler filed a motion to suppress in which he claimed that he knew the identity of the confidential informant. Kessler claimed that the informant had numerous prior felony and misdemeanor convictions, and that he and Kessler had been involved in an altercation the week before the search warrant was executed. Kessler argued that Spillers’ failure to include this additional information about the informant in the affidavit constituted grounds for suppression of the evidence seized.

The court convened for a hearing on the motion and decided to grant leave for Kessler to file a motion for disclosure of the informant’s identity and to hold the motion to suppress in abeyance until the motion regarding the informant’s identity could be resolved. After conducting an in camera review of the State’s file, which showed that the alleged informant had been convicted of a number of violations, including at least one felony, the court denied the motion to disclose the informant’s identity. In doing so, the court concluded that the informant acted only as a mere tipster. The court found that because the informant was not present and did not participate in the execution of the search warrant, his identity was absolutely privileged.

Kessler then filed an amended motion to suppress. At the hearing on this motion, Officer Spillers testified that he did not recall giving any information to the magistrate, other than that contained in his affidavit. Kessler proffered certified copies of the informant’s convictions, and the court denied the amended motion.

“In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by this court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . . Under that analysis, ‘(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . conclud(ing)” that probable cause existed.’ ” (Citations omitted.) Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992).

Here, Kessler argues that the court erred in failing to grant his motion to reveal the informant’s identity. Kessler contends that since the magistrate was unaware that the informant was a felon, the magistrate was unable to make an independent determination of the informant’s veracity. Kessler argues that since a felony conviction may be used to impeach a witness, the magistrate should have been made aware of the conviction in order to make a probable cause determination.

Pretermitting the issue of whether Kessler presented a prima facie case as to the informant’s identity, we find his arguments without merit. Although we have not addressed the precise issue raised here, we have discussed the general guidelines for information which should be provided to the magistrate to enable him to make a determination of an informant’s veracity. Generally, “[w]hile establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” (Citations and punctuation omitted; emphasis in original.) State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993); see also Smith v. State, 218 Ga. App. 12 (460 SE2d 114) (1995).

“In Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978), we discussed three types of information which should be furnished to a magistrate to enable the magistrate to determine whether an informant is reliable and trustworthy, i.e., the type of information previously supplied by the informant, the use to which the information was put and the elapsed time since the information was furnished. Bowe v. State, 201 Ga. App. 127, 130-131 (410 SE2d 765) (1991). We have also determined that it is not necessary in every case for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis.” (Citations and punctuation omitted.) Pitts v. State, 212 Ga. App. 556 (1), 557 (442 SE2d 797) (1994).

Here, there was information regarding each of the three factors discussed in Bowe v. State. The affidavit stated that the informant had provided information which had been used previously in the issuance of warrants, arrests and seizures of contraband; it stated that Spillers had known the informant for three years and that the information he had previously given had been true; and it stated that the information given for the issuance of the warrant for Kessler’s premises had been supplied over the previous nine days. The fact that the informant’s felony history was not revealed to the magistrate is not determinative. Taking a common sense approach to the evaluation of the affidavit, we find that it was sufficient to demonstrate the informant’s reliability and the court properly denied the motion to reveal the informant’s identity.

Decided May 10, 1996.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia J. Sartain, District Attorney, Denise M. Arenth, Assistant District Attorney, for appellee.

Furthermore, there is no contention that Spillers knew of the alleged altercation between Kessler and the informant. There is no evidence that the affidavit contained deliberate falsehoods, or that the affidavit was made with reckless disregard for the truth, or that Spillers had consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. Dale v. State, 198 Ga. App. 479, 480 (4) (402 SE2d 90) (1991); compare Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989). Moreover, even if the informant’s omitted criminal history had been included in the affidavit, there was still sufficient evidence for the magistrate to determine that the informant was reliable and that probable cause existed. See generally Perkins v. State, 220 Ga. App. 524, 525 (2) (469 SE2d 796) (1996); compare Peters v. State, 213 Ga. App. 488 (445 SE2d 290) (1994). Although, as recognized in Perkins, the better practice would be to include this history in the affidavit, the omission here was not fatal and did not warrant revealing the informant’s identity.

This result is consistent with the rule that the identity of a tipster is privileged. Crumbley v. State, 189 Ga. App. 384, 385 (375 SE2d 482) (1988). Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), “does not establish an inflexible principle that requires the disclosure of informants’ identities or of all evidence, but only that which is favorable to a defendant if the evidence is material to guilt or punishment.” (Citations and punctuation omitted.) Crumbley, supra at 386. See also Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977). There was no showing that the evidence sought to be disclosed here was material to Kessler’s guilt; accordingly the motion was also properly denied on this basis.

Judgment affirmed.

Andrews and Smith, JJ, concur.

       This result comports with the reality of cases involving confidential informants and the fact that informants “frequently have criminal records and a history of contact with the police.” People v. Kurland, 618 P2d 213, 224 (Cal. 1980). This reality is well known to magistrates. Mandating that this informant’s identity be revealed so that his criminal history could be exposed would add little to the magistrate’s deliberations.


text:
    A96A0587.
    ADAMS v. CITY OF ILA.
    (471 SE2d 310)
   Pope, Presiding Judge.

Plaintiff City of Ila, Georgia, contracted with Georgia Natural Gas Company to have a gas main placed within the southern right-of-way of Pecan Street. Upon finding out about the project, defendant Mary Adams, who owns the property adjacent to this right-of-way, contacted the gas company and informed it that she was the owner of the street and right-of-way. Additionally, she threatened to sue the gas company if it proceeded with the project. Thereafter, the gas company informed the City that it would not proceed with the project until the matter was resolved. As a result, the City filed a declaratory judgment action against Adams seeking to be declared the owner in fee simple of the Pecan Street right-of-way and to have Adams enjoined from further interfering with the project. After Adams answered the City’s complaint, the trial court conducted a hearing on the matter and issued an order granting the relief sought by the City. We affirm.

1. At the hearing, Adams requested a jury trial. In her first enumeration, she contends that the trial court erred in failing to grant her request. We disagree. “The right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and jury trial has not been waived. OCGA §§ 9-4-5; 9-4-6.” King v. Baker, 214 Ga. App. 229, 231 (1) (447 SE2d 129) (1994). During the hearing, the City introduced into evidence, without objection, three certified copies of duly recorded right-of-way deeds to demonstrate that it was the fee simple owner of a 30-foot right-of-way running along the centerline of Pecan Street. One of the deeds was executed by Adams’ deceased husband on October 18, 1971, and recorded on October 20, 1971. Adams argues that because the certified copy of the recorded deed from her husband does not contain an actual copy of his signature, but rather his type-written name, and because Adams does not remember her husband executing the deed, an issue of fact exists regarding whether her husband really executed the deed. This argument is meritless.

As the trial court judicially noticed, in the county where the deed was recorded, the standard practice in 1971 was to have all deeds, including any signatures contained thereon, typed into the record because no photocopy machines were available in the county at that time. Such a practice is clearly authorized by OCGA § 44-2-25, which provides that “[a]ll decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of the superior court by use of printing, typewriting, handwriting in ink, photo-stating, or photographing. . . .” Consequently, absent the filing of an affidavit of forgery on Adams’ part, even though the City could not locate the original deed, there is no issue of fact for jury determination as to the genuineness of the deed executed by her husband. See OCGA §§ 44-2-23, 24-5-27; McCall v. Asbury, 190 Ga. 493, 498 (9 SE2d 765) (1940); Guthrie v. Gaskins, 171 Ga. 303 (155 SE 185) (1930).

There also is no merit to Adams’ contention that an issue of fact exists for jury consideration concerning the sufficiency of the property description found in the deed executed by her husband. “The sufficiency of a property description is a question of law for the court; the identity of the property is a question of fact. [Cit.]” Lawyers Title Ins. Corp. v. Nash, 196 Ga. App. 543 (1), 544 (396 SE2d 284) (1990). In the instant case, the identity of the property is not in dispute, so there is no question of fact to be resolved. Additionally, the property description makes reference to the Militia District in which the right-of-way is located, and defines the right-of-way specifically by referring to and incorporating Pecan Street’s pre-existing roadway. As such, we conclude that “the deed contains sufficient ‘keys’ to clarify any indefiniteness in the property description.” Id. at 544. Accordingly, the trial court did not err in determining as a matter of law that the deed conveyed a 30-foot right-of-way to the City centered along the pre-existing centerline of Pecan Street.

2. In her second enumeration of error, Adams contends that the trial court improperly allowed the City to bring a declaratory judgment action in this case because there was no actual controversy between the parties in that all rights of the parties had accrued prior to the filing of the City’s complaint. We find no merit to this contention. The record clearly demonstrates that Adams challenged the City’s use and ownership of the Pecan Street right-of-way, and that she directly interfered with the City’s intention and contract with the gas company to have a gas main erected within the right-of-way. In this state a declaratory judgment action is an appropriate means of settling a dispute in which two parties each claim title to a right-of-way and the moving party desires to erect improvements within said right-of-way, but first wishes to settle any uncertainty as to title to the property. See State Hwy. Dept. v. C. F. Williams Lumber Co., 222 Ga. 23, 24 (1) (148 SE2d 426) (1966). Here, the City needed “ ‘the lights turned on’ before stepping into darkness, and a declaratory judgment [was] the proper remedy.” Id.

Judgment affirmed.

Andrews and Smith, JJ, concur.

Decided May 10, 1996.

W. Glover Housman, Jr., for appellant.

Graham & Associates, Felix P. Graham, Jr., Victor Y. Johnson, for appellee.


author: POPE, Presiding Judge.

text:
    A96A0602.
    JONES v. THE STATE.
    (471 SE2d 318)
   POPE, Presiding Judge.

A jury convicted defendant Willie Jay Jones of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) and (4), and of possessing an open alcoholic beverage container while operating a vehicle in violation of OCGA § 40-6-253. On appeal, defendant does not challenge the sufficiency of the evidence against him, but rather enumerates as error the trial court’s failure to ask or have the prosecution ask each prospective juror the statutory voir dire questions found in OCGA § 15-12-164 (a), and the trial court’s failure to grant defendant’s motion for a mistrial based on an improper statement the prosecutor made during closing argument. Finding no merit to either enumeration, we affirm defendant’s conviction.

1. OCGA § 15-12-164 (a) provides in pertinent part as follows: “On voir dire examination in a felony trial, the jurors shall be asked the following questions: (1) ‘Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?’ If the juror answers in the negative, the question in paragraph (2) of this subsection shall be propounded to him; (2) ‘Have you any prejudice or bias resting on your mind either for or against the accused?’ If the juror answers in the negative, the question in paragraph (3) of this subsection shall be propounded to him; (3) ‘Is your mind perfectly impartial between the state and the accused?’ If the juror answers this question in the affirmative, he shall be adjudged and held to be a competent juror in all cases where the authorized penalty for the offense does not involve the life of the accused. . . .” (Emphasis supplied.) Although we believe that the better practice is for the trial court or the prosecution to ask these questions in all criminal cases, based on the express language found in OCGA § 15-12-164 (a), the above questions must be asked only in felony cases. Because defendant in this case was charged with misdemeanors, it was within the trial court’s broad discretion not to have the statutory questions propounded to the prospective jurors. See Nobles v. State, 127 Ga. 212, 215 (1) (56 SE 125) (1906).

We also note that defendant did not object to the trial court’s failure to have the statutory questions propounded until after the jury had been selected. Under such circumstances, we conclude that defendant’s objection was untimely. This is especially true in light of the fact that defendant was given ample opportunity during the voir dire proceedings to question prospective jurors as to any bias or prejudice they might have, yet failed to take advantage of this opportunity. See Quick v. State, 256 Ga. 780, 783 (3) (b) (353 SE2d 497) (1987). Additionally, we note that there is no evidence, and defendant does not even contend, that any of the jurors were biased or prejudiced against defendant.

Decided May 10, 1996.

Thomas J. O’Donnell, for appellant.

H. Brannen Bargeron, for appellee.

2. During closing argument, the prosecutor stated: “You know there’s one thing that I’ve noticed in seeing people testify from the jury box, and that’s this. What people do, their conduct is often more telling than what they say, and of course in this case the defendant didn’t say. . . .” Thereafter, defendant moved for a mistrial on the ground that the statement was an improper comment on defendant’s failure to testify at trial. The trial court denied the motion and immediately issued a curative instruction to the jury, wherein the court admonished the prosecutor for making the statement and instructed the jury that the statement should have no part in their deliberations and should be disregarded. After the instruction was given, defendant did not object or renew his motion for mistrial. As such, defendant failed to preserve the issue for appeal. Kirksey v. State, 177 Ga. App. 428, 429-430 (3) (339 SE2d 401) (1986); see also Roberson v. State, 195 Ga. App. 379 (2) (393 SE2d 516) (1990); Smith v. State, 187 Ga. App. 322 (2) (370 SE2d 185) (1988). Accordingly, this enumeration of error presents nothing for review.

Judgment affirmed.

Andrews and Smith, JJ, concur.