author:
Birdsong, Presiding Judge.
      Sognier, Chief Judge, Pope, Judge,

text:
    A91A0683.
    EASTGATE ASSOCIATES, LTD. v. PIGGLY WIGGLY SOUTHERN, INC.
    (410 SE2d 129)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to consider the trial court’s treatment of our decision in Piggly Wiggly Southern v. Eastgate Assoc., 195 Ga. App. 10 (392 SE2d 337) (“Eastgate I”). The facts are set forth in that opinion and will not be restated here.

Eastgate contends the trial court erred by failing to apply the holdings in the first decision. Held:

1. In Eastgate I we held “the proper measure of damages to be applied is the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach.” (Punctuation omitted; emphasis supplied.) Id. at 12. No motions for rehearing and no petitions for certiorari were filed.

Nevertheless, in subsequent proceedings in this case, the trial court found that using the reasonable rental value of the premises as it existed at the time of the breach in February 1987, i.e., unimproved land, would not be appropriate: “Thus, it is fair to say that the two opinions [Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654 (234 SE2d 119) and Eastgate I] erroneously hold that the reasonable rental value of the unimproved land at the time of the breach is a factor to be considered for appraisal purposes.” (Emphasis supplied.) Therefore, the trial court modified its opinion and elected to measure the damages using the reasonable rental value of the premises as if the building had been completed as contemplated in the lease.

A trial court, however, regardless of its good intentions, cannot decide to disregard the opinions of this court. Art. VI, Sec. V, Par. III, Const. Ga., 1983; OCGA § 5-6-10; Atlanta Journal &c. v. Long, 259 Ga. 23, 24 (376 SE2d 865); Callahan v. Panfel, 195 Ga. App. 891, 892 (395 SE2d 80). Further, absent a change in the evidentiary posture, the rulings of this court are binding on the trial court in all subsequent proceedings in this case and may not be disregarded. OCGA § 9-11-60 (h); Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (385 SE2d 397). “Whether [Eastgate I] is right or wrong, it is binding on the parties.” Braner v. Southern Trust Ins. Co., 255 Ga. 117, 122 (335 SE2d 547). “ ‘ “Moreover, the decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below.” ’ ” Palm Restaurant of Ga. v. Prakas, 192 Ga. App. 74, 76 (383 SE2d 584).

Additionally, we cannot adopt the “modified” measure of damages proposed by the trial court and the dissent because our prior ruling in this case is equally binding on this court even though we might now disagree with it. OCGA § 9-11-60 (h); Gober v. Hosp. Auth. of Gwinnett, 191 Ga. App. 498, 499 (382 SE2d 106); Redmond v. Blau, 153 Ga. App. 395, 396 (265 SE2d 329). Therefore, we cannot adopt the dissent’s revision of the measure of damages established in Eastgate I by redefining “premises” because doing so changes the measure of damages established in Eastgate I.

In Eastgate I, the initial consideration was the proper measure of damages, and this court adopted the time of the breach as the point at which to measure the damages. In so doing, two things were fixed: the time in which to measure the market for renting premises and the condition of the premises. Further, in addition to selecting the time of the breach as the point at which to measure the damages, this court also specifically rejected Piggly Wiggly’s contention that the time of performance should be used in measuring the damages. Implicit in such a decision is the rejection of using the condition of the building as if it had been completed as contemplated in the lease because that would be the condition of the premises at the time of performance of the lease. Indeed, in accordance with paragraph 2 (b) of the lease, the lease would not commence until after “the leased building is completed . . . and ready for occupancy.” Thus, giving Eastgate I the interpretation the trial court and the dissent now find appropriate completely changes the holding in Eastgate I.

While using the measure of damages specified in Eastgate I might have unintended benefits for Eastgate, the non-breaching party, using the measure of damages the trial court and the dissent now propose would give significant, unwarranted benefits to Piggly Wiggly, the breaching party. Because in most cases a comparable sale or lease is the most persuasive evidence of fair market value, it is hard to foresee circumstances in which the lease price stated in a lease for the identical property would not be considered the reasonable rental value of the premises. Therefore, using this measure of damages, the non-breaching party would recover no damages — which, of course, is the position taken by Piggly Wiggly’s expert in this case. Additionally, the record contains evidence that Piggly Wiggly’s breach caused the financing for the project to be withdrawn by the lender and Eastgate has been unable to find another anchor tenant with which to gain financing. Thus, having deprived Eastgate of its ability to complete the building, Piggly Wiggly would nevertheless receive the benefit of measuring the damages by assuming the building was completed. Further, the record also contains evidence showing that the market for supermarkets was more favorable at the time of the breach than at the time of performance because the market has become saturated. Therefore, the effect of this new measure of damages would be to unjustifiably inflate the reasonable rental value of the premises. Further, we must note the measure of damages established in Eastgate I was not proposed by Eastgate, but was urged by Piggly Wiggly, except that Piggly Wiggly asserted that the time of performance should have been used. Thus, this is not a case in which Eastgate has sought and won an unfair advantage, but one in which the other party, having successfully urged one theory, later becomes dissatisfied with the result.

We also have reservations about the measure of damages established in Eastgate I because we are concerned it does not accurately measure the damages in cases such as this. The cardinal rule in assessing the damages for a breach of contract is to attempt to place the non-breaching party, insofar as possible, in the same position it would have been if the contract had not been breached. OCGA § 13-6-1. Georgia Power &c. Co. v. Fruit Growers &c. Co., 55 Ga. App. 520 (190 SE 669). Neither the measure of damages established in Eastgate I nor those now proposed by the trial court and the dissent would accomplish that result. Instead, although Eastgate has suffered real damages, no damages may be awarded. Yet, if there had been no breach, Eastgate would have constructed the building, Piggly Wiggly would have paid its rent for the term of the lease, and Eastgate would have earned its profit on the lease, i.e., what it received from Piggly Wiggly less the amounts expended to construct the building and operation and maintenance expenses. Further, Eastgate would have constructed a shopping center and would have had an opportunity to earn rent from other tenants.

In our opinion, the proper measure of damages for a breach of an executory lease such as this should be the rental specified in the lease plus any special damages on behalf of the lessee incurred minus any amounts saved because of the breach, e.g., cost of construction of the building, operation and maintenance expenses, etc., reduced to present value. Further, it is not clear that even this measure of damages fairly compensates the non-breaching party when the breaching party was to be the anchor tenant in a shopping center because the anchor tenant’s minimum rent may actually be below market value because of the recognized impact an anchor tenant would have in attracting other tenants to the shopping center, and because the loss of the anchor tenant causes the loss of minimum and percentage rent from other tenants as well as percentage rent from the anchor tenant.

Nevertheless, despite our reservations, as the evidence has not materially changed since Eastgate I, the holdings in that case are binding and we are not free to merely change the measure of damages because we believe we can establish a better measure of damages. OCGA § 9-11-60 (h); Bruce v. Garges, 259 Ga. 268, 270 (379 SE2d 783). “ ‘While the holding in [Eastgate I] on its previous appearance before this court may be reviewed and overrruled in another case, as between these parties, it must stand.’ ” Redmond v. Blau, supra.

Accordingly, the order of the trial court must be reversed and the trial court directed to render judgment on Eastgate’s motion for partial summary judgment in accordance with the holdings in Piggly Wiggly Southern v. Eastgate Assoc., supra.

2. Therefore, Piggly Wiggly’s motion to supplement the record on appeal is denied.

Judgment reversed with direction.

McMurray, P. J., Carley, Beasley and Andrews, JJ., concur. Sognier, C. J., Banke, P. J., Pope and Cooper, JJ., dissent.

Sognier, Chief Judge,

dissenting.

It is my belief that in the first appearance of this case before us, this court issued an opinion which contained an ambiguity in the phrase used to measure damages. However, although our language was inapt, it need not cause an unjust result because, being ambiguous, it is susceptible to construction following established principles of contract interpretation. That is what the court did on remand in the very well-reasoned case of Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 347 A2d 568 (Md. 1975), where the identical language was used in an initial opinion setting the measure of damages for the anticipatory breach of a lease for a restaurant which was to have been renovated to the proposed lessee’s specifications. See Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 327 A2d 282 (Md. 1974). When on remand the Maryland trial court interpreted that language to contemplate using the rental value that the completed, renovated space would have brought at the time of the breach, the Maryland Court of Appeals then held that was proper, because to hold otherwise would render the language in its original opinion “implausible if not absurd,” id. at 571, there being “no evidence of a market of lessees who would rent vacant land.” Id.

We should now use the same established principles of contract interpretation to avoid an “implausible if not absurd” result. For that reason, I concur fully in the dissent of Judge Pope.

Pope, Judge,

dissenting.

In the first appearance of this case, the main issue on appeal was whether plaintiff Eastgate’s measure of damages for anticipatory breach of a lease for shopping center space should include lost revenues from other tenants in the shopping center. See Piggly Wiggly Southern v. Eastgate Assoc., 195 Ga. App. 10 (392 SE2d 337) (1990). We properly concluded that the damages should not include an award for losses from other tenants. See Piggly Wiggly Southern v. Heard, 261 Ga. 503 (405 SE2d 478) (1991). In arriving at this conclusion, however, I now believe this court became lost in a legal thicket and went on to rule erroneously that the damages should be measured by “ ‘the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach. . . .’” 195 Ga. App. at 12 (quoting Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 327 A2d 282, 288 (Md. 1974)). I agree with the majority opinion that the measure of damages which would best place the non-breaching party in the same position it would have been in had the lease not been breached is the amount Eastgate would have earned in rent pursuant to the lease minus the amount Eastgate saved as a result of the breach by not having to build or maintain the leased premises. See Parker v. King, 68 Ga. App. 672 (23 SE2d 575) (1942); see also Tel-Ex Plaza v. Hardees Restaurants, 255 NW2d 794 (Mich. App. 1977).

I also agree with the majority opinion that however erroneous it may have been, the law of the case rule prevents the original opinion from being modified; right or wrong, on remittitur, the trial court was required to apply the rule announced by this court. I disagree, however, that once the case was remitted and Eastgate again moved for summary judgment the trial court improperly modified or disregarded our earlier opinion. In my opinion, the trial court merely applied the rule set forth in our earlier opinion according to the only interpretation which makes sense.

After remittitur to the trial court, Eastgate again moved for partial summary judgment and, in support of the motion, submitted the testimony of an expert witness that the value of the undeveloped tract of land on which the leased premises was to have been constructed, as of the date of the breach, was zero. The majority agrees with Eastgate’s argument that the reasonable rental value of the premises at the time of the breach should be the value of the undeveloped land. Such an interpretation of this court’s initial opinion would yield an absurd result. The term “premises” in our phrase “reasonable rental value of the premises at the time of the breach” refers to the premises contemplated in the lease, i.e., 38,000 square feet of finished retail space which Eastgate promised to build and Piggly Wiggly promised to lease. It would be illogical to interpret “premises” as the undeveloped land owned by Eastgate since that is by no means the subject of Piggly Wiggly’s lease. The rent reserved under the lease was for finished retail space and the damages for breach of the agreement, pursuant to the only reasonable application of our previous holding, must be the difference between this sum and the reasonable rental value, as of the date of the breach, of that same space contemplated under the lease.

According to the majority, the trial court calculated damages as if the building had already been completed. I do not view the trial court’s order this way. It merely interpreted the leased premises to be that which was actually leased: not undeveloped land, but land on which the owner promised to build a retail building. When it attempted to apply the rule of our previous opinion, the trial court correctly calculated damages by comparing the rent agreed upon in the lease to the sum the owner could have negotiated on the date of the breach for the same promise to build. No evidence on this sum was presented on motion for summary judgment so the trial court correctly denied the motion and declared that future litigation of the issue of damages should be based on such evidence.

Contrary to Eastgate’s argument, by using the phrase “at the time of the breach,” this court in its earlier opinion did not require the damages in this case to be calculated by comparing the rental value of retail space which was to be built on the land to the rental value of the undeveloped land. Instead, it meant for the trial court to compare the sum Piggly Wiggly agreed to pay under the lease to the sum Eastgate could have obtained, as of the date of the breach, from another lessee for the same lease. “[A] building conforming to the description of the leased premises is necessarily contemplated.” Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 347 A2d 568, 571 (Md. App. 1975) (in which an issue similar to the one now before us arose on the remand to the trial court of the Maryland case cited above). Compare Williams Wagon Works v. Gunn, 14 Ga. App. 158 (80 SE 668) (1913) (where the lessor breached an agreement to construct a building and lease it to the lessee, the measure of the lessee’s damages was the difference between the rental price agreed upon and the actual rental value of the property had the building been erected). This interpretation is correctly reflected in the trial court’s order.

Decided July 16, 1991

Reconsideration denied July 31, 1991

Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., James D. Comerford, Norman J. Radow, for appellant.

Paul, Hastings, Janofsky & Walker, John G. Parker, Ronald T. Coleman, Jr., for appellee.

I am authorized to state that Chief Judge Sognier, Presiding Judge Banke and Judge Cooper join in this dissent.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1038.
    HOUSING AUTHORITY OF DECATUR v. BIGSBY.
    (410 SE2d 44)
   Birdsong, Presiding Judge.

The Housing Authority of the City of Decatur (“the Authority”) appeals from the judgment of the lower court in a dispossessory proceeding against Angela Bigsby. The Authority contends that the trial court erred by concluding that two occasions of non-payment of rent did not constitute a serious or repeated violation of the lease, by denying possession of the premises to the Authority, by ordering that judgment be paid in installments, and by rendering judgment 12 weeks after the trial.

The trial court’s findings of fact in the record show that Bigsby is a public housing tenant of the Authority whose sole source of income is a monthly payment from Aid to Families with Dependent Children (“AFDC”). In September 1990, Bigsby did not pay her $57 rent for the second time within a 12-month period because she reported to the Authority her AFDC check was terminated for her failure to report for required AFDC recertification.

The trial court found that although Bigsby received all required notices, the non-payment of the September rent did not constitute a serious or repeated violation of Bigsby’s lease so as to permit the Authority to terminate the lease and ordered her to pay the September rent in three installments. Held:

1. Bigsby’s motion to dismiss the appeal is denied. OCGA § 5-6-35 (a) (3) is applicable only to dispossessory actions in which the only issue to be resolved is rent due of $2,500 or less. As the authority also challenged the trial court’s refusal to terminate the lease in this appeal, the discretionary appeal procedures are not applicable.

2. In a bench trial such as this, the judge sits as trier of fact; and his findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them. Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (390 SE2d 52). Further, as there is no transcript of the trial in the record, we must assume the trial court’s ruling was correct. Wimberly v. Karp, 185 Ga. App. 571, 573 (365 SE2d 131); Wetherington v. Koepenick & Horne, 153 Ga. App. 302, 304-305 (265 SE2d 107). As the lease was also not included in the record, we must also assume that nothing in this lease, apparently drafted by the Authority required the trial court to find, under the circumstances of this case, that a second dispossessory filed in 12 months constitutes a “serious and repeated violation” of the lease. Consequently, the trial court did not err by not requiring such a result. See OCGA § 13-2-2 (5); Stern’s Gallery &c. v. Corporate Property &c., 176 Ga. App. 586, 593 (337 SE2d 29).

3. For the reasons stated in Division 2, the Authority’s assertion that Bigsby did not offer a legal defense is without merit.

4. As the Authority’s counsel acknowledged at oral argument that full amount of the rent owed was paid in one lump sum, the enumeration of error concerning the judgment requiring payment in installments is moot.

5. We also find the Authority’s enumeration of error regarding the 12-week period between the hearing and entry of judgment to be without merit. Although expeditious processing of dispossessory actions is required, our law does not require a judgment to issue within a specified period. Further, we presume that the trial judge faithfully and lawfully performed his duties (Hudson v. State, 185 Ga. App. 508, 509 (364 SE2d 635)), and nothing in the record shows that the Authority was harmed by any delay. Accordingly, this allegation is also without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided July 15, 1991

Reconsideration denied July 31, 1991.

Lynch & Powell, Gene E. Massafra, for appellant.

Carolyn S. Weeks, for appellee.


author: Banke, Presiding Judge.

text:
    A90A1484.
    VINEYARD v. FOWLER et al.
    (410 SE2d 53)
    Decided July 31, 1991.

      Billington & Associates, Barry E. Billington, for appellant.

      Drew, Eckl & Farnham, Julia B. Anderson, Stevan A. Miller, Frederick A. Johnson, for appellees.
   Banke, Presiding Judge.

Based on the decision of the Supreme Court in Fowler v. Vineyard, 261 Ga. 454 (405 SE2d 678) (1991), the prior decision of this court in the present case, reported at 197 Ga. App. 453 (398 SE2d 709) (1990), is reversed, and the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A91A0583.
    BALLARD v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (410 SE2d 49)
   Andrews, Judge.

Ballard appeals the grant of summary judgment to MARTA on the issue of MARTA’s liability for punitive damages in his personal injury suit. The trial court held MARTA could not be liable for punitive damages as a “pure question of law.”

The bus driven by MARTA driver Sims crossed the centerline and struck Ballard’s car head-on, causing Ballard serious injury. Sims’ foot was caught between the brake and gas pedals after his foot slipped off the pedals because there were no rubber pads on them. He said MARTA did not consider missing pads a mechanical defect of the type that would take a bus out of service for repairs and buses were routinely driven with bare metal pedals.

This issue is controlled in MARTA’s favor by MARTA v. Bos well, 261 Ga. 427 (405 SE2d 869) (1991).

Decided July 31, 1991.

Stokes & Klinger, Gregory M. Stokes, Stanford N. Klinger, for appellant.

David R. Autry, Swift, Currie, McGhee & Hiers, Guerry R. Moore, for appellee.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A91A0600.
    VOLCEY v. THE STATE. PAUL v. THE STATE.
    A91A0601.
    (410 SE2d 36)
   Cooper, Judge.

Defendants Ouslet Volcey and Cenor Paul were jointly indicted on charges of trafficking in cocaine. Volcey was also indicted on two misdemeanor offenses of speeding and following too closely. They were tried before a jury and found guilty of all charges. Both defendants filed motions for new trial and appeal their convictions and the denial of their respective motions for new trial.

Trooper Bennett of the Georgia State Patrol was on regular patrol along 1-95 in Glynn County, Georgia, when he clocked a car traveling north at 71 mph in excess of the 65 mph speed limit. He followed the car for a short distance and, utilizing a technique called “pacing,” was able to determine that the car was still traveling in excess of the speed limit. He also noticed that the car was following another vehicle too closely. Trooper Bennett stopped the car which was occupied by three men and asked the driver, Volcey, to step out of the car. Paul, who was in the front passenger seat of the car, and Jean Nicolas, the passenger in the back seat, remained in the car. Volcey exited the car and spoke to Trooper Bennett. Trooper Bennett observed that Volcey was acting very nervous. Trooper Bennett then spoke briefly to Paul who was in the front passenger seat and noticed that Paul was also very nervous. Upon determining that there were some minor discrepancies between Volcey and Paul’s statements regarding their travel agenda, Trooper Bennett called for back-up. While waiting for the back-up units to arrive, Trooper Bennett asked Volcey if he could search the car, and Volcey gave his consent. When the back-up arrived, Paul was asked to exit the car. Trooper Bennett then asked Nicolas to get out of the car, and as Nicolas got out of the car, he turned his back to Trooper Bennett and held his legs together as though trying to stop something from falling out of his pants. Trooper Bennett patted down Nicolas for safety reasons and removed a package of suspected cocaine from Nicolas’ pants. Trooper Bennett then asked Troopers Young and Bentley to search Paul and Volcey. Trooper Bentley searched Volcey and found a package of suspected crack cocaine around Volcey’s groin area. Trooper Young frisked Paul, handcuffed him and put him in the back of the patrol car. Trooper Young became suspicious when he observed Paul moving around in the back of the patrol car. When he looked in the back of the patrol car he saw suspected cocaine on Paul’s hand and found a bag of suspected cocaine partially down between the seats.

Paul testified that he left Miami on his way to North Carolina to see a friend; that he gave Volcey and Nicolas a ride, and along the way allowed Volcey to drive; that after the stop was made, one of the troopers searched him before placing him in the patrol car; that no contraband was found on his person; that he was handcuffed and placed in the patrol car; that no contraband was found in the patrol car; that he was taken to the sheriff’s department; that approximately 20 minutes later the trooper came in with three bags and placed Paul’s name on one of the bags.

1. Defendants enumerate the general grounds. Volcey contends that the evidence is confusing regarding which bag of cocaine was taken from his person; therefore, no rational trier of fact could have found him guilty beyond a reasonable doubt. The testimony from the three troopers revealed that one package of contraband was taken from each of the three passengers occupying the car. The packages were identified at trial as Exhibits 1, 2, and 3. While there was some confusion about which package of cocaine was taken from Volcey, Trooper Bennett stated unequivocally on direct examination that the package of cocaine identified as Exhibit 2 was the one he took from Volcey. Notwithstanding any confusion that may have existed, the State’s expert testified as to the content of each package of cocaine, and his testimony established that each package met the requisite weight and purity under OCGA § 16-13-31. Accordingly, the evidence was sufficient for a rational trier of fact to find Volcey guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Paul’s contention that there is no evidence in the record that cocaine was found on his person is without merit. Trooper Young testified that he frisked Paul, handcuffed him and put him in the patrol car, and that the contraband was subsequently found partially behind the seat where Paul had been placed. Trooper Young also observed suspected cocaine on Paul’s hand and on the seat. Although the prosecutor inadvertently referred to Paul as “Volcey” in a question to Trooper Young about what he did after handcuffing Paul, it is clear from the record that Trooper Young was at all times in control of Paul and that Paul was the only one in the patrol car where the contraband was found. The evidence was sufficient for a rational trier of fact to find Paul guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Defendants contend that the trial court erred in allowing a State’s witness to testify regarding the street value of the cocaine found on defendants. The witness, a forensic chemist with the Georgia Bureau of Investigation, testified about the tests he performed on the cocaine, the purity of the cocaine and its wholesale and retail values. Defendants contend that because the witness had never purchased cocaine, he was not qualified to testify about value and also that the testimony regarding value was irrelevant and prejudicial. “ ‘[An expert’s] special knowledge may be derived from experience as well as study.’ [Cits.]” Brown v. State, 245 Ga. 588 (1) (266 SE2d 198) (1980). The witness testified that in approximately ten percent of the cases he handles, he is asked to determine value and that he is able to determine value based on his experience in dealing with undercover narcotics agents who make purchases in the field and require a receipt for the evidence. The trial judge qualified the witness as an expert in the area of forensic chemistry and also as an expert as to the value of the alleged cocaine he tested. “It is within the trial court’s discretion whether or not a witness is entitled to be designated as an expert. [Cit.]” Braggs v. State, 189 Ga. App. 275, 276 (2) (375 SE2d 464) (1988). We find no abuse of discretion in the trial court’s qualification of the witness as an expert in the area of value of cocaine. The record reflects that following the trial court’s qualification of the witness as an expert, both defendants’ attorneys objected to the value portion of the court’s ruling. However, neither attorney objected on relevancy, or any other grounds, when the witness testified as to the wholesale and retail values of the cocaine. “ ‘(W)here the objection argued below is not argued here it is abandoned and where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.’ [Cit.]’’ Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986). Even if we consider defendants’ objection following the qualification of the witness to be an objection on relevancy grounds, “ ‘an objection to the admission of evidence on the sole ground that it is “irrelevant” is insufficient to show error requiring reversal. (Cits.)’ [Cit.]” Daniels v. State, 183 Ga. App. 222 (1), 223 (358 SE2d 637) (1987).

3. Defendants enumerate as error the trial court’s charge that “[t]he defendant in either event will be presumed to have acted with criminal intent but you may find such intention or the absence thereof upon the consideration of words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.” Although the first portion of the charge clearly constitutes error, “[t]he general rule is that ‘[a] mere verbal inaccuracy in a charge, which results from a palpable “slip of the tongue,” and clearly could not have misled or confused the jury’ is not reversible error. [Cit.]” Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981). Reviewing the charge in its entirety reveals numerous instances where the trial court charged the jury correctly on burden of proof, the guilt-innocence issue, the defendant’s presumption of innocence, and the necessity that all elements of a crime be proved by the state beyond a reasonable doubt. Since the charge as a whole adequately informed the jury, we will not reverse based on what was an obvious slip of the tongue. See Whitt v. State, 257 Ga. 8 (3) (354 SE2d 116) (1987).

Decided June 28, 1991

Reconsideration denied July 23, 1991 and reconsideration dismissed August 14, 1991.

O. Dale Jenkins, for appellant (case no. A91A0600).

Neil L. Heimanson, for appellant (case no. A91A0601).

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

4. The remaining enumerations of error are raised only by defendant Paul and relate to the trial court’s refusal to charge his requested charges on presumption of innocence, two theories, mere presence, and equal access. Defendant also contends that the trial court erred in not charging, in the absence of a request, that there is a rebuttable presumption that all items found in a vehicle belong to the driver. All of the charges raised in defendant’s enumerations of error were either adequately covered by the trial court’s charge or not adjusted to the facts of the case, and we find no error in the trial judge’s refusal to give defendant’s charges. See Johnson v. State, 195 Ga. App. 601 (2) (394 SE2d 591) (1990); Asberry v. State, 193 Ga. App. 711 (1) (389 SE2d 18) (1989).

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Banke, Presiding Judge. Carley, Judge,

text:
    A91A0034.
    DEPARTMENT OF MEDICAL ASSISTANCE v. PRESBYTERIAN HOME, INC.
    (409 SE2d 881)
   Banke, Presiding Judge.

The Presbyterian Home, Inc., (Presbyterian) provides nursing home services to Medicaid patients in Georgia for which it is reimbursed through a contract with the Georgia Department of Medical Assistance (DMA). By letter dated April 2, 1985, Presbyterian was notified by the DMA that, as the result of a decision of the Grant Appeals Board of the U. S. Department of Health and Human Services disallowing federal reimbursement for certain payments the DMA had previously made to Presbyterian, Presbyterian would be required to refund the DMA $167,591.59. The DMA subsequently recouped this amount through withholdings against current medical assistance reimbursement payments to which Presbyterian would otherwise have been entitled. The DMA’s decision in this regard was sustained on appeal to an administrative hearing officer and to the DMA Commissioner but was reversed by the Brooks County Superior Court based on a determination that Presbyterian had accepted the payments in question in “good faith reliance” on prior decisions of the DMA and had “materially changed its position [in] reliance on such” decisions, such that it would be inequitable to require it to make restitution.

The disputed payments were made to Presbyterian for services rendered to Medicaid patients July 1, 1981, through October 31, 1982. At the beginning of that period, Presbyterian was classified by the DMA as a “hospital-based” facility as opposed to a “free-standing” facility, which meant that it was entitled to reimbursement at a higher rate than would otherwise have been the case. On November 19, 1981, the DMA notified Presbyterian in writing that, beginning December 1, 1981, it would no longer be classified as a hospital-based facility. Presbyterian appealed this decision administratively and on February 18, 1982, was notified by the DMA Commissioner that it was being reclassified as a hospital-based facility retroactive to December 1,1981. Subsequently, however, the DMA amended its regulations, effective November 1, 1982, to implement a more restrictive definition of the term, “hospital-based facility.” Although Presbyterian did not qualify as a hospital-based facility under this new definition, the regulations specified that homes which were already classified as hospital-based would remain so until November 1, 1983. Thus, Presbyterian continued to receive medical assistance payments from the DMA at the hospital-based rate through that date.

In May of 1984, the DMA was notified by the Health Care Financing Administration of the U. S. Department of Health and Human Services that the federal funding it had received for the additional medical assistance payments it had made to Presbyterian for the period from July 1, 1981 through October 31, 1982, based on the latter’s classification as a hospital-based facility during that period, was being disallowed retroactively, based on a determination that Presbyterian had not met the federal requirements for a hospital-based facility during that period. After unsuccessfully appealing this decision to the Grant Appeals Board of the U. S. Department of Health and Human Services, the DMA sent Presbyterian the refund demand notice which gave rise to the present litigation. As previously indicated, the refund demand involved only those payments made to Presbyterian from July 1, 1981 through October 31, 1982. No refund was sought for the period from November 1, 1982 through November 1, 1983.

The DMA contends that the superior court erred in ruling that Presbyterian had so changed its position in reliance on its hospital-based classification during the period in question that it would be unjust to require it to refund the monies in question because: (1) This ruling constituted a de novo factual determination which the court, sitting as a court of review, lacked the authority to make; (2) there was no evidence in the record to support such a determination; and (3) the parties’ obligations were, in any event, governed by a written contract, thus rendering the application of restitutionary principles inappropriate. Held:

1. Generally speaking, “[p]ayments of claims made through ignoranee of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor. . . .” OCGA § 13-1-13. This rule is, however, qualified by the equitable principle that “[r]elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.” OCGA § 23-2-32 (b). See Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 405 (349 SE2d 368) (1986).

While the parties’ contract specified that “the Department shall make no reimbursement for any claim, or portion thereof, for which federal financial participation is not available,” it was silent on the subject of what would happen if federal financial participation were disallowed retroactively after such reimbursement had already been made. Clearly, what the state was asserting under these circumstances was not an express right under its contract with Presbyterian but rather an implied contractual right to the return of monies paid by mistake in connection with that contract. Cf. Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 28 (1) (338 SE2d 496) (1985).

“ ‘There can be no doubt of the state’s right to a refund of money paid out through mistake under the time-honored and well recognized principle that one may not retain money or goods which have come into his hands through mistake and which he is not, in good conscience, entitled to retain. (Cits.)’ [Cit.] However, ‘ “(t)he equitable right to restitution from one unjustly enriched at another’s expense is terminated or diminished if circumstances have so changed that it would be inequitable to require full restitution.” [Cit.]’ [Cit.]” State of Ga. Dept. of Admin. Svcs. v. Pritchett, 160 Ga. App. 294 (287 SE2d 290) (1981). Based on the application of these principles, we hold that the superior court was correct in its conclusion that the DMA would be estopped from recovering the overpayments it had made to Presbyterian to the extent that the latter had changed its position in reliance on its hospital-based classification in such a manner as to make such restitution inequitable.

2. While the Administrative Procedure Act provides that “[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact,” it further specifies that “[t]he court may reverse or modify the decision if. substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: ... (4) Affected by [an] error of law; [or are] (5) [c]learly erroneous in view of the reliable, probative, and substantive evidence on the whole record. . . .” OCGA § 50-13-19 (h). Cf. Stevens v. Bd. of Regents, 129 Ga. App. 347 (199 SE2d 620) (1973).

It is apparent from the record in this case that the DMA has never attempted to refute Presbyterian’s contention, advanced both before the administrative hearing officer and before the superior court, that it materially changed its position in reliance on the hospital-based classification assigned to it by the DMA. Instead, the DMA has consistently taken the position that this issue is irrelevant because its refund claim is grounded on an express contractual right rather than on restitutionary principles. Indeed, in a memorandum to the State Law Department outlining the agency’s reasons for its appeal of the 1984 U. S. Department of Health and Human Services decision disallowing federal reimbursement for the payments in question, the DMA’s deputy commissioner adopted Presbyterian’s position on the detrimental reliance issue, stating: “We further believe that the equitable doctrine of promissory estoppel would apply to Presbyterian. Through no fault of their own, and subsequent to budgeting, planning and fund raising efforts, Presbyterian relied on its classification by the Department as hospital-based. Presbyterian had every right to rely on the Department’s cost report instructions, and its classification, and did so properly rely on such to its detriment. To now reverse its classification would be a miscarriage of justice.”

Given this admission by the DMA’s deputy commissioner, combined with the lack of any evidence tending to refute Presbyterian’s contention that it relied to its detriment on the hospital-based classification assigned to it by the DMA, we hold that the superior court was authorized to conclude as a matter of law that the DMA was es-topped from recovering the funds in question.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope and Beasley, JJ., concur. Sognier, C. J., Carley, Cooper and Andrews, JJ., dissent.

Carley, Judge,

dissenting.

I must respectfully dissent to the majority’s affirmance of the superior court’s reversal of the administrative decision made by the DMA Commissioner. Although I certainly sympathize with appellee and understand its reluctance to repay a substantial amount of money that it thought it was entitled to receive, the procedural and substantive law applicable to this case mandates a reversal of the superior court’s ruling. While there is no doubt that appellee accepted and received the payments “in good faith,” it was beyond the superior court’s power and authority to find and determine that appellee’s acceptance of such payments constituted a good faith reliance.

The contract between appellant and appellee specified that “the [appellant] shall make no reimbursement for any claim, or portion thereof, for which federal financial participation is not available. ...” However, I must respectfully disagree with any restrictive construction of this contractual provision so as to hold that it did not apply in the event that federal financial participation was disallowed retroactively. Such a conclusion is contrary to the plain meaning and obvious intent and spirit of the parties’ contract. It is uncontroverted that based upon the ruling of the federal government, which appellant vigorously opposed on behalf of appellee, there simply was no federal financial participation available.

“The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . [a]ffected by [an] error of law. . . .” OCGA § 50-13-19 (h) (4). In the instant case, the superior court concluded that the “failure to apply [a certain legal] principle was an error of law” which mandated reversal pursuant to OCGA § 50-13-19 (h) (4). That legal principle was the following: “ ‘ “[T]he equitable right to restitution from one unjustly enriched at another’s expense is terminated or diminished if circumstances have so changed that it would be inequitable to require full restitution.” [Cit.]’ [Cit.]” State of Ga. Dept. of Admin. Svcs. v. Pritchett, 160 Ga. App. 294, 295 (287 SE2d 290) (1981).

There has been no affirmative showing that any evidence adduced concerning DMA’s estoppel to obtain a refund was not fully considered during the administrative hearing process. See Francis Egg Farm v. Durrance, 169 Ga. App. 879 (315 SE2d 436) (1984) (construing OCGA § 34-9-105). Compare Rowell v. Transport Ins. Co., 153 Ga. App. 456 (265 SE2d 364) (1980) (construing OCGA § 34-9-105); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 248 (1) (141 SE2d 223) (1965) (construing OCGA § 34-9-105). Estoppel is a question for the trior of fact unless it can be unequivocally established. Smithloff v. Benson, 173 Ga. App. 870, 874 (3) (328 SE2d 759) (1985).The evidence did not demand a finding in appellee’s favor as to the estoppel issue. See Graham v. Hogan, 185 Ga. App. 842 (366 SE2d 219) (1988). There is absolutely no evidence that appellee would be prejudiced by being required to make full restitution other than that it “had spent the money of the [state] which had been mistakenly advanced (which generally does not constitute ‘prejudice.’ [Cit.]).” (Emphasis supplied.) Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986).

Accordingly, the superior court erred in basing its reversal of DMA’s decision on the purported administrative “failure” to have applied the legal principle of estoppel. There was no reversible administrative “failure” to apply that legal principle, but there was, instead, a controlling administrative factual determination as to the applicability of that legal principle based upon sufficient evidence. The superior court was without authority to substitute its judgment for that of the administrative agency. Georgia Real Estate Comm. v. Burnette, 243 Ga. 516 (2) (255 SE2d 38) (1979). Because I believe that the superior court had no authority to reverse the administrative determination, I must respectfully dissent.

Decided July 31, 1991

Reconsideration denied September 3, 1991

Michael J. Bowers, Attorney General, William C. Joy, Kathryn

L. Allen, Senior Assistant Attorneys General, for appellant. Walter H. New, for appellee.

I am authorized to state that Chief Judge Sognier, Judge Cooper and Judge Andrews join in this dissent.


author: Beasley, Judge. Carley, Judge,

text:
    A91A0078.
    FIELDS v. SPENCER et al.
    (410 SE2d 39)
   Beasley, Judge.

Plaintiff appeals from an order dismissing his complaint against defendants. The trial court granted the dismissal, with prejudice, on two grounds, one of which was that the plaintiff’s complaint under 42 USC § 1983 was frivolous. This second ground is in the nature of a judgment for failure to state a claim, OCGA § 9-11-12 (b) (6), and is not subject to OCGA § 9-11-41 (b)’s non-finality policy. The judgment, insofar as it is based on this second ground, is validly with prejudice.

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Cooper and Andrews, JJ., concur. McMurray, P. J., Banke, P. J., Carley and Pope, JJ., dissent.

Carley, Judge,

dissenting.

In my opinion, the trial court’s order should be affirmed, but only with direction that it be amended to reflect that the dismissal of appellant-plaintiff’s complaint is without prejudice. Accordingly, I must respectfully dissent to the majority’s mere affirmance of the trial court’s order.

The majority concludes that the trial court ordered the dismissal “on two grounds, one of which was that [appellant’s] complaint . . . was frivolous.” However, there was no written motion to dismiss and no transcript of the hearing on the motion and, although the trial court’s order does make a reference to appellee-defendants’ assertion that appellant’s claims were “frivolous,” it nevertheless states only that appellees “move[d] to dismiss this case for failure of [appellant] to prosecute the action.” (Emphasis supplied.) If it was based on the failure of appellant to prosecute, the trial court’s order clearly should not provide that the dismissal of appellant’s complaint was with prejudice. OCGA § 9-11-41 (b); Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984), aff'd 254 Ga. 265 (330 SE2d 596) (1985).

Decided July 9, 1991

Reconsiderations dismissed July 30, 1991 and September 3, 1991

Harvey Fields, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney Gen eral, for appellees.

However, even assuming that “frivolousness” was intended as ah alternative ground for the trial court’s order, I nevertheless cannot agree with the majority that such a dismissal would be “in the nature” of a dismissal for failure to state a claim under OCGA § 9-11-12 (b) (6). The majority cites no authority for the proposition that an otherwise undefined concept of “frivolousness” is properly considered as functionally equivalent to the objective legal standard of failure to state a claim upon which relief can be granted. Likewise, there is absolutely nothing in the record to support the proposition that either appellees or the trial court understood “frivolousness” to be the equivalent of a failure to state a claim. In their brief, appellees neither cite nor rely upon OCGA § 9-11-12 (b) (6), but urge “frivolousness” by citation to a federal statute which has no relevancy or bearing on the authority of a state court to dismiss an action. The civil procedure of this state is, of course, governed by OCGA § 9-11-1 et seq. OCGA § 9-11-12 (b) (6) provides for the dismissal of a complaint which fails to state a claim, but there is no provision for dismissal on the basis of “frivolousness.” The only OCGA § 9-11-12 (b) (6) motion that appears in the instant case is that which the majority itself has conjured by equating “frivolousness” with the failure to state a claim. Amendment of the Civil Practice Act so as to authorize dismissal on additional grounds should be left to the legislature.

In my opinion, the only valid ground for dismissal of appellant’s complaint would be his failure to prosecute. A dismissal on that ground should be without prejudice. Accordingly, I would affirm with direction that the trial court amend its order to comport with the applicable provisions of OCGA § 9-11-41 (b), and I must respectfully dissent to the majority’s failure to give such direction.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Banke and Judge Pope join in this dissent.


author: Carley, Judge. Banke, Presiding Judge,

text:
    A91A0715.
    NORTHSIDE TITLE & ABSTRACT COMPANY, INC. v. SIMMONS.
    (409 SE2d 885)
   Carley, Judge.

A simplified statement of the facts, insofar as they are relevant, is as follows: Appellee-defendant Ms. Cynthia Simmons and her co-tenant conveyed property to Ms. Jean Wooster. At the time of this conveyance, there was a federal tax lien against the property. Wooster subsequently conveyed the property to Fulton Federal Savings & Loan Association of Atlanta (FFS&L). At the time of this conveyance, there was still a federal tax lien against the property. After the federal tax was paid and the lien was removed, FFS&L assigned its claim for breach of warranty to appellant-plaintiff Northside Title & Abstract Company, Inc. Appellant, as FFS&L’s assignee, filed suit for breach of warranty against appellee. After discovery, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and denied appellant’s motion. Appellant appeals from the trial court’s order on the cross-motions for summary judgment.

The evidence of record demonstrates that appellee and her co-tenant conveyed the property to Wooster by general warranty deed. “A general warranty of title against the claims of all persons includes covenants ... of freedom from encumbrances.” OCGA § 44-5-62. At the time of this conveyance to Wooster, the property was not free of encumbrances. Accordingly, appellee, as well as her co-tenant, would be liable to Wooster for the breach of their general warranty. Ashburn v. Watson, 8 Ga. App. 566 (2) (70 SE 19) (1911). Wooster subsequently conveyed the property to FFS&L by a security deed containing a limited warranty of “title to the property against all claims and demands, subject to any encumbrances of record.” (Emphasis supplied.) At the time of this conveyance to FFS&L, the encumbrance on the property had not been removed. However, Wooster could not be liable to FFS&L for a breach of her limited warranty because the encumbrance was “of record.”

Wooster’s non-liability to FFS&L for a breach of her subsequent limited warranty would not, however, prevent FFS&L from recovering against appellee and her co-tenant for the breach of their original general warranty. “The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.” OCGA § 44-5-60 (a). FFS&L was a purchaser of lands from Wooster. Appellee and her co-tenant, as Wooster’s grantors, had given her a general warranty. The general warranty given by appellee and her co-tenant to Wooster did not expressly prohibit its transmission to subsequent owners. Accordingly, the general warranty given by appellee and her co-tenant to Wooster passed from Wooster to FFS&L. “Under the laws of this State, unless the covenant expressly negatives such transmission, a covenant of warranty of title, of quiet enjoyment, and of freedom from incumbrances, made by any grantor, passes with the land to subsequent purchasers.” (Emphasis supplied.) Tucker v. McArthur, 103 Ga. 409 (1) (30 SE 283) (1897). Since the general warranty given by appellee and her co-tenant to Wooster had passed from Wooster to FFS&L, FFS&L could sue appellee and her co-tenant for the breach of their general warranty. See Smith v. Smith, 129 Ga. App. 618 (200 SE2d 504) (1973).

Although, as FFS&L’s assignee, appellant acquired no greater rights against appellee than FFS&L had against her, appellant likewise acquired no lesser rights. Since FFS&L had a cause of action against appellee for breach of warranty, it follows that appellant, as FFS&L’s assignee, acquired the right to recover against appellee. A review of the record shows that no genuine issue of material fact remains as to appellee’s liability to appellant for breach of general warranty. It follows, therefore, that the trial court’s rulings on the cross-motions for summary judgment were erroneous and must be reversed.

Judgments reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Banke, P. J., dissents.

Banke, Presiding Judge,

dissenting.

I must respectfully dissent.

The tax lien in question was predicated on taxes owed by the husband of the co-tenant with whom the appellee had owned the property, and it is apparent without dispute from the record that the appellee had no knowledge of its existence at the time she and her co-tenant sold the property to Wooster. The majority nevertheless holds that the appellant, which was retained by the title insurance company for Fulton Federal Savings & Loan Association to examine the title to the property prior to the closing, has a claim against the appellee for its own oversight in failing to discover the lien. The majority reaches this result by way of its conclusion that Fulton Federal was entitled under OCGA § 44-5-60 (a) to the full benefit of the unrestricted warranty of title contained in the warranty deed which Wooster received from the appellee, even though the security deed which it received from Wooster specified that its title was “subject to encumbrances of record.”

Decided July 31, 1991

Reconsideration denied September 3, 1991

Gort, Hassett, Cohen & Beitchman, Robert W. Hassett, for appellant.

Robert J. Hippie, for appellee.

If the court’s interpretation of OCGA § 44-5-60 (a) is correct, then the appellee would be equally liable to Fulton Federal and its assigns for the amount of tax lien even if the latter’s security deed had specifically referenced the lien and stated that the conveyance was being made subject to it. Believing that such an interpretation of the statute cannot be squared with common sense and further believing that it leads to a manifestly unjust result when applied to the facts of this case, I would affirm the judgment of the trial court.


text:
    A91A0762.
    PERRY v. THE STATE.
    (410 SE2d 297)
   Banke, Presiding Judge.

The appellant was convicted of theft by receiving stolen property. At trial, a police officer testified that as he and his partner were approaching a parked car which they suspected to have been stolen, the appellant emerged from the vehicle and fled on foot. The officer testified that the vehicle’s engine was running at the time although there were no keys in it, that the steering column was broken, and that there was a screwdriver on the front seat. A detective who interviewed the appellant following his arrest testified that the appellant initially denied having been in the car and claimed he had merely been jogging past it when the police arrived. However, the detective stated that when he asked the appellant if his fingerprints would be discovered inside the car if it were dusted for prints, the appellant conceded that he had been inside the car earlier that day “checking out the radio.” Held:

1. The appellant contends that “the trial court erred in permitting [the arresting] officer to give patently false testimony” to the effect that he or his partner had obtained verification over their police radio at the time of the appellant’s arrest that the vehicle was in fact stolen. The officer’s testimony in this regard conflicted with that of the detective, who stated that he was called to the scene because the officers “ran the car on the radio in the computer to see if it was stolen” and “it did not come back stolen at that time.” It also conflicted with the testimony of the owner, who stated that he was not aware the vehicle had been stolen until the police called him to tell him they had recovered it. However, it does not follow that the arresting officer’s testimony on this point was intentionally false, as charged by the appellant. Rather, it could simply have been the product of misinformation or misrecollection, particularly given the absence of any dispute over the fact that the vehicle had been stolen. In any event, the appellant did not object to the testimony in question or otherwise invoke any ruling from the trial court on this issue. Accordingly, this enumeration of error presents nothing for review.

2. The appellant enumerates as error the admission of evidence that a few months prior to the offense for which he was on trial he had pled guilty to another charge of theft by receiving a stolen vehicle. He complains that by proving his commission of this prior offense through the introduction of a certified copy of his indictment and guilty plea rather than through the testimony of live witnesses, the state violated his rights under the federal and state constitutions “to confront any witnesses to the prior transaction. . . .” We have been cited to no authority which remotely supports this contention, and we are aware of none. If the appellant had wished to challenge or explain his plea of guilty to this prior offense, he was certainly free to do so.

Although the appellant also suggests on appeal that the state failed to establish a sufficient similarity between this prior offense and the offense for which he was on trial to permit it to be introduced as evidence, we have been cited to no such objection in the trial transcript. Before introducing the indictment and plea, the state announced that it was prepared to establish that the appellant had also fled on foot from the vehicle involved in that case, but his counsel did not insist that the state introduce such evidence, perhaps feeling that the less said about the matter the better. Under the circumstances, the appellant will not now be heard to complain that the state failed to follow through on its offer.

3. Evidence was also introduced showing that subsequent to the offense for which he was on trial the appellant had been found occupying yet another stolen vehicle. He contends that this evidence was inadmissible due to the state’s failure to provide him with notice, pursuant to Uniform Superior Court Rule 31.3, of its intention to introduce it. However, it is apparent from the transcript that the state’s attorney did not become aware of this evidence until the trial was already in progress. The appellant had called as a witness a man who, as it turned out, had been with him on the occasion at issue; and the state’s attorney learned about the incident upon investigating that witness’s criminal record for the purpose of obtaining impeachment evidence against him. Under the circumstances, we hold that the state was properly allowed to cross-examine this witness regarding the appellant’s as well as his own involvement with the stolen vehicle at issue. Accord Adams v. State, 191 Ga. App. 16 (4), 19 (381 SE2d 69) (1989) . See also Thaxton v. State, 260 Ga. 141 (6) (390 SE2d 841) (1990) .

4. Citing the Supreme Court’s recent decision in Renner v. State, 260 Ga. 515 (3) (397 SE2d 683) (1990), the appellant contends that the trial court committed reversible error in charging the jury on flight. However, the holding in Renner was expressly declared to be prospective, id. at fn. 2. As the present case was tried prior to the effective date of that case, this enumeration of error is also without merit.

5. The appellant contends that the trial court erred in failing to give his requested charges on circumstantial evidence. However, an examination of the transcript reveals that the trial judge did in fact charge on circumstantial evidence. Because the appellant has not specified how the charge given by the court on this principle of law was deficient, this enumeration of error presents nothing for review.

6. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of theft by receiving stolen property. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, J., concurs. Carley, J., concurs in Divisions 1, 3, 4, 5, 6 and in judgment.

On Motion for Reconsideration.

The appellant contends on motion for reconsideration that our holding in Division 2 of the present case is in conflict with the Georgia Supreme Court’s recent decision in Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). In Division 6 of Stephens, the Supreme Court held that it was error to admit a certified copy of a prior conviction as similar transaction evidence based on representations regarding similarity which the state’s attorney had made at a pre-trial hearing, where no evidence of similarity was offered during the trial itself. Although the state likewise failed to present evidence of similarity during the trial of the present case, our holding here is based on the appellant’s failure to object to the introduction of the prior conviction on that ground. Inasmuch as Stephens did not extinguish the rule that “[a]ppellant may not raise a ground of objection on appeal which was not first urged below,” Benjamin v. State, 172 Ga. App. 3, 4 (321 SE2d 769) (1984), the motion for reconsideration is denied.

Motion for reconsideration denied.

Decided July 10, 1991

Reconsideration denied September 3, 1991.

Steven W. Reighard, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A90A1145.
    HILL v. THE STATE.
    (410 SE2d 461)
    Decided September 3, 1991.

      The Garland Firm, Edward T. M. Garland, Charles G. Haldi, Jr., Donald F. Samuel, for appellant.

      Thomas J. Charron, District Attorney, W. Thomas Weathers III, Debra H. Bernes, Assistant District Attorneys, for appellee.
   Beasley, Judge.

The decision in Hill v. State, 197 Ga. App. 260 (398 SE2d 226) (1990) having been reversed by the Supreme Court, Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991), the decision of the Court of Appeals is hereby vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Pope and Andrews, JJ., concur.


author: Carley, Judge.

text:
    A90A1788, A90A1789.
    HASKINS et al. v. LAU’S CORPORATION, INC. (two cases).
    (410 SE2d 460)
   Carley, Judge.

Appellant-plaintiffs in these companion cases were robbed and seriously injured in the parking lot of appellee-defendant’s restaurant. Appellants brought suit, alleging that appellee had negligently failed to provide adequate warning or adequate security for its patrons. Appellants appealed to this court from the trial court’s grant of appellee’s motion for summary judgment and we reversed. Haskins v. Lau’s Corp., 198 Ga. App. 470 (402 SE2d 58) (1991). On certiorari, however, the Supreme Court reversed our decision. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accordingly, our original judgment of reversal is vacated, the judgment of the Supreme Court is made the judgment of this court and the order of the trial court granting summary judgment in favor of appellee is hereby affirmed.

Decided September 3, 1991.

Dozier, Akin, Lee & Graham, L. Z. Dozier, Jr., for appellants.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Edwin A. Tate II, Jean F. Johnson, for appellee.

Judgments affirmed.


text:
    A91A0747.
    EDWARDS v. EVERETT.
    (410 SE2d 205)
   Carley, Judge.

Appellant-defendant filed a notice of appeal which included the following statement: “The transcript of evidence and proceedings has been ordered and will be filed for inclusion in the record on appeal.” The trial court subsequently dismissed the appeal, appellant “having not filed a transcript nor having requested an extension of time in which to file said transcript. . . .” Appellant appeals from the order dismissing her original notice of appeal.

1. “ ‘Failure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. [Cit.]’ [Cit.] In this case, the order dismissing the appeal simply recited that the transcript had not been timely filed but did not include the requisite finding that the resulting delay was both unreasonable and inexcusable. Consequently, we must reverse the order and remand with instruction thatf, if such a transcript exists (but see Abel v. J.H. Harvey Co., 126 Ga. App. 115 (190 SE2d 87) (1972); Kennedy v. Savannah News-Press, 122 Ga. App. 175 (176 SE2d 540) (1970)),] a finding be made on the issues of whether the delay was unreasonable and inexcusable.” Speir v. Nicholson, 193 Ga. App. 444 (1) (388 SE2d 42) (1989). See also Georgia Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990); Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990).

2. “Since we cannot conclude as a matter of law that the dismissal of appeal was improper, we need not address the remaining enumerations of error. Those enumerations of error are not properly before us at this time.” Speir v. Nicholson, supra at 444-445 (2).

Judgment reversed and case remanded with instructions.

Banke, P. J., concurs. Beasley, J., concurs in the judgment only.

Decided September 3, 1991.

James B. Drew, Jr., for appellant.

Reginald Everett, pro se.


text:
    A91A0758.
    THE STATE v. FRAZIER.
    (410 SE2d 134)
   Cooper, Judge.

The State appeals from the trial court’s grant of defendant’s motion for discharge and acquittal.

Defendant was arrested and issued four Uniform Traffic Citations for driving under the influence, crossing a double yellow line, no proof of insurance, and aggravated assault. At his committal hearing, he requested a jury trial, and his case was bound over to the State Court of Fulton County. The record reflects that the solicitor’s office received the charges on June 12, 1989, and that defendant filed a demand for trial pursuant to OCGA § 17-7-170 on June 30, 1989. Thereafter, on July 21, 1989, the solicitor’s office filed accusations with the clerk of the court, charging defendant with driving under the influence, simple assault, driving on the wrong side of the road, and no insurance. Subsequently, defendant’s attorney waived arraignment, and the case was placed on a calendar for trial. On January 24, 1990, defendant’s case was called for trial; however, defendant was out of the country and his attorney moved for a discharge and acquittal on the ground that defendant had not been tried within the time allowed under OCGA § 17-7-170. The case was placed on a motions calendar and following a hearing on the motion, the trial court granted defendant a discharge and acquittal.

1. The State argues that defendant’s demand for trial was untimely filed, therefore, the trial court erred in granting the discharge and acquittal. OCGA § 17-7-170 provides: “Any person against whom a true bill of indictment or an accusation is filed with the clerk . . . may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter. . . .” The trial court, relying on Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985), found that the Uniform Traffic Citation constituted a proper accusation and notice and rejected the State’s argument that a demand could not be made until the accusation had been filed with the clerk in state court. The trial court’s reliance on Majia was misplaced. “Majia was decided under a now-outdated version of OCGA § 17-7-170. At that time the statute only required that an accusation be preferred against a defendant, and the trial court concluded that an accusation, the traffic citation, had been preferred against Majia. The current version of OCGA § 17-7-170 requires that an accusation be filed with the clerk before an accused may file a demand for trial. Therefore, the timeliness of [defendant’s] motion depends upon whether an accusation, i.e., the traffic citation, was filed in the state court on [June 30, 1989], the date [defendant] filed his demand for trial.” State v. Lipsky, 191 Ga. App. 842, 843 (383 SE2d 204) (1989). It is undisputed that the solicitor did not file the accusations and Uniform Traffic Citations with the clerk until July 21, 1989. Therefore, since the accusations had not been filed at the time defendant filed his demand, the trial court should not have granted defendant’s motion for discharge and acquittal.

Decided September 3, 1991.

James L. Webb, Solicitor, R. Lee O’Brien, Jr., Helen A. Roan, Assistant Solicitors, for appellant.

Harvey T. Siegel, for appellee.

Defendant argues that his right to a speedy trial should not be impeded because of the solicitor’s delay in filing the accusation. Although “[c]lerical errors may not affect a defendant’s statutory right to speedy trial,” we do not conclude that the solicitor’s delay of approximately six weeks in filing the accusation was unreasonable. Compare Klinetob v. State, 194 Ga. App. 52, 53 (389 SE2d 551) (1989) (delay of almost 11 months held unreasonable).

2. Because of our holding in Division 1, we find it unnecessary to consider the State’s remaining enumeration of error.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0772.
    LAWRENCE v. STATE OF GEORGIA.
    (410 SE2d 136)
   Carley, Judge.

By reason of insanity, appellant was found not guilty of burglary and motor vehicle theft. The trial court, acting pursuant to OCGA § 17-7-131 (d), nevertheless retained jurisdiction over appellant and ordered his detention in a state mental health facility for a 30-day evaluation of his mental condition. After the expiration of the evaluation period, the trial court, acting pursuant to OCGA § 17-7-131 (e), ordered involuntary treatment of appellant as a mentally ill person. It is from this latter order that appellant appeals.

1. “Appellant’s contention that the [state’s] expert witness was permitted to testify as to the hearsay upon which his opinion was based is not supported by the record. The witness [indicated] that his opinion was based partly on [the observations and notes of various support personnel], but he did not repeat those [observations]. Moreover, ‘[ajn expert may base his opinion on hearsay and may be allowed to testify as to the basis for his findings. [Cits.]’ [Cit.] An expert’s opinion, based in part upon hearsay, is not inadmissible. The lack of personal knowledge goes to the weight and credibility of the expert’s testimony, not its admissibility. [Cit.]” Blackburn v. State, 180 Ga. App. 436, 437 (3) (349 SE2d 286) (1986). See also King v. Browning, 246 Ga. 46, 47-48 (1) (268 SE2d 653) (1980).

2. Appellant also asserts the general grounds.

“It appears both from the record and from the briefs of the parties that the appellant does not dispute that he is a ‘mentally ill person requiring involuntary treatment’ within the contemplation of OCGA §§ [17-7-131 (e)] and 37-3-1 (11[, 12]). The dispute is over whether he is subject to involuntary treatment as an ‘inpatient’ pursuant to OCGA § . . . 37-3-1 (9.1), or whether he should be treated as an ‘outpatient’ pursuant to OCGA § [37-3-1 (12.1)]. . . . The term ‘inpatient’ is defined by OCGA § 37-3-1 (9.1) as follows: ‘ “Inpatient” means a person who is mentally ill and: (A) (i) Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or (ii) Who is so unable to care for that person’s own physical health and safety as to create an imminently life-endangering crisis; and (B) Who is in need of involuntary inpatient treatment.’ ” Ruff v. Central State Hosp., 192 Ga. App. 631-633 (2) (385 SE2d 734) (1989).

The evidence shows that, despite some improvement in his condition, appellant was diagnosed as a paranoid schizophrenic, who would not likely take his medication regularly as an outpatient and who would thereby cause the return of his particular symptoms, including delusions and social withdrawal. Moreover, there was evidence of a recent lack of parental involvement in appellant’s life and a lack of parental ability to control him. In the opinion of the state’s expert, appellant was “so unable to care for [his] own physical health and safety as to create an imminently life-endangering crisis.” When later confronted by appellant’s counsel with an overly restrictive definition of the phrase “imminently life-endangering” (see generally Kuhr Bros. v. Spahos, 89 Ga. App. 885, 888-889 (2b) (81 SE2d 491) (1954)), the state’s expert denied that such endangerment would be imminent, but this does not vitiate the probative value of his prior opinion. In any event, the other evidence shows that a crisis would be no less “imminently life-endangering” than that in Ruff. “Based on our review of the transcript, we hold that there was ‘clear and convincing evidence,’ see OCGA § 37-3-1 (8), to support the trial court’s determination that if the appellant were discharged from the hospital, he would be so unable to care for his own physical health and safety as to create an imminently life-endangering crisis.” Ruff v. Central State Hosp., supra at 633 (2).

Decided September 3, 1991.

J. O’Quinn Lindsey, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Howard Z. Simms, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A0776.
    HUNTER v. THE STATE.
    (410 SE2d 204)
   Beasley, Judge.

Defendant appeals his conviction of aggravated child molestation. OCGA § 16-6-4 (c).

1. Defendant’s contention that the evidence was insufficient to sustain the verdict fails.

Defendant attacks the credibility of the State’s witnesses. However, this was an issue for the jury under proper instructions from the court. Pattillo v. State, 250 Ga. 510, 513 (299 SE2d 710) (1983); Brown v. State, 192 Ga. App. 864, 865 (1) (386 SE2d 734) (1989). The four-year-old victim testified that defendant performed the acts charged against him in the indictment. Her testimony was corroborated by another child who was an eyewitness, although this was not required. Gilbert v. State, 191 Ga. App. 574 (1) (382 SE2d 630) (1989). On review of a jury verdict we examine the evidence in a light most favorable to, and resolve all conflicts in favor of, that verdict. Smith v. State, 250 Ga. 729, 730 (300 SE2d 798) (1983); Anderson v. State, 245 Ga. 619, 622 (1) (266 SE2d 221) (1980); Jones v. State, 188 Ga. App. 398, 399 (373 SE2d 86) (1988). An application of these principles yields the conclusion that the evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt. Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990).

2. The remaining enumerations of error are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2) because they are not supported by argument or by citation of authority. Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990); Hollingsworth v. State, 195 Ga. App. 502 (2) (394 SE2d 131) (1990). Insofar as the enumerations themselves contain argument, it is conclusory and insufficient to raise justiciable issues.

Decided September 3, 1991.

Roger E. Bradley, for appellant.

Roger G. Queen, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A0791.
    BURTON v. JOHN THURMOND CONSTRUCTION COMPANY, INC.
    (410 SE2d 137)
   Andrews, Judge.

Burton sued John Thurmond Construction Company, Inc. (the Company) for the alleged breach of a written employment contract employing him as general manager for the Company. At the close of Burton’s case, the trial court granted the Company’s motion for a directed verdict. Burton appeals, claiming the trial court erroneously determined that the contract contained no definite term of employment and was terminable at will.

The contract provided that: “I, JOHN P. THURMOND, President of John Thurmond Construction Company, Inc. employed D. FRANKLIN BURTON as General Manager on January 1, 1987 to manage John Thurmond Construction Company Inc. at a salary of $2,000.00 per month for the first six (6) months. At that time salary is to be increased to $3,000.00 per month for the next six months, at which time we will re-evaluate and make new decision regarding salary.” The contract also provided that Burton would be entitled to one week of vacation after being with the Company for six months, and two weeks of vacation after one year with the Company.

After being employed for less than six months, the Company terminated Burton with one month of severance pay. Burton brought this action for breach of contract claiming the employment contract provided he was hired for a term of not less than one year. The Company defended, in part, by claiming the contract did not contain a term of employment, and was terminable at will. In granting the Company’s motion for a directed verdict, the trial court found the evidence demanded a verdict for the Company because the contract did not specify a definite term of employment, and was terminable at will.

An employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination. For tenberry v. Haverty Furniture Cos., 176 Ga. App. 360, 361 (335 SE2d 460) (1985); Floyd v. Lamar Ferrell Chevrolet, 159 Ga. App. 756, 757 (285 SE2d 218) (1981). “If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.” OCGA § 34-7-1.

The present contract provides for payment of a fixed salary per month. Under OCGA § 34-7-1, this creates a presumption that Burton was hired for the term of one month, after which the employment became terminable at the will of either party. Floyd, supra at 757. There is nothing in the contract indicating Burton was hired for a longer term. The provision for a monthly salary of $2,000 for six months and $3,000 for the next six months does not establish a pay period of longer than one month and raise the presumption of a longer term under OCGA § 34-7-1, nor is it a reference to a definite term of employment longer than one month. Rather, it refers to an agreed upon change in Burton’s monthly salary at predetermined intervals, and establishes his total salary for one year. See Fortenberry, supra at 361. The provision for two weeks vacation at the end of one year with the Company, likewise, does not establish a term of employment.

The construction of a contract, unambiguous on its face, is a matter of law for the court, even though a party to the contract contends it should be construed differently. OCGA § 13-2-1; Gatins v. NCR Corp., 180 Ga. App. 595, 596 (349 SE2d 818) (1986); Taliaferro v. S & A Restaurant Corp., 172 Ga. App. 399, 400 (323 SE2d 271) (1984). The contract at issue was unambiguous and contained no provision setting forth a definite term of employment. Although Burton testified it was his impression, based on conversations prior to signing and on the written contract itself, that he was to be employed for one year, this parole evidence, even though admitted without objection, was ineffective to vary or add to the terms of the contract. Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 132 (263 SE2d 138) (1980); Cleghorn v. Shields, 165 Ga. 362 (141 SE 55) (1927); Hill Aircraft & Leasing Corp. v. Planes Inc., 158 Ga. App. 151, 153 (279 SE2d 250) (1981).

Considering the evidence and all reasonable deductions therefrom, we find the trial court correctly determined that there was no conflict in the evidence as to any material issue, and that the evidence introduced demanded a verdict be directed in favor of the Company. OCGA § 9-11-50 (a); Johnson v. Dallas Glass Co., 183 Ga. App. 584, 585 (359 SE2d 448) (1987).

Judgment affirmed.

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

Decided September 3, 1991.

Steven H. Ballard, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Mark S. Vanderbroek, Steven J. Whitehead, for appellee.


text:
    A91A0797.
    ADAMS et al. v. THE STATE.
    (410 SE2d 139)
   Andrews, Judge.

After the trial court denied their motions to suppress, appellants were granted the right to file this interlocutory appeal challenging the validity of the search warrant by which the state seized cocaine, marijuana, and drug-related objects from their residence, and indicted them for possession of the seized items. The search warrant was supported by an affidavit which contained information from a confidential informant, as well as information independently gathered by members of the police drug task force.

1. In their first and second enumerations of error, appellants claim the suppression motions should have been granted because the affidavit in support of the warrant contained false statements, and because false testimony was given in support of the warrant at the suppression hearing. Appellants claim that the portion of the affidavit alleging that the affiant and other members of the drug task force had received information, independent of the confidential informant, that appellant Adams was selling drugs from his residence at 679 Rosedale Street, was false. Additionally, appellants claim the affiant falsely testified at the suppression hearing that he presented the affidavit to the magistrate, when in fact the documents themselves show that he presented the affidavit to the deputy magistrate.

Under Franks v. Delaware, 438 U. S. 154, 155 (98 SC 2674, 57 LE2d 667) (1978), “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause,” then at the defendant’s request a hearing must be held where, if the defendant establishes the perjury or reckless disregard for the truth by a preponderance of the evidence, the false material shall be set aside and the affidavit voided if the remaining content of the affidavit is insufficient to establish probable cause. Nutter v. State, 162 Ga. App. 349 (291 SE2d 423) (1982). Neither of the two members of the drug task force who testified at the suppression hearing, including the affiant, claimed to have knowledge, apart from that obtained from the confidential informant, that Adams sold drugs at the 679 Rosedale Street residence. They could not recall if other members of the drug task force had such knowledge when the affidavit was prepared, and the allegations made, approximately a year prior to the suppression hearing. Furthermore, at the suppression hearing the officer who testified he presented the affidavit to the magistrate instead of the deputy magistrate was recalled and later testified that he was in error. The deputy magistrate who issued the warrant testified that the officer appeared before him and gave sworn testimony on the affidavit.

We agree with the trial court that neither of these allegations of false statements require that the evidence seized under the warrant be suppressed. The trial judge made no specific rulings as to the truth or falsity of the statements, but correctly found that, apart from the statements, the other evidence and remaining contents of the affidavit were sufficient to support the magistrate’s finding of probable cause for issuing the warrant.

2. In their third enumeration of error, appellants assert the information in the affidavit obtained from a confidential informant was not sufficiently corroborated, and was insufficient to establish probable cause for issuance of the search warrant. The affidavit contained the following statements: “Affiant was advised on Nov. 07, 1989, that withing [sic] the last 72 hours, reliable informant # 11/89 had personally seen several large Marijuana plants inside the above described residence, as well as, a large amount of Cocaine. Although C. I. # 1189 has never made a controlled purchase for the Paulding County Drug Task Force, C. I. # 1189 has made several controlled purchases of drugs for Marietta/Cobb/Smyrna Narcotics, as well as, gave M. C. S. reliable information, which led to approximately 15-20 arrests. These figures were confirmed by affiant by contacting Major Maxwell, Head of M. C. S.” The affidavit also indicated that the residence of appellants was identified by the informant as a wood frame house, lime green in color, at 679 Rosedale Street. The trial court found the magistrate properly issued a search warrant for the residence based on the affidavit.

“In making a determination as to probable cause pursuant to the totality of the circumstances test enunciated in Illinois v. Gates, [462 U. S. 213] (103 SC 2317, 76 LE2d 527) (1983), the 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.” Mize v. State, 173 Ga. App. 327, 328 (326 SE2d 782) (1985) (Punctuation and internal quotations omitted); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). The task of a reviewing court is to determine if there is substantial evidence in the record to support the magistrate’s issuance of the warrant. State v. White, 196 Ga. App. 685, 686 (396 SE2d 601) (1990). “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citations and punctuation omitted). Mincey v. State, 180 Ga. App. 898, 900 (350 SE2d 852) (1986). Under these standards, the information in the affidavit obtained from the informant was sufficient to establish probable cause for the warrant, and the trial court correctly denied the motions to suppress.

3. In their fourth enumeration, appellants claim the trial court should have suppressed the evidence because the officers executed the warrant using excessive force. In executing a search warrant, officers are generally required to make a good faith attempt to give verbal notice of their authority and purpose prior to gaining entry by the use of force. OCGA § 17-5-27. This requirement may be excused when the officers reasonably believe that announcing themselves “ ‘would either greatly increase their peril or lead to the immediate destruction of the evidence.’ [Cit.]” Neal v. State, 173 Ga. App. 71, 72 (325 SE2d 457) (1984).

Here, the magistrate included a “no-knock” provision in the warrant apparently because it had simply become customary to do so in drug cases. Nothing in the affidavit or in evidence communicated to the magistrate authorized inclusion of the “no-knock” provision. The affidavit contains an allegation that the “no-knock” clause was requested for the safety of the officers and persons at the residence, but there was no allegation of increased peril to the officers or of danger that evidence would be destroyed. At the suppression hearing, an executing officer testified that officers requested the “no-knock” provision and kicked in the door when executing the warrant because this was a drug case, and, more specifically, because they had obtained information that a large, vicious dog was kept at the residence.

Although the “no-knock” provision was erroneously included by the magistrate, the trial court properly refused to grant the motion to suppress on this basis. Under the circumstances, it appears the officers entered the premises on the good faith belief that they were authorized, because of the peril created by the presence of the dangerous dog, to proceed with a “no-knock” warrant issued by the magistrate. See Debey v. State, 192 Ga. App. 512 (385 SE2d 694) (1989); Neal, supra at 72-73.

4. Appellants claim in enumeration of error five that, because the affidavit was not signed by the issuing magistrate, the evidence obtained under the warrant should have been suppressed. The trial court correctly refused to suppress the evidence for lack of the magistrate’s signature. Evidence presented at the suppression hearing from the affiant and the magistrate indicated that the affiant, whose signature appears on the affidavit, was placed under oath by the magistrate and gave sworn testimony in support of the affidavit. The magistrate testified that he inadvertently failed to sign the affidavit. “No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” OCGA § 17-5-31; State v. Penansky, 140 Ga. App. 405 (231 SE2d 152) (1976).

Decided September 3, 1991.

Awtrey & Parker, J. Lynn Rainey, for appellants.

William A. Foster III, District Attorney, Thomas V. Driggers, Assistant District Attorney, for appellee.

5. In the portion of their brief supporting enumeration of error three, appellants also assert that their sixth and fourteenth amendment right to thoroughly cross-examine the state’s witnesses was erroneously abridged by the trial court at the suppression hearing. We will not consider errors presented in the brief, but not separately set forth in the enumeration of errors, or at least embraced by an enumeration of error broad enough to authorize raising the issue. Irvin v. Askew, 241 Ga. 565, 566 (246 SE2d 682) (1978); Barnes v. Atlanta, 186 Ga. App. 187, 189 (366 SE2d 822) (1988).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A91A0799.
    GEORGIA GLASS & METAL, INC. v. ARCO CHEMICAL COMPANY.
    (410 SE2d 142)
   Pope, Judge.

On October 4, 1984, Georgia Glass & Metal, Inc. (“Georgia Glass”) entered into a construction contract with Investment Syndications, Inc., as owner, to furnish materials and labor for the construction of the Phoenix Condominiums Project. Arco Chemical Company d/b/a Arco Building Products (“Arco”) provided materials for Georgia Glass to use in its work on the condominiums. On October 9, 1984, Georgia Glass submitted its first purchase order to Arco for the condominiums. On October 17, 1984, Arco confirmed that order and that the terms of the sale would be F.O.B. shipping point, prepaid.

Arco was apparently concerned about the financial stability of Georgia Glass and approached it concerning having a joint pay agreement for this condominium project in which the owner would agree to make all checks issued to Georgia Glass payable to both Georgia Glass and Arco. Georgia Glass agreed to this arrangement and the general contractor for the condominium project, Mild Construction Company, issued a letter on its letterhead addressed to both Georgia Glass and Arco, dated March 11, 1985, which read as follows: “It is our understanding that [Arco] is furnishing the aluminum requirements to GEORGIA GLASS & METAL, INC. for the [Phoenix Condominium] job. At the request of [Arco] and GEORGIA GLASS & METAL, INC. this will confirm that payment in the amount of $225,000.00 will be jointly payable to [Arco] and GEORGIA GLASS & METAL, INC. in accordance with the terms of sale which are 30 days from date of invoice.” After this letter was issued the owner began experiencing financial difficulties and subsequently filed for bankruptcy protection. Georgia Glass filed a lawsuit against the owner and a mechanic and materialmen’s lien against the condominium project; both however, were stayed by the filing of the bankruptcy petition.

Arco filed this action against Georgia Glass seeking payment on unpaid invoices on May 26, 1988. Arco filed a motion for summary judgment in this case seeking a judgment in its favor on the issue of liability of Georgia Glass for the amounts claimed due. The trial court granted Arco partial summary judgment holding that the joint pay agreement did not relieve Georgia Glass of its obligation to pay Arco, even when the owner had not paid Georgia Glass. Georgia Glass appeals that decision.

The crux of Georgia Glass’ argument on appeal is that it construed the joint pay agreement between the parties to mean that both Georgia Glass and Arco would receive payments directly from the owner and that neither party would be entitled to any monies other than from the owner. Georgia Glass further contends that Arco knew how Georgia Glass interpreted that agreement, but remained silent even though Arco interpreted the agreement differently. Therefore, Georgia Glass argues that OCGA § 13-2-4 dictates that its understanding must be the true meaning of the agreement. That statute provides as follows: “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.”

As the trial court properly found, OCGA § 13-2-4 “has no application where the contract and the terms involved are not ambiguous. Holloway v. Brown, 171 Ga. 481, 483 (155 SE 917) [(1930)].” Village Enterprises v. Ga. R. &c. Co., 117 Ga. App. 773, 776 (3) (161 SE2d 901) (1968). “The existence or nonexistence of ambiguity in a contract is a question of law for the court. Stone Mountain &c. R. v. Stone Mountain &c. Assn., 230 Ga. 800, 810 (199 SE2d 216) [(1973)].” Cass ville-White Assoc., Ltd. v. Bartow Assoc., 150 Ga. App. 561, 564 (3) (258 SE2d 175) (1979).

Decided September 3, 1991.

Tennant, Davidson & Thompson, V. Lee Thompson, Jr., Melanie W. Biondi, Kathryn M. Schrader, for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, Karl M. Terrell, for appellee.

“A provision in a contract may make payment by the owner a condition precedent to a subcontractor’s right to payment if ‘the contract [with the] subcontractor should contain an express condition clearly showing that to be the intention of the parties.’ [Cit.]” Sasser & Co. v. Griffin, 133 Ga. App. 83, 86 (2) (a) (210 SE2d 34) (1974). The documents which evidence the agreement between the parties do not contain such a provision.

While Georgia Glass was obviously mistaken about the effect of the joint pay agreement, a review of the record shows that the trial court correctly held that the terms of the joint pay agreement and the other documents establishing the agreement between the parties were not ambiguous. Unilateral mistake is not a defense to contractual liability. Jack V. Heard Contractors v. A. L. Adams Constr. Co., 155 Ga. App. 409, 414 (3) (271 SE2d 222) (1980). Accordingly, we find no merit in Georgia Glass’ argument that the trial court erred in granting partial summary judgment for Arco.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.