author: Andrews, Presiding Judge.

text:
    A02A0657.
    SMITH v. CHANDLER.
    (568 SE2d 592)
   Andrews, Presiding Judge.

Stacye Smith appeals from the trial court’s order granting summary judgment to Kay Smith Chandler, as executor of the estate of Eugene M. Smith. The trial court concluded that Stacye Smith’s right of first refusal was unenforceable pursuant to Booker v. Hall, 248 Ga. App. 639, 641-642 (1) (a) (548 SE2d 391) (2001).

In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000).

So viewed, the evidence was that Chandler was the executrix of Eugene Smith, the prior owner of the disputed property located on Tybee Island. Chandler sought to set aside the 1973 deed of Eugene Smith to William Lance Smith III, Smith’s nephew, contending the conveyance was fraudulently induced.

William Smith III, during his marriage to Stacye Smith, had quitclaimed his interest in the property, referred to as 1A 18th Street, Tybee Island, to Stacye Smith. In 1997, William Smith III and Stacye Smith were divorced, and the final judgment incorporated the agreement entered into by the Smiths dividing their assets. That agreement contains the following:

The parties agree that contemporaneously with the execution of this Agreement, the Husband shall receive the sole ownership of a parcel of improved real property known as #2 Smith Plaza, Tybee Island, Chatham County, Georgia which is held in a Life Estate [by Eugene Smith]. The Wife shall execute a quitclaim deed, free and clear of all encumbrances, to the Husband. The wife will be given the right of first refusal on future sales.

(Emphasis supplied.) It is the emphasized sentence which constitutes Stacye Smith’s right of first refusal.

On March 6, 1997, Stacye Smith quitclaimed her interest in this property, along with three other properties, to William Smith III. Following the legal descriptions in the quitclaim deed was this statement:

This conveyance is made subject to the terms and conditions of a Judgment and Decree of Divorce and Settlement Agreement which is incorporated thereto. The terms of said Settlement Agreement vest the parties with certain rights, restrictions, remainders, options to purchase, rights of refusal and the like. The execution of this deed by the Grantor does not serve to extinguish or in any manner release said rights, restrictions, remainders, options to purchase, rights of refusal and the like, and the same are covenants, conditions and restrictions to which any subsequent purchasers shall take notice.

On December 14, 2000, the trial court entered an order in the litigation between Chandler and William Smith III. At that time, Stacye Smith was not a party to this litigation. The order stated that Stacye Smith had made an offer to William Smith III of $560,000 to buy the property. The order set out a procedure by which Chandler was allowed to market the property to see if, before December 15, 2000, at 12:00 p.m., she could obtain an offer better than that of Stacye Smith. If she did so, then Stacye Smith was given 48 hours within which to meet the offer. If she did so, then she and the second potential purchaser were allowed to exchange bids at minimum $15,000 increments until one party was unable or unwilling to match the higher bid. The order further provided that, upon the sale, Chandler, William Smith III, and Stacye Smith would relinquish all claims to the property.

Penn Myrick made such an offer, and, by letter of December 17, 2000, Stacye Smith notified Chandler and William Smith III of her intent to “assert my first right [sic] of refusal to purchase the . . . property for the sum of $575,000.00. This notification is in response to receipt of the contract presented by Mr. Penn Myrick in the amount of $575,000.00 ... to purchase the above-referenced property.” Myrick then responded with his bid of $605,000, and Stacye Smith was notified by letter from Chandler’s attorney of her 24-hour deadline to make a response offer. Smith was further notified that “[i]f you fail to do so, you will forfeit your rights to make further offers on the property.”

No response was made by Stacye Smith, and Myrick entered into a contract to purchase the property with Chandler and William Smith III.

Decided July 9, 2002

McCorkle, Pedigo & Johnson, Carl S. Pedigo, Jr., Kenneth P. Johnson, for appellant.

Duffy, Feemster & Lewis, Dwight T. Feemster, Matthew M. Bush, for appellee.

On January 8, 2001, Stacye Smith filed her motion to intervene in this suit between Chandler and William Smith III, an answer to Chandler’s complaint, and a counterclaim against William Smith III seeking to “exercise her right of first refusal of this offer, thereby requiring [Smith III] to convey the property to her for the purchase price of $575,000.00.” The trial court allowed her intervention.

Pretermitting the issue of whether the clause in the settlement agreement was insufficient as a triggering mechanism, as found by the trial court pursuant to Booker, there are other bases upon which to affirm the trial court’s grant of summary judgment. A summary judgment right for any reason will be affirmed. Kaylor v. Atwell, 251 Ga. App. 270, 272 (2) (553 SE2d 868) (2001).

“A right of first refusal has been ‘ “defined by the term preemptive right. ... A preemptive right merely sets a requirement that when the owner decides to sell the person holding the preemptive right must be offered the opportunity to buy.” (Cit.)’ [Hasty v. Health Svc. Centers, 258 Ga. 625, 626 (373 SE2d 356) (1988).]” (Emphasis in original.) Phoenix Tower v. Shaffer, 254 Ga. App. 394, 395 (1) (562 SE2d 788) (2002). It is clear here that Chandler and William Smith III did not decide to sell until after the bidding process set in place by the court order had been completed. Therefore, if Stacye Smith had any right of first refusal which she had not been allowed to exercise, it was to meet Myrick’s offer of $605,000, which she did not do.

Also, Stacye Smith participated in the bidding process set up by the trial court’s order. She may not now complain that the process somehow violated her right of first refusal; seek to have that order vacated; and ask the trial court to order Chandler and William Smith III to accept only $575,000 in the face of a higher offer. See Plaza Properties v. Prime Business Investments, 273 Ga. 97, 100 (538 SE2d 51) (2000); Interfinancial Properties v. Mary T. Cristal Trust, 254 Ga. App. 406, 407-408 (562 SE2d 757) (2002).

The trial court properly granted summary judgment.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       The same order also denied Stacye Smith’s motion for summary judgment on the same issue.

       William L. Smith III died during the pendency of this litigation, and his estate was substituted as a party.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0483.
    BYRNE v. FIERMAN et al.
    (568 SE2d 494)
   Blackburn, Chief Judge.

James J. Byrne sued John A. England, his employer, and Martin L. Fierman, attorney for both Byrne and England, for the full amount of a judgment entered against him in a case involving insurance coverage, contending that England and Fierman had conspired against him by having Fierman give him inadequate legal advice and representation in the case. A jury returned a verdict in favor of Byrne and against England; no verdict was returned against Fierman. Byrne’s motion for new trial, based on his contention that the trial court erred in admitting evidence of a prior unrelated judgment against him, was denied. On appeal, Byrne contends that the trial court erred in: allowing the admission of irrelevant and prejudicial evidence; refusing to give certain jury instructions; and denying his motion for an award of costs. We affirm.

1. Byrne maintains that the trial court erred in denying his motion for new trial because it allowed the admission of irrelevant and prejudicial evidence. We find no error.

“The trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.” Lisle v. Willis. The trial court admitted into evidence a certified copy of a judgment entered against Byrne in an unrelated case. The plaintiff in the case was a corporation. England was Byrne’s co-defendant in the case, but the suit was dismissed as to him. The judgment against Byrne, still unsatisfied, was in the amount of $919,919.68.

As to relevance, it has been often stated that,

[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of relevance will not be disturbed on appeal.

(Citations and punctuation omitted.) Wilson v. Southern R. Co. While the fi. fa., evidence of litigation in which Byrne and England were involved as co-defendants, is of questionable relevance, its weight should be left to the jurors.

Byrne’s claim that the evidence was also prejudicial is evidently based on his belief that Fierman used the exhibit to suggest to the jury that a verdict in favor of Byrne against either defendant would not benefit Byrne but only enrich a corporate plaintiff. Byrne argues that since he was beyond the jury’s help because of the prior judgment against him, the jury decided to award him a judgment against England, who was judgment proof and from whom he would not get a penny, and not to award a judgment against Fierman, who had assets.

Nothing, either in the record or logic, supports Byrne’s contention that the jury, because it knew Byrne “had been wronged,” decided to award him “a worthless, token, and meaningless judgment against England” while refusing to give him a judgment of any amount against Fierman. Contrary to Byrne’s contentions, it is much more likely that the jury awarded a judgment against England and not against Fierman because it was not convinced that Fierman had violated his duty as an attorney in representing Byrne. We note that at trial, the expert on legal ethics, when presented with the facts and circumstances of this case, acknowledged that it would be “hard to say what a lawyer ought to do in those circumstances.”

We also note that when Fierman asked Byrne on the stand whether he understood that the former judgment would stand as a lien against any award in the present case, the trial court, sua sponte, instructed the jury as follows:

The Court would instruct the jury to disregard the comments from Mr. Fierman in that respect. The [plaintiff], Mr. Byrne, has not been qualified as an expert witness, as an attorney, to answer that question. He doesn’t know the legal consequences of what a judgment — the effect of a judgment would be; that is, the fi. fa. would be on any judgment. That is a legal question which would require a legal construction, possibly by a court; and, therefore, you will disregard any questions in that regard and any responses that he made in that regard.

Moreover, “we conclude that, in the context of the evidence and of the issues being tried, it is unlikely that [the admission of the fi. fa.] contributed to the jury’s verdict. Since [Byrne] must show harm as well as error to prevail, this enumeration of error consequently established no independent ground for reversal.” (Citation omitted.) Martini v. Nixon.

In connection with this enumeration of error, Byrne argues further that Fierman used the judgment against him as a basis for improper closing argument to the jury. “When allegedly improper argument is made to the jury, opposing counsel must object at trial or otherwise invoke a ruling of the trial court. Failure so to object constitutes waiver.” Verde v. Granary Enterprises. Our review of the transcript indicates that Byrne did not object, at the time it was made, to the argument he now claims to be improper. As a result, this objection is waived.

Byrne also agues that the fi. fa. should have been excluded because it was not listed in the pre-trial order. Review of the trial transcript reveals that Byrne did not raise this ground for objection at the time the copy of the judgment was offered, but instead after all parties had rested and the exhibits were being organized for the jury “In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground. Accordingly, this issue has not been preserved for appellate review.” Trotter v. State.

2. Byrne maintains that the trial court erred in refusing to give certain jury instructions which he requested. Again, we find no error. “The trial court’s failure to give a jury charge in the exact language requested is not error where the charges actually given substantially cover the principles contained in the request.” Nails v. Rebhan.

The charges which Byrne claims the court refused to give concern intent, conspiracy, and legal malpractice. Having reviewed the charge in its entirety, we find that the trial court fully and accurately instructed the jury on the issues to be decided, including the issues of intent, conspiracy, and legal malpractice. Indeed, in charging the jury on conspiracy, the trial court actually recited verbatim Byrne’s own requests to charge addressing conspiracy, charge nos. 10 and 11. Because the principles in the requested charges were covered substantially, if not word for word, by the court’s charge, the court did not err in refusing to give the requested charges. Nails v. Rebhan, supra at 22.

3. Finally, Byrne asserts that the trial court erred in denying his motion for an award of costs of transcript based on his alleged indigent status. We disagree. Byrne’s indigent status does not affect his request for a transcript paid for by the State, as such expense is not a recoverable cost under the facts of this case. The Supreme Court has held “that the cost of having a transcript prepared by the court reporter is an ‘expense of appeal’ and that such expense is not recoverable ‘costs of appeal.’ ” Brand v. Montega Corp

Decided June 7, 2002

Reconsideration dismissed June 27, 2002 and reconsideration denied July 10, 2002

Kenneth C. Pollock, for appellant.

Brenda H. Trammell, for appellees.

Martin L. Fierman, pro se.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995).

        Wilson v. Southern R. Co., 208 Ga. App. 598, 604 (4) (431 SE2d 383) (1993).

        Martini v. Nixon, 185 Ga. App. 328, 330 (6) (364 SE2d 49) (1987).

        Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (5) (345 SE2d 56) (1986).

        Trotter v. State, 248 Ga. App. 156, 157-158 (2) (546 SE2d 286) (2001).

        Nails v. Rebhan, 246 Ga. App. 19, 22 (3) (538 SE2d 843) (2000).

        Brand, v. Montega Corp., 233 Ga. 35 (209 SE2d 583) (1974).


author: Barnes, Judge. Andrews, Presiding Judge,

text:
    A02A0250.
    FARRIE v. McCALL.
    (568 SE2d 603)
   Barnes, Judge.

Patricia Farrie sued Amanda McCall, a South Carolina resident, for personal injuries sustained in a motor vehicle accident and served her personally pursuant to the provisions of the Long Arm Statute, OCGA § 9-10-94. McCall answered and moved to dismiss on the ground of insufficiency of service of process, arguing that the only method by which she could be served is that provided by the Nonresident Motorist Act (“NRMA”), OCGA § 40-12-1. The trial court reluctantly agreed, based on this court’s previous rulings. Because those cases were decided in error, and because the NRMA provides only an alternative, not an exclusive, means of perfecting service on a nonresident motorist, we reverse.

The NRMA was first enacted in 1937, and its

main and controlling purpose was to provide a ready and efficient remedy in this State for injuries occasioned by the negligent operation of motor vehicles upon the highways of this State by non-residents who are merely passing through or have no fixed residence or place of business here where they may be readily found and sued, and thus to relieve the persons claiming to have been damaged from the necessity of pursuing them into some other State for the purpose of obtaining redress.

Hirsch v. Shepherd Lumber Corp., 194 Ga. 113, 115 (20 SE2d 575) (1942). Because the service and venue provisions of the Act are in derogation of common law, our courts have always strictly construed its requirements. For example, evidence of “a registered letter, addressed to ‘general delivery,’ marked ‘unclaimed,’ ” was held to be insufficient service (Stone v. Sinkfield, 70 Ga. App. 787, 790 (29 SE2d 310) (1944)), as was service by publication (Babb v. Cook, 203 Ga. App. 437, 439 (2) (417 SE2d 63) (1992)).

The Georgia Long Arm Statute did not become effective until 1966, long after the U. S. Supreme Court held constitutional a state statute giving in personam jurisdiction over nonresidents with “certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Intl. Shoe Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945); Buckhead Doctors’ Bldg. v. Oxford Finance Cos., 120 Ga. App. 516 (1) (171 SE2d 365) (1969). The statute provides that

[a] court of this state may exercise personal jurisdiction over any nonresident. . . as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he . . . [c]ommits a tortious act or omission within this state.

OCGA § 9-10-91 (2). An automobile collision is such a tortious act that can confer jurisdiction on a nonresident under the Long Arm Statute. Bailey v. Hall, 199 Ga. App. 602, 603 (1) (405 SE2d 579) (1991).

An entire body of law arose to address service on defendants who were residents when the wreck occurred but moved out of state before suit was filed. For a time, such a defendant could not be sued under either the NRMA or the Long Arm Statute because he was not a “nonresident” when the act occurred. Thompson v. Abbott, 226 Ga. 353, 357-358 (2), (3) (174 SE2d 904) (1970); Young v. Morrison, 220 Ga. 127 (137 SE2d 456) (1964). Those opinions were subsequently overruled in Crowder v. Ginn, 248 Ga. 824, 825 (286 SE2d 706) (1982), in which the court held that “jurisdiction shall be exercised over nonresident parties to the maximum extent permitted by procedural due process. [Cit.]” (Punctuation omitted.) Id. The due process clauses of the Georgia and U. S. Constitutions did not preclude defining a “nonresident” under the Long Arm Statute as someone who was a resident when he had an automobile collision but had moved out of state before he was personally served with process. Id. The legislature subsequently amended the definition of a “nonresident” in the Long Arm Statute to include a former resident who had moved out of state. OCGA § 9-10-90. Consequently, a claimant may obtain jurisdiction by personal service under the Long Arm Statute on nonresidents who were Georgia residents when they committed a tort.

The basis for jurisdiction under the NRMA is the use of our state’s highways by a nonresident; the basis for jurisdiction under the Long Arm Statute is the commission of a tortious act within the state. Nothing in either statute precludes using either method of obtaining personal jurisdiction when the alleged tortfeasor was a nonresident of this state at the time of the tortious act. The exercise of long arm jurisdiction over a nonresident motorist does not offend “ ‘traditional notions of fair play and substantial justice.’ ” Intl. Shoe, supra, 326 U. S. at 316. Further, it is illogical to hold that personal service under the Long Arm Statute, the form of service most apt to give defendants proper notice of a suit against them, is invalid because of the existence of an alternative statutory method of service enacted 30 years earlier. While we still strictly construe the provisions of the NRMA when service is attempted pursuant to it, that rule of strict construction does not apply when jurisdiction is obtained under the Long Arm Statute.

Therefore, we disapprove the language in any case that the NRMA is the proper method of obtaining service on nonresident motorists to the extent that this statement states or implies that the NRMA is the exclusive method of obtaining personal service on nonresident motorists. See, e.g., Pringle v. Jaganauth, 240 Ga. App. 65 (1) (522 SE2d 560) (1999); Phillips v. Jackson, 233 Ga. App. 875, 878 (1) (506 SE2d 158) (1998); Rose v. Ryan, 209 Ga. App. 160, 161 (2) (433 SE2d 291) (1993); Babb, supra, 203 Ga. App. at 439 (2). Further, we note that reliance on Cheek v. Norton, 106 Ga. App. 280, 283 (126 SE2d 816) (1962), is not warranted. Cheek v. Norton was decided in 1962 before the Long Arm Statute was enacted. Therefore, while its holding was correct when made, the case is not controlling authority in current cases because the Long Arm Statute now provides an alternate means of obtaining jurisdiction over nonresident defendants.

Judgment reversed.

Blackburn, C. J., Johnson, P. J., Ruffin, Eldridge, Miller, Ellington and Phipps, JJ, concur. Pope, P. J, Smith, P. J., and Mikell, J., concur and concur specially. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

While I concur in the majority’s conclusion that either the Nonresident Motorists Act, OCGA § 40-12-1 et seq., or the Long Arm Statute provision relating to one who commits a tort in this state, OCGA § 9-10-91 (2), may be used to serve a nonresident motorist, I do not agree with the wholesale disapproval of any case dealing with the NRMA which states or implies that the NRMA is the “proper method” of obtaining personal service on nonresident motorists “to the extent that this statement states or implies that the NRMA is the exclusive method” of obtaining service without individual analysis of each such case. For example, Rose v. Ryan, 209 Ga. App. 160 (433 SE2d 291) (1993), which I authored, involved a situation in which the only service attempted was by publication under OCGA § 9-11-4 (e) (2). Rose discusses both appropriate possibilities of service, the NRMA and the Long Arm Statute, finds neither complied with, and appears consistent with the majority’s analysis. Therefore, I object to its disapproval.

Decided July 10, 2002.

Hill & Bleiberg, Gary Hill, for appellant.

Sharon W. Ware & Associates, Louis L. McLendon, Kenneth E. Morrow, for appellee.

I am authorized to state that Presiding Judge Pope, Presiding Judge Smith, and Judge Mikell join in this opinion.


author: Ellington, Judge.

text:
    A02A1379.
    PERKINS v. THE STATE.
    (568 SE2d 601)
   Ellington, Judge.

A Decatur County jury convicted Talmadge Perkins of robbery by sudden snatching, OCGA § 16-8-40 (a) (3). He appeals from the denial of his motion for new trial, contending the evidence was insufficient to support the judgment of conviction. We affirm.

When reviewing the sufficiency of evidence to support a conviction on appeal, this Court views all evidence in the light most favorable to the jury’s verdict and does not weigh the evidence or judge witness credibility. Fowler v. State, 246 Ga. App. 639, 640 (541 SE2d 447) (2000). The defendant is no longer presumed innocent. Id. This Court determines only whether the evidence presented was sufficient for a rational juror to find the defendant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hanson v. State, 229 Ga. App. 205, 206 (1) (493 SE2d 605) (1997).

Viewed in this light, the evidence showed that on July 7, 2001, Perkins and co-defendant Ricky Williams went to the victim’s mobile home in Attapulgus and asked to use her telephone. The victim let the boys inside, and she returned to the kitchen. Soon after, one of the boys grabbed her purse from the living room, and they both ran from the house. The purse contained approximately $10 to $20, a ring, and the victim’s Medicaid card. The victim yelled at the boys from her yard. At trial, two witnesses who knew Perkins testified that they saw the boys run in different directions from the victim’s home and that Williams was carrying the purse.

After police officers arrived, the witnesses and the victim identified Perkins and Williams as the robbers. Officers arrested Perkins on July 13, 2001. Perkins told investigating officers that he had gone to the victim’s house to use the phone. He claimed that, although he ran away, he did not take the purse. Perkins agreed to help the police look for the stolen purse in the woods, but they were unable to find it.

On appeal, Perkins claims that he cannot be guilty of robbery by sudden snatching because the purse was not taken from the victim’s “immediate presence.” Under OCGA § 16-8-40 (a) (3), a person commits this offense when, with intent to commit theft, he takes property of another from a person or the immediate presence of another by sudden snatching. This crime differs from theft by taking in that it requires that the victim be conscious of the theft before the taking is complete. Burns v. State, 245 Ga. App. 332 (537 SE2d 768) (2000); Grant v. State, 226 Ga. App. 506, 507 (486 SE2d 717) (1997) (victim’s consciousness of theft at the time of taking is an essential element of robbery by sudden snatching); McNearney v. State, 210 Ga. App. 582, 583 (436 SE2d 585) (1993).

“[0]ne’s immediate presence extends fairly far, and robbery convictions will generally be upheld, even if the object taken was out of the physical presence of the victim, if the object was under his control or his responsibility and if the victim was not too far distant.” (Citations omitted.) Bryant v. State, 213 Ga. App. 301, 302 (444 SE2d 391) (1994). Within this definition, a person may be deemed to protect all of his property “within a distance, not easily defined, over which the influence of the personal presence extends.” (Citation and punctuation omitted.) Id.; see also Welch v. State, 235 Ga. 243, 246 (1) (219 SE2d 151) (1975) (immediate presence can be demonstrated even though property is more than 15 feet from victim at time of crime); Meyers v. State, 249 Ga. App. 248, 249 (547 SE2d 781) (2001) (the theft of a purse 30 feet away from the victim “was not too far afield to be outside [the victim’s] immediate presence”) (footnote omitted).

In this case, the victim testified that she was in the kitchen when the purse was stolen. The evidence showed that the purse was in the living room of the small, compact mobile home, which was approximately 12 feet wide. An investigator who responded to the incident stated that, according to what the victim told him immediately after the crime, she was less than six feet from the purse when it was taken. Furthermore, the evidence showed that the victim saw one of the boys pick up her purse and she began to yell at them. A witness testified that he heard the victim crying and yelling at the boys as they ran away.

Decided July 10, 2002.

Robert R. McLendon TV, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

We find that the evidence presented was sufficient to authorize a rational trier of fact to find that the purse was within the victim’s immediate presence when it was stolen. Lawson v. State, 224 Ga. App. 645, 646 (1) (481 SE2d 856) (1997); Bryant v. State, 213 Ga. App. at 303.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.


author: Phipps, Judge. Andrews, Presiding Judge,

text:
    A02A0147.
    COTTON STATES MUTUAL INSURANCE COMPANY v. BRIGHTMAN.
    (568 SE2d 498)
   Phipps, Judge.

James Brightman sued Lynn Martin and Gregory Cumbo to recover for injuries he sustained in a collision between a vehicle he owned and operated and a van owned by Martin and operated by Cumbo. Brightman offered to settle the case for the $300,000 limit of an automobile liability insurance policy issued by Cotton States Mutual Insurance Company to Martin, conditioned on State Farm Insurance Company also paying the $100,000 limit of a policy it had issued to Cumbo. State Farm was unwilling to settle the case; and Cotton States responded to Brightman’s offer by requesting an extension, but Brightman’s attorneys denied the request. Cotton States later offered its $300,000 policy limit, but Brightman rejected the offer. Ultimately, Brightman obtained a $1,787,500 personal injury judgment against Martin and Cumbo. Both Cotton States and State Farm paid their respective $300,000 and $100,000 policy limits to Brightman. Martin assigned to Brightman her claim against Cotton States for wrongful refusal to settle the case, and Brightman sued Cotton States. The jury returned a verdict for Brightman in the principal amount of $1,387,500. Cotton States appeals, challenging among other things the trial court’s refusal to direct a verdict in its favor. We find evidence to support the verdict and affirm.

As Brightman was making a left turn onto a roadway in November 1992, his car collided with Martin’s van, operated by Cumbo. He was charged with failure to yield the right of way. Because a test of Cumbo’s blood revealed the presence of marijuana metabolites, he was charged with DUI even though it did not appear that his driving was impaired. Cumbo also was charged with speeding 55 mph in a 45-mph zone and with causing serious injury by vehicle. Traffic charges against both parties were, however, eventually dismissed.

Brightman suffered permanent debilitating brain injuries and incurred hundreds of thousands of dollars in medical expenses. In the fall of 1993, Brightman, through counsel, notified Cotton States of his intent to sue Martin and Cumbo to recover for his injuries. In January 1994, Brightman’s attorneys extended an offer to Cotton States to settle his claims against Martin and Cumbo for the $300,000 policy limit. Cotton States refused the offer in April 1994, primarily because Cotton States thought that the sole proximate cause of the accident was Brightman’s improper left turn. And, according to Cotton States, Martin was opposed to settling the case.

In May 1994, Brightman sued Martin and Cumbo. Discovery revealed Cumbo’s State Farm policy. In depositions given by the investigating officers, the estimate of Cumbo’s speed was increased to between 60 and 65 mph, and, for the first time, mention was made of the possible presence of marijuana in the van. Moreover, nonbinding, court-mandated arbitration resulted in a $2,000,000 award for Brightman.

By letter dated January 30, 1995, Brightman extended another offer to Cotton States to settle the case for the $300,000 policy limit, conditioned on State Farm also paying its limit of $100,000. By its terms, the offer had to be accepted within ten days. Cotton States did not accept the offer within the ten-day limit, and Brightman’s attorneys would not agree to an extension. According to Cotton States, Martin continued to oppose settlement. Martin, however, testified that she was not opposed to settlement. Numerous depositions were taken in February and early March. The trial, initially scheduled to begin the week of March 13, was postponed one month. On March 17, Cotton States offered its $300,000 policy limit to Brightman, but the offer was refused. Eventually, the case came on for trial, the jury returned the $1,787,500 verdict in favor of Brightman, and Cotton States and State Farm tendered $300,000 and $100,000, respectively, according to their policy limits.

This left Martin with a potential claim against Cotton States for negligent or bad faith refusal to settle Brightman’s personal injury action against her and Cumbo within the $300,000 policy limit. Martin assigned her claim against Cotton States to Brightman in exchange for his agreement not to subject her assets to judgment, and Brightman sued Cotton States. The jury returned a verdict awarding Brightman the principal sum of $1,387,500 plus $743,421.91 interest for a total of $2,130,921.91 against Cotton States.

1. Cotton States charges the trial court with error in refusing to direct a verdict in its favor.

Cotton States argues that (1) it justifiably refused to accept the January 1994 settlement offer because Brightman’s driving appeared at that time to be the sole cause of the collision; and (2) it never had the opportunity to effect another settlement because the January 1995 offer contained a condition beyond its control.

Brightman, however, presented expert witnesses (an attorney with experience in prosecuting and defending personal injury actions and a former insurance claims adjuster), who testified that Cotton States was negligent in failing to make a timely offer of the $300,000 policy limit in response to Brightman’s settlement proposal. And Cotton States’ own experts acknowledged that in multiple-defendant cases such as this, it is not uncommon for the insurer of only one of the defendants to pay its policy limits, obtain a limited release, and allow the case to proceed against the remaining parties.

Liability or indemnity insurance policies ordinarily reserve to the insurer the decision whether an offer to compromise a claim against the insured should be accepted. . . . An insurer who fails to accept a reasonable settlement offer within the policy limits because it believes the policy does not provide coverage assumes the risk that it will be held liable for all damages resulting from such refusal. . . . There is a split in the decisions upon the question whether the insurer’s obligation is only to act in “good faith” to the insured in considering such an offer, or whether it is required to exercise “due care” and is liable for a negligent rejection of the compromise.

The rule in Georgia, as recognized in Southern Gen. Ins. Co. v. Holt, is that an insurance company may be liable for damages to its insured for failing to settle the claim of an injured person where the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim.

In this state, the elements of a negligence cause of action are duty, breach, proximate cause, and damages. Clearly, a jury would have been authorized to find that Cotton States had breached a duty to its insured if Brightman had made an unconditional $300,000 settlement offer. That being the case, the jury was authorized to find Cotton States negligent in not responding to Brightman’s conditional offer with a counteroffer in an effort to effect a settlement between Brightman and Martin. Cases such as Yeomans v. Allstate Ins. Co. and Young v. American Cas. Co. &c. have recognized an affirmative duty by the insurer to engage the injured party in discussions regarding an initial settlement demand in excess of policy limits. As stated in Young,

[t]he initial demand of plaintiff’s counsel often will be . . . far removed from the actual figure in settlement . . . especially in a personal injury action. It is a matter of common knowledge that it is a rare case where exploration of the possibilities of settlement, beyond the mere receipt of the plaintiff’s demand, will not result in some substantial reduction of the amount.

Proximate cause presents a more difficult issue. The question is whether entry into settlement negotiations by Cotton States would have led to a compromise of the suit. Govt. Employees Ins. Co. v. Gingold was another excess liability case in which the facts presented a similar issue. There, the complaint of the insured was that the insurer had been negligent in rejecting a conditional settlement offer. The Supreme Court held that the insurer was entitled to summary judgment, because the insurer could not have entered into a binding settlement without the consent of the insured, and the insured had made his whereabouts unknown during settlement negotiations. This case is distinguishable from Gingold, because it is undisputed that the insurance policy between Cotton States and Martin reserved to the insurer the decision of whether to compromise a claim. Although Brightman eventually obtained a personal injury judgment against Martin, he surrendered his ability to collect the judgment from Martin’s assets in exchange for the right to bring this suit against Cotton States. Under the circumstances, the jury was authorized to find that a timely offer by Cotton States of its $300,000 policy limit would have been accepted by Brightman.

There is a conflict in the evidence on the question of whether Martin was opposed to settlement of the case. Even if Martin had been opposed to settlement, that would not operate as an absolute bar to this suit, as settlement could have been effected without her consent, and Cotton States does not claim that Martin’s opposition played any part in its decision not to attempt settlement. Under the instructions given to it by the court and by its verdict, the jury has determined that the ten-day limit on Brightman’s second settlement offer was not unreasonable.

Ultimately, this case is governed by the rule that questions of negligence and proximate cause are, except in plain, palpable, and indisputable cases, for the jury. This case is not plain, palpable, and indisputable.

Cotton States also charges the trial court with error in refusing to direct a verdict in its favor, on grounds that Brightman’s assignor Martin avoided personal liability through assignment of her cause of action and, therefore, suffered no damages.

It is, however, undisputed that Georgia law allows the insured to assign the cause of action to the holder of the excess liability judgment. It necessarily follows that the insured’s avoidance of personal liability by the act of making the assignment does not defeat the cause of action. Exposure of the insured’s assets to potential liability constitutes the element of damages. The trial court did not err in refusing to direct a verdict in favor of Cotton States.

2. Cotton States contends that the trial court erred in admitting into evidence the transcript of the personal injury action by Brightman against Martin and Cumbo.

Cotton States’ complaint is that much of the underlying trial involved irrelevant matters. Certainly, however, much of the trial involved relevant .matters as well. Cotton States might have sought to exclude the irrelevant matter rather than to keep out the entire trial transcript. In any event, Cotton States has made no showing that the trial court abused its discretion in denying its blanket objection to the whole. “The admission of testimony from a former trial is a matter in the sound discretion of the trial court and such discretion will not be overturned unless a manifest abuse of such discretion is made to appear.”

3. Cotton States contends that the trial court erred by granting Brightman’s motion for directed verdict on the issue of damages.

The court submitted the case to the jury on the question of liability only, ruling that, as a matter of law, plaintiff’s damages are the difference between the $1,787,500 judgment obtained by Brightman against Martin and the combined $400,000 limits of the insurance policies. We find no error.

Cases such as Moutsopoulos v. American Mut. Ins. Co. and State Farm &c. Ins. Co. v. Schlossberg recognize that after an insurer’s liability for wrongful refusal to settle a claim against its insured is established, the insured or its assignee is entitled as a matter of law to recover damages equal to the amount by which the judgment exceeds policy coverage. Where, as here, these are the only damages sought, damages are liquidated. Cases in which additional damages are sought are distinguishable. “‘Where the amount of damages recoverable appears from the undisputed evidence to be certain, it is proper for the court to direct the verdict.’ [Cit.]”

4. Cotton States’ remaining claims of error are deemed abandoned, as they are not supported by argument or citation of authority.

Judgment affirmed.

Mikell, J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

I concur in the majority’s conclusion that there was evidence to support the jury’s verdict finding Cotton States negligently failed to settle the underlying suit by James Brightman within the $300,000 limit of the policy it issued to Lynn Martin.

The evidence at trial was contradictory as to whether Martin opposed any settlement of the underlying suit. There was evidence that Martin and Gregory Gumbo counterclaimed against Brightman in the underlying suit for injuries they suffered, that Martin told Cotton States she believed Brightman was the sole cause of the accident, and that prior to the nonbinding arbitration resulting in a $2,000,000 award to Brightman, Martin adamantly opposed any settlement. On the other hand, Martin gave contradictory testimony that she did not oppose settlement, that even before the nonbinding arbitration she wanted Cotton States to settle, and that it was always her intention to settle. Accordingly, there was evidence from which the jury could have concluded that Martin did not oppose the settlement, and that Cotton States negligently failed to settle the case for the $300,000 policy limit when Brightman unconditionally offered to settle for that amount in January 1994 prior to the nonbinding arbitration. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992); Great American Ins. Co. v. Exum, 123 Ga. App. 515 (181 SE2d 704) (1971).

Decided June 10, 2002

Reconsideration denied July 11, 2002

Hawkins & Parnell, Thomas G. Tidwell, H. Lane Young II, Christian G. Henry, Forbes & Bowman, Morton G. Forbes, Scot V. Pool, for appellant.

Hudson, Montgomery & Kalivoda, David R. Montgomery, Kenneth Kalivoda, for appellee.

I disagree with the majority’s conclusion that the jury could have found Cotton States negligent for failing to settle when Brightman made a second offer to settle in January 1995 (after the nonbinding arbitration) for the $300,000 policy limit on the condition that State Farm (Cumbo’s insurer) also pay its $100,000 policy limit. It is undisputed that State Farm refused to pay its $100,000 policy limit and that Cotton States had no control over State Farm’s refusal. Since Cotton States had no control over the unsatisfied condition imposed by Brightman in the January 1995 offer to settle, nothing it did or failed to do was a proximate cause of the failure to settle. An offer to settle on a condition over which the insurer has no control cannot be the basis for a claim that the insurer negligently failed to settle. 7C Appleman, Insurance Law and Practice, § 4711, p. 376.

I also disagree with the majority’s unqualified statement that evidence that Martin opposed settlement cannot operate as a bar to the suit against Cotton States because Cotton States had the right under its policy to settle without Martin’s consent. In this case, there was evidence that Martin was not opposed to settlement when Brightman made the unconditional offer to settle in January 1994. However, where the uncontradicted facts show that an insured fully informed of the progress of settlement negotiations and the risk involved adamantly opposes settlement and insists that the suit be tried, this constitutes informed acquiescence in the refusal to settle and bars a claim by the insured that the insurer is liable for an excess verdict because it failed to accord the insured the same consideration it gave to its own interests. See Govt. Employees Ins. Co. v. Gingold, 249 Ga. 156, 158-159 (288 SE2d 557) (1982), citing Eklund v. Safeco Ins. Co., 41 Colo. App. 96 (579 P2d 1185) (1978).

       (Footnote omitted.) 44 AmJur2d 331-333, Insurance, § 1399 (1982).

       262 Ga. 267, 268 (1) (416 SE2d 274) (1992).

       Compare Ferris v. Employers Mut. Cas. Co., 255 Iowa 511 (122 NW2d 263) (1963) (excess recovery action against insurer must be based on bad faith or negligence amounting to bad faith).

        Ridgeview Institute v. Handley, 224 Ga. App. 533, 536 (3) (481 SE2d 531) (1997).

       130 N.J. Super. 48 (324 A2d 906) (1974).

       416 F2d 906 (2nd Cir. 1969).

       Id. at 910-911.

       249 Ga. 156, 158 (1) (288 SE2d 557) (1982).

        Lozynsky v. Hutchinson, 159 Ga. App. 715 (285 SE2d 70) (1981).

       Accord Moutsopoulos v. American Mut. Ins. Co., 607 F2d 1185, 1188 (7th Cir. 1979) (judgment constitutes legal injury to judgment debtor regardless of failure of payment previous to action).

       See Great American Ins. Co. v. Exum, 123 Ga. App. 515, 517 (181 SE2d 704) (1971) (in excess liability action by insured against insurer, jury had all evidence presented in underlying tort suit).

        Perkins v. Edwards, 228 Ga. 470, hn. 1 (186 SE2d 109) (1971).

       Supra.

       82 Md. App. 45 (570 A2d 328) (1990).

       See id. at 62-63.

       See Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 557 (4) (385 SE2d 736) (1989) (physical precedent only); see also Alexander Underwriters Gen. Agency v. Lovett, 177 Ga. App. 262, 266 (4) (339 SE2d 368) (1985).

        West v. Nodvin, 196 Ga. App. 825, 831 (4) (c) (397 SE2d 567) (1990).

       Court of Appeals Rule 27 (c) (2).


author: Eldridge, Judge.

text:
    A02A0302.
    KERR-McGEE CORPORATION v. GEORGIA CASUALTY & SURETY COMPANY.
    (568 SE2d 484)
   Eldridge, Judge.

Kerr-McGee Corporation f/k/a Kemira, Inc. was sued by Alvin Finch, an employee of Tek-Wal Industrial Contractors, Inc., for injuries suffered while working on the premises of Kerr-McGee when another subcontractor’s employee negligently caused him to become exposed to the unintended release of the industrial chemical titanium tetrachloride wholly within Kerr-McGee’s plant and without any escape of the industrial chemical into the environment caused or contributed to by Tek-Wal. Kerr-McGee settled with Finch and sued Tek-Wal, among others, for indemnification under its construction contract with Tek-Wal to recover such expenses; however, Tek-Wal filed bankruptcy. Tek-Wal was insured by Georgia Casualty & Surety Company, and Georgia Casualty brought this declaratory judgment action to determine whether or not its total pollution exclusion endorsement applied. This exclusion stated, “[t]his insurance does not apply to ‘[b]odily injury’ or ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.” The exclusion defined pollutant to “meant ] any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.” The trial court granted summary judgment to Georgia Casualty, holding that the pollution exclusion applied and that there was no ambiguity in the exclusion. We reverse the grant of summary judgment, because the exclusion under the facts of this case was ambiguous in that “discharge, dispersal, seepage, migration, release or escape of pollutants” is ambiguous by not specifying where such must occur or who has caused it to result in noncovered damages.

The exclusion states that “discharge, dispersal, seepage, migration, release or escape of pollutants at any time” is excluded; this limits where the pollution occurs to atmosphere, soil, or water, which is the external environment to the chemical plant. However, in specifying release to atmosphere, soil, and water, the exclusion does not specify where in regard to a chemical plant: inside the plant, outside the plant, under the plant, or anywhere within the plant in an uncontained state where there is no threat of escape of pollutants into the atmosphere, soil, or water.

This raises the question of whether in the exclusion the chemicals as “pollutants” are discharged, released, etc. when they are contained in mixing vats and troughs as part of the production process or in a transport piping system inside a chemical plant in a controlled state; or whether the chemicals become a “pollutant” when, in an uncontrolled, uncontained, and unregulated state inside a chemical plant, titanium tetrachloride overflows a mixing vat, runs down the vat, and pools on the floor of the plant without escape or threat of escape to atmosphere, soil, or water. Industrial chemicals when used as intended and released from a container may be used in a production process to etch, to strip, to clean, to degrease, to polish, to act as a solvent, to paint, to coat, to act as a mastic, or to surface. At what point in time does a “discharge, dispersal, seepage, migration, release or escape” of industrial chemicals outside a container or containment system occur? How would containment be defined, i.e., used as intended outside a container, contained within the plant, or merely outside its container? For example, carbon tetrachloride, reported in many cases of maintenance slip and fall cases as a common industrial solvent/degreaser, when used on the floor of a restaurant or fast food business to remove food spills, would come within Georgia Casualty’s overly broad exclusion language if it caused someone to slip and fall. This definition of the escape of pollutants is overly broad and demonstrates ambiguity that would cause a reasonable person to be unsure of what is excluded and what is covered by insurance.

Titanium tetrachloride, in the state intended by Kerr-McGee within the contained confines of its plant, never escaped or discharged outside the plant into the atmosphere, soil, or water or threatened to do so. Such language as to when a pollutant is not covered causes a reasonable person to be unsure of what appears at first blush to be plain and unambiguous but, upon examination under the facts of this case, is ambiguous.

Ambiguity exists when a contract term or condition is indistinct, uncertain of meaning or expression, and duplicitous. Taylor v. Estes, 85 Ga. App. 716, 718 (1) (70 SE2d 82) (1952). Stated another way, “a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one. An ambiguity, then, involves a choice between two or more constructions of the contract.” (Citations and punctuation omitted.) Burden v. Thomas, 104 Ga. App. 300, 302 (121 SE2d 684) (1961). In construing a contract to ascertain the intent of the parties, the court should give a term or phrase in the contract its ordinary meaning or common signification as defined by dictionaries, because they supply the plain, ordinary, and popular sense unless the words are terms of art. OCGA § 13-2-2 (2); State Farm Fire &c. Co. v. American Hardware Mut. Ins. Co., 224 Ga. App. 789, 792 (3) (482 SE2d 714) (1997); Henderson v. Henderson, 152 Ga. App. 846, 847 (1) (264 SE2d 299) (1979). Terms of art or words connected to a particular trade are given the signification attached to them by experts in such art or trade as a rule of construction. Asa G. Candler, Inc. v. Ga. Theater Co., 148 Ga. 188, 193 (5) (96 SE 226) (1918). However, in this case, there was no such special meaning in the policy exclusion, because the insurance contract had not been issued for a chemical processing plant.

In applying the rules of construction to an insurance contract, “the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean.” Gulf Ins. Co. v. Mathis, 183 Ga. App. 323, 324 (358 SE2d 850) (1987). “[E]xclusions to [an insurance policy] require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on [the] coverage in clear and explicit terms.” (Citations and punctuation omitted.) Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981). When the language of an insurance contract is ambiguous and subject to more than one reasonable construction, the policy must be construed in the light most favorable to the insured, which provides him coverage. Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334 (1) (380 SE2d 686) (1989) (involved an earlier sudden pollution exclusion held to be ambiguous); Alley v. Great American Ins. Co., supra at 600. Thus, an exclusion sought to be invoked by the insurer will be liberally construed in favor of the insured and strictly construed against the insurer when it is not clear and unequivocal, as in this case. First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314, 315 (370 SE2d 162) (1988); see also U S. Fidelity &c. Co. v. Park ‘N Go of Ga., 66 F3d 273, 278 (11th Cir. 1995).

If a policy of insurance is so drawn as to require an interpretation, and is fairly susceptible of two different constructions, the one will be adopted . . . favorable to the insured. Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.

(Citation and punctuation omitted.) Davis v. United American Life Ins. Co., 215 Ga. 521, 527 (2) (111 SE2d 488) (1959); accord First Ga. Ins. Co. v. Goodrum, supra at 315.

In the definition, contained and waste chemical byproducts of manufacturing and chemical processes that are waste in gaseous, liquid, or solid states are pollutants but come within the exclusion only when discharged into atmosphere, soil, and water. Gaseous waste contaminants in the exclusion definition include smoke, vapor, soot, or fumes, which escape into the atmosphere by implication. The exclusion does not apply to “acids, alkalis, chemicals” which have not escaped into the environment.

The exclusion applies only when pollutants escape outside the containment area of the chemical plant into atmosphere, soil, or water and are not excluded when they have not escaped into the environment outside the physical plant, i.e., above, below, or around the outside of the physical plant. Thus, the exclusion must be given a narrow construction. The exclusion specifically listed as a pollutant thermal irritant and harmful gases, i.e., smoke, vapor, soot, and fumes with particularity, which cannot be contained within the physical plant outside a controlled container system.

The unintentional “discharge, dispersal, seepage, migration, release or escape of pollutants” into atmosphere, soil, or water indicated that the exclusion had no application to a contained location by its choice of verbs, which import a setting free as “unexpected and unintended.” Claussen v. Aetna Cas. &c. Co., supra at 336 (2). Thus, to constitute a pollutant to the environment within the exclusion, such release or escape had to be outside of an industrial containment system for chemicals, i.e., released into the environment of atmosphere, soil, or water outside the plant. The very verbs used indicate unintentional transfer of chemical waste from a containment system to the uncontained environment where atmosphere, soil, or water becomes polluted or contaminated. Id. at 336. To the extent that the physical structure of the chemical plant may be designed to contain and prevent any transfer of the chemicals from its containers into the environment, such chemicals have not escaped or threatened to escape into the environment, i.e., atmosphere, soil, or water. Id. at 336. Such constitutes an ambiguity that can only be resolved by the exclusion being restricted to escape or threatened escape of pollutants into the environment outside of the plant, i.e., plant soil, atmosphere surrounding the plant, or water leaving the plant.

The overly broad interpretation of means of excluded pollution as anything taken by the trial court demonstrates the ambiguity of the exclusion, because the exclusion’s effect is limitless in application when it should be limited to the environment only. Enron Oil Trading &c. Co. v. Walbrook Ins. Co., 132 F3d 526, 530 (9th Cir. 1997) (intentional acts excluded but negligent and strict liability were within insurance coverage when not involving environment); American States Ins. Co. v. Koloms, 177 Ill.2d 473 (687 NE2d 72) (1997) (carbon monoxide released from faulty furnace within commercial building causing injuries not within exclusion as pollutant of environment); Doerr v. Mobil Oil Corp., 774 S2d 119, 127-128 (La. 2000) (exclusion applied to environmental pollution only and not to everything that could come within the definition of a pollutant because too broad).

The Supreme Court of Georgia has held that almost the identical pollution exclusion was ambiguous when it used the phrase “is sudden and accidental” as to method of pollution excluded; this language was removed and replaced with “at any time” under this pollution exclusion. Claussen v. Aetna Cas. &c. Co., supra at 334.

Truitt Oil &c. Co. v. Ranger Ins. Co., 231 Ga. App. 89 (498 SE2d 572) (1998), involved an insured distributor whose outside gasoline tank leaked gasoline which went into the soil, contaminating the environment under the terms of its own policy, which is a clearly excluded means of pollution of soil and ground water. American States Ins. Co. v. Zippro Constr. Co., 216 Ga. App. 499, 500-501 (1) (455 SE2d 133) (1995), involved asbestos fibers, which contaminated the house and environment from old construction material when removed and the insured under the policy was the person causing the contamination of the environment, which also was a clear release and escape into the environment outside the house by removal. Perkins Hardwood Lumber Co. v. Bituminous Cas. Corp., 190 Ga. App. 231 (378 SE2d 407) (1989), involved an outdoor fire negligently caused by the insured, and smoke in the environment obstructed the vision on the road, causing collisions, which also was a clear escape and release into the atmosphere of a pollutant. In each of these cases, the pollution exclusion was unambiguous. However, in none of these cases was the conduct of a third person other than the insured the cause of the environmental pollution, and all these cases involved factual circumstances in which the environment, in fact, was polluted. This case factually and legally is distinguishable from such cases, because first, the insured did not cause the environmental pollution; and second, the chemical discharge never escaped into and polluted the environment. Any discharge remained contained within the chemical plant.

Thus, the release of titanium tetrachloride contained within the production area of the plant failed to come within the exclusion, because it did not escape or threaten to escape into the environment outside the physical plant. Such construction of the contract resolves the ambiguity and affords coverage to the insured, Tek-Wal. Claussen v. Aetna Cas. &c. Co., supra at 338.

The pollution exclusion clause, which was designed to apply to the environmental contamination, is so broad that a reasonable insured would not know what would be excluded under this provision as to cause of pollution, i.e., old lead paint in an apartment, carbon monoxide from a faulty furnace or hot water heater, toxic fumes from a mastic or roofing compound, paint spray, or sulfiiric acid spray to list a few chemicals, which insurers have denied coverage under this exclusion in other jurisdictions. The exclusion clause of an insurance contract may be ambiguous in one coverage context and not in another. Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., 47 F3d 34, 37 (2nd Cir. 1995) (death from carbon monoxide from defective apartment heating system not within exclusion because not pollution of environment). By way of example, the pollution exclusion can be ambiguous as to the type of injuries to which it applies, i.e., only cases of environmental contamination. Bituminous Cas. Corp. v. Advanced Adhesive Technology, 73 F3d 335, 339 (11th Cir. 1996) (carpet mastic gave off toxic gases in a confined boat cabin space causing death not within exclusion); see also Claussen v. Aetna Cas. &c. Co., supra.

Where the insured did not cause or contribute to the release, the release did not occur on or originate from the insured’s property, and the indemnification claim against the insured is not for environmental contamination, the exclusion does not apply. See Doerr v. Mobil Oil Corp., supra at 133-135 (exclusion does not apply when insured neither caused nor contributed to the release of pollution into the environment); North American Specialty Ins. Co. v. Ga. Gulf Corp., 99 FSupp.2d 726, 730-731 (M.D. La. 2000) (third party/independent contractor’s employee injured by release of gas in Georgia Gulf’s plant by it, exclusion did not apply, because the employer neither caused nor contributed to the release). The purpose of total pollution exclusion was to bar coverage responsibility for government-mandated cleanup under the Superfund for gradual environmental damages of any type. Claussen v. Aetna Cas. &c. Co., supra at 336-337; North American Specialty Ins. Co. v. Ga. Gulf Corp., supra at 730; see also Doerr v. Mobil Oil Corp., supra at 135; Nautilus Ins. Co. v. Jabar, 188 F3d 27, 30-31 (1st Cir. 1999) (environmental exclusion too broad to apply to fames from roofing compound injured worker using it); Karroll v. Atomergic Chemetals Corp., 194 AD2d 715 (600 NYS2d 101) (1993) (environmental exclusion did not apply to worker accidentally sprayed with sulfuric acid); Sullins v. Allstate Ins. Co., 340 Md. 503 (667 A2d 617) (1995) (exclusion did not apply to lead paint in old apartment which harmed a tenant); A-1 Sandblasting &c. Co. v. Baiden, 53 Ore. App. 890 (632 P2d 1377) (1981), aff’d, 293 Ore. 17 (643 P2d 1260) (1982) (exclusion did not apply to cars accidentally sprayed with paint while bridge spray-painted). Therefore, no reasonable person would consider the purpose of the exclusion to actually apply to the unique facts of this case. Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., supra at 36. Thus, when the policy is viewed as a whole, it must be determined if there exists any reasonable interpretation that a reasonable person in the insured’s position would understand the exclusion to mean in light of the purpose. Gulf Ins. Co. v. Mathis, supra at 24; U. S. Fidelity &c. Co. v. Gillis, 164 Ga. App. 278, 282 (296 SE2d 253) (1982). Under the policy and facts of this case, a reasonable insured could believe that the exclusion did not apply when the insured neither caused nor contributed to the pollution, the release did not occur on the insured’s property, no environmental contamination occurred or was threatened, and the material was an industrial chemical and not waste. See Claussen v. Aetna Cas. &c. Co., supra at 338. When the ambiguity or lack of clarity is resolved against the insurer as drafter, the exclusion does not apply. Id. at 338.

Decided May 1, 2002

Reconsideration denied July 11, 2002

Ellis, Painter, Ratterree & Bart, Ryburn C. Ratterree, King & Spalding, Paul J. Murphy, Michael R. Powers, for appellant.

Mabry & McClelland, DeeAnn B. Waller, for appellee.

Judgment reversed.

Smith, P. J., and Ellington, J., concur in judgment only.


author: Phipps, Judge.

text:
    A02A0420.
    WOODARD v. THE STATE.
    (568 SE2d 528)
   Phipps, Judge.

Eric Arnold Woodard was tried by a jury and convicted of armed robbery. On appeal, he claims that the trial court erred by admitting his custodial statement and by improperly charging the jury on armed robbery. He further claims that his trial counsel was ineffective. Because we find that Woodard’s statement was improperly admitted in violation of his Fifth Amendment right to counsel, we reverse. We find no error in the jury charge. Woodard’s remaining claims are moot.

Evidence presented at trial showed that on May 20, 1997, Woodard drove through a McDonald’s drive-through, ordered a cheeseburger and handed the cashier a dollar bill and a note that read, “Give me the money. I’ve got a gun.” The cashier testified that the person who handed her the note also pointed a small gun at her. She then gave him the entire cash drawer. The driver of the car behind Woodard noted his license plate number and provided it to the store manager, which ultimately led to Woodard’s arrest.

Woodard testified at trial and admitted that he had robbed the McDonald’s drive-through window cashier, but denied pointing a gun at her. He claimed that the toy water pistol he intended to use had fallen on the floor of the car when he pulled up to the drive-through window and that he was actually holding a cassette tape when the cashier looked into his car.

Woodard was arrested on July 7, 1997. The Gwinnett County Magistrate Court conducted a first appearance hearing and provided Woodard with appointed counsel in an order dated August 7, 1997. On August 9, Gwinnett County Police Detective Tim Beining went to talk to Woodard at the Gwinnett County Jail, where he was being held. Beining read Woodard his Miranda rights, obtained a written waiver of those rights and proceeded to interrogate him. Woodard admitted his involvement in the McDonald’s robbery as well as several other robberies. He stated that during the McDonald’s robbery, he lifted his gun high enough so that the cashier could see it but not so high that she could tell it was not real. Woodard also stated that he was addicted to cocaine. Beining acknowledged that he knew Woodard had been appointed counsel when he went to talk to him.

Woodard sought to suppress his statement on the ground that he had invoked his right to counsel before he gave the statement. After conducting a Jackson-Denno hearing, the trial court ruled that Woodard gave his statement freely and voluntarily, after being advised of his Miranda rights, and denied Woodard’s motion. In its order, the trial court noted that Woodard testified that he had asked to speak with his court-appointed attorney before he gave his statement, but that Beining denied that any such request had been made. The trial court resolved this factual dispute in the State’s favor and, on motion for new trial, specifically ruled that Woodard had not invoked his right to counsel.

1. Woodard claims that the trial court erred by denying his motion to suppress his custodial statement.

In the context of the Fifth Amendment right to counsel, “once a defendant requests an attorney, all police-initiated interrogation is prohibited, and any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Although the record does not contain direct evidence that Woodard requested an attorney at the first appearance hearing, we assume from the appointment of counsel that Woodard invoked his right thereto. “A defendant who has invoked his right to counsel may waive the right by initiating further communication with the police and knowingly and intelligently waiving the right to counsel and the right to remain silent.” It is undisputed that Woodard did not initiate further communication with the police, but rather that Beining tracked him down at the jail to obtain a statement. Thus, any waiver of Woodard’s right to counsel was invalid. The trial court erred by admitting the statement he made to Beining.

Decided June 24, 2002

Reconsideration denied July 11, 2002

Chandler & Britt, Deborah F. Weiss, for appellant.

Having found constitutional error, we must determine if that error was harmless beyond a reasonable doubt. We conclude that it was not. Woodard’s statement detailed his involvement in the McDonald’s robbery as well as several other robberies and acknowledged a cocaine addiction. The statement also contradicted his trial testimony (and his only defense) that he did not have a gun in his hand when he approached the McDonald’s drive-through window. We cannot say that the admission of the statement did not contribute to the jury’s verdict.

2. Woodard challenges the following jury charge: “Armed robbery may [be] committed by use of constructive force; that is, it is not necessary that a weapon alleged to have been used in an armed robbery was actually pointed at an alleged victim.” He argues that the charge was confusing and not authorized by the evidence.

The charge given by the trial court was a correct statement of the law and was authorized by the evidence. Although the cashier testified otherwise, Woodard denied that the gun was in his hand and pointed at her at the time of the robbery. Moreover, the charge as a whole, which included the suggested pattern instructions on armed robbery and the lesser included offense of robbery by intimidation, was not likely to confuse the jury.

3. Given our holding in Division 1, we need not address Woodard’s ineffective assistance of counsel claims.

Judgment reversed.

Andrews, P. J, and Mikell, J., concur.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

       The State argues that the first appearance hearing order should not be considered because it was not part of the record considered by the trial court. Because it is undisputed that Woodard had appointed counsel before he provided a statement to the police, we need not address this issue.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Housel v. State, 257 Ga. 115, 121 (1) (d) (355 SE2d 651) (1987).

       See id. at 121 (1) (c); Borders v. State, 270 Ga. 804, 808 (3) (514 SE2d 14) (1999); compare Ross v. State, 254 Ga. 22, 24-26 (3) (a) (326 SE2d 194) (1985) (statement obtained after “first appearance” but before counsel was retained was admissible; defendant rejected representation by the public defender and requested additional time to retain counsel of his choice).

        Borders, supra.

        See Roper v. State, 258 Ga. 847, 851 (1) (c) (375 SE2d 600) (1989).

       Id. at 852.

       See id.

        Hughes v. State, 185 Ga. App. 40 (363 SE2d 336) (1987).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), pp. 116-117.

       See generally Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

        Brandon v. State, 241 Ga. App. 887, 890 (528 SE2d 809) (2000).


text:
    A02A0562.
    DURHAM v. MASON et al.
    (568 SE2d 530)
   Phipps, Judge.

Michael Durham, through his father and next friend James Durham, sued Conney and Linda Mason for injuries he suffered when the Masons’ dog bit him. The trial court granted summary judgment to the Masons on a number of grounds, including their lack of superior knowledge about the dangerous propensities of their dog and Michael Durham’s assumption of the risk of interacting with the dog. We affirm on these two grounds.

The undisputed facts show that after school on March 5, 1998, 12-year-old Michael Durham and his friend Steven Mason went to the Mason residence to retrieve Steven’s in-line skates so the two could go skating. Steven’s parents (defendants Conney and Linda Mason) were not home and the house was locked, so Steven entered through a rear window. Michael, who was already wearing his skates, entered the house as well. The Masons’ dog, Taz, a black Labrador mixed breed, was in the kitchen on a leash tied to the pantry door.

At this point, the boys’ testimony diverges. We base our judgment on Michael’s version of events because, in reviewing a motion for summary judgment, we consider the facts in the light most favorable to the nonmovant. Michael testified that he stood near the entrance to the kitchen while Steven got a snack. Michael began petting Taz, who jumped up and bit his ear, apparently without provocation.

Michael, through his father and next friend, sued the Masons, alleging that he had been an invitee in their home and that they had failed to adequately control their dog and ensure his safety. The Masons moved for summary judgment on multiple grounds, including their lack of superior knowledge of any dangerous tendencies of their dog and Michael’s assumption of the risk. The trial court granted them summary judgment on these grounds, as well as on several others that we need not consider.

1. OCGA § 51-2-7, which sets forth the liability of owners of vicious or dangerous animals for injuries caused by those animals, states in relevant part: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” Unless there is evidence that the animal was not “at heel or on a leash” as required by local ordinance at the time of the incident, a plaintiff in a dog bite case must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury. “The true test of liability is the owner’s superior knowledge of his dog’s temperament.” If the plaintiff does not present evidence that the owner had superior knowledge of his dog’s temperament, then the owner is entitled to summary judgment.

In this case, there is no evidence that the Masons’ knowledge of Taz’s aggressive tendencies was superior to that of Michael. Linda Mason testified that on one occasion, apparently before he bit Michael, Taz had either “snapped” or “growled” at two young girls who were visiting her daughter. She further testified that Taz had never bitten or tried to bite any member of her family. Conney Mason testified that Taz was “absolutely loveable” and that he had no knowledge of the dog ever being aggressive except once when Taz barked and growled at a burglar. Steven testified that Taz once chased another boy in the Masons’ yard, but only after Steven and the boy tried “to make him chase us because it was fun trying to run from him.” Steven stated that he had never seen the dog act aggressively toward anyone else.

Michael Durham, on the other hand, testified that he had interacted with Taz many times before, that the dog “would growl at you,” that the growling “kind of scare[d him],” and that he “wasn’t real sure about the dog[,] how he would act.” Michael also testified that his friend Travis had told him that Taz had once bitten his arm, leaving a scar.

Linda Mason, at least, arguably is chargeable with knowledge that Taz had aggressive tendencies because she testified that he had once “snapped” or “growled” at two children in her home. But Michael Durham had equal or superior knowledge of Taz’s temperament. Taz had growled at Michael before, and Michael was afraid of him and unsure how he would act. Michael also knew, or was under the impression, that Taz had bitten another boy severely enough to leave a scar. In light of this evidence of Michael’s equal or superior knowledge, the trial court properly granted summary judgment to the Masons.

Decided June 24, 2002

Reconsideration denied July 11,2002.

Douglas R. Daum, for appellant.

Gray, Hedrick & Edenfield, Lloyd B. Hedrick, Jr., for appellees.

2. The trial court also properly granted summary judgment on the Masons’ assumption of the risk defense. This defense bars recovery when the evidence shows that the “plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” To establish this defense, the Masons must show that Michael (1) had actual knowledge of the danger that Taz might bite him; (2) understood and appreciated the risks associated with this danger; and (3) voluntarily exposed himself to those risks. Although assumption of the risk ordinarily is a jury question, summary judgment is appropriate where plain, palpable, and undisputed evidence shows that the plaintiff assumed the risk of injury.

As noted, Michael Durham’s own testimony established that Taz had growled at him before, that he was afraid of the dog, that he felt the dog was unpredictable, and that he knew the dog previously had bitten another boy. Yet Michael voluntarily approached Taz, who was securely leashed in a locked house, and began petting him. These facts are plain, palpable, and undisputed evidence that Michael assumed the risk of injury.

James Durham, as Michael’s next friend, suggests that the doctrine of assumption of the risk should not apply because his son was only 12 years old when the bite occurred. But we have held that the doctrine may apply to children between the ages of seven and fourteen if the evidence shows that the child appreciated the danger yet chose to confront it anyway.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       Steven testified that he told Michael to wait outside, but Michael denied that Steven made such a statement.

        Hansen v. Etheridge, 232 Ga. App. 408 (501 SE2d 517) (1998).

       See OCGA § 51-2-7; Oertel v. Chi Psi Fraternity (Nat.), 239 Ga. App. 147, 148 (1) (521 SE2d 71) (1999).

         Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 459 (1) (540 SE2d 671) (2000); Supan v. Griffin, 238 Ga. App. 404, 406 (519 SE2d 22) (1999).

       (Citations and punctuation omitted.) Wade, supra at 461; see also Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998).

       See Wade, supra.

       (Citation and punctuation omitted.) Jekyll Island State Park Auth. v. Machurick, 250 Ga. App. 700 (1) (552 SE2d 94) (2001).

       See id.

       Id. at 700-701.

       See Stewart v. Harvard, 239 Ga. App. 388, 396-397 (4) (b) (520 SE2d 752) (1999).


author: Smith, Presiding Judge.

text:
    A02A0095.
    JONES v. THE STATE.
    (568 SE2d 807)
   Smith, Presiding Judge.

Terry Jones (a/k/a Arthur Lee Parham and Bobby Johnson) was convicted of robbery by force after he grabbed a woman’s neck, then pried a diamond studded ring off her finger and fled. As a result of Jones’s lengthy criminal history, the trial court imposed recidivist sentencing. Jones’s motion for new trial, as amended, was denied. For reasons not relevant to this appeal, Jones obtained permission to file an out-of-time appeal. In this appeal, Jones contends that the trial court erred in four evidentiary rulings and in part of the jury instruction. We find merit to two of his claims, but in light of the overwhelming evidence of Jones’s guilt, we affirm.

Construed to support the jury’s verdict, the evidence showed that while the victim, a female college student, was walking toward the Vine City MARTA station, she noticed Jones approach another pedestrian who “disregarded whatever he said” and “shooed him off.” Jones had an Afro-type hair style, an average build, and a light complexion, and he was wearing blue jeans and a distinctive black jacket emblazoned with the name and emblem of the Chicago Bulls. When Jones walked up to the young woman, he feigned a foreign accent. He claimed that he had already paid for lodgings but that due to his language problems could not find the place. Flashing what appeared to be a wad of folded dollar bills, Jones offered to pay her to help find the place he claimed to seek. The victim refused to help and directed Jones to a nearby telephone. Without warning, Jones suddenly grabbed the victim around her neck and demanded to know if she had any jewelry. Then, twisting her hand, Jones pried a gold ring from her finger. Immediately, Jones absconded with her property, a gold ring accented in the middle with small diamonds.

Sergeant Charles Hendrix of the Morris Brown College Police Department heard the woman’s frantic screams. The victim told Hendrix that she had just been robbed by a man who had grabbed her by her throat and stolen her ring. Hendrix learned that the perpetrator had fled on foot and had just turned a nearby corner. Knowing the suspect was traveling in a northern direction, Hendrix drove the victim to where he anticipated the suspect would proceed. About five minutes after the robbery, they saw a man walking toward them at a fast pace. The victim spotted the Chicago Bulls jacket and recognized her assailant. She told Hendrix, “That’s him. That’s him. That’s the guy that took my ring.” While being handcuffed, Jones spat the ring from his mouth onto the hood of the police car, and the victim yelled, “That’s my ring.” In court, the victim identified Jones as the man who robbed her and identified the wad of fake bills taken from Jones. Hendrix recalled seeing bruises on both sides of the victim’s neck.

Jones was taken to the Morris Brown police station and advised of his Miranda rights. After completing certain paperwork, Hendrix transported Jones to the Fulton County jail. Hendrix testified that just after removing Jones from the patrol car, “[Jones] turned to me and told me that ‘I just left a knife in the rear seat of your vehicle. Because you were so nice to me, I wanted you to know I had put the knife in the rear seat of your vehicle.’ ” After turning Jones over to jail officials, Hendrix immediately checked the cruiser “and in the back seat I found a knife, five, six inches long.” Hendrix added, “The knife was laying [sic] in the back seat where the suspect had informed me it would be.” Over defense objection, Jones’s statement and the knife were allowed in evidence. The trial court found that Jones’s remarks about the knife were spontaneous, voluntary, and not the result of any police interrogation or prodding.

The trial court also allowed evidence about a similar incident offered by the State to show Jones’s course of conduct. Before admitting evidence of the similar transaction, the court gave a limiting instruction. In the similar incident, the male victim of a hoax perpetrated by Jones at a MABTA station testified that Jones approached him with the excuse of needing help in making a telephone call. When the victim removed his wallet, Jones grabbed $60 and fled. In that case, Jones entered a guilty plea to theft by taking.

Jones elected to testify at trial. Although admitting he intended to steal from the victim in this case, Jones defended on the basis that he was attempting to perpetrate a nonviolent scam. While still on direct, this sequence in questioning occurred:

DEFENSE COUNSEL: Let me ask you this. Did you have any weapons on you?
DEFENDANT: No, Ma’am.
DEFENSE COUNSEL: Did you have a knife on you?
DEFENDANT: No, Ma’am.
DEFENSE COUNSEL: What were you wearing that day?
DEFENDANT: Some black jeans and a black leather coat, Bulls.
DEFENSE COUNSEL: And did you have this knife on you?
DEFENDANT: No, Ma’am.
DEFENSE COUNSEL: Did you have a knife on you?
DEFENDANT: No, Ma’am.
DEFENSE COUNSEL: A knife similar or a shorter knife, a bigger knife?
DEFENDANT: No, I don’t even carry weapons.
DEFENSE COUNSEL: All right. Did you ever tell the police that you put a knife in their car?
DEFENDANT: No, I never told them nothing [sic] like that, period.

At this point, outside the presence of the jury, the prosecutor successfully argued that Jones had “opened the door” to information about his prior conduct in carrying a weapon that resulted in his convictions in Illinois for armed robbery and armed violence. Jones appeals his conviction.

1. Jones contends that the trial court erred in admitting his comments about a knife found during the booking process. He claims that testimony about the knife lacked probative value. He points out that the incident outside the jail was not part of the res gestae or the circumstances leading up to his arrest.

Evidence acquired in connection with a defendant’s arrest is neither automatically relevant nor automatically prejudicial. Benford v. State, 272 Ga. 348, 350 (528 SE2d 795) (2000). “[S]uch evidence is subject to the same standard of relevancy and materiality applicable to other evidence.” Id. at 350. In Benford, the Supreme Court held that the trial court erred in admitting evidence that when arrested the defendant possessed a .22 caliber pistol, even though the indicted offense charged the use of a shotgun, a firearm. Id.

Here, although the State argues that “Jones’s current possession of the knife was substantially relevant to show his existing propensity or willingness to use violence in effectuating his robberies,” we find otherwise. Jones was being tried solely for one count of robbery by force. No allegation of a weapon was involved. The fact that a knife was found in the patrol car shed no light on whether Jones committed the indicted offense. Compare Simmons v. State, 251 Ga. App. 682, 684 (1) (555 SE2d 59) (2001) (possession of handgun at time of arrest relevant when crime charged committed with handgun). No relevant basis was presented to support the admission of this prejudicial evidence. Nevertheless, in light of the overwhelming evidence that Jones committed the indicted offense of robbery by force, we find no reasonable probability that the results of the trial would have been different had this evidence been excluded. See Shelton v. State, 252 Ga. App. 444, 448 (556 SE2d 540) (2001).

2. Jones asserts that the trial court erred in allowing the knife itself in evidence. We agree that admission of the knife was error. Chisholm v. State, 231 Ga. App. 835, 841 (7) (500 SE2d 14) (1998), overruled on other grounds, Murphy v. State, 270 Ga. 72, 74 (2) (c) (508 SE2d 399) (1998). Jones was not charged with any crime involving the knife found in the police vehicle. The knife was not relevant or material to any issue in the case. See Chisholm, supra. But, in light of the overwhelming evidence that Jones committed robbery by force, the error was harmless. Wilson v. State, 274 Ga. 637, 639 (5) (555 SE2d 725) (2001); Benford, supra.

3. Jones contends that the trial court erred in admitting a certified copy of a prior conviction that was presented as similar transaction evidence. Relying upon Eiland v. State, 213 Ga. App. 838, 839 (1) (445 SE2d 765) (1994), Jones claims that it was error to admit the indictment because it showed he had been charged with robbery by sudden snatching, a crime for which he was not convicted.

Although objectionable material should be redacted or the indictment kept from the jury, this is a case in which the overwhelming evidence of the defendant’s guilt allows affirmance. Compare Eiland, supra. Other evidence of the prior crime was presented, and the testimony of the victim of that crime supported the charge in the indictment. See Wagner v. State, 253 Ga. App. 874, 876-877 (1) (c) (560 SE2d 754) (2002).

4. Jones argues that the trial court impermissibly allowed the State to inject character evidence into the case. He claims that the State engaged in improper impeachment because the issue of the knife was collateral to any issues relevant to the trial and not admissible for any relevant purpose. He also claims that the State did not establish that he was the perpetrator of an armed robbery in Chicago.

After Jones testified that he did not carry weapons, the State was entitled to impeach Jones with evidence that Jones had carried weapons to commit the armed robbery and armed violence offenses. See Francis v. State, 266 Ga. 69, 71 (2) (463 SE2d 859) (1995). In presenting evidence on that narrow issue, the State offered a certified and exemplified copy of his convictions for armed robbery and armed violence and agreed to redact two convictions for aggravated battery. However, when Jones was asked by the prosecutor, “Sir, isn’t it true that you have been convicted of armed robbery and armed violence in Cook County, Illinois, in 1982?” Jones responded, “I know that I been [sic] convicted of a burglary in Cook County, but I don’t recall no [sic] armed robbery being on my record, period, to be truthful with you, sincerely, truthfully.” Although Jones now takes issue with whether the State proved that he was the perpetrator of the armed robbery in Cook County, Jones’s ostensible lack of memory about that conviction did not constitute a denial of that crime. In any event, Jones failed to deny his conviction for armed violence and also introduced the fact of his conviction in Cook County for burglary. In these circumstances, Jones failed to show that admission of the certified and exemplified copy of his convictions was error. See Hudson v. State, 271 Ga. 477, 481 (2) (521 SE2d 810) (1999) (prior conviction used for purposes of impeachment need not be similar).

Decided July 11, 2002.

Sharon L. Hopkins, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

5. Jones contends that the trial court improperly instructed the jury that it must reach a unanimous verdict to convict or acquit him of the indicted offense of robbery by force before it could consider a lesser included offense. He claims that by instructing the jury to reach a unanimous verdict, the trial court suggested the sequential method of analyzing the indicted charge and the lesser included offense. See Kunselman v. State, 232 Ga. App. 323, 325 (501 SE2d 834) (1998) (pattern instruction avoids the possibility that jurors will mistakenly believe that a unanimous acquittal is required before consideration of lesser offense).

The transcript belies this claim. After defining robbery by force, the trial court charged on the lesser offense of theft by deception. The transcript does not show that the jury was required to render a unanimous verdict on the indicted offense before considering the lesser offense. See Camphor v. State, 272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000). The instruction correctly tracked the pattern charge on lesser included offenses. See Camphor, supra at 415, n. 5. There was no error. See Duggan v. State, 225 Ga. App. 291, 296 (4) (483 SE2d 373) (1997) (no error where trial court did not insist on unanimity on the greater offense before consideration of the lesser offense).

Judgment affirmed.

Eldridge and Ellington, JJ., concur.

       Under oath, he identified himself as Arthur Lee Parham.

       Although the certified copy of the convictions provided by the circuit clerk in Cook County names the offender as Bobby Johnson, Jones has been a man of many identities. A Georgia Criminal History Report, not entered in evidence, indicates that Jones has used more than fourteen aliases, ten different Social Security numbers, and ten different dates of birth.

       In the sentencing phase, the State presented certified and exemplified copies from Florida, Georgia, and Illinois of four prior felony convictions.