text:
    A00A1609.
    NORMAN ENTERPRISES INTERIOR DESIGN, INC. et al. v. DEKALB COUNTY.
    (538 SE2d 130)
   Eldridge, Judge.

This case arises because of a fire which occurred at the DeKalb County Jail building on November 28, 1995, while appellants Norman Enterprises Interior Design, Inc. and Dorothea Norman (herein collectively referred to as “Norman Enterprises”) were engaged in renovations on the interior of the building. As a result of the fire, DeKalb County sustained $204,362.24 in damages. DeKalb County received insurance payments from its insurer Northbrook Property & Casualty Insurance Company (“Northbrook”) in the amount of $104,362.24, leaving an outstanding balance of $100,000 in uninsured losses. Subsequently, DeKalb County and Northbrook brought suit against Norman Enterprises in the State Court of DeKalb County alleging that Norman Enterprises’ negligence was the proximate cause of the fire and seeking to recover the full amount of damages.

On January 17, 1998, Norman Enterprises filed an amended answer to DeKalb County’s complaint and asserted OCGA § 33-36-3 (2) (F) as a personal defense. On February 27, 1998, DeKalb County filed a motion to strike Norman Enterprises’ amended answer. On August 12, 1998, Northbrook dismissed its claim against Norman Enterprises with prejudice. At some point during the litigation, Norman Enterprises’ insurer became insolvent, and on August 13, 1999, the Georgia Insurers Insolvency Pool (“GIIP”), although not joined as a party to the action, undertook the defense of Norman Enterprises.

Subsequently, the parties filed cross-motions for summary judgment asking the court to construe whether OCGA § 33-36-3 (2) (F) is available as a personal defense to an insured whose insurance carrier has become insolvent during the pendency of litigation. DeKalb County argued that such defense was available only to GIIP, while Norman Enterprises asserted that the defense was also available as a personal defense to the insured. Attached to the motions for summary judgment was a joint stipulation of the parties wherein the parties stipulated (1) that DeKalb County sustained $100,000 in damages from the fire of November 28,1995; (2) that even though DeKalb County had disputed in the litigation that it was negligent, “in an effort to buy their peace and compromise and settle contested claims and to avoid the expense and uncertainty of further litigation, [defendants specifically stipulate that their negligence was the proximate cause of [p]laintiff’s damages”; (3) that the stipulation was subject to the “high-low agreement” and other terms set forth in the stipulation; (4) that the stipulation was for use in “this action only and [could] not be used against defendants in any other action”; (5) that Norman Enterprises’ insurer became insolvent during the pendency of the lawsuit; and (6) that DeKalb County had a net worth of over $3 million at the time of the fire.

The parties also stipulated that the parties would submit the issue to the trial court by motion and waive the right to a jury trial and that the losing party would appeal the decision of the state court through the appellate courts of this State to a point “where a final decision is obtained regarding the application of the defense.” The stipulation contained a “high-low agreement” where Norman Enterprises agreed to pay through coverage and indemnification provided by GIIP the sum of $20,000 as payment for settling the claim regardless of any court’s decision and to pay an additional $60,000 through GIIP if the appellate courts decided the issue in favor of DeKalb County. The amount to be paid under the agreement would be either $20,000 or $80,000 and no amount in between. The parties also stipulated that any recovery against Norman Enterprises would be limited to amounts paid by GIIP and that DeKalb County would not be entitled to recover any amounts or enforce any judgment against Norman Enterprises. The stipulation was signed by the attorneys for DeKalb County, by the attorneys for Norman Enterprises, and by Dorothea Norman, individually and as president of Norman Enterprises. However, GIIP did not sign the agreement although it would be primarily liable and any appeal was for its benefit.

On December 21, 1999, the trial court entered an order striking Norman Enterprises’ amended answer, denying Norman Enterprises’ motion for summary judgment, granting DeKalb County’s motion for summary judgment, and awarding judgment in favor of. DeKalb County in tibe amount of $100,000, plus court costs and post-judgment interest at the legal rate of 12 percent per annum; Because of a clerical error, Norman Enterprises did not receive notice of the judgment and missed the statutory time to appeal the decision. On February 11, 2000, the trial court set aside and reentered the December 21, 1999 judgment for the purpose of permitting Norman Enterprises to appeal. It is from this February 11, 2000 order that this appeal arises.

Norman Enterprises’ sole enumeration of error is that the trial court erred in denying Norman Enterprises’ motion for summary judgment and granting DeKalb County’s motion for summary judgment and motion to strike Norman Enterprises’ amended answer. Norman Enterprises argues that, since its insurer became insolvent during the pendency of the litigation and DeKalb County had a net worth in excess of $3 million at the time of the insured event, OCGA § 33-36-3 (2) (F) provides it with a personal defense of up to $100,000 for DeKalb County’s claim for damages.

1. The Georgia Insurers Insolvency Pool Act was enacted in 1970. Ga. L. 1970, p. 700, § 1. The purpose of such act is

to provide a remedy for covered claims under property and casualty insurance policies when the insurer has become insolvent and is unable to perform its contractual obligations. . . . The pool shall be responsible for the investigation, adjustment, compromise, settlement, and payment of covered claims; for the investigation, handling, and denial of noncovered claims; and for the management and investment of funds administered by the pool.

(Emphasis supplied.) OCGA § 33-36-2. However, OCGA § 33-36-3 (2) (F) specifically provides that a “covered claim shall not include any obligation to insurers, insurance pools, underwriting associations, or any person which has a net worth greater than $3 million at the time of the insured event.” The question that must be decided by this Court, therefore, is whether the defense set forth in OCGA § 33-36-3 (2) (F), which is available to GIIP, can be asserted by the insured whose insurer has been declared insolvent and whose defense is being maintained by GIIP, when GIIP has not been made a party to the action.

Every insurer authorized to write property or casualty insurance policies in this state is required to be a member of the insolvency pool. OCGA § 33-36-5.

In the event an insurer is determined to be insolvent, the coverage afforded by property and casualty insurance policies issued by such insurer shall, with respect to covered claims, become the obligation of the pool for a period of 30 days from the date of such determination or until policy expiration date if less than said 30 days or until the policy has been replaced by the insurer within said 30 days. The pool shall be deemed to be the insurer for such period with respect and to the extent of the claims with all the rights, duties, and obligations of the insolvent insurer; and the pool is authorized to investigate, adjust, compromise, and settle covered claims or to investigate, handle, and deny noncovered claims.

OCGA § 33-36-9. Hence, it is clear that under the Georgia Insurers Insolvency Pool Act when an insurer becomes insolvent, GIIP must “fulfill the insurer’s obligations to the insured.” United States v. Rutland, 849 FSupp. 806, 811 (S.D. Ga. 1994).

These obligations, however, are not unlimited. They are defined by the insurance contract between the insured and its now insolvent insurer, e.g., Colwell v. Voyager Cas. Ins. Co., 184 Ga. App. 842, 363 SE2d 310 (1987), and they are further limited by operation of the Act, e.g., OCGA § 33-36-3; Claxton Mfg. Co. v. Hodges, 201 Ga. App. 371, 372, 411 SE2d 109 (1991). In other words, GIIP stands in the shoes of the insolvent insurer to the extent of the insurance contract and the limitations of the Act. . . . From this role definition, it is reasonable to presume that GUP’s relationship to its insured and other claimants is similar (although perhaps not identical) to that of regular insurance companies. It is axiomatic that under normal circumstances, a defendant’s tort liability is not contingent upon its insurance coverage. Indeed, insurance is a non-issue. Thus, if, for whatever reason, a defendant’s insurance company has a contractual defense that would absolve it from having to pay a particular judgment, that defendant cannot assert the defense as a substantive bar to the tort action against it. Moreover, in the event that a judgment is entered against a defendant, the fact that the defendant’s insurer has a contractual defense that absolves it of liability does not absolve the defendant of its liability to the plaintiff.

Id. at 811.

The defense set forth in OCGA § 33-36-3 (2) (F) is not a defense to the merits of an action, but only limits the assets available from GIIP to satisfy a judgment. The fact that GIIP may have a defense to a future claim that a judgment creditor may make against GIIP does not absolve Norman Enterprises of its liability to DeKalb County. Hence, the defense set forth in OCGA § 33-36-3 (2) (F) is applicable only to GIIP as a valid statutory defense, and Norman Enterprises cannot assert such defense to create a substantive bar to DeKalb County’s claim against it. This analysis is consistent with previous decisions of this Court where we have rejected the notion that OCGA § 33-36-14 (a), a defense available to GIIP when a plaintiff has purportedly failed to exhaust uninsured motorist coverage benefits, is a personal defense available to a defendant. See Grigsby v. White, 228 Ga. App. 682 (492 SE2d 603) (1997); Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204 (477 SE2d 369) (1996); Lee v. Fulton Concrete Co., 195 Ga. App. 348 (393 SE2d 449) (1990).

Therefore, the trial court did not err in granting DeKalb County’s motion to strike Norman Enterprises’ amended answer which asserted the defense of OCGA § 33-36-3 (2) (F).

2. However, the trial court erred in granting summary judgment in favor of DeKalb County and entering judgment in its favor.

(a) When the trial court struck Norman Enterprises’ amended answer, such defense was no longer viable before the trial court and became moot. “The effect of the state court’s order striking the [amended] answer was to remove [that defense].” (Citation and punctuation omitted.) Jordan v. Atlanta Neighborhood Housing Svcs., 169 Ga. App. 600 (2) (313 SE2d 787) (1984). Therefore, the defense was no longer before the trial court for consideration on motion for summary judgment.

(b) Further, the joint stipulation and contingent settlement agreement upon which the trial court based the grant of summary judgment is against public policy and is void under OCGA § 13-8-2.

(i) GIIP is not a party to this action. The only parties which have signed the joint stipulation and contingent settlement agreement are plaintiff and defendants, and, from the record, counsel for Norman Enterprises had no apparent authority to act on behalf of GIIP. Yet, the joint stipulation and contingent settlement agreement seeks to bind GIIP to pay either $20,000 or $80,000, depending on the courts’ interpretation of Norman Enterprises’ right to assert OCGA § 33-36-3 (2) (F) as a personal defense and seeks to prohibit DeKalb County or its agents or assigns from recovering any amount or enforcing any judgment against Norman Enterprises and Dorothea Norman. Such agreement, if upheld, would prevent GIIP, which is not a party to the action and has not agreed to be bound by the stipulation and agreement, from asserting the defense set forth in OCGA § 33-36-3 (2) (F); would allow DeKalb County to recover directly from GIIP, even though DeKalb County’s assets at the time of the insured event were in excess of $3 million; and would frustrate the intent of the legislature in enacting the Georgia Insurers Insolvency Pool Act, which was “to provide this remedy to certain groups or ‘persons’ and exclude others with very large financial resources.” Ga. Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 319 (2) (368 SE2d 500) (1988). This would deplete the insolvency pool by paying a claim specifically barred by statute.

(ii) Additionally, the joint stipulation and settlement agreement seeks to obtain an advisory opinion where the rights of the parties have already accrued. The trial court lacks subject matter jurisdiction to render such an opinion, as does this Court.

[T]here is no question that a trial court [or an appellate court] cannot issue advisory opinions. Throughout Article VI of the Georgia Constitution, jurisdictional authority is given over cases. Cases are live disputes, actual controversies. Not even in a declaratory judgment action is the court permitted to render an advisory opinion. The Declaratory Judgment Act itself makes that plain, by allowing only in cases of actual controversy what otherwise might be considered advisory opinions.

(Citations, punctuation and footnotes omitted.) In the Interest of I. B., 219 Ga. App. 268, 269 (464 SE2d 865) (1995) (physical precedent only); see also McDowell v. Judges ex Officio, 235 Ga. 364, 365 (219 SE2d 713) (1975); Vann v. Billingsley, 234 Ga. App. 803, 805 (508 SE2d 180) (1998); Chambers of Ga. v. Dept. of Nat. Resources, 232 Ga. App. 632, 634 (502 SE2d 553) (1998). The parties cannot do indirectly through the use of the joint stipulation and contingent settlement agreement what they could not do directly, i.e., obtain an advisory opinion from both the trial and appellate courts. Therefore, the joint stipulation and contingent settlement agreement is null and void ab initio as contrary to public policy as an illegal contract to circumvent the statutory and constitutional powers of the courts and to procure what the courts have no inherent power to render, an advisory opinion.

Because the dismissal of Norman Enterprises’ amended answer made the Norman Enterprises’ assertion of OCGA § 33-36-3 (2) (F) as a personal defense moot and because the joint stipulation and contingent settlement agreement was void ab initio, this Court vacates the grant of summary judgment and entry of judgment in favor of DeKalb County.

Decided August 4, 2000

Reconsiderations denied August 15, 2000

Gorby, Reeves, Peters & Burns, Michael J. Gorby, James W. Standard, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Jerome B. McNally, for appellee.

3. Furthermore, in view of our holding in Divisions 1 and 2, Norman Enterprises was not entitled to a grant of summary judgment, and there was no error in the trial court denying Norman Enterprises’ motion.

Judgment affirmed in part and vacated in part.

Blackburn, P. J., and Barnes, J., concur.

       OCGA § 33-36-3 (2) (D) provides that a “covered claim shall not include that portion of any first-party claim which is in excess of the applicable limits provided in the policy or $100,000.00, whichever is less.”

       OCGA § 33-36-14 (a) provides that
      [a]ny person, including any individual, partnership, association, or corporation, having a claim against a policy or an insured under a policy issued by an insolvent insurer, which claim is a covered claim and is also a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.

       This action was not brought as a declaratory judgment action, and to construe it as such would deprive the state court of subject matter jurisdiction. See OCGA § 15-7-4 (2); Mitchell v. Southern Gen. Ins. Co., 185 Ga. App. 870, 871 (366 SE2d 179) (1988).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A1621.
    GILBERT v. THE STATE.
    (538 SE2d 104)
   Eldridge, Judge.

On November 23,1999, William Jackson Gilbert entered a negotiated guilty plea to three counts of sexual exploitation of children, four counts of child molestation, and two counts of aggravated child molestation upon a 57-count indictment. After accepting the plea as providently entered, the Houston County Superior Court sentenced the defendant to 60 years confinement, to serve 40 upon the State attorney’s recommendation under the plea agreement. A post-sentencing hearing was held on November 30, 1999, after the sentence had been imposed, to determine whether the superior court should reduce the sentence, and it is to issues arising out of this hearing that defendant addresses his claims of error in attacking the sentence entered on November 23, 1999, in the case sub judice.

In three related enumerations of error arising out of the November 30 hearing, defendant contends that the superior court erred in admitting photographs of his female victims, ages ten and eight, respectively — this for seizure following an unlawful search, a confession taken upon an illegal arrest outside defendant’s home, and upon improper offer of hope or benefit under OCGA § 24-3-50. Defendant otherwise contends that the superior court erred at its November 30 hearing (a) by admitting victim impact statements provided by the victims’ fathers under OCGA § 17-10-1.2, (b) by denying his motion to recuse the State’s attorney for publicity before the November 30 hearing as in violation of DR 7-107 of the Rules and Regulations of the State Bar of Georgia, (c) by admitting similar transaction evidence in the absence of notice, violating OCGA § 17-10-2 (a), (d) by imposing sentence before conducting a presentence hearing under OCGA § 17-10-2, and (e) by imposing a disproportionately severe sentence.

By its brief on appeal, the State argues that the defendant is trying to circumvent this Court’s decision in Hooten v. State, 212 Ga. App. 770, 775 (442 SE2d 836) (1994), disallowing the conditional guilty plea procedure authorized in Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) (1991), in entering his guilty plea upon reservation of the right to challenge on sentencing the superior court’s rulings as to his pretrial motions to suppress. While defendant’s guilty plea waives any issue as to the admissibility of such evidence as it bears on defendant’s conviction, it does not waive the use of inadmissible evidence at sentencing. Christenson v. State, 261 Ga. 80, 91 (9) (402 SE2d 41) (1991). Because the right to challenge the admissibility of evidence on sentencing is thus not waived by a plea of guilty, a guilty plea reserving such right, as here, does not constitute a conditional guilty plea violating Hooten. Id. at 770 (1) (“In Mims[, supra,] we sought to establish procedures for what . . . had been the informal practice of allowing criminal defendants to plead guilty while reserving the opportunity to raise on appeal rulings by the trial court which ordinarily would be waived by the plea”). Held:

1. There is no merit in defendant’s claim that the superior court abused its discretion in sentencing him. “A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds.” Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999), citing Pollard v. State, 230 Ga. App. 159, 161 (5) (495 SE2d 629) (1998). There is no claim that defendant did not know the terms of the negotiated plea he entered. He entered his plea upon the advice of counsel knowing that if he rejected the State’s offer, he could have been tried upon the entire 57-count indictment and sentenced accordingly. Moreover, a negotiated plea is in the nature of a contract, Powell v. State, 229 Ga. App. 52, 53 (1) (494 SE2d 200) (1997), citing Martin v. State, 207 Ga. App. 861 (429 SE2d 332) (1993), and the State having honored its obligation thereunder, the superior court did not err in requiring of the defendant his end of the bargain. Powell v. State, supra at 53-54.

Decided August 4, 2000

Reconsideration denied August 15, 2000

George L. Williams, Jr., for appellant.

Kelly R. Burke, District Attorney, Katherine E. Kelley, Assistant District Attorney, for appellee.

2. Neither is there merit in defendant’s claim that the superior court erred in sentencing him after accepting his negotiated plea in the absence of the presentence hearing required by OCGA § 17-10-2 (a). OCGA § 17-10-2 (a) does not reach sentencing following guilty pleas, its terms applying only in those cases in which sentence is imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender. Powell v. State, supra, citing Martin v. State, supra.

3. Defendant raised his remaining claims of error attacking his sentence only after being sentenced on November 23. As a consequence, he failed to preserve these issues for review. Gillman v. State, 239 Ga. App. 880, 883-884 (2) (b) (522 SE2d 284) (1999). Notwithstanding the foregoing, any error at the November 30 sentence reduction hearing would have been harmless for going only to the superior court’s decision not to reduce defendant’s sentence as imposed on November 23. Even were this not the case, “[a] plea of guilty ordinarily renders harmless the admission into evidence of facts regarding the crime or crimes charged which are included in the guilty plea.” Christenson v. State, supra. That the superior court considered evidence beyond the scope of defendant’s guilty plea at its November 30 sentence reduction hearing is not in issue in this case.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       “It is unlawful for any person knowingly to possess or control any material which depicts a minor engaged in sexually explicit conduct.” OCGA § 16-12-100 (b) (8).

       “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

       “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

       In this regard, the superior court adhered to the order of the judge at the pretrial suppression hearing, denying defendant’s suppression motions. On October 12,1999, this Court denied defendant’s application for interlocutory appeal thereof.


author: Johnson, Chief Judge.

text:
    A00A0891.
    LAGYAK v. THE STATE.
    (538 SE2d 467)
   Johnson, Chief Judge.

Richard Lagyak appeals from the trial court’s denial of his motion for judgment of acquittal pursuant to his speedy trial demand under OCGA § 17-7-170, asserting the trial court erred in determining that his demand was premature. We disagree and affirm.

On September 21, 1997, the City of Doraville Police Department arrested Lagyak for speeding and driving under the influence of alcohol and issued uniform traffic citations (“UTCs”) for the offenses. The UTCs show that Lagyak was to appear in municipal court to answer the charges as early as October 21, 1997, and several dates thereafter, though the record does not indicate what prompted the changes in court dates.

On May 6,1998, Lagyak filed a demand for a jury trial in municipal court. On May 14, 1998, the municipal court judge signed an order binding the case over to the State Court of DeKalb County. On the same day, the solicitor’s office picked up the bind-over packet from municipal court. On May 19, 1998, Lagyak’s attorney filed an application for leave of absence with the state court, notifying the court that he would be unavailable for trial for approximately 14 days during the April and July terms. On May 28, 1998, the state court clerk sent a memorandum to the solicitor’s office and Lagyak stating that there was no active case pending against Lagyak but that a state court case number was being assigned to the matter “(i)n order to maintain a record of the [leave of absence application].” The clerk requested that both parties refer to the new case number when filing the accusation or other pleadings. Lagyak filed a demand for speedy trial on July 1,1998. On July 28,1998, the state filed a formal accusation against Lagyak.

In January 1999, when the case had not been tried during the April-June or the July-September 1998 terms of court, Lagyak filed a motion for discharge and acquittal. The trial court denied the motion, finding that his demand for speedy trial was premature and, therefore, a nullity, because there was no active case pending against Lagyak at the time he filed his speedy trial demand.

On appeal, Lagyak contends that charges had been filed against him by the time he filed his speedy trial demand because a state court case number had been assigned which was later used on pleadings and also because an arraignment had been scheduled. His argument is without merit.

OCGA § 17-7-170 (a) provides, in pertinent part, that any person against whom a true bill of indictment or an accusation is filed with the clerk may enter a demand for trial. A UTC functions as an accusation, and the right to a speedy trial attaches when the state files a UTC. If the person is not tried when the demand is made or at the next succeeding regular term of court, provided at both terms there were juries impaneled and qualified to try him, he shall be discharged and acquitted of the charged offense.

Although the previous version of OCGA § 17-7-170 required only that an accusation be preferred against a defendant, and many of the cases relied upon by Lagyak were decided under the old version of the statute, the current version of the statute requires that the accusation be filed with the clerk before an accused may file a demand for trial. The “bright-line rule” that the right to a speedy trial attaches when the state files the UTC with the court clearly establishes that the first opportunity for a defendant to demand a speedy trial is when the state files the UTC.

The timeliness of Lagyak’s motion, therefore, depends upon whether the accusations or UTCs were filed in the state court on or before July 1, 1998, the date Lagyak filed his demand for speedy trial. It is undisputed that the solicitor filed the accusations and the UTCs with the clerk on July 28, 1998. Because the accusations and UTCs had not been filed at the time Lagyak filed his demand, the demand was premature, and the trial court properly denied his motion for discharge and acquittal.

We are not persuaded by Lagyak’s arguments that because the case was assigned a case number and an arraignment date it was “filed” within the meaning of OCGA § 17-7-170. The clerk’s office assigned a number to the case only to keep track of the leave application filed by Lagyak’s attorney. The clerk notified both parties that there was no case pending at the time Lagyak filed the leave application. As a panel of this court pointed out in Shire, we will not allow a defendant to “file” a case against himself and thereby manipulate the system in an attempt to avoid prosecution. Furthermore, Lagyak has not shown that the state court set an arraignment date before July 1, 1998, or that scheduling an arraignment date satisfies the statutory requirement that an accusation be filed.

Lagyak argues that the state should not be permitted to frustrate his right to a speedy trial by delaying the filing of accusations or UTCs with the clerk’s office. While prosecutors certainly need to act quickly in deciding whether a prosecution should proceed and in filing an accusation, we do not believe that the solicitor’s ten-week delay in filing the accusations in this case was unreasonable. Indeed, we note that the record shows that Lagyak’s attorney requested leaves of absence covering approximately two weeks during the April and July 1998 terms of court, two more weeks during the October term, and a continuance of the trial of the case from November 30, 1998, until January 25, 1999. Under the circumstances, the solicitor’s delay in filing the case was not unreasonable.

Decided August 15, 2000.

Head, Thompson, Webb & Willis, William C. Head, for appellant.

Gwendolyn R. Keyes, Solicitor, Robert R. McNeill, Thomas E. Csider, Assistant Solicitors, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       DeKalb County has four terms of court each year. They begin the first Monday in January, first Monday in April, first Monday in July, and the first Monday in October. Ga. L. 1983, pp. 4332-4333.

       We note that the case was not tried during the October-December term, either. However, trial had been scheduled for November 30, 1998, but defense counsel successfully moved to continue the case due to a conflict.

        State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996).

       OCGA § 17-7-170 (b).

        State v. Frazier, 201 Ga. App. 6, 7 (1) (410 SE2d 134) (1991).

       See Shire v. State, 225 Ga. App. 306, 309 (1) (483 SE2d 694) (1997).

       See State v. Lipsky, 191 Ga. App. 842, 843 (383 SE2d 204) (1989).

       Compare Tyler v. State, 224 Ga. App. 550, 551 (481 SE2d 228) (1997).

        Shire, supra at 308 (1).

       See Frazier, supra (six-week delay in filing accusation not unreasonable); State v. Stang, 228 Ga. App. 204, 205 (491 SE2d 382) (1997) (state’s ten-week delay in filing accusation not unreasonable); Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995) (four-month delay not unreasonable); compare Klinetob v. State, 194 Ga. App. 52, 53 (389 SE2d 551) (1989) (11-month delay unreasonable).


author: Phipps, Judge.

text:
    A00A0906.
    SAPP et al. v. COSHATT.
    (538 SE2d 193)
   Phipps, Judge.

Billy Coshatt filed a legal malpractice action against Gregory Sapp and the law firm of Calhoun & Associates. Defendants filed a motion to dismiss under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief may be granted. The trial court denied the motion but certified the matter for immediate review. We granted the application for interlocutory appeal and affirm.

Taking Coshatt’s allegations as true, as is required when reviewing an order on a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6), the facts are as follows. In March 1997, Coshatt was injured at work. He contacted Sapp, an attorney with Calhoun & Associates, in August 1997 about a potential workers’ compensation claim. Sapp never filed a workers’ compensation claim for Coshatt; in fact, no workers’ compensation claim has ever been filed.

On July 30, 1999, Coshatt filed the malpractice action based on Sapp and Calhoun & Associates’ failure to file a workers’ compensation claim on his behalf prior to the expiration of the applicable one-year statute of limitation. Sapp and Calhoun & Associates responded with a motion to dismiss, contending that Coshatt’s action was premature because his workers’ compensation claim had not been adjudicated as barred by the statute of limitation.

Relying on Harrison v. Beckham and Plumlee v. Davis, the trial court denied the motion to dismiss, finding that “[t]he statute of limitation on [Coshatt’s] claim for legal malpractice began to run when the statute of limitation on his original claim expired without suit being filed against [his employer].” Sapp and Calhoun & Associates appeal, claiming that Coshatt’s action against them is premature because his workers’ compensation claim is not barred by the statute of limitation until he actually files a claim, the statute of limitation is asserted as a defense and the claim is judicially determined to be untimely.

Sapp and Calhoun & Associates rely on Wood v. Anderson to support their position. The Wood case involved a suit by an injured plaintiff against her attorney in which she claimed that the attorney, who filed suit on her behalf two years and one day from the date of the injury, had failed to prosecute her personal injury claim against her dentist within the statute of limitation. One of the issues in Wood was whether the applicable two-year statute of limitation had expired. We found that the trial court properly directed a verdict for the attorney because there was no evidence that the plaintiff’s suit had been barred by the statute of limitation. We noted the possibility of fraud or concealment tolling the statute of limitation as well as the possibility that the defendant would not raise the issue. We also noted the lack of evidence regarding the final disposition of the plaintiff’s suit against her dentist and the fact that the suit may have been filed within the statute of limitation.

We find the Wood case distinguishable. At this time, more than three years after the injury, no workers’ compensation claim has been filed. According to Coshatt, none of the exceptions to the one-year statute of limitation for his workers’ compensation claim is applicable, and no basis exists upon which to toll the running of the statute. Presumably based on those factors, the trial court found that the statute of limitation on Coshatt’s underlying claim had expired without suit being filed against Coshatt’s employer. The remote possibility that Coshatt’s employer would fail to raise the statute of limitation as a defense does not justify putting Coshatt to the trouble and expense of bringing a time-barred suit against his employer as a precondition to maintaining the malpractice action. We therefore affirm the trial court’s denial of the motion to dismiss filed by Sapp and Calhoun & Associates.

Decided August 15, 2000.

Ellis, Painter, Ratterree & Bart, Ryburn C. Ratterree, Tracy O’Connell, for appellants.

Smith & Jenkins, Wilson R. Smith, Robert L. Jenkins, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

        Lathem v. Hestley, 270 Ga. 849-850 (514 SE2d 440) (1999).

       OCGA § 34-9-82 (a).

       238 Ga. App. 199, 200 (1) (518 SE2d 435) (1999).

       221 Ga. App. 848, 851 (1) (473 SE2d 510) (1996).

       60 Ga. App. 262 (3 SE2d 788) (1939).

       Id. at 266.

       Id. at 266-267.

       Id.

       OCGA § 34-9-82 (a).

        See Roberts v. Heilgeist, 124 Ill. App.3d 1082 (465 NE2d 658, 661) (1984) (requiring a plaintiff to sue a tortfeasor before bringing a legal malpractice action, to determine if the statute of limitation defense would be raised, would impose a useless burden on a plaintiff); Walker v. Porter, 118 Cal. Rptr. 468, 470, n. 1 (1974) (plaintiff not required to show that she brought underlying action and that statute of limitation defense was raised when she learned of her attorneys failure to sue on her behalf); Fuschetti v. Bierman, 128 N.J. Super. 290 (319 A2d 781, 784) (1974) (once plaintiff has shown that her attorney allowed statute to run against her underlying claim, the attorney must come forward with evidence that the statute would not be a bar); see also Oyefodun v. Spears, 591 S2d 1333, 1334 (La. App. 1991) (legal malpractice action not premature where underlying suit not brought within 90 days as required by statute).


text:
    A00A1142.
    TUCKER v. THE STATE.
    (538 SE2d 458)
   Johnson, Chief Judge.

A jury found Christopher Tucker guilty of aggravated assault upon a peace officer, possession of a firearm by a convicted felon, and several traffic offenses. The jury failed to reach a verdict on charges of possession of a firearm during the commission of a crime and possession of cocaine. Tucker appeals, arguing that the evidence was not sufficient to support the conviction of aggravated assault upon a peace officer, evidence of a prior cocaine possession conviction should not have been admitted, and he was denied effective assistance of trial counsel. Because each of the enumerations is without merit, we affirm his convictions.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict. So viewed, the evidence shows that a police officer was following Tucker’s car when he noticed that the taillight on Tucker’s car was broken. The officer activated the patrol car’s emergency lights, but Tucker did not stop. Instead, Tucker continued driving, making several turns, until he eventually stopped in a trailer park. Tucker jumped out of the car and ran to the back end of his car. The officer got out of the patrol car with his .45 caliber revolver drawn and approached Tucker. He ordered Tucker to get on the ground. Tucker kneeled down, as if he was going to lie down, but then grabbed the officer and pulled him to the ground. Tucker managed to get the officer’s revolver. As Tucker did so, however, the officer was able to eject the magazine from the gun. Tucker gained control of the gun, and the two struggled. Tucker ended up on top of the officer. The officer remarked that his life was more important than a traffic stop and that Tucker could just leave and the officer would not pursue him. Tucker said “no,” that he was going to kill the officer and then pointed the gun at him. The officer was afraid of Tucker, “believ[ing] at that point he could have killed me.” Tucker pulled the trigger, but the gun did not discharge. There was a round of ammunition in the gun, but the weapon did not fire because the magazine had been removed. The officer did not know where the magazine was at the time Tucker attempted to fire the gun. The men struggled again, and the officer was able to wrestle the gun away from Tucker. Tucker began beating the officer about the neck, head, and shoulders. When a second police officer arrived, Tucker got off of the officer and started to rim. Before he could get away, though, the officer grabbed Tucker’s jacket. A blue bag containing two or three pieces of cocaine fell out of the jacket. When the altercation ended, officers found the gun’s magazine on the ground near where the two men had struggled.

1. Tucker contends the evidence was insufficient to support the aggravated assault upon a peace officer conviction because the officer could not have had a reasonable apprehension that he would be shot, inasmuch as the officer had removed the magazine from his gun before Tucker took it from him and pointed it at him. This enumeration is without merit.

The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20, was committed on the victim; and (2) that it was aggravated by use of a deadly weapon. An assault under OCGA § 16-5-20 is committed when the person either: (1) attempts to commit a violent injury to another; or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

In this case, the state alleged in the indictment that Tucker committed the offense of aggravated assault upon a peace officer by assaulting the officer with a deadly weapon. Such general language sufficiently charges an assault by way of either manner contained in the assault statute. Thus, the state could have proved the charged crime with evidence either that Tucker used the gun in an attempt to violently injure the officer or that Tucker used the gun to place the officer in fear of being violently injured.

As discussed above in detail, the evidence shows that Tucker used a gun in an attempt to commit a violent injury upon the officer. Because apprehension is not an essential element of an assault in which it is alleged that the defendant attempted to commit a violent injury upon the victim, there was evidence from which a rational trier of fact could find Tucker guilty beyond a reasonable doubt of committing aggravated assault upon a peace officer.

In any event, there was evidence that Tucker’s use of the gun placed the officer in reasonable apprehension of being violently injured. The fact that the magazine had been removed does not require a contrary finding. Just before Tucker pulled the trigger, he threatened to kill the officer and pointed the gun at him. The officer did not know where the magazine was at the time Tucker threatened to kill him. Indeed, the magazine was on the ground, right between the two men, where Tucker could have grabbed and replaced it before pointing the gun at the officer. The officer testified that he believed Tucker was going to kill him. The evidence authorized a finding that the officer’s apprehension was reasonable.

We conclude that the evidence was sufficient for a rational trier of fact to find Tucker guilty beyond a reasonable doubt of aggravated assault on a peace officer, either by attempting to commit a violent injury with a deadly weapon, or by placing him in reasonable apprehension of immediately receiving a violent injury.

2. Tucker claims his character was improperly called into issue when the trial court admitted evidence that he pled guilty to possession of cocaine a few months before the charged crimes occurred. He argues that the prior act was not sufficiently similar to the charged drug offense, because in the prior transaction he spit the cocaine out when approached by police, while in the current case, the cocaine allegedly fell out of his pocket without his attempting to hide the drugs.

Decided August 15, 2000.

William P. Nash, Jr., for appellant.

In determining whether a prior transaction is sufficiently similar, courts must focus on the similarities of the acts rather than their differences. Here, both incidents occurred at night and in the same area of town. They both involved possession of cocaine packaged in blue bags and Tucker trying to run from police. The two offenses occurred only months apart. While there may have been some differences, the law does not require the acts be identical in every respect. The trial court did not err in admitting the evidence.

3. Tucker claims he was denied effective assistance of trial counsel because his attorney did not move to bifurcate the trial on the possession of a firearm by a convicted felon charge from the trial on the aggravated assault charge. He urges that he was prejudiced by the trial of the two charges together. We find no grounds for reversal.

In order to show ineffective assistance of trial counsel, a defendant must show that (1) his attorney’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different.

Assuming without deciding that trial counsel was deficient in not moving to bifurcate the trial, Tucker has not shown that but for the deficiency, the outcome of the trial would have been different. Evidence showing his prior drug conviction was properly presented to the jury as a similar transaction. Therefore, trying the aggravated assault charge apart from the possession of a firearm by a convicted felon charge would not have prevented the jury from hearing that Tucker was a convicted felon. In light of that fact, and considering the overwhelming evidence of his guilt as to the aggravated assault charge, it is clear that Tucker has not shown that but for counsel’s error, he would not have been convicted. The trial court did not err in finding that Tucker received effective assistance of trial counsel.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

        Cox v. State, 241 Ga. App. 388, 389 (526 SE2d 887) (1999).

        Matthews v. State, 224 Ga. App. 407, 408 (1) (481 SE2d 235) (1997).

       See Jordan v. State, 214 Ga. App. 598, 601 (2) (448 SE2d 917) (1994), overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593 (2) (a) (502 SE2d 726) (1998).

       See Love v. State, 268 Ga. 484, 485 (1) (490 SE2d 88) (1997).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Shaw v. State, 238 Ga. App. 757, 760 (2) (519 SE2d 486) (1999); McWilliams v. State, 172 Ga. App. 55 (1) (322 SE2d 87) (1984).

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

       Id.

        Harris v. State, 234 Ga. App. 126, 129 (3) (505 SE2d 49) (1998).

        Pope v. State, 240 Ga. App. 803, 805 (2) (522 SE2d 291) (1999).


text:
    A00A1664.
    LOVELESS v. THE STATE.
    (538 SE2d 464)
   Johnson, Chief Judge.

Regina Loveless was convicted of cruelty to children for maliciously causing mental pain to her sons C. L. and J. L. by ignoring C. L.’s pleas that she help J. L. while he was being molested by her boyfriend and two counts of sexual exploitation of children for having taken nude photographs of the boys. She appeals, arguing that the evidence is insufficient, that the cruelty to children indictment count does not allege a crime, and that the court improperly commented on the evidence. Because the arguments are without merit, we affirm the convictions.

1. On appeal from a criminal conviction, we review the evidence in the light most favorable to the verdict and no longer presume that the appellant is innocent; moreover, we determine the evidence sufficiency and do not weigh the evidence or determine witness credibility.

In this case, the evidence shows that C. L. and J. L. began living with their paternal grandparents in 1994. In 1997, seven-year-old C. L. and six-year-old J. L. went to stay with Loveless and her boyfriend, Donnie Rice, for several days. During the visit, J. L. called his grandmother and asked to return to the grandparents’ house earlier than planned. The grandmother went to Loveless and Rice’s house and picked up the boys.

On the way back to the grandparents’ house, J. L. complained that his bottom hurt. Later, when the grandmother was giving J. L. a bath, he again said that his bottom hurt, and she saw that it looked swollen. She called her daughter Angela Cantrell into the bathroom, and J. L. then told his grandmother and Cantrell that Rice had anally sodomized him.

The next day, the grandmother took J. L. to a child advocacy center where, while using the toilet, he passed a small amount of blood. The following day, a doctor examined him and found that J. L.’s anal area was tender, raw, stretched, and bleeding from an abrasion. According to the doctor, the injuries around J. L.’s anus were consistent with sexual abuse. Photographs depicting J. L.’s injuries were taken and admitted into evidence at trial.

Also admitted into evidence were J. L.’s taped interviews with a child advocate. In the interviews, J. L. stated that during the 1997 visit Rice had molested him, that Loveless and Rice had previously held him and his brother down and taken pictures of them while they were naked and had mailed the pictures somewhere, and that Loveless had told him and his brother not to tell anyone about the abuse.

C. L. also gave taped interviews in which he said that during the 1997 visit Rice made him leave the bedroom where he and J. L. were sleeping, that after he left he looked back in the room and saw Rice take down J. L.’s pants, that he could hear his brother screaming, that he went to Loveless’ bedroom and told her that Rice was hurting J. L., and that Loveless told C. L. to shut up and she then put a pillow over her head. C. L. also said that Loveless and Rice had previously held him and J. L. down, had taken nude photographs of them, and had mailed the photographs somewhere. Loveless told the boys not to tell anyone about the sexual abuse because she did not want Rice to go to jail.

In addition to the playing of his taped interview, C. L. testified at trial, again claiming that during the 1997 visit he got upset when he heard his brother screaming and he went to his mother’s bedroom for help. But she told him to go back to bed and she put a pillow over her head.

Having reviewed all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Loveless guilty beyond a reasonable doubt of the charged offenses of cruelty to children and sexual exploitation of children.

2. Loveless contends that the indictment count charging her with cruelty to children does not allege criminal conduct because she could admit the allegations of the charge and not be guilty of a crime. The contention is incorrect.

OCGA § 16-5-70 (b) provides that a person commits cruelty to children when she “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” The Supreme Court has noted that “the crime of cruelty to children may not be based on a parent’s or guardian’s negligent mistake in judgment, but must be based on the malicious failure to provide care.” The malice element of the offense imports the absence of justification or excuse and the presence of actual intent to cause the harm produced or the wanton and wilful doing of an act with the awareness that it is likely to produce the particular harm.

Decided August 15, 2000

Christopher A. Frazier, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Here, Loveless was indicted for cruelty to children in that she maliciously caused excessive mental pain to C. L. and J. L., who were under the age of 18, by ignoring C. L.’s pleas that she help J. L., who was being sexually abused by Rice. Contrary to Loveless’ contention, if she were to admit all the facts alleged in the indictment, she would he admitting that she had failed to meet her legal duty to protect her children, that such failure was not justified but was done with malice, and that it caused excessive mental harm to her minor children. The indictment thus sufficiently charged the crime of cruelty to children.

3. During the testimony of the doctor who had examined J. L., Loveless objected on the ground that such testimony was irrelevant. The trial court overruled the objection, stating that all parties to a crime are subject to prosecution. Loveless then moved for a mistrial, arguing that the court’s statement constituted an improper comment on the evidence in violation of OCGA § 17-8-57. Loveless contends that the court erred in denying her mistrial motion.

A mere colloquy between the court and counsel regarding an evidentiary issue does not violate OCGA § 17-8-57. Thus, the judge’s explanation of the reason for his overruling of the objection to the admission of the doctor’s testimony was not an improper comment on the evidence. The trial court therefore did not err in denying Loveless’ motion for a mistrial.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Johnson v. State, 239 Ga. App. 886 (522 SE2d 478) (1999).

       See OCGA § 16-5-70; Avila-Nunez v. State, 237 Ga. App. 649, 652-653 (3) (516 SE2d 335) (1999).

       See OCGA § 16-12-100; Unden v. State, 218 Ga. App. 463, 464-465 (2), (3) (462 SE2d 408) (1995); Moua v. State, 200 Ga. App. 49 (1) (406 SE2d 557) (1991).

        Brewton v. State, 266 Ga. 160, 161 (2) (465 SE2d 668) (1996).

       Id.

       OCGA § 19-7-2; State v. Roberts, 234 Ga. App. 522, 523 (2) (507 SE2d 194) (1998).

       See id.

        Bryant v. State, 268 Ga. 664, 667 (8) (492 SE2d 868) (1997).

       See Cammon v. State, 269 Ga. 470, 475 (9) (500 SE2d 329) (1998); Johnson v. State, 234 Ga. App. 58, 59 (1) (506 SE2d 212) (1998).


text:
    A00A1702.
    LEE v. GREEN LAND COMPANY, INC.
    (538 SE2d 189)
   Phipps, Judge.

Alleging that Alabama Life Insurance Company (“Alabama Life”) breached a real estate contract obligating it to sell certain land, R. Norman Lee filed a complaint seeking specific performance or, in the alternative, damages. Finding the agreement at issue was not a valid and enforceable contract, the trial court awarded summary judgment to Alabama Life’s successor in interest, Green Land Company, Inc. Asserting that material issues of disputed fact precluded summary judgment, Lee appeals. Having reviewed the record, we affirm.

Lee executed an agreement titled “OFFER TO PURCHASE,” with Alabama Life, the owner of 163 acres of timberland. David Packard, an employee of Alabama Life, signed on the line designated “SELLER.” The document provided:

THIS AGREEMENT is made this 15 day of April 1991 [,] R. Norman Lee DDS and_PURCHASER(S) have this day offered to purchase from Alabama Life Insurance Company that certain property known and described as [legal description] at a purchase price of. . . $79,900.00.

This “offer to purchase” included a special stipulation that “[t]his contract is contingent on seller’s ability to obtain building permit(s) on said tract.” The closing date was set as “ASAP.” The document further provided: “IN THE EVENT the Seller is unable to perform under the terms of this agreement, all deposits paid by Purchaser shall be refunded and this shall constitute complete remedy for such nonperformance.” The “offer to purchase” also stated, “[i]t is understood and agreed that should the ‘owner’ find this offer unacceptable the binder will be returned.”

At the time of signing, Lee paid a $5,000 binder which Packard forwarded along with the completed form to Alabama Life. During the next 18 months, Packard and other employees of Alabama Life attempted to obtain the building permit.

A year and a half after executing the document, after learning that Alabama Life was experiencing difficulty in securing the permit, Lee informed Alabama Life that he would waive that requirement. But Alabama Life refused to go forward with the sale. Several months later, by letter of counsel dated March 12, 1993, Lee again advised Alabama Life that he was waiving that contingency. After Alabama Life refused to sell the property, Lee filed suit. While Lee’s suit was pending, Alabama Life became insolvent. Green Land then purchased the land, subject to Lee’s claims, from the Receivership Division of the Alabama Insurance Department.

On summary judgment, Lee and Green Land disputed whether the agreement was merely an offer which was never accepted or a binding and enforceable contract for which specific performance could be obtained. Green Land also contended that Packard had lacked authority to enter a binding agreement on its behalf.

Burton R. Green, the owner of Green Land, which had operated Alabama Life, testified that Packard was employed to solicit offers and had no authority to execute contracts. Green denied that Alabama Life or any authorized agent ever accepted the offer to purchase. According to Green, after Alabama Life explored the possibility of complying with the special stipulation regarding the building permit, it discovered it could not satisfy that condition and refunded Lee’s deposit.

Lee, however, testified that Packard “identified himself as an agent for ALIC,” when he presented the contract. According to Lee:

Mr. Packard stated that he was authorized to negotiate and enter into agreements for the sale of certain timber and land tracts owned by ALIC in middle Georgia. Mr. Packard stated that in his work for ALIC he had negotiated other contracts similar to mine with other parties. The contract when presented already had the amount of the purchase price typed thereon, along with a description of the property. Mr. Packard represented that this was [the] standard contract used for the sale of property by ALIC.

1. Lee contends that a jury must determine whether he entered into a binding contract with Alabama Life.

A contract for which specific performance is sought must be definite and precise to eliminate uncertainty and to preclude any reasonable misunderstanding. To be enforceable the contract must specify the parties, sufficiently describe the subject matter and name the consideration. The express terms incorporated into an agreement, in tandem with the intent of the contracting parties, are paramount. But when any material provision of a contract is indefinite or uncertain, a court will not decree the specific performance of that contract under OCGA § 23-2-130.

The written agreement at issue here, even when construed against Alabama Life, the drafter, expressly states that it is an “offer to purchase” and varying forms of the word “offer” appear on the face of the document. When a contract is contingent on the meeting of some condition, it is not enforceable by either party until the condition has been met. As a general rule, contracts conditioned upon discretionary contingencies lack mutuality and are unenforceable.

Where the fancy, taste, sensibility, or judgment of the promisor is involved, there is practical unanimity that if one agrees to accept and pay if he is satisfied with a thing, he can not be compelled to do so on proof that other people are satisfied with it, or that he ought to be.

The contingency here, “should the ‘owner’ find this offer unacceptable the binder will be returned,” vested Alabama Life, the seller, with the sole power to judge its own satisfaction, thereby depriving the contract of mutuality. In essence, Alabama Life created a special contingency under this “offer to purchase,” that is, should Alabama Life find the offer made by Lee to be “unacceptable,” it could return his binder and reject his offer. This document is simply a purchase offer which Alabama Life refused to accept. Because the writing at issue lacks the elements needed to create a binding and enforceable contract, neither specific performance nor damages are obtainable based on it.

Lee is mistaken in contending that a jury must resolve whether Packard had apparent authority to bind Alabama Life to the agreement. Under the “equal dignity rule,” the authority of an agent to execute an agreement required by the statute of frauds to be in writing must also be in writing. For that reason, the authority of an agent to execute a contract for the sale of land must be evidenced by a writing. Here, no such writing exists.

Decided August 15, 2000

Smith, Galloway, Lyndall & Fuchs, Newton M. Galloway, Dean R. Fuchs, Shepherd & Johnston, William G. Johnston III, for appellant.

Alan W. Connell, for appellee.

2. Lee contends that a jury must determine whether Alabama Life ratified Packard’s actions by attempting to obtain the building permit. We disagree. The ratification of a real estate contract which was executed by an unauthorized agent must be in writing. With the exception of part performance, such as going into possession of the property or making improvements to it, the ratification must be in writing. Oral ratification will not suffice. Since the agreement was not enforceable, whether Lee removed the special stipulation is irrelevant. Because Alabama Life was not bound to sell its property, Lee cannot obtain specific performance or damages for Green Land’s refusal to do so.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       After determining that the underlying action did not fall within its equity jurisdiction, the Supreme Court transferred this case to this court. Lee v. Green Land Co., 272 Ga. 107 (527 SE2d 204) (2000).

       Finding it untimely, the trial court refused to consider an affidavit from Packard that Lee attempted to offer into evidence on the day of the hearing. See Zampatti v. Tradebank Intl., 235 Ga. App. 333, 338 (2) (b) (508 SE2d 750) (1998) (trial court vested with discretion to decide whether to consider untimely filed affidavits).

        Harris v. Trippi, 209 Ga. 369, 372 (2) (72 SE2d 704) (1952); OCGA § 23-2-130.

         Beller & Gould v. Lisenby, 246 Ga. 15, 17 (1) (268 SE2d 611) (1980).

       See Whitley v. Patrick, 226 Ga. 87, 88-89 (172 SE2d 692) (1970).

        Cashin v. Markwalter, 208 Ga. 444, 446 (3) (67 SE2d 226) (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97, 99 (209 SE2d 641) (1974).

       See generally OCGA § 13-3-1; Grier v. Brogdon, 234 Ga. App. 79, 80-81 (2) (505 SE2d 512) (1998).

        Moore v. Buiso, 235 Ga. 730, 731 (1) (221 SE2d 414) (1975).

        Stone Mountain Properties, Ltd. v. Helmer, 139 Ga. App. 865, 867 (1) (229 SE2d 779) (1976).

       (Punctuation omitted.) Id. at 868; see Teague v. Adair Realty &c. Co., 92 Ga. App. 463, 467 (1) (88 SE2d 795) (1955).

        Stone Mountain Properties, supra, 139 Ga. App. at 868; Charter Investment &c. v. Urban Med. Svcs., 136 Ga. App. 297, 298 (3) (220 SE2d 784) (1975) (when one party has untrammeled discretion, contract generally lacks mutuality).

        Rome Indus. Ins. Co. v. Eidson, 138 Ga. 592, 596 (4) (75 SE 657) (1912) (“Where the company reserved to itself the question of satisfaction, it would be changing the contract to hold that what would satisfy a reasonable man would answer the terms of the [contract].”).

        Stribling v. Ailion, 223 Ga. 662, 664 (2) (157 SE2d 427) (1967).

        Turnipseed v. Jaje, 267 Ga. 320, 322 (1) (477 SE2d 101) (1996).

        Deal v. Dickson, 232 Ga. 885, 886 (1) (209 SE2d 214) (1974).

        McCalla v. American Freehold &c. Co., 90 Ga. 113, 117 (15 SE 687) (1892).

        Turnipseed, supra, 267 Ga. at 324 (2) (b); Deal, supra, 232 Ga. at 886 (2).

        Hubert Realty Co. v. Bland, 79 Ga. App. 321, 323 (2) (53 SE2d 691) (1949).


text:
    A00A1738.
    SANDERS v. THE STATE.
    (538 SE2d 470)
   Johnson, Chief Judge.

Brian Cordell Sanders was indicted on charges of murder, felony murder, and cruelty to children in connection with the death of his nine-week-old daughter. After a jury trial, he was convicted of involuntary manslaughter, as a lesser included offense of the murder charge, and cruelty to children. He was found not guilty of felony murder. Sanders appeals, contending that the evidence was insufficient to support the involuntary manslaughter conviction and that the trial court erred in failing to direct a verdict of acquittal on the cruelty to children charge. We disagree with these arguments and affirm the convictions.

1. On appeal, we do not reweigh the evidence but view it in a light most favorable to the verdict. So viewed, the evidence shows that Sanders and the child’s mother, Saundra Reddick, rushed the infant to the hospital when her body became limp and her breathing abnormal. When they arrived at the hospital, the child was in a coma.

At the hospital, several doctors examined the child. Dr. Robert Chambliss found ruptured blood vessels in the area between the infant’s brain and skull, swelling of the brain, and bleeding between the eyes and back of the eyes. In Dr. Chambliss’ opinion, the injuries were caused by the child being shaken.

Dr. James Lindley, a neurologist, also examined the child. Dr. Lindley determined that the infant had minimal if any brain stem reflexes and very little body movement. In Lindley’s opinion, she suffered from an irreversible brain injury and probably would not survive the injury.

Dr. Donna Evans examined the child and found that her injuries were consistent with “shaken-baby syndrome.” According to Dr. Evans, the child’s injuries resulted from a violent shaking and were similar to injuries which result from a massive car accident or a fall from a second-story building. Dr. Evans noted that the child also had a broken leg which occurred around the time the fatal injuries were inflicted.

A child abuse investigator with the Department of Family & Children Services interviewed the couple at the hospital. The investigator testified that Sanders said that he had been carrying the infant into the kitchen when he accidentally bumped her head on a wall corner, causing a cut on the baby’s forehead. Reddick put an ointment on the cut, and Sanders put the child to bed. A short time later, the baby began crying. Sanders told the investigator that he went into the bedroom and shook her to quiet her down.

Reddick testified that after Sanders put the child to bed, she heard her crying and started to go to the infant’s room, but Sanders stopped her and told her he would take care of the child. Sanders was alone in the room with the child for “more than a minute,” then the crying stopped. A short time later, Reddick went into the child’s room and saw Sanders sitting down, holding the infant. Sanders remarked: “Something [is] wrong with her.” Sanders held her up, and the child’s eyes “rolled back in her head and her arms just dropped.” Reddick noticed that the baby was breathing abnormally, and she immediately rushed the child to the hospital.

An agent with the Georgia Bureau of Investigation (“GBI”) testified that he spoke with Sanders at the hospital. Sanders admitted to the agent that he had shaken the infant in order to quiet her down. Sanders said he shook her for about ten to fifteen seconds while holding her by the rib cage. The videotaped interview was admitted into evidence.

Sanders testified on his own behalf. He stated that after he placed the baby in bed, she started crying. He picked her up, sang her a song, and laid her back down. The infant was fine at that time. Sanders went outside for ten or fifteen minutes, then came back in and quickly picked up the baby when he saw Reddick coming down the hall. He wanted Reddick to think he had been taking care of the baby the entire time, but he had not. When he picked up the child, he noticed something was wrong with her. He believed someone else had picked up the child while he was outside. He testified that he did not shake the child, just “cradled” her. On cross-examination, Sanders stated that he had taken a parenting class in which he learned that a baby could be seriously injured if shaken “real hard.”

The child remained on life support for approximately two weeks, then died. An autopsy revealed bleeding around the spine, the spinal cord, the surface of the brain and the brain coverings, and four broken ribs. The forensic pathologist testified that, in his opinion, the child had been held by the chest, the chest had been squeezed, and the child had been shaken “very violently.” He determined that the infant’s death was caused by someone violently shaking her.

The other members of the household testified that they had no contact with the child at the time the injuries occurred and that they never dropped, shook, or injured the child in any way.

Considering evidence showing the nature and extent of the injuries suffered by the infant, the cause of the injuries, and that Sanders squeezed and shook the infant just before she lapsed into a coma, a rational trier of fact was authorized to find Sanders guilty beyond a reasonable doubt of involuntary manslaughter and cruelty to children.

2. Sanders contends that because the jury found him guilty of involuntary manslaughter, the trial court erred in not directing a verdict of acquittal on the cruelty to children charge. He urges that malice is required for a cruelty to children conviction, but that there was no evidence of malice. To support his argument, he points to the fact that the jury found him guilty of involuntary manslaughter, which does not require malice, but not guilty of felony murder or murder, which require malice. This argument is without merit.

Decided August 15, 2000.

Hal T. Peel, for appellant.

J. Thomas Durden, Jr., District Attorney, Jeffery N. Osteen, Assistant District Attorney, for appellee.

In Georgia, consistency in the verdict is not necessary, and every count of an indictment is regarded as if it is a separate indictment. Thus, even if the verdicts are inconsistent, reversal is not required.

In any event, the two verdicts are indeed consistent. Under OCGA § 16-5-3 (b), a person commits the crime of involuntary manslaughter when he causes the death of another without any intention to do so, by committing a lawful act in an unlawful manner likely to cause death or great bodily harm. A person commits the offense of cruelty to children within the meaning of OCGA § 16-5-70 (b) when he maliciously causes a child cruel or excessive physical or mental pain. In this case, the jury could have found from the evidence both that Sanders maliciously caused the infant excessive pain and that his actions caused the infant’s death, though he may not have intended to kill her.

Contrary to Sanders’ argument, there is evidence of malice supporting the cruelty conviction. On cross-examination, Sanders admitted that he knew that shaking a baby “too hard” could seriously injure her. And he admitted to a GBI agent that he held the nine-week-old child on the ribs and shook her for ten to fifteen seconds. Medical evidence showed that the baby had been shaken so severely that she suffered extensive bleeding throughout the spinal cord and that she had been squeezed so tightly that her ribs were broken. Thus, the evidence supports an inference of malice. The trial court did not err in failing to direct a verdict of acquittal on the child cruelty charge.

Judgment affirmed.

Smith, P. J, and Phipps, J, concur.

       See Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996).

       See Powell v. State, 271 Ga. 575 (1) (522 SE2d 656) (1999); George v. State, 220 Ga. App. 223, 225 (1) (469 SE2d 360) (1996).

        Wilson v. State, 234 Ga. App. 375, 376 (2) (506 SE2d 882) (1998).

       See generally Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992).


text:
    A00A1886.
    MANUEL v. THE STATE.
    (538 SE2d 472)
   Phipps, Judge.

Rapheal Bryant, Chadwick Parks, and Richard Shun Manuel were charged with burglary, robbery by force, and aggravated assault on a person over the age of 65 years. Bryant was given a reduced sentence and testified against Parks and Manuel at their joint trial. Parks was found guilty of the first two offenses, and his convictions were affirmed in Parks v. State. Manuel was found guilty of all three offenses and was given three consecutive twenty-year sentences. He appeals his convictions and sentences.

The evidence showed that after the co-indictees broke into the victim’s home, Bryant and Manuel threw a blanket over his head, struck him with a gun, and restrained him while Parks stole $2,000 cash and other items. Manuel’s cousin testified that she had overheard the co-indictees plan the robbery and that, after commission of the crimes, they returned to her apartment and Bryant told her what the trio had done.

1. Manuel contends that the trial court erred in overruling his hearsay objection to his cousin’s testimony concerning Bryant’s out-of-court statements. There is no merit in this contention. Bryant’s extrajudicial statements constituted declarations of a conspirator made during the concealment phase of a conspiracy and were, therefore, admissible against his co-conspirator Manuel.

2. Manuel next contends that the trial court erred in imposing separate sentences for robbery by force and aggravated assault on a person over the age of 65 years, because these offenses merged.

“Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact. [Cit.]” One crime is not included in another as a matter of law if each offense has different elements and prohibits different conduct. One crime is not included in another as a matter of fact unless the State “uses up” all the evidence that the defendant committed the former in establishing the latter.

Because the crimes of robbery by force and aggravated assault on a person over the age of 65 years have different elements and prohibit different conduct, neither is included in the other as a matter of law. Nor are they included offenses as a matter of fact in this case. The indictment alleged that the robbery of the victim was “by force.” The State proved force by showing that Bryant and Manuel threw a blanket over the victim’s head and restrained him. The aggravated assault was shown by the physical attack with the gun. Because the State thus proved each offense by different facts, it did not use all the evidence that Manuel committed one crime in proving the other. Therefore, the court did not err in imposing separate sentences for robbery by force and aggravated assault upon a person over the age of 65 years.

Decided August 15, 2000.

Ben T. Smith, Jr., for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Smith, P. J, concur.

       240 Ga. App. 45 (522 SE2d 532) (1999).

       OCGA § 24-3-5; Jones v. State, 265 Ga. 84 (2) (453 SE2d 716) (1995).

        Wells v. State, 222 Ga. App. 587, 588 (3) (474 SE2d 764) (1996); see OCGA §§ 16-1-6 (1); 16-1-7 (a) (1).

       See Hardy v. State, 210 Ga. App. 811, 813 (3) (437 SE2d 790) (1993).

       See Chadwick v. State, 236 Ga. App. 199, 202 (3) (511 SE2d 286) (1999).


text:
    A00A1191.
    LANIER et al. v. BURNETTE et al.
    (538 SE2d 476)
   Eldridge, Judge.

Edward Lanier and his wife Frances Lanier brought a declaratory judgment action against James M. Burnette, his wife Rebecca W., Robert F. Watkins, Sr., and Marvin K. and Tonia Y. Lockman to determine the width of a granted and dedicated easement, as well as the permitted use. After a bench trial, the Laniers appeal the trial court’s judgment. We affirm in part and reverse in part.

1. The Laniers contend that the trial court erred in finding that the easement was 40 feet wide instead of 50 feet wide. We agree.

Watkins was the common grantor of the Laniers, Lockmans, D. M. Norwood, and Burnettes. In 1972, Watkins was conveyed 38 acres in Catoosa County by Grady C. and Elaine F. Jordan, which land he subdivided into smaller tracts. His first conveyance was to Lonnie Roberts, and Watkins granted to him a 40-foot right-of-way across the remainder of Watkins’ land; however, Watkins learned that Catoosa County would not accept the road as a public road unless it had a 50-foot easement right-of-way. Watkins corrected this by expanding the easement to 50 feet in his conveyances to the Burnettes and to Norwood, which inured to Roberts’ benefit. Watkins testified that it had been his intent to convey an easement for a 50-foot right-of-way to satisfy Catoosa County.

On March 21, 1988, Watkins conveyed to the Burnettes a tract along Georgia Highway 2, which landlocked all the other property except for the 50-foot easement reserved in the deed. The metes and bounds description of the Burnettes’ tract goes to the “southeast line of a fifty (50) foot right of way,” but did not include the right-of-way in the conveyance.

Thus, the Burnettes are conclusively charged with notice of and bound by the express grant of a covenant which ran with the land, i.e., the 50-foot right-of-way easement for the benefit of all abutting owners. Reeves v. Comfort, 172 Ga. 331 (157 SE 629) (1931). Watkins clearly intended to reserve an express grant of a 50-foot right-of-way in the conveyance to the Burnettes as clearly shown by the March 21, 1988 deed. OCGA § 44-9-1; Rogers v. Pitchford, 181 Ga. 845 (184 SE 623) (1936). Thus, Watkins’ express reservation of a 50-foot easement in himself and other grantees was the equivalent of an express grant of an easement by the Burnettes. Champion v. Neason, 220 Ga. 15 (136 SE2d 718) (1964); Atkinson v. Drake, 101 Ga. App. 485 (114 SE2d 213) (1960).

On July 8,1988, Watkins conveyed 8.56 acres to Norwood, which included a 50-foot easement and which gave his legal description as going to and along a “50 foot right of way,” but did not convey the right-of-way land. Watkins owned the land under the 50-foot easement, as well as the servient estate. Norwood conveyed his tract to the Lockmans. Thus, the 50-foot easement became vested in Nor-wood and his grantee.

On June 21, 1991, Watkins executed a corrective warranty deed to the Burnettes at their request. This deed conveyed legal title in the land to the Burnettes subject to the easement. However, this deed described a 40-foot easement, instead of a 50-foot easement. This deed could not reduce the previously granted 50-foot easement across the Burnettes’ land, because such 50-foot easement rights had already vested in the other grantees of Watkins so that Watkins could not take back what he had already conveyed to Roberts, Nor-wood, and subsequent grantees, i.e., the Laniers. Therefore, the Burnettes’ land remained subject to the 50-foot easement despite the corrective deed’s language to the contrary.

On April 15, 1993, Watkins conveyed a tract of land to the Laniers along with a 50-foot easement for ingress and egress, which crossed the Burnettes’ land. The 50-foot right-of-way easement was “for the benefit of all property owners fronting thereon and not to be considered exclusive to any one owner; but said easement shall be considered permanent in nature to go with the title of either property owner.” Watkins told Burnette when he conveyed the land that the conveyance to him had to be subject to a 50-foot easement because of Catoosa County’s restrictions, and Burnette agreed to take subject to such 50-foot easement. Thus, any grantee had the right to the same remedies as the grantor in the reserved easement. Spencer v. Poole, 207 Ga. 155 (60 SE2d 371) (1950).

The grantor, Watkins, may create covenants that run with the land that bind their grantee, the Burnettes; either a deed or plat mentioned in a deed can create a covenant that runs with the land. OCGA § 44-5-39; Jones v. Lanier Dev. Co., 190 Ga. 887, 891 (11 SE2d 11) (1940); Montana v. Blount, 232 Ga. App. 782, 784 (504 SE2d 447) (1998). Such covenant accrues to the benefit of all other grantees from the grantor whose land abuts upon the easement. Reid v. Standard Oil Co. of Ky., 107 Ga. App. 497 (130 SE2d 777) (1963).

The owner of the fee has the right to sell his land subject to such reservations or restrictions as he may see fit to impose, provided they are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee from the former owner who imposes the restriction is entitled to the same remedy for its enforcement as was [the] grantor.

(Citation and punctuation omitted.) Cawthon v. Anderson, 211 Ga. 77, 78 (1) (84 SE2d 66) (1954). See also Grove Lakes Subdivision v. Hollingsworth, 218 Ga. 443, 444 (128 SE2d 499) (1962).

The fact that other or different restrictions were incorporated in the plaintiffs’ deeds, or that their lots might not be subject to the same restrictions as the defendant’s lot, would not deprive them of the right to enforce the restriction placed upon the defendant’s lot by the former owner and common grantor of both the plaintiffs and the defendant.

Id. at 445. “When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.” OCGA § 44-5-39; Cawthon v. Anderson, supra at 78 (3); Montana v. Blount, supra at 784.

Here all grantees from the common grantor-subdivider received the express grant of the easement of ingress and egress by warranty deed and the unrecorded plat, of which the Burnettes had actual notice. Smith v. Bruce, 241 Ga. 133, 144 (2) (244 SE2d 559) (1978). Abutting landowners became vested in fee to the middle of the road as a matter of common law, subject to the 50-foot right-of-way over the road in favor of the lots in the subdivision for purposes of ingress to and egress from their lots. Incident to the grant of an easement is the reasonable enjoyment of the easement granted. Folk v. Meyerhardt Lodge No. 314 &c., 218 Ga. 248, 249 (127 SE2d 298) (1962). Where the grantor-subdivider creates easements by deeds and by unrecorded plat for the benefit of himself and other subdivision grantees prior to conveyance of the lots subject to the easement, such easement rights include full enjoyment of the easements created, and the subsequent grantee received only such rights as the grantor retained. The grantees received the easement as corporeal hereditaments appurtenant to such subsequently acquired lots. Montana v. Blount, supra at 785.

The Burnettes’ initial deed did not contain a legal description that included title to the 50-foot right-of-way, but described the easement as a boundary. However, as a matter of common law, they had legal and equitable title to the middle of the easement already. Montana v. Blount, supra at 785. The subsequent deed from Watkins gave them legal title to the remainder of the 50-foot right-of-way, subject to this original, reserved express easement of a 50-foot right-of-way. Watkins lacked the right or power to reduce to 40 feet what he had already vested in others, i.e., a 50-foot right-of-way. Thus, the corrective deed had the legal effect of conveying only such legal rights that Watkins retained in the 50-foot right-of-way subject to the preexisting easement created by earlier deeds, including the deed to the Burnettes, that granted the 50-foot easement. Having created a 50-foot, nonexclusive perpetual easement, Watkins could not reduce it. Smith v. Bruce, supra at 144. Thus, the trial court erred as a matter of law in holding that the easement was 40 feet and not 50 feet wide.

2. Plaintiffs contend that the trial court erred in finding that the easement for ingress and egress did not include a utility easement. We do not agree.

The grant of an easement impliedly includes the authority to do those things which are reasonably necessary for the enjoyment of the things granted. For an easement for ingress and egress, this means grading, placing gravel, installing and maintaining culverts and bridges, paving, or cutting of trees and brush off the road and shoulder, which are ancillary to the easement granted. Sadler v. First Nat. Bank &c., 267 Ga. 122, 123 (2) (475 SE2d 643) (1996); Jakobsen v. Colonial Pipeline Co., 260 Ga. 565 (2) (397 SE2d 435) (1990); Roberts v. Roberts, 206 Ga. App. 423, 425 (2) (425 SE2d 414) (1992). It cannot be said that a utility easement over an ingress and egress easement is a reasonable use “that significantly relate [s] or [is] essential to the object for which the easement! ] [was] granted.” (Citation omitted.) Id.

An all purpose easement both for ingress and egress and utilities clearly and expressly grants each such easement; the deeds in this case gave only an easement for ingress and egress. See Wiggins v. Southern Bell Tel. &c. Co., 245 Ga. 526, 530-531 (2) (266 SE2d 148) (1980); Upson v. Stafford, 205 Ga. App. 615 (422 SE2d 882) (1992); see also Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 698 (3) (506 SE2d 116) (1998) (example of all purpose easement language). Since utility companies have the power of eminent domain, then the utility can acquire all necessary easements through the exercise of such power. OCGA § 22-2-100 (5); Harwell v. Ga. Power Co., 246 Ga. 203 (269 SE2d 464) (1980). Thus, the trial court did not err in finding no utility easement had been granted.

3. Plaintiffs contend that the trial court erred in finding that they had wilfully and intentionally trespassed on the Burnettes’ property in constructing a fence, which encroached thereupon, and in assessing damages for such unintentional trespass. We do not agree.

A trespass is any wrongful, continuing interference with a right to the exclusive use and benefit of a property right. See Dowdell v. Cherry, 209 Ga. 849 (76 SE2d 499) (1953); Roughton v. Thiele Kaolin Co., 209 Ga. 577, 581 (3) (74 SE2d 844) (1953). The issue of wilful trespass to realty is material only if punitive damages are sought or cutting of timber. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 352 (3) (63 SE 270) (1908). However, the act of trespass must have been a voluntary, intentional act in that it intended the immediate consequences of the act, causing the trespass or invasion, i.e., an intended act as opposed to a negligent act. See Brooks v. Ready Mix Concrete Co., 94 Ga. App. 791, 793 (1) (96 SE2d 213) (1956); see also Athens Mfg. Co. v. Rucker, 80 Ga. 291, 295-296 (4) (4 SE 885) (1887).

On March 4, 1998, Randall Compton surveyed the Lanier and Burnette property line for the Laniers and found that the Lanier fence encroached a foot or so to the south of it as an encroachment. The surveyor had difficulty establishing the Laniers’ north line and establishing a bearing; he did not use the deed and had to rotate the beginning point to get a bearing. Barry Savage’s survey for the Burnettes showed encroachment by the Laniers’ fence of 5.3 feet. Lanier had Paul Roberson survey for the fence before he put it up within what Lanier believed was his property line. There was clearly a sharp conflict in the testimony of three registered land surveyors as to what was the Burnette and Lanier property line. Thus, the Laniers did not wilfully trespass.

Contrary to the contentions of the Laniers, the trial court never found that there had been a wilful and intentional trespass; it found that the fence was on the Burnettes’ property and ordered the fence removed. The trial court found that the Laniers were liable in damages for trespass, but did not specify if the damages were general, special, nominal, or punitive. There was no evidence to support special damages. The Burnettes neither prayed for nor proved punitive damages. OCGA § 51-12-5.1.

Where there has occurred a trespass, general damages do not have to be proven with any “amount to an absolute certainty” for recovery of such damages. See Moss & Co. v. Ga. R. & Banking Co., 144 Ga. 173, 174-175 (86 SE 550) (1915); see also Bedingfield v. Brewer, 220 Ga. 453, 461 (139 SE2d 389) (1964). When there has been a tortious invasion of the property of another, i.e., trespass, such tortious conduct gives rise to the right to recover nominal damages to vindicate such right. See Swift v. Broyles, 115 Ga. 885, 887 (1) (42 SE 277) (1902). As to general damages, “[w]here there is such a wrongful interference with the comfortable enjoyment of property by a person in possession, no precise rule for ascertaining damage can be given . . . ; therefore the jury are left to say what, in their judgment, . . . the defendant ought to pay, in view of the discomfort or annoyance to which the plaintiff and his family have been subjected by the [trespass].” (Citation and punctuation omitted.) Id. at 887-888. Thus, proof that the Laniers erected the fence, an intentional act, that the fence was partially on the Burnettes’ land without consent, and that the Burnettes owned the land made the Laniers liable for general or nominal damages; therefore, the trial court did not err in awarding $2,000 in damages, because there was some evidence to support such judgment.

Decided August 16, 2000.

Cunningham & Mullinax, William D. Cunningham, Clifton M. Patty, Jr., for appellants.

Watson, Dana & Gottlieb, Dennis D. Watson, Kinney, Kemp, Pick-ell, Sponcler & Joiner, Richard W. Andrews, Larry J. Campbell, Renzo S. Wiggins, for appellees.

In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the clearly erroneous test is in essence the same as the any evidence rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them.

(Citation and punctuation omitted.) Thomas v. Dept. of Transp., 232 Ga. App. 639, 643 (3) (502 SE2d 748) (1998).

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Barnes, J., concur.


text:
    A00A1641.
    BROCKINGTON v. THE STATE.
    (538 SE2d 474)
   Johnson, Chief Judge.

Following a bench trial, Sharon Brockington was found guilty of driving while under the influence of alcohol. She was found not guilty of allowing an unlicensed person to drive and driving with an open container of alcohol. She contends the state failed to prove that she was the driver of the vehicle. Because there was evidence that she was the driver of the vehicle, we affirm her DUI conviction.

1. Viewed in a light most favorable to support the verdict, the evidence shows that Brockington and her nephew left a party shortly before midnight. They had gone only a few hundred yards when they were involved in a collision with another car. At trial, the parties stipulated that the issue to be tried was whether Brockington was the driver of the car. Brockington stipulated that she had been drinking and would have been a less safe driver. It was further stipulated that the officer at the scene charged Brockington’s nephew with driving under age.

The only witness called on behalf of the state was the driver of the other car involved in the collision. He testified that when he approached Brockington’s car after the collision, he observed Brockington “partially in the driver’s seat and partially — I guess the best way to say it straddling — I don’t know that there was much of a console or anything, but it looked like she was trying to get out of the driver’s seat and into the passenger’s seat.” He testified that Brockington was “sliding out from under the driver’s seat” and “was sitting more in the driver’s seat than anything.” While Brockington insisted that her nephew was driving the car, the witness testified that the nephew was completely in the backseat, “[a]lmost like laying down,” and Brockington was “between seats at best. Mostly underneath the driver’s seat, underneath the steering wheel.” According to the witness, “[i]t was obvious to me that she was moving away from the driver’s seat and that he was getting into the driver’s seat.” As the witness spoke with Brockington, “[s]he slid over to the passenger’s side and the little boy [her nephew] completely got into the driver’s side.”

Based on this evidence, the trial court was authorized to find that Brockington was driving the car at the time of the collision. Krull v. State, cited by Brockington, is inapposite. In Krull, the defendant was arrested for and convicted of driving under the influence of alcohol after he was found intoxicated in the driver’s seat of a wrecked car. However, in that case the evidence showed that the car was inoperable, and there was no testimony that it had been driven recently. The evidence further showed that it was not the defendant’s car, the defendant was not allowed to operate the car, and the defendant’s father had left the defendant and the car while he went for help following the accident.

Decided August 16, 2000

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

Joel Osteen, Solicitor, for appellee.

In the present case, although the witness did not observe Brockington actually driving the car, his observations after the collision provided sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Brockington was the driver of the car. The witness’ testimony also shows why the officer cited the nephew for driving under age. While Brockington testified that her lower body was never in the driver’s side of the car and that her nephew was the driver of the car, the nephew did not testify at trial, and it is solely for the trier of fact to weigh conflicting evidence and determine the credibility of the witnesses.

2. Brockington enumerates as error that the finding of not guilty on the charge of possessing an open container of alcohol and the finding of guilty on the charge of driving under the influence of alcohol are inconsistent. However, she does not address this enumeration of error in her appellate brief. Therefore, this enumeration of error is deemed abandoned.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       211 Ga. App. 37 (438 SE2d 152) (1993).

       See Stewart v. State, 233 Ga. App. 607, 608-609 (3) (504 SE2d 770) (1998); Garrett v. State, 230 Ga. App. 97, 98 (2) (495 SE2d 579) (1998).

       Court of Appeals Rule 27 (c).