author: McMurray, Presiding Judge. Pope, Chief Judge,

text:
    A94A0663.
    JOHNSON v. THE STATE.
    (447 SE2d 74)
   McMurray, Presiding Judge.

Indicted as a recidivist, defendant was charged with one count of selling cocaine, in violation of OCGA § 16-13-30, and with a second count alleging that he sold cocaine within 1,000 feet of a public housing project, in violation of OCGA § 16-13-32.5. Defendant was tried before a jury and found guilty of each charge. This appeal followed the denial of defendant’s amended motion for new trial. Held:

1. In his first enumeration, defendant contends that the trial court erred in denying his motion for new trial, arguing that he received ineffective assistance of counsel because his trial counsel stipulated to proceed with 11 jurors without defendant’s knowledge and consent.

“ ‘ “When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; (and) whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” (Cit.)’ Hawes v. State, 240 Ga. 327, 329-330 (1) (240 SE2d 833) (1977). Generally, ‘the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below “an objective standard of reasonableness” and (2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Cit.)’ (Emphasis in original.) Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).” Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649).

At the evidentiary hearing on defendant’s motion for new trial in the case sub judice, defendant’s trial counsel testified that he agreed to proceed with 11 jurors if one became sick. This stipulation was made in the presence of. his client in open court, and in response to a direct inquiry by the presiding judge as to the need for an alternate juror. Counsel admitted that he “did not talk to [defendant] at all about the prospects of whether or not we needed an alternate,” and thought that it was “within [counsel’s] authority ... to waive that . . . right to an alternate.” Only after the verdict and sentencing did defendant voice any complaint to trial counsel about not being involved in the decision to go with 11 jurors. The transcript of the trial corroborates this chronology. After the jury had been struck, the court asked: “Will y’all agree to go with 11 if one of them gets sick?” Defense counsel responded: “Yeah, that’ll be fine.” The next morning, before any evidence had been presented, the trial court excused the twelfth juror due to illness. The court “checked with the court reporter, and we agreed to go with 11 if one of them’s sick. I have satisfied myself, from talking with her, that she is sick, so we’ll proceed with 11.” Without objection from any side, the case proceeded to trial.

“ ‘ “[I]n order for the waiver by counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.” ’ (Emphasis in original.) State v. Phillips, 247 Ga. 246, 248 (275 SE2d 323) (1981).” Hudson v. State, 250 Ga. 479, 482 (3a), 483 (299 SE2d 531). The record in the case sub judice shows that defense counsel’s waiver of defendant’s right to be tried by a jury of 12 was made in the defendant’s presence, but not by the defendant’s express authority. While trial counsel conceded that he had failed to consult defendant before stipulating in advance to a waiver of the twelfth juror in open court, the record similarly shows that defendant made no objection “to the reduction in size of the jury at any point during trial.” Hudson v. State, 250 Ga. 479, 484 (3a), supra. Defendant’s failure to object at any point before the jury returned its verdict amounts to a waiver by acquiescence. Weeks v. State, 187 Ga. App. 307, 308 (2), 310 (370 SE2d 344), affirmed in 258 Ga. 662 (374 SE2d 532); Hudson v. State, 250 Ga. 479, 483-484 (3a), supra. “ ‘(W)hile it may be a better practice, it is not necessary for an accused to personally waive his right to a jury of twelve and agree to be tried by a jury of less than twelve. Counsel for the accused may validly waive this right for him. . . .’ ” Davis v. State, 192 Ga. App. 47, 48 (3) (383 SE2d 615). Trial counsel in the case sub judice validly waived defendant’s right to trial by a jury of 12. For purposes of determining whether defendant’s right to effective assistance of counsel has been adequately protected or impermissibly infringed by that waiver, trial counsel’s decision whether to insist on a jury of 12 or to accept the remaining jurors and proceed is properly analyzed as trial tactics and strategy.

“ ‘The decisions on which witnesses to call, whether and how to conduct cross[-]examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ Reid v. State, 235 Ga. 378, 379 (219 SE2d 740, 742) (1975), quoting ABA Standards, relating to the Adm. of Crim. Justice (1974), the Defense Function, § 5.2 (b).” Hawes v. State, 240 Ga. 327, 328 (1), 330, supra. In the case sub judice, the decision of trial counsel to proceed with the remaining 11 jurors who had undergone voir dire but who had not heard opening statements or any witnesses simply “is not any evidence that trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and [U. S. Constitutions. Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589) (1957).” Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245). Consequently, the trial court did not err in denying defendant’s motion for new trial predicated upon this instance of allegedly ineffective assistance of counsel.

2. In his second enumeration, defendant contends that trial counsel was ineffective because he did not move for a directed verdict of acquittal as to Count 2, which alleged that defendant sold cocaine “within 1000 feet of real property of a publicly owned and operated housing authority, to wit: THE ROME HOUSING AUTHORITY, located at MAPLE STREET.” He argues that his motion should have been granted since the State did not prove with sufficient clarity that the sale took place within 1,000 feet of a publicly owned housing authority.

OCGA § 16-13-32.5 (b) makes it “unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project. . . . For the purposes of this Code section, the term ‘housing project’ means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 13 of Title 8.” OCGA § 16-13-32.5 (e) provides: “In a prosecution under this Code section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of the real property of any publicly owned or publicly operated housing project... , or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and shall constitute prima-facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area.” This Code section further provides that it “shall not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense.” OCGA § 16-13-32.5 (e).

At the hearing on defendant’s motion, trial counsel defended his decision not to make the motion for directed verdict “just as a personal decision I made based on what [sic] the evidence I heard.” In support of the allegations in the indictment, the State adduced at trial the testimony of the undercover officer, Special Agent Ector of the Georgia Bureau of Investigation. Special Agent Ector identified defendant as one of two men who arranged to meet him in a park and as the one who completed a single sale by handing to Ector two large chunks of crack cocaine, in exchange for $200. Special Agent Ector testified that, at the suggestion of Johnny Garrett, the defendant’s co-indictee, the sale took place in the Maple Street Park in the east side of Rome, Georgia. On direct examination, the State posed to Special Agent Ector the question whether “ [t]his park, is it located anywhere near a public housing authority, what some people may call a project area?” Special Agent Ector replied, “Yes.” He further testified: “I don’t know the — the exact name of the projects. They’re red brick, and they’re right behind — they’re located right behind the park.” When asked how he could tell that it was a public housing authority, Special Agent Ector testified that “[w]e was — at the time, we didn’t — we just knew that it was a — it was city — it was public — it was city owned,” and affirmed that there were numerous “red brick buildings located around a common, grassy area.” Special Agent Ector estimated that the sale took place “I would say approximately about — anywhere from six to 800 feet away” from those numerous “red brick buildings.”

“ ‘Since ordinary hearsay testimony is not only inadmissible but wholly without probative value, its introduction without objection does not give it any weight or force whatever in establishing a fact.’ [Cits.]” Duke v. State, 205 G§. 106, 110 (52 SE2d 455). The prosecution in the case sub judice did not employ the statutorily authorized method to establish prima facie the location and boundaries of any housing projects owned or operated by the Rome Housing Authority, relying instead upon the testimony of Special Agent Ector that “we just knew that it was a — it was city — it was public — it was city owned.” Moreover, Special Agent Ector’s additional testimony that the sale took place near “numerous red brick buildings located around a common, grassy area” is not any evidence that this sale took place within a proscribed distance of “single or multifamily dwelling units occupied by low and moderate-income families.”

There was no probative evidence that this sale of crack cocaine took place within 1,000 feet of the real property owned and operated by the Rome Housing Authority, as alleged in the indictment. Accordingly, defendant’s separate judgment of conviction and sentence for violating OCGA § 16-13-32.5 (b), based upon the single act of selling two chunks of crack cocaine to Special Agent Ector, is not supported by sufficient competent evidence and must be reversed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). It follows from the reversal of the separate conviction for Count 2 that defendant’s claim of ineffective assistance for counsel’s failure to move for a directed verdict as to that count is rendered moot. Moore v. State, 212 Ga. App. 497 (1) (442 SE2d 311).

3. Defendant’s conviction and sentence for the sale of crack cocaine in violation of OCGA § 16-13-30 is amply supported by competent evidence and is affirmed. Farley v. State, 210 Ga. App. 580 (436 SE2d 770). The separate judgment of conviction and sentence for selling crack cocaine in violation of OCGA § 16-13-32.5 (b) is reversed on the general grounds.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., Beasley, P. J., Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., and Andrews, J., dissent.

Pope, Chief Judge,

dissenting.

I respectfully dissent from Division 2 of the majority opinion. Agent Ector testified that defendant sold him cocaine in the Maple Street Park in Rome, Georgia; that a housing authority or project is located directly behind the park; and that he calculated the housing project as being within 600 to 800 feet of the area of the park where the sale occurred. He further testified that he was certain the housing project was within 1,000 feet of where the sale occurred. The agent’s testimony based on his own observations as to the existence and location of the housing project and its distance from the park was proper and admissible. See Powell v. Jackson, 142 Ga. App. 34, 35 (234 SE2d 837) (1977); Massee v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 439, 441 (1) (197 SE2d 459) (1973). I find this evidence was sufficient to allow rational jurors to determine beyond a reasonable doubt that defendant sold cocaine within 1,000 feet of the real property of the Maple Street housing project as alleged in the indictment. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). I also disagree with the majority’s implication that the evidence was insufficient to support the verdict because the prosecution did not employ the statutorily authorized method of establishing the location of the housing project. While OCGA § 16-13-32.5 (e) provides that a certified map shall constitute prima facie evidence of the location and boundaries of a housing project, that section also provides that it “shall not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense.” (Emphasis supplied.) Because I find the agent’s testimony was sufficient to allow rational jurors to find defendant guilty of selling cocaine within 1,000 feet of a housing project, I also find defendant’s claim of ineffective assistance of counsel based on counsel’s failure to move for a directed verdict of acquittal as to that count to be without merit.

Decided June 29, 1994

Reconsideration denied July 18, 1994

William F. Sparks, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

I am authorized to state that Judge Andrews joins in this dissent.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A0544.
    MORGAN et al. v. BRAASCH et al.
    (446 SE2d 746)
   Andrews, Judge.

Morgan and his employer, Dickies Industrial Services, appeal from the grant of partial summary judgment on the issue of liability to plaintiffs Braasch.

The evidence is viewed in favor of Morgan and Dickies, opponents of summary judgment. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So viewed, it showed that around 11:05 a.m. on March 16, 1989, Braasch was driving a manual shift Ford pickup truck about a mile from her home on Cas-tleberry Road. She drove this road two or three times a day and was familiar with it. The intersection of Castleberry and Bethelview Roads is controlled by four-way stop signs. The stop sign on Braasch’s side is located 27.8 feet from the edge of Bethelview. Braasch testified that she stopped at the sign, rolled up both windows in the truck, looked to her left, saw nothing, looked to her right and observed a red pickup slowing down and beginning to stop as it approached its stop sign. She again looked to her left and, seeing nothing, proceeded into the intersection in first gear.

Morgan was a deliveryman for Dickies and was driving his own Ford pickup that day because of mechanical problems with the company truck. His route required him to travel Bethelview frequently. That morning, he had made one delivery and was proceeding east on Bethelview. In his answers to requests for admission, Morgan admitted that he did not stop his vehicle at the stop sign before entering the intersection. He testified that he was going about 40 mph when he entered the intersection. He did hit the brakes “[w]hen I saw her out in front of me.” He hit Braasch in the driver’s door, causing her serious injuries. The impact occurred 16 feet from the junction of the south side of Bethelview with the east side of Castleberry. Morgan did not know why he ran the stop sign and pled guilty to a violation of OCGA § 40-6-72.

Dickies admitted that Morgan was its employee and was acting in the scope and course of his employment at the time of the wreck.

In opposition to the motion for partial summary judgment, defendants submitted the affidavit of Blake Wood, a registered mechanical engineer. He had examined the accident scene, the vehicles, the police report, and the Braasch and Morgan depositions. His investigation revealed the measurements of the intersection and that a driver going north on Castleberry has an unobstructed view for eastbound traffic from the stop sign. He opined that Braasch was going 14 mph at the time of impact and that she “could not have attained [that] speed before the impact in the approximate 16 feet available if she had proceeded forward after stopping at the point nearest the intersecting roadway of Bethelview Road” (Emphasis supplied.)

He further opined that “Braasch’s speed of 14 miles per hour at the moment of impact is consistent with Ms. Braasch not properly stopping at the intersection before proceeding into the intersection or with Ms. Braasch making a rolling stop through the point nearest the intersection of Castleberry Road and Bethelview Road.” (Emphasis supplied.) Also, Wood opined that Morgan’s truck “would have been visible to Braasch prior to her entering the intersection if she had looked to her left before proceeding into the intersection.”

The court assumed the facts above and held that “even if . . . Braasch did see or could have seen defendant Morgan approaching the intersection from her left, defendants have failed to produce any evidence establishing that such approach would have warranted her taking any evasive or defensive action.”

1. First, we note that while a summary judgment may not be granted solely on the basis of an opinion, introduction of opinion evidence by the non-moving party may be sufficient to preclude an award of summary judgment. E.g., Bryan v. Bryan, 248 Ga. 312 (282 SE2d 892) (1981); Brygider v. Atkinson, 192 Ga. App. 424, 426 (385 SE2d 95) (1989).

Here, however, the emphasized portions of Wood’s affidavit, supra, were based on a factual assumption for which there was no evidence before the court. Braasch stated unequivocally that she stopped at the stop sign, not at the point 27.8 feet away at the edge of Bethelview.

2. The negligence per se of Morgan having been admitted, the defendants argue that there remain issues of material fact relating to proximate cause and whether Braasch’s negligence contributed to the accident, based on Wood’s affidavit.

“In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. [Cits.]” Hercules, Inc. v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983).

Here, the affidavit of Wood does not create a factual issue as to whether Braasch stopped at the stop sign, only a suggestion that she should have moved up further toward Bethelview Road before she stopped. It is unclear, however, what difference this would have made, since she had a clear line of sight from the stop sign.

“An inference cannot be based on evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. A finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncon-tradicted evidence that no such fact exists.” (Citations and punctuation omitted.) Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990). See Butler v. Huckabee, 209 Ga. App. 761, 762 (2) (434 SE2d 576) (1993).

Even if it is assumed that Braasch should have seen Morgan approaching, there is no evidence that she or anyone reasonably observing Morgan approach would have had any reason to anticipate that he was going to run the stop sign, nor is there any evidence to dispute that she had entered the intersection first. “ ‘A review of the record demonstrates that appellant produced no evidence to [create an issue of material fact] that, in the exercise of ordinary care, appellee [Braasch] could have avoided the collision after she saw or should have seen that [Morgan] had entered into the intersection and was crossing appellee’s lane of trafile.’ ” Leonard v. Miller, 207 Ga. App. 602, 603 (2) (428 SE2d 646) (1993), quoting Kicklighter v. Jones, 202 Ga. App. 654, 655 (415 SE2d 302) (1992).

Decided June 16, 1994

Reconsideration denied July 20, 1994

Carter & Ansley, Christopher N. Shuman, Rebecca J. Schmidt, for appellants.

Clifford E. Alexander, Goodman, McGuffey, Aust & Lindsey, Jennifer M. Daniels, Nora E. Herndon, for appellees.

One who has the right-of-way may assume that others will obey the rules of the road absent some factual indicia that such is not the case. Id.; Harrison v. Ellis, 199 Ga. App. 199, 201 (404 SE2d 348) (1991). There were none here.

Here, defendants failed to create a material dispute of fact that would have created a basis for denial of the partial summary judgment.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       She sued for personal injuries and her husband sued for loss of consortium.

       See Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 116 (3b) (372 SE2d 266) (1988).

       Even in the absence of stop signs, “[w]hen two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. . . .” OCGA § 40-6-70. See Edmond v. Roberson, 207 Ga. App. 101, 102 (1) (427 SE2d 74) (1993).


text:
    A94A0813.
    PRICE v. DEPARTMENT OF TRANSPORTATION et al.
    (446 SE2d 749)
   Andrews, Judge.

This case has been before this court several times. Appellate rulings have issued in this matter in Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), overruling 182 Ga. App. 353 (356 SE2d 45) (1987); Dept. of Transp. v. Price, 208 Ga. App. 320 (430 SE2d 602) (1993); Ethridge v. Price, 194 Ga. App. 82 (389 SE2d 784) (1989); Price v. Wright Contracting Co., 183 Ga. App. 595 (359 SE2d 406) (1987); and Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986).

The litigation arose out of an automobile accident that occurred on May 10, 1983 in Albany, Georgia, in which Hattie Eileen Price was severely and permanently injured. Price filed suit, alleging that “the negligence of two automobile drivers caused a collision with her vehicle forcing her off the roadway and down a high hill which was on a bridge approach. She alleged the roadway was part of the state highway system under the jurisdiction of DOT and that it was maintained in an extremely hazardous condition. She particularly pointed to the absence of guardrails. A later amendment to the complaint named three employees of DOT, the maintenance area manager, district traffic and safety engineer and state road design engineer, whose negligence in the design and maintenance of the roadway she alleged contributed to her injuries and damages. The suit named DOT and its three employees as defendants together with the other automobile drivers, City of Albany, Dougherty County and two private corporations.” Price v. Dept. of Transp., supra 257 Ga. at 535.

1. Price filed suit on May 9, 1985 in her own name. She amended her complaint on August 5, 1985 to proceed through her mother as next friend due to her incapacity from brain damage.

Two previous appearances of this case are relevant to our inquiry here. In Price v. Dept. of Transp., supra, the Supreme Court addressed DOT’s motion for summary judgment which was based on sovereign immunity. Interpreting the Georgia Constitution, the court stated that for certain actions there is a waiver of sovereign immunity. The court noted that Price’s action was against both employees of DOT and the DOT, and thus the State, itself. It stated “DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior. That is why it is a defendant in this action.” Id. at 536. The court concluded that since insurance protection for such a claim had been provided and since the policy named DOT employees as insureds, sovereign immunity was waived to the extent of the insurance coverage.

On reconsideration, the court noted that the motion to add individual employees as defendants was pending below. It stated “[w]hen the case returns to the trial court the judge shall rule on the motion to add the employees as defendants. If they, or any of them, are made defendants there is a waiver of sovereign immunity as to the DOT as stated in the opinion. Since a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT. In that event summary judgment for DOT is affirmed.” Id. at 537-538.

In Ethridge v. Price, supra, the issue of the individual party defendants was addressed. Upon the return of the case to the trial court, the motion to add DOT employees Ethridge, Tyre and Mims as party defendants was granted. They were served with copies of the amended complaint in February 1988 and then filed a motion for summary judgment.

In a per curiam opinion, the court concluded that the motion for summary judgment of Mims, a retired DOT employee, was properly granted. The court then concluded that, “[e]ither for the reason stated in the special concurrence of Judge Sognier or for the reason stated in the special concurrence of Judge Benham,” id. at 84, summary judgment should have been granted to the other two newly added defendants. Judge Sognier’s concurrence stated that though the statute of limitation remained tolled against Price, Ethridge and Tyre were entitled to summary judgment on the substantive merits. Then Judge Benham concluded that the individuals should have been granted summary judgment based on the statute of limitation. On December 5, 1989, the Ethridge decision was rendered. The case returned to the trial court and on March 8, 1990, Price moved to add as party defendants Colvin, Kratzer, Emery and Thompson, all individuals who had been employed by DOT. On January 25, 1991, the trial court allowed the parties to be added.

On July 20, 1993, defendants Kratzer, Colvin, Emery and DOT moved for summary judgment. Subsequently Thompson, who had not been served in the action, also filed a motion for summary judgment. In the motion, the defendants argued that DOT’s response to Price’s interrogatories on June 26, 1985 identified all of them as individuals involved in the development of the highway.

The trial court granted the motion finding that, despite OCGA § 9-3-90, both the applicable statutes of limitation and of repose had run as to the defendants Emery, Colvin, and Kratzer. Citing Cline v. Lever Bros. Co., 124 Ga. App. 22, 23 (4) (a) (183 SE2d 63) (1971), and City of Atlanta v. Barrett, 102 Ga. App. 469 (116 SE2d 654) (1960), the court found that the applicable two-year statute of limitation began to run with the involvement of Price’s next friend in the suit on August 5, 1985 and that the addition of Colvin, Kratzer, and Emery was barred.

The trial court recognized that under OCGA § 9-3-90, in the instance of a minor, the disability is not removed until she attains her lawful majority, any actions taken on her behalf by a guardian or next friend notwithstanding. See generally Whalen v. Certain-Teed Products Corp., 108 Ga. App. 686, 687 (134 SE2d 528) (1963); Barnum v. Martin, 135 Ga. App. 712 (2) (219 SE2d 341) (1975). Nevertheless, the court determined that the difference in the tolling provisions for minors and legal incompetents was rational, since while a person’s status as a minor terminated at a certain time, with legal incompetency the condition might remain a lifetime. The court then concluded that the statute of repose under OCGA § 9-3-51 also barred the action against the defendants.

The court determined that its rulings applied to defendant Thompson, who was not served in the action until September 21, 1993. Since there were no employees or former employees of the DOT remaining as party defendants, pursuant to Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993), the court dismissed the DOT from the action. This appeal followed.

In her sole enumeration of error, Price claims that the court erred in granting summary judgment. First she argues that Georgia law is clear that the statute of limitation does not run against the claims of an incapacitated plaintiff. She contends that the clear language of the statute shows that the statute is tolled. She cites OCGA § 9-2-21, which provides that the cause of action lies with the incompetent, not her next friend, and claims that this section mandates that the statute remain tolled.

OCGA § 9-3-90 (a) provides: “Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” There is no dispute that the accident at issue in this case rendered Price mentally incompetent.

“Where as a result of an occurrence giving rise to a cause of action, the person injured becomes mentally and physically incapacitated so as to be incapable of acting for himself in carrying on his business and in prosecuting his claim, and where no guardian is appointed for him, the statute of limitation for the bringing of an action is tolled until such time as he regains capacity to act for himself or until such time as a guardian is appointed and actually does act for him, or until such time as one bona fide acting for him as next friend thereafter, during the continuance of the disability of plaintiff, brings an action seeking recovery for the injury sustained.” (Emphasis supplied.) Cline v. Lever Bros. Co., supra at 23; see also City of Atlanta v. Barrett, supra.

Here, we cannot agree with Price that the statute of limitation continued indefinitely. Consistently with the cases cited above, we conclude that the entry into the case of Price’s mother, as next friend started the statute running and that it expired on August 5, 1987. See generally Jim Walter Corp. v. Ward, 245 Ga. 355 (265 SE2d 7) (1980). Because of our conclusion, we need not address the arguments raised regarding the statute of repose under OCGA § 9-3-51.

Decided June 20, 1994

Reconsideration denied July 20, 1994

Burt & Burt, Hilliard P. Burt, for appellant.

Michael J. Bowers, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellees.

Webb, Tanner & Powell, Ralph L. Taylor III, Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, amici curiae.

2. Price also argues that the trial court erred in granting summary judgment as to the DOT. She relies upon an amendment to the complaint which she filed on August 25, 1993, in which she claimed that the DOT failed to establish standards for its employees regarding guardrails, raised median barriers, and curbs and claimed that these failures constituted an entire want of care which would raise the presumption of conscious indifference to the consequences. Filed with the amendment was the affidavit of a consulting engineer in which he stated that the failure to have installed guardrails and the installation of a curb constituted inexcusable neglect.

Evidently, Price relies on the exception to immunity set forth in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), in which the court stated that under Price, “[i]t is important to keep in mind that the immunity is for negligent acts, not for malicious acts, acts of corruption, wilful acts, or acts involving reckless disregard for the safety of others.” Id. at 206-207.

The grant of summary judgment as to the DOT was proper. First, as the Supreme Court noted in this matter seven years ago in Price, supra, “DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior. That is why it is a defendant in this action.” To the extent that Price’s August 25, 1993 amendment set forth new claims arising out of the May 10, 1983 accident, they were time barred.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       We note that the 1991 amendment to the Georgia Constitution, Art. I, Sec. II, Par. IX will not be addressed here, since it does not apply to actions pending on January 1991, the amendment’s effective date. Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992).

       In her reply brief, Price raises for the first time arguments regarding the applicability of OCGA § 9-11-15 (c). Because this issue was not raised by her initially, it is improperly before this court. Moreover, the substance of this argument is meritless. See Ethridge v.


author: Birdsong, Presiding Judge.

text:
    A94A1441.
    BLOOM et al. v. DOE.
    (447 SE2d 72)
   Birdsong, Presiding Judge.

Appellant Tracy Bloom, individually and as surviving parent of Jamia Bloom, appeals the jury verdict in her suit claiming uninsured motorist coverage upon allegations that she and her daughter, Jamia, were passengers in her automobile, which was being driven by Johnny Baker when an unknown driver forced them off the road. Bloom says she asked Johnny Baker to drive because she had a headache. Her car overturned, killing Jamia Bloom. Bloom contends the trial court erred in its jury charges on negligent entrustment, and erred in failing to give her requested charges on sole proximate cause and concurrent negligence. Held:

1. Liability of an owner of a vehicle for negligent entrustment is predicated upon the negligent act of the owner in lending his vehicle to another person with actual knowledge of the latter’s incompetence or habitual recklessness. Cherry v. Kelly Svcs., 171 Ga. App. 235 (319 SE2d 463); Brown v. Sheffield, 121 Ga. App. 383 (2) (a), 387 (173 SE2d 891). Appellant contends the trial court deviated from Georgia law by omitting the word “knowingly” from its charge that “one who entrusts [an automobile] to another person who ... is under the influence of alcohol or drugs [is liable for damages caused by that person].” Appellant contends the transcript shows she had no actual knowledge that Baker was under the influence of alcohol or was a less safe driver when she entrusted her vehicle' to him, and that the evidence relied upon by appellee that Baker was intoxicated was contradicted. See Ga. Power Co. v. Hubbard, 142 Ga. App. 531 (236 SE2d 515). Appellee contends appellant’s objection to the charge was indistinct and insufficient, and that she concurred in the negligent entrustment charge by saying “all acts of negligence of Johnny Baker would be imputed to my client.” However, this was not appellant’s entire objection. Appellant objected further that “in order to justify a negligent entrustment charge, you would have to [have] ... actual knowledge on her part [of] some danger present. . . . And the testimony was that . . . she didn’t know he was drunk; she didn’t know that he posed any danger. And the law is real clear on the negligent entrustment issue, that there has to be a showing of actual knowledge before that charge can be given, and there was no showing.”

Appellant’s objection seemingly went not to the incorrect giving of the negligent entrustment charge, but to the giving of a negligent entrustment charge at all, because she says there was no evidence she had actual knowledge that Baker was under the influence of alcohol. She perceived that the negligent entrustment law rendered her liable per se for Baker’s negligent acts, but that a charge on negligent en-trustment should not be given if there is no evidence that she had actual knowledge of his unsafe condition. She was not wrong to make this objection, for if there was no evidence that she had knowledge of his condition (assuming he had such a condition), the charge is inappropriate. In making this objection she did, however, also point out to the court the basic flaw in the charge, which is that if she had no actual knowledge of his incompetence or unsafe condition, she could not be liable for negligent entrustment.

The charge given was indisputably wrong. Cherry, supra; Brown, supra. OCGA § 5-5-24 provides that in all civil cases, objections to a charge “need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit. . . . Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” Id. at (a) and (c).

The charge given constituted substantial error as a matter of law. The charge omitting that to be liable for negligent entrustment appellant entrusted her car to Baker with “actual knowledge” of his incompetence was not a mere slip of the tongue. It was not corrected by the charge as a whole (Griffin v. State, 199 Ga. App. 646, 648 (405 SE2d 877)), including the charge that “if plaintiff had the right or was under the duty to control or influence the driver of her car . . . then any negligence of the driver, Johnny Baker, which contributed to the cause of the collision, if there was any such negligence . . . would be imputed in law to the plaintiff.” This is a charge on imputed negligence; it does not touch upon the separate liability for negligent en-trustment, which is the negligence of the owner in lending her car to the driver with actual knowledge of his incompetence. Cherry, supra; Brown, supra. That is, under the theory of negligent entrustment, it is not the driver’s imputed negligence for which the owner is liable; rather the owner is liable for her own negligence in lending her car to another with actual knowledge of his incompetence. The jury might have found under the imputed negligence charge that plaintiff did not know Baker was intoxicated and that, since she asked him to drive because she herself was ill and was thus incapacitated, she had no duty or ability to control or influence his driving; yet still, under the erroneous negligent entrustment charge, the jury might have found her liable for negligent entrustment even though it found she had no knowledge of Baker’s unsafe condition.

Appellee contends circumstantial evidence will support a finding of actual knowledge (Clarke v. Cox, 197 Ga. App. 83 (397 SE2d 598)) and that the circumstantial evidence showed Baker was intoxicated, but such circumstantial evidence that Baker was intoxicated does not require the jury to find that appellant actually knew he was intoxicated, nor does it permit us to speculate that the jury found that appellant actually knew Baker was intoxicated. The erroneous charge went to the heart of the appellant’s case and the verdict against her cannot stand.

Decided June 27, 1994

Reconsideration denied July 20, 1994

Beauchamp & Associates, Robert M. Beauchamp, for appellants.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, J. Holder Smith, Jr., Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

2. Appellant does not cite this court to the charges on “sole proximate cause” and “joint proximate cause” which she requested. Accordingly, although she does suggest why some such charge should be given, we have no idea what charge appellant requested. For failure to comply with Rule 15 (c) (3), enumerations two and three are deemed abandoned.

Judgment reversed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1097.
    LOWE v. THE STATE.
    (446 SE2d 532)
   Birdsong, Presiding Judge.

Phoebe Lowe appeals her conviction for possession of cocaine. She contends the trial court erred by denying her motion to suppress cocaine seized by the police after a traffic stop from an automobile she was driving. She alleges that she was unlawfully stopped and detained by the police, and that this unlawful detention tainted her consent to search the automobile because her consent was premised on the fact that the officers deceptively issued a warning ticket and told her she was free to go.

A Chatham County police officer testified that he was patrolling 1-95 about 2:00 a.m. when he noticed a car traveling slower than the typical speed for traffic on that highway. He followed the car and saw it drift into the right emergency lane and back over the centerline of the highway several times. He then turned on his blue lights and stopped the car. The officer testified that he stopped the car because he thought the driver of the car might be sleepy, intoxicated, or having mechanical problems. After Lowe stopped the car, the officer examined Lowe’s driving license and the rental contract for the vehicle; Lowe explained she was driving as she was because she was very tired. The officer testified he issued Lowe a warning ticket for improper lane change, explained to her the effect of a warning ticket, and then told Lowe she was free to go. During the officer’s conversation with Lowe, however, certain discrepancies arose that caused the officer to suspect that Lowe might be involved with drug smuggling. For example, Lowe stated she was dating the passenger but did not know his last name; Lowe and the passenger stated they were traveling to different places; the rental car was not supposed to be driven outside of Florida; and 5,000 miles had been put on the car in one week. Consequently, the officer asked Lowe if she had drugs, weapons, or large sums of money in the car. When she said no, the officer asked if she would allow him to search the car. After Lowe granted permission and signed a consent to search form, the officer searched the car and found cocaine under the passenger seat.

After Lowe’s motion to suppress was denied, the case proceeded to trial and she was convicted of possession of cocaine. This appeal followed. Held:

Although Lowe’s motion to suppress relied upon Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514), in which this court found the consent search of a car was illegal because Brown was unlawfully detained at the time the consent to search was obtained, the trial court concluded the facts of this case were more analogous to those in Guerrero v. State, 198 Ga. App. 397 (401 SE2d 749), concluded the traffic stop was valid, and also concluded that Lowe freely and voluntarily consented to the search of the car. In Guerrero, this court affirmed the trial court’s denial of a motion to suppress because it found that the traffic stop was not pretextual and thus did not taint a subsequent consent search.

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974).

“Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975). (Emphasis supplied.) Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Anderson v. State, 133 Ga. App. 45, 47 (209 SE2d 665) (1974).” Tate v. State, 264 Ga. 53, 54 (440 SE2d 646).

As the trial court’s finding that the traffic stop was valid is supported by the evidence of record discussed above, it must be accepted by this court. Woodruff v. State, supra; State v. Swift, supra. Therefore, we reject Lowe’s argument based upon the alleged illegality of the traffic stop. Further, based on the record before us, the totality of the circumstances supported the trial court’s determination that the defendant freely and voluntarily consented to the search of the car. Lombardo v. State, 187 Ga. App. 440, 441 (370 SE2d 503).

Decided July 20, 1994.

Willie T. Yancey, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

Accordingly, Lowe’s allegation that the trial court erred by denying her motion to suppress is without merit.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A94A0260.
    PETERSON et al. v. FIRST CLAYTON BANK & TRUST COMPANY.
    (447 SE2d 63)
   McMurray, Presiding Judge.

Stovall Building Supplies, Inc. filed a complaint to foreclose a materialman’s lien and to collect on the open account of Dale Shope (“the builder”) for materials supplied for construction of a house on real property owned by Robert L. Peterson and Gertrude J. Peterson. The Petersons filed a third-party claim against their construction lender, First Clayton Bank & Trust Company (“the bank”), alleging the bank breached contractual and fiduciary duties in disbursing loan proceeds for construction of a house. Specifically, the Petersons allege the bank failed to properly administer, account for and exercise appropriate care to assure that the builder had been paying subcontractors and suppliers. The bank denied the material allegations of the claim and filed a motion for summary judgment.

The Petersons, while residing in Pinellas Park, Florida, purchased land in Rabun County, Georgia, for the purpose of building a home. To this end, the Petersons entered into a contract with the builder for construction of a house. The construction contract included a payment agreement under which the builder “will be required to furnish to the owner or bank representative, upon request or at times of withdrawals, a statement showing itemization of expenditures to date,' items due and unpaid, and to support said statement with receipted bills, affidavits, waivers of liens, and other satisfactory evidence of payment.” The Petersons went to the. bank with the construction contract and discussed the terms of the contract with Darlene Powers, a loan officer for the bank. Powers reviewed “the terms of the Construction Contract and [the] manner of making payments to [the builder] of the construction loan proceeds” and affirmed that the bank would finance construction of the house.

“Between the time [the Petersons] entered the construction contract with [the builder] and the time [they were to sign] the loan agreements and related promissory notes with the Bank, [the Peter-sons] spoke with Ms. Darlene Powers [several times] concerning the construction of [their] residence and the construction loan. During these conversations!, the Petersons] told Ms. Powers and she acknowledged that [the Petersons] were agreeing that the Bank . . . would handle disbursements of payments to [the builder] required under the construction contract and that the Bank would regularly inspect the property to monitor progress of construction. [The Peter-sons] made it clear to Ms. Powers that because [they] lived in Florida and could not frequently leave work, that [they] would be unable to regularly inspect the construction progress or handle the payments to [the builder]. Ms. Powers agreed that she or her supervisor, Mr. Hickcox, would handle making payments to [the builder] and charge [the Petersons’] loan account. Ms. Powers also agreed to keep [the Petersons] informed about the progress of the work on [the Peter-sons’] home. She made all these agreements having received and read the terms of [the Petersons’] construction contract and the related payment agreement with [the builder]. [The Petersons] told Ms. Powers that [they] would rely upon her for making payments, to the general contractor on [their] behalf from [their] construction loan account.”

On June 19, 1991, the Petersons executed a “Construction Loan Agreement” which provides, in pertinent part, as follows: “Borrower authorizes and directs Lender to pay any loan proceeds due under the terms of this agreement to [the builder]. Lender has no liability or obligation in connection with the project or the construction and completion thereof, except to advance loan proceeds as agreed in this document. Lender is not obligated to-inspect any improvements, nor is it liable for the performance or default of any contractor or subcontractor or for any . failure to construct, complete, protect or insure said improvements or for the payment of any costs or expenses incurred in the project. Nothing, including without limitation- any disbursement or the delivery, ór acceptance of any .document or-instrument, shall be construed as a representation dr warranty on Lender’s part. Lender is not the agent or representative-of the Borrower, and the Borrower is not the agent or representative of the Lender. This agreement does not reflect a 'partnership or joint venture on the part of the parties and shall only serve to represent and document the loan terms of

Borrower’s construction loan. . . . Lender reserves the right to require execution of any materialmen’s lien affidavits or release of ma-terialmen’s lien affidavits by any contractor or subcontractor or Borrower at any time during the term of this agreement. . . . The parties agree that the Lender may disburse the proceeds of the loan to pay any expenses or liens incurred in connection with the construction and completion of the single-family residence and payment or performance of any obligation of Borrower to Lender, and at its election, Lender may pay said proceeds to Borrower or to the contractor or to any other persons furnishing labor, supplies or services for construction of the residence or to the holder of any lien, charge or encumbrance on the premises or other property securing the loan, and the whole of such proceeds are hereby assigned, transferred and pledged to Lender for such purposes. . . . This agreement shall constitute the sole agreement between the parties and shall not be modified, changed or altered unless in writing executed by both parties.”

“On the same day and concurrently with [the Petersons] signing the loan agreement with the Bank, Ms. Powers again offered to and said she would handle disbursements of draws payable to [the builder] under the construction contract. Ms. Powers, in order to confirm the agreement, asked [the Petersons] to sign a handwritten note reconfirming [the parties’] agreement for [Powers] to make construction contract payments to [the builder].” The Petersons complied and executed the following handwritten note stating: “Please disburse draws to Dale Shope Construction ... for construction of house [in] Sky Valley Subdivision, Rabun County, Georgia.”

After executing the loan agreement, either Powers or Rodney Hickcox disbursed payments for construction of the house to the builder from proceeds of the Petersons’ loan. “[W]ith most of the draws, [Powers] did contact the Petersons and go over the disbursement with them, and they would give [her] the authorization to go ahead and disburse the funds.” However, the builder failed to pay suppliers and subcontractors on the construction project and over $38,000 in liens accrued against the Petersons’ property. The Peter-sons were not able to satisfy these liens and they defaulted under the terms of the “Construction Loan Agreement.” The bank subsequently foreclosed on the Petersons’ property.

This appeal followed an order granting the bank’s motion for summary judgment. Held:

1. The Petersons contend in their first five enumerations that genuine issues of material fact remain as to the bank’s liability based on evidence that the bank agreed to administer and disburse proceeds of the construction loan. Specifically, the Petersons contend that the bank had a contractual obligation to ensure that suppliers were paid before disbursing funds to the builder and that a private duty arose between the parties before and after execution of the “Construction Loan Agreement” when the bank agreed to disburse loan proceeds directly to the builder.

(a) Express or Implied Contractual Liability. “ ‘ “The construction of a contract is a question of law for the (trial) court. . . .” “The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” ’ Village Enterprises v. Ga. R. Bank &c. Co., 117 Ga. App. 773, 774 (161 SE2d 901); see also Henderson Mill, Ltd. v. McConnell, 237 Ga. 807, 809 (229 SE2d 660).” Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, 430 (2) (348 SE2d 913). In the case sub judice, the “Construction Loan Agreement” expressly authorized and directed the bank to pay loan proceeds to the builder and provides that the bank “has no liability or obligation in connection with the project or the construction and completion thereof, except to advance loan proceeds as agreed in this document [and that the bank] is not obligated to inspect any improvements, nor is it liable for the performance or default of any contractor or subcontractor or for any failure to construct, complete, protect or insure said improvements or for the payment of any costs or expenses incurred in the project.” Notwithstanding, the Petersons argue that the bank deviated from these provisions by agreeing (via the promise of Loan Officer Powers) to pay the builder and monitor the progress of construction. The Petersons reason that these commitments constitute a modification of the “Construction Loan Agreement” pursuant to OCGA § 13-4-4 which imposed a duty upon the bank to verify payment of materialmen and subcontractors before disbursing loan proceeds to the builder. We do not agree.

There is no evidence that Powers or any other officer of the bank promised the Petersons that the bank would ensure that materialmen and subcontractors were paid before loan proceeds were disbursed to the builder. Powers simply promised the Petersons that the bank would do what the “Construction Loan Agreement” authorized the bank to do in the first place, i.e., pay loan proceeds to the builder and monitor the construction project. Under these circumstances, we reject any argument that Powers’ promise to pay loan proceeds to the builder and monitor the construction project inferred an obligation upon the bank to ensure that materialmen and subcontractors were paid before proceeds of the Petersons’ loan were disbursed to the builder. “An implicit contractual provision exists only where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Alice v. Robett Manufacturing Co., 328 FSupp. 1377.” Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308). Further, “ ‘(t)here cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise. (Cit.)’ Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 292 (3) (241 SE2d 256) (1977).” Gilbert v. Edmondson, 193 Ga. App. 593 (1), 594 (388 SE2d 713).

In the case sub judice, there is no evidence that the bank agreed to verify payment of materialmen and subcontractors before making disbursements to the builder and it does not appear that such a condition was reasonable and necessary to effect the full purpose of the “Construction Loan Agreement.” Further, there is nothing to indicate that such a condition was so clearly within the contemplation of the parties that they deemed it unnecessary to state. On the contrary, the Petersons expressly authorized the bank to pay loan proceeds directly to the builder and they affirmed that the bank has “no liability or obligation in connection with the project or the construction and completion thereof, except to advance loan proceeds as agreed in this document [and that the bank] is not obligated to inspect any improvements. . . .” Further, the “Construction Loan Agreement” provides that “[t]his agreement shall constitute the sole agreement between the parties and shall not be modified, changed or altered unless in writing executed by both parties.” Consequently, since there is no proof that the bank modified, changed or altered its rights and obligations in writing after execution of the “Construction Loan Agreement,” the express terms of the parties’ agreement control, i.e., the bank “is [not] liable for the performance or default of any contractor or subcontractor or for any failure to construct, complete, protect or insure said improvements or for the payment of any costs or expenses incurred in the project.” In other words, the bank had no contractual obligation (either express or implied) to ensure that materialmen and subcontractors were paid before loan proceeds were disbursed to the builder.

(b) Tort Liability Arising From Contract. “A tort is the unlawful violation of a private right other than a breach of contract, OCGA § 51-1-1, but ‘ “private duties may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action (in tort).” (Cits.) ... In such a case the liability arises out of the breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. (Cits.) . . . (This principle) has been applied to contractual relations between principal and agent. . . . (Cits.)’ Mauldin v. Sheffer, 113 Ga. App. 874, 878-879 (150 SE2d 150) (1966).” First Fed. Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 484 (394 SE2d 128). In the case sub judice, it is undisputed that the relationship between the bank and the Petersons was created by contract. However, the Petersons alleged negligence as well as breach of the loan agreement. Consequently, assuming this contractual obligation gave rise to an agency relationship by virtue of the bank’s agreement to make payment disbursements to the builder because the Petersons were out of town, recovery in tort requires “proof of not merely a breach of a contract term, but breach of a duty imposed by law — i.e., ‘either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of (our) appellate courts.’ [Mauldin v. Sheffer, 113 Ga. App. 874, 880, supra].” First Fed. Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 484, supra. We must therefore examine whether there exists a common-law principle that could be interpreted to require the bank to obtain lien waivers or payment affidavits or otherwise ensure that the suppliers were paid before disbursing funds to the builder.

“In Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 44 (262 SE2d 230) (1979), recognizing that ‘(t)he primary duty of a federal savings and loan association is to protect the assets of its members and depositors; it does not insure the assets of its borrowers (cit.),’ we held that a construction lender has no duty to protect the homeowners from construction defects through its inspections of the progress of the work, and that any such inspections are made for the benefit of the lender. Id. at 42-43; see Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989). We have recognized an exception to this general rule only ‘when the lender’s financing activity extends beyond that of a conventional construction lender and engages (the lender) in activities actually connected to construction of the property. (Cit.)’ Id. at 736. In Jordan v. Atlanta Neighborhood Housing Svc., 171 Ga. App. 467-468 (320 SE2d 215) (1984), we found such an exception and accordingly reversed a summary judgment entered in favor of the lender where the evidence showed the lender had prepared the documents defining the scope of work, solicited the bids, monitored the progress of the work, and assured the homeowner that the contractor’s deficiencies would be corrected once payment was made.” First Fed. Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 484-485, supra. In the case sub judice, we find no basis for such an exception.

Although the bank agreed to accommodate the Petersons by making payments directly to the builder, there is no evidence that the bank agreed to obtain lien waivers or payment affidavits or otherwise ensure that the suppliers were paid before disbursing funds to the builder. Further, there is no proof that the Petersons “surrendered their contractual obligation to make certain that all labor and materials bills were paid and to keep the property free from liens. Cf. Henderson v. Mitchell Engineering Co., 158 Ga. App. 306, 307-308 (1) (279 SE2d 750) (1981). (The purpose of lien laws is to make owner’s property liable for payment for improvements thereon, and thus owner is responsible for ensuring that payments made to contractor are ‘properly disbursed by the contractor to those having valid claims for labor and materials.’) Given that the [bank’s] primary role is to protect its interest in the secured property, we find no basis for imposing upon the lender the duties of the owner and general contractor to pay for labor and materials supplied to the project. Absent clear evidence that the [bank] either expressly agreed to undertake this obligation or actively participated in the monitoring of payments made during the construction, the creation of such a burden would discourage construction lending. See Harden, supra at 737. [The bank’s] obligation to exercise diligence and good faith in the disbursement of construction funds to [the builder] required that payment be made in a timely manner and for work actually performed, but did not compel [the bank] to undertake the duties of [the builder] and [the Peter-sons], and certainly did not authorize [the Petersons] to abdicate their responsibility for ensuring payments to subcontractors and suppliers. See generally Butts, supra.

“While issues of negligence and agency are ordinarily for the trier of fact, the question of duty is for the court, Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (1) (378 SE2d 323) (1989), and if the court finds no duty was owed, no material question of fact remains for determination by the jury. Id. Since we have found no duty of [the bank] to ensure that suppliers were paid before disbursing funds to [the builder], we hold the trial court [did not err in granting the bank’s] motion for [summary judgment as to the bank’s liability for breach of a private or fiduciary duty arising out of the bank’s relationship with the Petersons].” First Fed. Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485, supra.

2. In their final enumeration, the Petersons contend the trial court “erred in granting [the bank’s] Motion for Summary Judgment because a genuine issue of material fact exists concerning [the bank’s] responsibility to exercise reasonable care and take appropriate precautions to protect against liens pursuant to the Doctrine of Promissory Estoppel.” This contention is without merit.

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44. In the case sub judice, there is no evidence that the bank promised to obtain lien waivers or payment affidavits or otherwise ensure that suppliers were paid before disbursing funds to the builder. Consequently, there was no underlying promise supporting the Peter-sons’ claim of promissory estoppel.

Decided June 24, 1994

Reconsideration denied July 21, 1994

McLain & Merritt, Robert B. Hill, for appellants.

C. Lloyd Clay, for appellee.

The trial court did not err in granting the bank’s motion for summary judgment.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0982.
    WILLIAMS v. THE STATE.
    (446 SE2d 792)
   McMurray, Presiding Judge.

Defendant Williams appeals his conviction of possession of cocaine with intent to distribute and of obstruction of a law enforcement officer. The sole enumeration of error complains of the denial of defendant’s motion to suppress evidence. Held:

Officer Jones of the Atlanta Police Department’s Red Dog section was patrolling with other members of his unit when they heard a loud noise emanating from the vicinity of a social gathering in front of a residence. Officer Jones exited the police vehicle and approached defendant who was drinking from a can of beer. Defendant stated: “You all didn’t have to come out here, I didn’t do anything, I didn’t hit my girlfriend.” Officer Jones testified that because of this remark, defendant’s apparent intoxication, loud and boisterous conduct, and because it was “kind of dark,” he asked defendant to place his hands on the vehicle for the safety of the officers. Defendant refused to do so and after a repetition of the request was refused, Officer Jones physically escorted defendant to the vehicle. A scuffle ensued and defendant was subdued by several police officers. Defendant was then searched and the cocaine found upon his person.

“ ‘ “(A) police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer . . . is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) (Cit.)’ Foster v. State, 208 Ga. App. 699 (1) (431 SE2d 400) (1993).” Wilson v. State, 210 Ga. App. 886 (437 SE2d 867). In the case sub judice, Officer Jones had a reasonable suspicion based on specific articulable facts in that defendant’s statement to him suggested that defendant had recently committed a crime of violence upon a third person. Although the officers were not responding to any particular call for assistance, the statement made by defendant combined with the additional circumstances noted in regard to defendant’s demeanor were sufficient to authorize Officer Jones to make a brief investigatory seizure of defendant and to conduct a minimally intrusive pat-down to determine whether defendant was armed. A pat-down search is authorized when an officer reasonably believes that it is necessary to protect him from attack. Wilson v. State, 210 Ga. App. 886, 887, supra. It was not unreasonable for Officer Jones to anticipate that defendant, who was suspected of having recently committed an assault and battery, might be armed.

Decided July 21, 1994.

William M. Traylor, for appellant.

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

As the initial seizure of defendant was authorized, defendant’s resistance thereto was not, and the subsequent arrest of defendant was neither tainted by an improper initial seizure nor lacking in probable cause. The discovery of the cocaine must then be viewed as having occurred in the course of a legal custodial search.

In so holding, we apply the black letter rule that the trial court’s findings on disputed issues of fact and credibility raised by the evidence presented on a motion to suppress evidence will be upheld unless clearly erroneous. Wilson v. State, 210 Ga. App 886, 887, supra. In the case sub judice, the defense has argued that the stop of defendant was pretextual, and attempted to support this supposition by showing contradictions between Officer Jones’ testimony and an incident report he had earlier filed which may have suggested that defendant’s arrest was based on an ordinance violation in drinking the beer on a public sidewalk. The defense also relied upon evidence concerning the conduct of the officers accompanying Officer Jones towards other individuals present at the social gathering. The standard of review of suggested pretextual stops is “ ‘ “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” and not on the officer’s actual state of mind at the time the challenged action was taken.’ [Cits.]” United States v. Smith, 799 F2d 704, 709 (11th Cir.). We have already applied this standard in reaching our conclusion that the seizure of defendant was justified and we hold that the superior court’s ruling on defendant’s motion to suppress was authorized by the evidence and is not subject to being overturned because the ruling is contended to be clearly erroneous. Tate v. State, 264 Ga. 53 (440 SE2d 646).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1218.
    TENNESSON v. THE STATE.
    (447 SE2d 152)
    Decided July 21, 1994.

      Guy E. Davis, Jr., for appellant.
   McMurray, Presiding Judge.

Defendant Tennesson appeals his conviction of the offenses of reckless driving (OCGA § 40-6-390), fleeing or attempting to elude a police officer (OCGA § 40-6-395), and failing to fulfill the duty placed upon a driver striking a fixture legally adjacent to a highway (OCGA § 40-6-272). The sole enumeration of error contends that the trial court erred in denying defendant’s motion for mistrial. Held:

Defendant’s motion for mistrial, submitted immediately following the return of the jury’s verdict, was predicated on the contention that the trial was a nullity because the accusations had not been signed by the prosecutor or filed with the clerk of the trial court. “ ‘One who waives the right to be tried upon an indictment perfect in form and substance by failing to demur and takes his chances on an acquittal will not be heard after conviction to urge defects in the indictment unless the defects are so great that the indictment is absolutely void. (Cits.) . . . Every indictment or accusation shall be deemed sufficiently technical and correct which states the offense in the terms of the Code or so plainly that the nature of the offense charged may be easily understood by the jury. [OCGA § 17-7-54] . . .’ Mealor v. State, 135 Ga. App. 682, 683 (218 SE2d 683) (1975).” Dotson v. State, 160 Ga. App. 898, 899 (2) (288 SE2d 608). The accusations in this case set out the elements of the offenses charged, and the nature of the offenses charged was easily understandable.

Additionally, we must add that while the record does not clearly establish any failure to file the accusation, any such failure was a mere irregularity and would not render the accusations void. Youmans v. State, 51 Ga. App. 373 (1, 2) (180 SE 495). Similarly, the Supreme Court of Georgia has held that the failure of the prosecutor to sign an accusation does not render it void. Cook v. Walker, 161 Ga. 551 (1, 2) (131 SE 288). Defendant’s reliance upon the decision of this Court in Roberts v. State, 171 Ga. App. 131, 132 (1) (319 SE2d 42) is misplaced as that case may be distinguished on the facts and by reliance there on authority relating to the absence of a signature on a required affidavit, which does render an accusation void.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

H. Pierre, Jr., for appellee.


text:
    A94A1522.
    MATTHEWS v. THE STATE.
    (446 SE2d 790)
   McMurray, Presiding Judge.

Defendant Matthews was charged by indictment with two counts of theft by taking. Count 1 charged that defendant had unlawfully taken a 1992 Toyota Previa with the intention of depriving the owner of said property. Count 2 charged that defendant being in lawful possession of a 1992 Toyota Previa did unlawfully appropriate said property with the intention of depriving the owner of said property. A jury acquitted defendant of the charge stated in Count 1, but returned a guilty verdict as to Count 2. Defendant appeals the conviction, challenging the sufficiency of the evidence and the trial court’s refusal to include a requested charge in the instructions to the jury. Held:

1. The State’s evidence shows that defendant negotiated the rental of a van from American Rent-A-Car over the telephone. During these conversations, defendant represented that he was an employee of “AT&T” and that the rental was for that company. When defendant arrived at the rental agency to obtain possession of the van he wore an “AT&T” identification card and further represented that he was an employee of that corporation, providing the rental car company with a purchase order number which he represented to be from “AT&T” and signing a lease agreement which contained these representations. However, defendant was never an employee of “AT&T” or any of its direct subsidiaries.

After defendant departed with a van, he was repeatedly permitted to extend the term of the lease via telephone. After a window was broken in the van originally leased, that vehicle was returned to the rental car agency and replaced with a second vehicle under a second lease contract. The second lease contract was also extended via telephone calls by defendant to the rental car agency.

The final extension of the second contract was through April 16, 1992. The vehicle was not returned, no rental fee was ever paid, and defendant did not contact the rental car agency. On April 22, 1992, the rental car agency reported the van as possibly stolen. On April 30, 1992, police in Knoxville, Tennessee, investigating a van which had burned at a housing project found it to be the van which defendant had leased in Georgia and which had been reported stolen. Defendant was present at the scene and presented Knoxville police with the expired lease for the vehicle.

Although an employee of the rental car agency testified that one of the owners of the agency had verified a telephone number given them by defendant as an “AT&T” number, verified the purchase order with “AT&T,” and talked to defendant’s supervisor, such did not preclude a jury determining that the information received by the owner was false and part of a fraud perpetrated upon the rental car agency. Similarly, evidence concerning telephone conversations by an employee of the rental car agency with a purported supervisor of defendant at “AT&T” concerning a check which had been placed in the mail but which was never received by the rental car agency could reasonably have been viewed by the jury as arising from a conspiracy to deprive the rental car agency of the use of the van. Finally, defendant’s suggestion that confusion over the identity of his employers must have arisen because they were distributors of “AT&T” Alarm Systems, although not subsidiaries of “AT&T,” could be viewed by the jury as a red herring in the same vein.

Decided July 21, 1994.

Gary V. Bowman & Associates, Gary V. Bowman, for appellant.

The jury’s verdict of acquittal as to Count 1 represents a finding that there was no crime by defendant in acquiring possession of a van. Nonetheless, the jury was authorized to determine that defendant did not intend to pay any rental fee and that in retaining possession of the vans beyond the terms of the leases defendant intended to appropriate the vans with the intention of at least temporarily depriving the rental car agency of said property. The jury was authorized to conclude that the standard of proof provided under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) was satisfied in regard to Count 2. The trial court did not err in denying defendant’s motion for directed verdict as to Count 2.

2. Defendant also enumerates as error the trial court’s refusal to give the “two theories” charge, that is, that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. However, this court has held that this statement of the law does not accurately state the principle addressed and should never be given. Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458).

Also, the failure to charge in the exact language requested is not grounds for a new trial where the charge given substantially covers the same principles. The trial court did give ample instructions on circumstantial evidence, the presumption of innocence, and the necessity of proving defendant’s guilt beyond a reasonable doubt. This enumeration of error is without merit. Burris v. State, 204 Ga. App. 806, 810 (3), 811 (420 SE2d 582).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Robert E. Keller, District Attorney, Tracy G. Gladden, Nancy Trehub, Assistant District Attorneys, for appellee.


text:
    A94A1720.
    WILLIAMS v. THE STATE.
    (446 SE2d 789)
   McMurray, Presiding Judge.

Defendant Williams appeals his conviction of the offenses of armed robbery and obstruction of a law enforcement officer. The sole enumeration of error maintains that defendant received ineffective assistance of counsel at trial. Held:

Defendant’s allegations of ineffective counsel are without merit. In order to prevail on such a contention, a criminal defendant must show that trial counsel was deficient and that the deficiency created a reasonable probability of a different result in the verdict., Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600); Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634). While reference is made to the limited number of occasions on which trial counsel visited defendant in jail to confer regarding the case, the fact that no motions were filed in the trial court on behalf of defendant, and to trial counsel’s failure to reserve objections to the jury charge, defendant fails to show that these alleged indicia of defective performance in any way prejudiced the defense. Lajara v. State, 263 Ga. 438, 440 (3), supra.

Finally, defendant questions his trial attorney’s failure to make any objection to an unresponsive comment by a state’s witness, a police officer who had participated in the investigation of the crimes of which defendant was convicted, that defendant “was lying to us . . .” in his statement to police. However, defendant’s trial counsel testified at the hearing on defendant’s motion for new trial and the trial court accepted the proposition that the decision not to object to this improper opinion testimony as to defendant’s character was one of trial strategy motivated by a desire to avoid detracting from a defense predicated upon emphasizing the failure of police to thoroughly investigate defendant’s statement. Defendant, who was driving a truck taken in the armed robbery when apprehended by police, told police that he was offered a ride by a cousin who then allowed him to drive the truck. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight, result or how another lawyer may have conducted the defense. The trial court did not err in determining that trial counsel’s strategy was within the range of reasonably effective assistance. Powell v. State, 198 Ga. App. 509 (1), 510 (402 SE2d 108). A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous. Gazaway v. State, 210 Ga. App. 540 (1), 542 (436 SE2d 738).

Decided July 21, 1994.

Melissa M. Nelson, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A93A2484.
    OWENS et al. v. POLLOCK et al.
    (447 SE2d 325)
   Smith, Judge.

This is an interlocutory appeal from a transfer order entered after a jury trial. It involves the proper characterization of consent orders, the possibilities of pendent jurisdiction, and the vitiating effect of vanishing venue.

Appellants Jeryl Wayne Owens and Gary James Meikle are minority shareholders of closely held Hardrock Mining & Supply, Inc. (“Hardrock”). Appellant Waterwell Mine & Quarry Supply, Inc. (“Waterwell”), was formed by Owens and Meikle after they resigned under duress as officers, directors, and employees of Hardrock. Owens and Meikle each own 20 percent of the outstanding shares of Hard-rock, and appellees Edward S. Pollock and Joan Pollock (collectively “the Pollocks”) jointly own the controlling 60 percent. After Owens and Meikle resigned from active participation in Hardrock, Patrick H. Webber was elected by the Pollocks to Hardrock’s board of directors.

Owens, Meikle, and Waterwell brought suit in Gwinnett County against Webber,-Hardrock, and the Pollocks alleging slander, breach of duties owed minority shareholders, fraud, and various other claims. Hardrock filed a counterclaim against plaintiffs and a third party for harm allegedly done to it both before and after Owens and Meikle left Hardrock. The case was tried before a jury between April 19 and April 26, 1993. The jury ultimately returned a verdict in favor of appellants and against all defendants except Hardrock. Webber and the Pollocks then moved to transfer the case to a court of competent jurisdiction, contending the court lost jurisdiction and venue over them with the return of a verdict in favor of co-defendant Hardrock, which was the only “resident” defendant for venue purposes. Webber later withdrew his motion, leaving the Pollocks as movants. Judgment was entered against Webber, who is not a party to this appeal. Judgment was also entered against Hardrock on its counterclaim. However, the court ruled that since the jury found no liability on the part of “resident” Hardrock, it was without discretion to enter judgment against the Pollocks. It instead entered an order transferring the case tó Fulton County, where the Pollocks reside. See Crawford v. Randle, 191 Ga. App. 112, 116 (2) (381 SE2d 77) (1989).

Essentially, appellants seek to avoid the result that usually obtains when a verdict is entered against a nonresident defendant but in favor of a resident defendant. “Where joint tortfeasors residing in different counties are sued in the county of one, and on the trial of the case the resident defendant is discharged and a verdict returned solely against the non-resident defendant [s], the court is without jurisdiction to enter a judgment against the non-resident defendants]. In such a case, it is said that where the resident co-defendant is found not liable by the jury, the court’s jurisdiction over the non-resident defendant^] vanishes. However the want of jurisdiction and venue over the action and person may be waived either expressly or impliedly by the conduct of the non-resident defendants].” (Citations omitted.) Empire Forest Products v. Gillis, 184 Ga. App. 542, 543 (1) (362 SE2d 77) (1987).

1. The Pollocks timely raised objections to jurisdiction and venue in Gwinnett County in their answer. However, appellants contend that the Pollocks waived those defenses and consented to jurisdiction by consenting to two pretrial consent orders granting equitable relief. We do not agree. Once a timely objection to jurisdiction and venue has been raised by a nonresident defendant in an action where Ga. Const. 1983, Art. VI, Sec. II, Par. IV, is the sole basis for the court’s jurisdiction over the nonresident, affirmative conduct inconsistent with the objection is necessary to support a finding that it has been waived. Long v. Bruner, 171 Ga. App. 124, 125 (1) (318 SE2d 818) (1984); Ga. Kraft Co. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 587-588 (5) (317 SE2d 602) (1984); Steding Pile Driving Corp. v. John H. Cunningham & Assoc., 137 Ga. App. 165 (1, 2) (223 SE2d 217) (1976). The consent orders entered prior to trial in this case commanded the parties to refrain from taking certain actions, to maintain and preserve certain information, to produce certain information, and to suspend disbursements of Hardrock’s funds “other than salaries and draws disclosed as of October 30, 1991.” Mere acquiescence as to these matters, aimed at maintaining and bringing to light the status quo and at proscribing conduct that would be wrongful in any event pending final resolution of the case, by no means constitutes an affirmative waiver of jurisdictional defenses by the Pollocks.

2. In a related argument, appellants contend the Pollocks waived their jurisdictional defenses by vicariously asserting a counterclaim through defendant Hardrock. Relying on Thomas v. Dickson, 250 Ga. 772 (301 SE2d 49) (1983), appellants argue that in reality the counterclaim sought not to achieve an award of damages for Hardrock, but rather to achieve an award for the Pollocks, the majority shareholders. The argument is flawed on its face. Realistically, a verdict on Hardrock’s counterclaim would indirectly benefit all of its shareholders, Owens and Meikle included. Appellants cannot logically acknowledge and rely upon Hardrock’s status as an individual entity (and, in essence, a necessary party) on the one hand, yet urge that its corporate status be disregarded on the other.

Moreover, Thomas merely establishes that in certain cases a shareholder may bring a direct action to recover misappropriated funds if the “ ‘realistic objectives’ ” of the case warrant it. Id. at 774. Even if we extend Thomas in the manner urged by the appellants, doing so merely begs the question of whether appellants’ own objectives realistically included a judgment against Hardrock as opposed to Webber or the Pollocks. When the complaint and the relationships among the parties are viewed realistically, as appellants urge, it is not at all surprising that the jury, upon resolving the facts in appellants’ favor, returned verdicts against the individual defendants yet left Hardrock untouched.

3. Appellants argue that venue over Hardrock continued even after the jury verdict in its favor by virtue of the previously referenced consent orders. Based on this premise, appellants contend the court may enter judgment on the jury’s verdict against the Pollocks because those legal claims were “pendent” to the appellants’ equitable claims against Hardrock. Appellants rely on Natpar Corp. v. E. T. Kassinger, Inc., 258 Ga. 102, 104 (1) (365 SE2d 442) (1988), which established the rule that “[w]here a plaintiff brings suit in the same county on two claims arising from the same transaction and the Georgia Constitution designates that county as the venue for one of those claims, the trial court has the discretion to entertain both claims.” Id. According to appellants, it follows that since the consent orders established equitable jurisdiction over all defendants, including the “resident” Hardrock, independent of the operation of Ga. Const. 1983, Art. VI, Sec. II, Par. IV, the court was authorized to enter judgment against the Pollocks on their “pendent” legal claims.

We cannot agree. To determine whether pendent jurisdiction may apply to appellants’ legal claims against the Pollocks, we must first establish that venue is proper over appellants’ equitable “claims” in the first instance. However, as implied in Division 1, we find the consent orders relied upon so heavily by appellants addressed matters which were merely “ancillary” to their legal claims. We find no meaningful distinction between the matters resolved by the consent orders in this case and those addressed in Summit Ins. Co. of New York v. Mulherin, 233 Ga. 606 (212 SE2d 788) (1975). In that case, it was held that temporary injunctive relief against resident defendants cannot suffice to confer jurisdiction upon nonresidents under the constitutional venue rule for equity cases. Id. at 611. Put another way, it has been said that “where independent actions are involved, ‘each tub must stand on its own bottom’. in respect to venue requirements. [Cit.]” Lewis v. Lanigan, 125 Ga. App. 437, 438 (188 SE2d 148) (1972). While Natpar may have changed the blanket rule colorfully stated in Lewis in some respects, even after Natpar, it is still essential that at least one “tub” should “stand on its own bottom.”

Decided July 7, 1994

Reconsideration denied July 25, 1994

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellants.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellees.

Appellants have failed to establish any independent basis for venue in Gwinnett County once the jury found in favor of the sole resident defendant, Hardrock, and have likewise failed to establish waiver of venue by the Pollocks. The trial court therefore acted properly in transferring the case to a proper venue.

Judgment affirmed.

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

       We note that Webber and the Pollocks were not found jointly liable to appellants on any single count.


author: Pope, Chief Judge.

text:
    A94A0187.
    MEELER et al. v. NATIONAL INSURANCE ASSOCIATION.
    (446 SE2d 738)
   Pope, Chief Judge.

Plaintiff/appellee National Insurance Association (“NIA”) filed this declaratory judgment action seeking a determination of its obligations under an automobile liability insurance policy issued to James E. Ramsey. Anita Meeler, on behalf of her daughter Natalie Meeler, a minor, (“defendants”) filed a personal injury action against James Ramsey and his son, John Ramsey seeking to recover for injuries Natalie Meeler suffered while a passenger in a car driven by John Ramsey. Plaintiff and defendants filed separate motions for summary judgment. The trial court granted summary judgment to plaintiff and denied defendants’ motion. Defendants appealed to this court, and we reversed the trial court’s judgment granting summary judgment to plaintiff “[d]ue to the absence of evidence [in the record on appeal] as to the terms of the contract [insurance policy] at issue.” Meeler v. Nat. Ins. Assn., 207 Ga. App. 133 (427 SE2d 103) (1993). Plaintiff and defendants subsequently filed renewed motions for summary judgment. The trial court again granted plaintiff’s motion and denied defendants’ motion. Defendants appeal from that order.

Decided May 11, 1994

Reconsideration denied July 25, 1994

Reynolds & McArthur, Bradley J. Survant, for appellants.

1. The record shows that plaintiff defended its insured in the original personal injury suit under a reservation of rights. Defendants argue plaintiff is estopped to deny coverage in this case because plaintiff did not “immediately” file its declaratory judgment action as required by Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (1) (231 SE2d 245) (1976). However, as our Supreme Court has held, “[t]he rule enunciated in Richmond is based on principles of fairness, and, in determining whether an insurer has met the requirements thereof, the crucial inquiry is whether the rights of the insured have been adequately protected.” Kelly v. Lloyd’s of London, 255 Ga. 291, 293-294 (336 SE2d 772) (1985). It is apparent from the record before us that the insured’s rights were protected in this case, and the trial court thus did not err in deciding this issue adversely to defendants. See also Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103 (2) (413 SE2d 481) (1991) (declaratory judgment action filed 14 months after underlying tort claim did not demand conclusion that insurer waived right to seek a determination of coverage in the absence of showing of prejudice).

2. Contrary to defendants’ assertions on appeal, plaintiff is not collaterally estopped from bringing this action to determine coverage on account of the denial of the insured’s motion for summary judgment in the underlying tort action. “ ‘[Liability under the policy and the liability for negligence are indeed two separate transactions.’ [Cit.] ” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 338 (6) (291 SE2d 410) (1982).

3. We have examined the provisions of the insurance policy at issue in this case and conclude that the trial court correctly granted summary judgment to plaintiff and denied defendants’ motion for summary judgment on the issue of coverage. Intl. Indem. Co. v. Keith, 199 Ga. App. 171 (1) (404 SE2d 335) (1991); Greenway v. Southern Gen. Ins. Co., 192 Ga. App. 674 (385 SE2d 793) (1989). The order of the trial court is thus affirmed.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Dennis, Corry, Porter & Gray, William E. Gray II, Pamela J. Byrd, for appellee.


author: Judge Harold R. Banke.

text:
    A94A0264.
    CALHOUN et al. v. PURVIS.
    (446 SE2d 752)
    Decided June 21, 1994
    Reconsideration denied July 25, 1994.

      Charles R. Reddick, for appellants.

      Young, Clyatt, Turner, Thagard & Hoffman, Sherry S. Harrell, George H. Wynn, for appellee.
   Judge Harold R. Banke.

This is the second appearance of this case before this court. In Calhoun v. Purvis, 206 Ga. App. 565 (425 SE2d 901) (1992), we remanded the case for consideration of the plaintiffs’ challenge to the defendant’s use of peremptory challenges pursuant to the Supreme Court’s decision in Edmonson v. Leesville Concrete Co., 500 U. S. _ (111 SC 2077, 114 LE2d 660) (1991). On remand, following a hearing to determine the sufficiency of the defendant’s explanations for exercising his peremptory strikes to remove the six black members of the jury panel, the trial court overruled the Batson/Edmonson challenge and denied the motion for new trial.

As detailed in our first opinion, the defendant struck four of the six potential jurors because they were friends, neighbors, and/or colleagues of plaintiffs. 206 Ga. App. at 568. Both defense counsel had professional relationships with the remaining two jurors, including some knowledge of their opinions and values. It was counsels’ impression that the potential jurors would be more likely to sympathize with a plaintiff’s position in a negligence action. On this record, the trial court did not err in finding that the defendant’s racially neutral explanations were sufficient to rebut the presumption of a discriminatory motive for striking the six black jurors on the panel. See Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

Judgment affirmed.

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