text:
    A01A1806.
    ABONZA v. THE STATE.
    (555 SE2d 781)
   Johnson, Presiding Judge.

A DeKalb County jury convicted Pedro Abonza of trafficking in cocaine. He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support the conviction. He maintains that the evidence showing he was a party to the crime of selling cocaine was insufficient given his own testimony that he was present only to translate for a Spanish-speaking friend. Because we find the evidence sufficient, we affirm.

On appeal, Abonza no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the verdict. The evidence shows that a confidential informant called a DeKalb County narcotics detective with information that he had arranged to purchase a kilogram of cocaine from a man named “Javier.” Subsequently, the detective met with the informant in a Home Depot parking lot to set up the drug buy. The informant was fitted with a body wire and followed to an apartment complex where he met with several persons, including Abonza and Javier. The informant left the apartment and drove back to the Home Depot in Abonza’s truck. Abonza and Javier were with him. When they arrived, the detective was introduced to Abonza and Javier as the potential buyer. The informant got out of the truck and left. After the informant left, the officer talked with Abonza and Javier about the terms of the drug transaction. The officer testified that Abonza admitted that the amount of cocaine was less than the expected kilogram and that the purity of the cocaine was not what he would like, but that he would have two additional kilograms available the following Saturday.

After this exchange, Abonza and Javier got out of the truck, and Abonza removed a speaker box from behind the seat. Abonza unscrewed the speaker box and removed a plastic bag containing a hard chunky substance, which later tested positive as cocaine. Abonza held up the bag containing the cocaine, and the officer handed Abonza a bag containing cash. While Abonza was counting the money, the officer signaled the other police officers to move in for the arrest. The narcotics officer who made the buy testified that although he talked with both men during the drug sale, Abonza appeared to take the lead in the conversation.

Abonza testified at trial that he was at the scene only because his girlfriend’s brother had asked him to go along and because Javier did not speak English well. He argues that he had nothing to do with setting up the drug deal and that his mere presence at the scene as a translator is not sufficient to convict him as a party to the crime. He testified that he was not aware that the drugs were in his truck and that he rode along with the informant and Javier to protect his truck. Abonza argues that the evidence was not sufficient to show that he intended to commit the crime of trafficking in cocaine.

An appellate court does not weigh the evidence or determine witness credibility, but only determines whether the evidence is sufficient under the standard set out in Jackson v. Virginia. While mere presence at the scene of a crime is not sufficient evidence to convict, criminal intent can be inferred from companionship, presence, and conduct before, during, and after an offense.

Abonza’s position that reversal is required because he was merely a bystander at the scene of the crime is without merit. The detective testified that Abonza both unscrewed the speaker and removed the cocaine. It was Abonza who told the officer of the cocaine’s purity and weight and who, upon receiving the money, counted it. All of his actions indicate more than a mere bystander’s interest in the transaction and certainly indicate the necessary intent to commit a crime.

Decided October 19, 2001.

Lynch, Spears & Shuman, John H. Tarpley, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, James M. McDaniel, Assistant District Attorneys, for appellee.

Intent is a question for the trier of fact and not for determination upon review by this Court. Here, the evidence was sufficient to authorize the jury to find that Abonza intended to commit the act of trafficking in cocaine.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Toney v. State, 225 Ga. App. 228 (483 SE2d 627) (1997).

       See Blackmon v. State, 272 Ga. 858, 859 (1) (536 SE2d 148) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

        Dunn v. State, 248 Ga. App. 223, 224-225 (1) (546 SE2d 27) (2001); Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996).

       See Kendrick v. State, 146 Ga. App. 513, 514 (1) (b) (246 SE2d 505) (1978).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A1950.
    RAMOS v. THE STATE.
    (555 SE2d 779)
   Johnson, Presiding Judge.

Jay Anthony Ramos was tried before a jury for failure to maintain lane and driving under the influence of alcohol. The jury found him guilty of failure to maintain lane, but was unable to reach a verdict on the driving under the influence of alcohol charge. The trial court, therefore, declared a mistrial as to the driving under the influence of alcohol charge. Following a retrial on that charge, a jury found him guilty of the charge. Ramos now appeals both his convictions. However, both his enumerations of error address actions by the trial court in his first trial. He alleges the trial court erred in admitting opinion testimony that his driving constituted a failure to maintain lane and erred in declaring a mistrial on the driving under the influence of alcohol charge only 30 minutes after giving the Allen charge.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows >that an officer saw Ramos’ car swerve outside his lane of travel and cross the lane lines three or four times. The officer testified as follows:

Q: Did [the car] ever cross over the lane lines?
A: Yes, ma’am, it did. It did.
Q: How many times did it cross over the lane lines?
A: Three or four.
Q: Is that weaving?
A: Yes, ma’am.
Q: Is it also failing to maintain a single lane of traffic?
A: Yes, ma’am.

Ramos never objected to this testimony. However, he now claims on appeal that the officer’s testimony constituted an incorrect statement of the law and went to the ultimate issue before the jury. Ramos has waived this argument.

“In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have.” No issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial. Accordingly, this issue has not been preserved for appellate review.

Moreover, even if Ramos did not waive this argument, we find that the officer’s testimony was not an incorrect statement of the law and did not usurp the jury’s duty to decide the ultimate issues in the case. The officer was not asked in the present case if Ramos was guilty of failing to maintain a lane of traffic. He was asked if Ramos crossed over lane lines and if he failed to maintain a single lane of traffic. This is no different than asking a witness in a battery case if the defendant hit the victim. Furthermore, the jury could have found Ramos guilty based on his own testimony. According to Ramos: “I’m trying to call out on my cell phone and driving, and I guess I was trying to do too much because I was trying to call and I was also eating a bite or what-have-you.” The trial court did not err in admitting the officer’s testimony that Ramos failed to maintain his lane of travel.

2. The record shows that after the jury began deliberating, it sent out two questions relating to the DUI. After these questions were answered and further deliberations took place, the jury sent a note to the trial judge indicating that the jury could not reach a unanimous verdict. In response, the trial judge asked the jury foreperson whether she believed the jury was deadlocked, and she responded, “Yes, sir, I do.” The trial judge then asked the foreperson whether she believed hearing any additional evidence or law would assist the jury, and she responded, “No, sir, I don’t.” The trial judge then administered the Allen charge. Ramos’ sole objection was that the Allen charge indicated that “a jury somewhat like this jury at sometime in the future will be deciding the same issues.”

Decided October 19, 2001.

William H. Toler III, for appellant.

It is within the trial court’s discretion to determine whether and when to give an Allen charge. It is also within the trial court’s discretion to determine whether a jury is “hopelessly deadlocked,” thus necessitating a mistrial. The decisive factor is not the length of the deliberation, but the inability of the jury to agree on a verdict.

In the present case, the jury had already come back with two questions and had some of the testimony replayed for them. Even after hearing the testimony again, they still could not reach a verdict. Furthermore, when questioned by the trial judge after the Allen charge had been given, the jury foreperson again indicated that further deliberations would be fruitless since the jury was in the same posture they were in before the Allen charge. This was not a lengthy case, nor were the issues complex. The jury merely needed to determine whether Ramos’ driving ability was impaired by the alcohol he had consumed. The jury deliberated for approximately three hours and then indicated further deliberations would be fruitless. The trial court did not abuse its discretion in declaring a mistrial.

As for Ramos’ challenge regarding the language used by the trial judge in the Allen charge, virtually identical language has been affirmed by this Court. Considering the facts of the case and the charge in its entirety, we find that the language of the charge was not coercive and that it did not place undue pressure on the members of the jury to abandon their convictions. Consequently, this enumeration is without merit.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Keith C. Martin, Solicitor-General, Evelyn P. Sandefur, Assistant Solicitor-General, for appellee.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       (Citations and punctuation omitted.) Jones v. State, 232 Ga. App. 505, 506 (3) (502 SE2d 345) (1998).

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

       See Honeycutt v. State, 245 Ga. App. 819, 821 (4) (538 SE2d 870) (2000); Moore a State, 215 Ga. App. 626, 628 (3) (451 SE2d 534) (1994).

       See Griffin v. State, 264 Ga. 232, 233 (443 SE2d 612) (1994).

       Id.

       See Concepcion v. State, 200 Ga. App. 358 (1) (408 SE2d 130) (1991).

       Id. at 360.


author: Andrews, Presiding Judge.

text:
    A01A1092.
    GILBERT v. SOUTHERN TRUST INSURANCE COMPANY.
    (555 SE2d 69)
   Andrews, Presiding Judge.

Retha Gilbert appeals from the trial court’s grant of summary judgment to Southern Trust Insurance Company on her suit to recover benefits payable under her homeowners and automobile insurance policies. For the following reasons, we conclude the trial court erred in granting summary judgment to Southern and reverse.

This case arose when a fire partially destroyed Retha and Henry Gilbert’s house on February 12, 1995. Also damaged in the fire were a car and a truck insured by Southern. On March 9, 1995, the Gilberts submitted a sworn proof of loss form to Southern. Southern sent adjusters to the house who examined the house and the vehicles, took pictures, and removed a substantial portion of the furniture to be refinished. On May 16,1995, the Gilberts were examined under oath by counsel for Southern, as required by the policy. After this examination, the Gilberts sent Southern a demand letter for payment under the policies, but according to the Gilberts’ affidavit, Southern did not respond.

Southern then cancelled the Gilberts’ homeowners and automobile policies. Shortly after, on July 8,1995, the Gilberts’ home burned again and was totally destroyed.

At some point, Southern offered the Gilberts $69,000 for the house and $43,000 for the personal property and fixtures. According to the Gilberts’ affidavit, they accepted the above amounts as the actual value of the property, provided Southern would agree to pay an additional amount for the replacement cost of the house and personal property.

On August 4, 1995, Southern sent counsel for the Gilberts a letter stating that Southern was invoking the appraisal clause and naming its appraiser. The appraisal clause provided: “If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. . . .”

Around this time, the Gilberts’ attorney became ill, and Southern agreed to an extension of time for the Gilberts to name their appraiser. After the Gilberts’ attorney returned to work on September 20, 1995, counsel for Southern sent him a letter stating, “This is to confirm that you have agreed to designate Henry and Retha Gilbert’s appraiser within the next week.”

On November 8, 1995, the Gilberts’ counsel wrote Southern referencing the appraisal process and Southern’s offer of $69,000 for the house and $43,000 for the contents. The letter stated that the Gilberts would accept that amount as payment of the actual cash value. Then, as provided by the policy, once actual replacements were made, the Gilberts could file an additional proof of loss as to the replacement value. This acceptance of the amount offered “will do away with any necessity for any further appraisal process. . . .”

On November 22,1995, the Gilberts’ counsel sent Southern a letter which appears to be responding to a letter from Southern on November 15. Counsel stated that he was unaware that Southern had withdrawn its offer of payment and named Doug White as the appraiser. It was later discovered that White was with the same firm as Southern’s appraiser.

Then, on February 1, 1996, the Gilberts’ attorney sent ¡Southern a letter stating that the house had been replaced and they were submitting an amended proof of loss for the replacement amounts. He also named another appraiser who had agreed to act for them.

Counsel for Southern wrote the Gilberts’ attorney on February 7, 1996, claiming that “the Gilberts’ refusal to name an appraiser on their house and personal property claim until the last minute has rendered appraisal of that claim impossible.” The letter goes on to state, “The house which was damaged by the fire has been totally demolished. It is impossible to appraise the damage to property which no longer exists.”

This letter from Southern’s counsel refusing to proceed with the appraisal process also notified the Gilberts that Southern refused to make any payment on the claims and was not waiving the suit limitation clause. As a result, the Gilberts filed the instant suit on February 9, 1996.

Southern then moved for summary judgment, claiming that the Gilberts failed to comply with the appraisal provision of the policy and this was a condition precedent to filing suit on the policy. The trial court granted the motion. This appeal followed.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

1. First, we note that although the automobile policy did not contain any time requirements for naming an appraiser, Southern likewise refused to participate in an appraisal of the vehicles damaged in the fire. The trial court’s order expressly found that the “Plaintiff’s February 1, 1996 appointment of an appraiser was not per se untimely” under the automobile policy. Nevertheless, the court goes on to grant Southern summary judgment, stating that completing the appraisal process was a condition precedent to filing suit under the terms of the automobile policy. Although this is a correct statement, it ignores the evidence that the Gilberts did name an appraiser and suit was filed because Southern refused to participate in the appraisal process. Accordingly, there are issues of fact which must be resolved on this claim, and the court erred in granting summary judgment to Southern on the suit on the automobile policy.

2. The trial court also erred in granting summary judgment to Southern on the homeowners policy. As set out above, it was Southern’s refusal to waive the time limitation for filing suit and refusal to proceed with the appraisal process which caused this suit to be filed. Contrary to Southern’s contention in its brief on appeal, the Gilberts did not refuse to proceed with the appraisal process; Southern did. The underlying question then becomes, did the Gilberts’ failure to timely name an appraiser result in a forfeiture of coverage under the policy?

On a similar issue, failure to timely file a sworn proof of loss, this Court has consistently held that the mere failure to furnish the insurer with sworn proofs of loss within the period specified in the policy will not work a forfeiture of the policy unless there is an express stipulation to that effect. Cotton States Mut. Ins. Co. v. Walker, 232 Ga. App. 41 (500 SE2d 587) (1998); Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 521 (352 SE2d 835) (1987); Progressive Mut. Ins. Co. v. Burrell Motors, 112 Ga. App. 88 (143 SE2d 757) (1965). And, “a statement that full compliance with all requirements in the policy is necessary is not enough.” Cotton States, supra at 41-42 (1).

“An insurer can be held to have waived a limitation period when its investigations, negotiations, or assurances up to and past the period of limitation led the insured to believe the limitation would not apply.” (Punctuation omitted.) Cotton States, supra at 43 (2). And, where the application of a contractual limitation would work a forfeiture of the policy benefit, “the court will strictly construe the provision against the insurance company and small circumstances will be sufficient to show a waiver by the company.” (Punctuation omitted.) Decatur Fed. &c. Assn. v. York Ins. Co., 147 Ga. App. 797, 798 (2) (250 SE2d 524) (1978).

Decided October 3, 2001

Reconsideration denied October 22,2001.

Heyman & Sizemore, William B. Brown, George H. Myshrall, Jr., Jacqueline Marcucci, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellee.

Here, the record, as discussed above, shows evidence of more than just small circumstances from which a trier of fact could determine that Southern had waived strict compliance with the time limit in which to designate an appraiser. In addition, the record before us shows no evidence that Southern was prejudiced by any delay. Although Southern’s letter refusing to go on with the appraisal process states that appraisal was now impossible because the house was totally demolished, Southern did not invoke the appraisal provision in the policy until August 4, 1995. The house had already totally burned at that time.

Also, there was evidence that the Gilberts could reasonably have believed that there was no longer a need to designate an appraiser at that time. They accepted Southern’s offer for the present value of the house and planned to submit an amended proof of loss when they had determined the replacement amount. “The question of the sufficiency of the excuse offered [for failing to comply with a condition precedent to coverage] is generally a question of fact[ ] to be determined by the jury.” (Punctuation omitted.) Blackburn v. State Farm Fire &c. Co., 174 Ga. App. 157, 159 (329 SE2d 284) (1985).

“Stipulations and conditions of an insurance policy are to have a reasonable meaning and are to be construed, if possible, to avoid forfeitures and provide coverage and to advance the beneficial purposes intended to be accomplished.” (Punctuation omitted.) Jackson Nat. Life Ins. Co. v. Snead, 231 Ga. App. 406, 410 (4) (499 SE2d 173) (1998). In light of this and for the reasons discussed above, we conclude that the trial court erred in granting Southern’s motion for summary judgment.

Judgment reversed.

Eldridge and Miller, JJ, concur.

       Henry Gilbert died on May 3, 1997, after the suit was filed in the trial court, but before the appeal was filed here.

       The Gilberts had purchased a “replacement cost” rider to their policy, and this rider provided: “You may make a claim for loss on an actual cash value basis and then make claim within 180 days after the loss for any additional liability in accordance with this endorsement.”


text:
    A01A1452.
    TAHAMTAN v. CHASE MANHATTAN MORTGAGE CORPORATION.
    (555 SE2d 76)
   Andrews, Presiding Judge.

Amir A. Tahamtan appeals from an order of the Fulton County Superior Court awarding attorney fees pursuant to OCGA § 9-15-14 (b) to Chase Manhattan Mortgage Corporation and further ordering that he be barred from filing further suits in the Atlanta Judicial Circuit until he satisfies the judgment for attorney fees. Because the record supports the attorney fees award and the limitation on further suits, and we find no abuse of discretion by the trial court, we affirm.

The trial court granted summary judgment in favor of Chase Manhattan on a pro se suit brought by Tahamtan alleging that Chase Manhattan wrongfully failed to cancel a security deed in violation of OCGA § 44-14-3 and defrauded, defamed, and intentionally inflicted emotional distress on him. After the grant of summary judgment, Chase Manhattan moved for the award of attorney fees under OCGA § 9-15-14. The trial court granted the motion finding that the suit lacked substantial justification and awarded attorney fees in the amount of $29,311.79 pursuant to OCGA § 9-15-14 (b). In support of the motion, Chase Manhattan also produced evidence that Tahamtan had engaged over a period of years in a pattern of filing frivolous pro se litigation, including suits against financial institutions with allegations similar to those contained in the present suit. Evidence was produced showing dozens of pro se suits filed by Tahamtan in Fulton County and other local courts, a number of which showed frivolous allegations on their face and which had been dismissed. In an effort to prevent Tahamtan from filing frivolous suits in the future, the Fulton Superior Court further ordered that Tahamtan be barred from filing any further suits in the Atlanta Judicial Circuit unless he first satisfies the judgment for attorney fees in the present case and files of record an affidavit of the clerk of court that said judgment has been satisfied.

Tahamtan’s pro se appeal is not from the grant of summary judgment in favor of Chase Manhattan, but only from the order awarding attorney fees and limiting his right to file suits in the future.

1. We find no abuse of discretion in the trial court’s conclusion that the suit lacked substantial justification thus justifying the award of attorney fees pursuant to OCGA § 9-15-14 (b). Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (360 SE2d 566) (1987). The record was sufficient to show that Tahamtan knew when he filed the suit that Chase Manhattan’s refusal to cancel the instrument was based on a bona fide controversy and a good faith belief that the debt had not been paid, and therefore he had no cause of action for the damages he sought for alleged violation of OCGA § 44-14-3. Mitchell v. Oliver, 254 Ga. 112, 116 (327 SE2d 216) (1985) (no liability for refusal to cancel instrument where refusal is in good faith belief that the debt has not been paid). Moreover, the trial court did not abuse its discretion in determining there was no substantial justification for the additional claims for fraud, defamation, and intentional infliction of emotional distress. In addition to statements by counsel made in her place as an officer of the court regarding attorney fees, other cumulative documentary evidence was introduced sufficient to support the amount of attorney fees awarded.

Decided October 3, 2001

Reconsideration denied October 22,2001.

Amir A. Tahamtan, pro se.

Schnader, Harrison, Segal & Lewis, Catherine M. Banich, John C. Porter, Jr., for appellee.

2. The record does not support Tahamtan’s contention that he was prevented by the trial court from testifying or offering evidence at the hearing.

3. Finally, the trial court did not abuse its discretion by requiring Tahamtan to pay the attorney fees award prior to filing further lawsuits. It was appropriate for the trial court to consider evidence of prior frivolous suits filed by Tahamtan, and the limitation imposed by the court after consideration of this evidence did not totally deprive him of meaningful access to the courts and was reasonable under the circumstances. Smith v. Adamson, 226 Ga. App. 698, 699-700 (487 SE2d 386) (1997).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Eldridge, Judge.

text:
    A01A2271.
    GOODWYN v. CARTER et al.
    (555 SE2d 474)
   Eldridge, Judge.

On August 31, 1994, Ralph J. Goodwyn sued Dewey Carter, Tommy Brown, and Brown & Williamson Tobacco Company in the Superior Court of Bibb County. On September 30, 1994, after answering, the defendants had the case removed to the United States District Court for the Middle District of Georgia. On November 15, 1995, the federal district court determined that there was no federal subject matter jurisdiction and ordered the case remanded to the Superior Court of Bibb County; however, the records of the Superior Court of Bibb County do not contain such federal order filed in federal district court. The clerk for the federal district court transferred the closed federal court records to archives in Atlanta. On May 9, 2001, in the superior court, plaintiff filed a motion to reinstate and to reactivate the case, which had been automatically dismissed with the passage of five years without any order being filed, and did not seek to renew the action by refiling it. The defendants in opposition to the motion filed a copy of the federal orders of lack of jurisdiction and remand. On June 6, 2001, the trial court found that it lacked jurisdiction, because under OCGA § 9-11-41 (e) the case stood automatically dismissed for lack of an order being filed in the case within the time period of five years and the six-month grace period; the plaintiff has failed to recommence by filing a new action within the six-month grace period following the automatic dismissal; and the motion to reinstate came outside such six-month period. See also OCGA § 9-2-60 (c). We affirm.

On October 15, 2000, the complaint was automatically dismissed, because “no written order [was] taken for a period of five years” of record in the Superior Court of Bibb County. OCGA §§ 9-2-60 (b); 9-11-41 (e). Plaintiff took no action to reinstate or recommence the action by filing a recommenced action until May 9, 2001, which was outside the grace period which “recommences the action within six months following the dismissal.” OCGA § 9-11-41 (e); see also OCGA § 9-2-60 (c). The dismissal occurs as a matter of law automatically without the necessity of entry of an order by the trial judge or any action marking it dismissed by the clerk on the court docket. Swint v. Smith, 219 Ga. 532, 533-534 (3) (134 SE2d 595) (1964); Maroska v. Williams, 146 Ga. App. 130 (1) (245 SE2d 470) (1978); Norton v. Brady, 129 Ga. App. 753 (1) (201 SE2d 188) (1973). The action of the clerk of court in marking a case dismissed after the period has run is ministerial only. Norton v. Brady, supra at 753. From the. expiration of the five-year period when the case stands dismissed by operation of law until the actual marking of the case as dismissed, the case stands completely lifeless for all purposes from the date of automatic dismissal and not from the date the case is physically stricken from the docket. Fulton County v. Corp. of the Presiding Bishop &c., 133 Ga. App. 847, 853 (3) (212 SE2d 451) (1975); Dollar v. Webb, 132 Ga. App. 811 (209 SE2d 253) (1974). Neither OCGA § 9-2-60 nor § 9-11-41 (e) is in conflict, and they are supplementary to each other, making the rule applicable to all proceedings. Fulton County v. Corp. of the Presiding Bishop &c., supra at 849.

Any subsequent order after the automatic dismissal of the case is null and void, because the trial court has lost jurisdiction over the case, which no longer is pending before it. First of Ga. Ins. Co. v. Ga. Power Co., 146 Ga. App. 756, 757 (247 SE2d 574) (1978). However, if a default occurs prior to the five years or a verdict has been returned prior to the expiration of the period but the judgment has not been entered until after the five years have elapsed, then the trial court has the power to enter such judgment after the period. Jefferson v. Ross, 250 Ga. 817, 818-819 (301 SE2d 268) (1983); Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914, 915-916 (315 SE2d 434) (1984). However, a trial and verdict, after the five-year automatic dismissal, are a mere nullity, because the trial court lost jurisdiction over the case and nothing pends in the trial court any longer. Swint v. Smith, supra at 535 (6); Salter v. Chatham County, 136 Ga. App. 914 (222 SE2d 638) (1975).

The five-year period is computed from the date of filing. Ga. Power Co. v. Whitmire, 146 Ga. App. 29, 31 (245 SE2d 324) (1978). While an action is pending in federal court after removal, the five-year period does not run, and the period does not resume running until remand, when the case resumes the status occupied prior to removal, because the jurisdiction of the state trial court has been suspended while the action pends in federal court. Southern Bell Tel. &c. Co. v. Perry, 168 Ga. App. 387, 388-389 (308 SE2d 848) (1983).

The mandatory duty to obtain and file an order falls upon the plaintiff to obtain a written order and have it entered upon the record to prevent an automatic dismissal. Prosser v. Grant, 224 Ga. App. 6, 7-8 (479 SE2d 775) (1996); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 210-211 (217 SE2d 355) (1975); Norton v. Brady, supra at 753. Not only must counsel for the plaintiff obtain an order during the time period, but counsel must also file the order with the clerk during such time period. Republic Claims Svc. Co. v. Hoyal, 264 Ga. 127, 128 (441 SE2d 755) (1994); Dept. of Transp. v. Tillett Bros. Constr. Co., 264 Ga. 219, 220-221 (443 SE2d 610) (1994); Prosser v. Grant, supra at 8. The order must be initiated by a party instead of being a mere housekeeping administrative order initiated by the trial court, i.e., order setting a trial calendar, publishing a trial calendar, or removing cases from a trial calendar on the court’s own motion. Id. at 7. Once a case has been dismissed by operation of law, “[the] trial court is without authority to order the action reinstated” before it. Republic Claims Svc. Co. v. Hoyal, supra at 128; see also Dept. of Med. Assistance v. Columbia Convalescent Center, 203 Ga. App. 535, 536 (1) (417 SE2d 195) (1992). The automatic dismissal is not with prejudice and does not act as res judicata. Kalin v. Pfarner, 124 Ga. App. 816, 817-818 (1) (186 SE2d 365) (1971). Under the statutory language, the automatically dismissed case may be refiled within six months of the automatic dismissal. OCGA §§ 9-2-60 (c); 9-2-61; 9-11-41 (e); Brewer v. Thompson, 135 Ga. App. 70 (217 SE2d 395) (1975). Any party dismissed under either section has a right to refile within six months from the automatic dismissal as the corrective remedy. City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 522-523 (3) (123 SE2d 663) (1962). Thus, under both OCGA §§ 9-2-61 and 9-11-41 (e), the case may be refiled within six months as a matter of right if not dismissed on its merits. First of Ga. Ins. Co. v. Ga. Power Co., supra at 756; Calloway v. Harms, 135 Ga. App. 54 (217 SE2d 184) (1975); Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225 (213 SE2d 915) (1975). Therefore, if the action has not been barred by the applicable statute of limitation, then it may be refiled under either OCGA § 9-2-61 or § 9-11-41 (e). Berry v. Siskin, 128 Ga. App. 3, 7 (4) (195 SE2d 255) (1973). However, if more than six months pass after the automatic dismissal and the statute of limitation has attached, then the plaintiff cannot refile the action. First of Ga. Ins. Co. v. Ga. Power Co., supra at 756. If the action has been automatically dismissed and the statute of limitation has not run, then these statutes have no application, because they are to prevent the running of the statute of limitation, which would otherwise apply. Brooks v. Douglas, 154 Ga. App. 54, 55-56 (1) (267 SE2d 495) (1980); Rakestraw v. Berenson, 153 Ga. App. 513, 515 (266 SE2d 249) (1980). In this case, plaintiff did not refile but sought to revive or renew the existing action outside of the time period of five years and six months, which cannot be done by the plaintiff.

Decided October 11, 2001

Reconsideration denied October 22, 2001

F. Robert Raley, for appellant.

King & Spalding, Todd D. Wozniak, Michael W. Johnston, for appellees.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Ellington, Judge.

text:
    A01A1440.
    JORDAN v. SPIRIT RENT-A-CAR.
    (555 SE2d 734)
   Ellington, Judge.

Kevin W. Jordan appeals the trial court’s order granting summary judgment in favor of Spirit Rent-a-Car d/b/a CarTemps, USA in this insurance coverage declaratory judgment action. For the reasons which follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. White v. BDO Seidman, LLP, 249 Ga. App. 668, 669 (549 SE2d 490) (2001).

Viewed in the light most favorable to Jordan, the evidence shows the following facts: On May 24, 1999, Jordan was injured in a car wreck. He filed suit against Melanie Loumakis, the driver of the car in which he was a passenger, and Jackson St. Juste, the driver of the other car. At the time of the accident, St. Juste was driving a car another man, Jean Joseph, had rented from CarTemps while his own car was in a repair shop. Joseph carried a car policy with State Farm Fire & Casualty Company which provided liability coverage for a “temporary substitute car,” that is, a car used while the insured’s car is out of service. Jordan brought suit against St. Juste and Loumakis, the driver of the vehicle in which Jordan was a passenger. State Farm filed this declaratory judgment action seeking a determination of whether Joseph’s State Farm policy provides any coverage for St. Juste’s use of the rental car and whether any such coverage is primary or excess relative to any coverage provided by CarTemps.

Joseph’s State Farm policy covered any person using the rental car with the consent of Joseph or his spouse. The parties dispute whether Joseph or his spouse consented to St. Juste’s use of the rental car. Thus, the issue of whether Joseph’s State Farm policy provides coverage for Jordan’s loss remains for jury resolution.

The CarTemps rental agreement provided that the car could be operated only by the designated renter (Joseph), his spouse, or any other driver named as an additional authorized driver on the front of the agreement. There is no dispute that St. Juste was not listed as an additional driver on the front of the rental agreement.

CarTemps moved for summary judgment on three grounds: (1) CarTemps did not provide insurance on the car in question; (2) CarTemps cannot be held liable for the negligent acts of an unauthorized driver of its vehicles; and (3) if CarTemps could be liable for the acts of an unauthorized driver, OCGA § 40-9-102 and the rental agreement limited its liability to excess coverage and to the minimum amounts of automobile liability coverage allowed under Georgia law. The trial court granted CarTemps’ motion for summary judgment without explanation.

1. Jordan contends Georgia law requires a car rental company to provide liability coverage for its vehicle if the innocent victim of a traffic mishap with a rental vehicle would otherwise be left without a remedy. In general, Georgia law requires all car owners to carry liability insurance. OCGA § 33-34-4. See A. Atlanta AutoSave v. Generali — U.S. Branch, 270 Ga. 757, 759-760 (2) (514 SE2d 651) (1999). Georgia law also requires a person renting a car from a “U-drive-it” car rental company “to provide his own insurance” or to obtain “spot” insurance if he does not have liability insurance which will cover the rental. OCGA § 40-9-102. See Continental Cas. Co. v. Owen, 90 Ga. App. 200, 209 (2) (82 SE2d 742) (1954) (“spot insurance” is a specific policy on a particular car owned by a U-drive-it rented to a specific renter).

U-drive-it car rental companies are not exempt from their duty under OCGA § 33-34-4 to insure cars they own, but they enjoy special treatment in terms of priority of coverage on cars rented to the public under OCGA § 40-9-102. Generali U. S. Branch, 270 Ga. at 759-760 (2); Jones v. Wortham, 201 Ga. App. 668, 670 .(411 SE2d 716) (1991). See Jenkins & Miller, Ga. Auto. Ins. Law (2000 ed.), § 20-8, p. 237. Under OCGA § 40-9-102, the liability insurance coverage the renter provides is the primary liability coverage in the case of liability arising from the use of the rental car; the U-drive-it owner’s liability insurance coverage is then secondary or excess. Jones, 201 Ga. App. at 670. OCGA § 40-9-102, “therefore, reverses the usual order of liability coverage inasmuch as the renter’s coverage is primary and the owner’s coverage is secondary.” Jenkins & Miller, Ga. Auto. Ins. Law (2000 ed.), § 13-3, p. 157. The U-drive-it owner may waive the special treatment provided by OCGA § 40-9-102 by agreeing, in its contract with a renter, that its liability insurance will be primary. Gen. Car & Truck Leasing System v. Woodruff, 214 Ga. App. 200, 201-202 (1) (447 SE2d 97) (1994). But the U-drive-it owner may not contract away its obligation to carry liability insurance on its cars. Generali U. S. Branch, 270 Ga. at 759-760 (2); Jones, 201 Ga. App. at 669.

In this case, there is no dispute that Joseph was covered by his State Farm liability policy when he left the CarTemps lot with the rental car. Therefore, CarTemps is not responsible for primary liability coverage under OCGA § 40-9-102. Cf. Generali U. S. Branch, 270 Ga. at 759-760 (2). But CarTemps remains liable for excess coverage. Id. Therefore, the trial court erred in granting summary judgment to CarTemps.

2. CarTemps contends its coverage is limited to the minimum coverage allowed by law because the rental agreement provided that its liability would not exceed the required minimum coverage. We agree that its liability is limited to the statutory minimum but not for the reason given by CarTemps. The owner’s liability exposure is not determined by the contract but by its liability insurance, in this case its self-insurance plan. Nat. Svcs. Indus. v. Transamerica Ins. Co., 206 Ga. App. 337, 340 (2) (425 SE2d 327) (1992). In this case, it is undisputed that CarTemps’ self-insurance plan defined its limits of liability as the “minimum responsibility limits required by law.” At trial, CarTemps’ liability exposure will be limited to the minimum required under Georgia law. See OCGA §§ 33-7-11; 40-9-1 et seq. See also Jenkins & Miller, Ga. Auto. Ins. Law (2000 ed.), § 19-1, pp. 229-230.

Decided September 14, 2001

Reconsiderations denied October 23, 2001

Crowther & Green, James M. Green, for appellant.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Reginald L. Winfrey, for appellee.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A01A1509.
    WHITE et al. v. BOARD OF COMMISSIONERS OF McDUFFIE COUNTY et al.
    (555 SE2d 45)
   Ruffin, Judge.

A group of McDuffie County residents (“the residents”) sued the Board of Commissioners of McDuffie County (“the Board of Commissioners”), the McDuffie County Development Authority (“the Authority”), and the City of Thomson, seeking declaratory and injunctive relief relating to a change in zoning classification. The trial court granted summary judgment to the defendants, and the residents appeal. For reasons that follow, we affirm.

Summary judgment is appropriate where the evidence of record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review a grant of summary judgment de novo, construing the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the nonmovant.

Viewed in this light, the record shows that on July 9, 1999, the Authority contracted to purchase a large tract of land for use as an industrial park (“the property”). At that time, the property was zoned for residential use. The Authority arranged financing through Sun-Trust Bank, and four other banks subsequently agreed to participate with SunTrust in the loan. Shortly after the Authority signed the contract, it applied for a zoning change. Although the Authority initially requested that the property be rezoned for high industrial use, it later lowered its request to light industrial use.

On September 1, 1999, the Board of Commissioners approved the Authority’s rezoning application as to part of the property. The residents, who owned nearby property, sued the defendants in superior court, alleging that the rezoning action was procedurally defective, void, and unconstitutional. In their suit, the residents sought to enjoin the Board of Commissioners from “allowing or carrying out any action putting into effect the new and illegal rezoning.” They also asked the court to declare the rezoning null, void, and unconstitutional.

The Authority closed its purchase of the property on January 10, 2000. After the closing, it submitted another application for rezoning, apparently to correct procedural defects in the first application. On March 21, 2000, the Board of Commissioners again voted to rezone the property previously approved for rezoning on September 1, 1999. One month later, the residents filed a second suit against the defendants, alleging that the March 21, 2000 rezoning process was procedurally defective, void, and unconstitutional. The residents asked for the same relief requested in the first suit.

The defendants moved for summary judgment, and the trial court consolidated the two lawsuits for purposes of its summary judgment ruling. In a detailed order, the trial court rejected the residents’ procedural and constitutional challenges to the rezoning procedure.

1. As an initial matter, we must address the defendants’ motion to dismiss this direct appeal. They argue that because the case involves zoning issues, the residents were required to apply for discretionary appeal. We disagree.

Under OCGA § 5-6-35 (a) (1), “[a]ppeals from decisions of the superior courts reviewing decisions of. . . local administrative agencies” must proceed through application, rather than direct appeal. In Trend Dev. Corp. v. Douglas County, our Supreme Court stated broadly that, pursuant to this Code provision, “appeals in zoning cases . . . require an application.” Since Trend Dev., the Supreme Court has clarified that a direct appeal is proper “[w]here a zoning case does not involve superior court review of an administrative decision.”

The residents did not appeal the Board of Commissioners’ September 1, 1999 and March 21, 2000 zoning decisions to the superior court. Instead, they filed lawsuits directly against the defendants, seeking injunctive and declaratory relief. The discretionary appeal procedure does not apply to this case, which involves no appeal from a local administrative decision. Accordingly, the residents properly proceeded through direct appeal, and the defendants’ motion to dismiss must be denied.

2. The residents claim that conflicts of interest influenced the Board of Commissioners’ decision on the rezoning applications, rendering the rezoning fraudulent, corrupt, void, and unconstitutional. In granting summary judgment to the defendants, the trial court found no conflict and rejected this claim. The residents’ arguments on appeal relate solely to this finding. Although they raise two enumerations of error, both rest on alleged conflicts of interest and personal motives.

“ ‘When neighbors of rezoned property challenge the rezoning in court on its merits, it will be set aside only if fraud or corruption is shown or the rezoning power is being manifestly abused to the oppression of the neighbors.’ ” Self-interested or conflicted participation in a zoning decision, which the residents allege here, will support such a challenge and invalidate a zoning action. But, as described by our Supreme Court, the type of conflict or self-interest that voids a zoning decision is financial: the conflict arises “when a public officer, in the discharge of his public function, acts upon a measure relating to a specific transaction and such transaction shall directly and immediately affect his pecuniary interest.” A remote or speculative financial interest will not support a conflict of interest allegation.

As evidence of a conflict, the residents point out that William Howard, a member of the Board of Commissioners, was vice president of a bank that participated in financing the property’s acquisition. They further claim that a conflict arose because Commissioners Lemuel Brooks and Joyce Blevins were also members of the Authority, which requested the rezoning.

None of these alleged conflicts raises an issue of fact regarding self-interested or conflicted participation in the rezoning decision. With respect to Commissioner Howard, the residents have presented no evidence that the rezoning of this property “directly and immediately affect [ed] his pecuniary interest.” They simply argue that because he was vice president of a bank that financed the rezoned property’s acquisition, he had a conflict. Without more, that assertion is mere supposition and innuendo. The residents have not pointed to any evidence that Howard “definitely benefitted financially (or definitely stood to benefit financially) as a result of simply performing [his] official duties.” Accordingly, the conflict allegedly created by Commissioner Howard’s position with a financing bank is too remote and speculative to withstand summary judgment.

We also find no evidence that Commissioners Brooks and Blevins operated under a conflict of interest in approving the rezoning applications. The residents argue that, as members of the Board of Commissioners and the Authority, Brooks and Blevins had conflicting duties to objectively review the rezoning applications and ensure that the Authority’s property could be used as intended. The evidence shows, however, that Blevins was not a voting member of the Authority and thus did not directly participate in the decision to purchase the property. Furthermore, although Brooks held full voting membership on both the Authority and the Board of Commissioners, Georgia law authorized the Board of Commissioners to appoint one of its members to the Authority. Brooks’ dual role, therefore, was specifically sanctioned by statute. Finally, the residents have presented no evidence that Brooks or Blevins benefitted financially from the rezoning action.

Decided October 2, 2001

Reconsideration denied October 23,2001

Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellants.

Jenkins & Nelson, G. Carey Nelson HI, Peter R. Olson, Fowler & Wills, Samuel A. Fowler, Jr., for appellees.

The residents failed to raise a question of fact as to whether a conflict of interest influenced the rezoning decision. Accordingly, their enumerations of error present no basis for reversal, and the trial court’s summary judgment ruling must be affirmed.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 9-11-56 (c).

        Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       The City of Thomson also participated in the property acquisition, as well as the rezoning request.

       The record includes only the Board of Commissioners’ summary judgment motions. It appears from the trial court’s order and the parties’ submissions on appeal, however, that all defendants moved for and received summary judgment.

       Apparently uncertain of how to proceed, the residents filed an application for discretionary appeal, as well as a direct appeal. We denied the residents’ application on March 30, 2001.

       259 Ga. 425 (1) (383 SE2d 123) (1989), limited on other grounds, City of Atlanta v. Cates, 260 Ga. 772, 773 (1) (399 SE2d 474) (1991).

        King v. City of Bainbridge, 272 Ga. 427, 428 (1) (531 SE2d 350) (2000). See also Harrell v. Little Pup Dev. & Constr., 269 Ga. 143, 144 (1) (498 SE2d 251) (1998).

       The residents initially filed a petition for certiorari with the superior court to correct errors committed by the Board of Commissioners. They then recast their petition as a complaint against defendants for declaratory and injunctive relief.

        Sprayberry v. Dougherty County, 273 Ga. 503, 504 (1) (543 SE2d 29) (2001).

       The defendants also claim that the Supreme Court, rather than the Court of Appeals, has jurisdiction because this appeal involves constitutional questions. The Court of Appeals, however, can address constitutional issues where, as here, “ ‘the case requires merely an application of unquestioned and unambiguous constitutional provisions.’ ” In the Interest of V.M.T., 243 Ga. App. 732, 734 (1) (b) (534 SE2d 452) (2000). See also Scott v. State, 157 Ga. App. 608 (1) (278 SE2d 49) (1981).

       In their first enumeration of error, appellants claim that because “significant other loyalties” influenced the votes of several commissioners, the rezoning proceeding violated the Georgia Constitution. Second, appellants allege that “in making decisions about public matters, while laboring under the influence of irrelevant personal motives, the public officials in this case acted in an arbitrary and capricious manner and abused the police power vested in them.”

        Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus, 249 Ga. 488, 491 (292 SE2d 61) (1982).

        Olley Valley Estates v. Fussell, 232 Ga. 779, 783-784 (1) (208 SE2d 801) (1974).

       (Emphasis in original.) Dept. of Transp. v. Brooks, 254 Ga. 303, 317 (8) (328 SE2d 705) (1985).

       OCGA § 36-62-5 (a).

       We note that the Authority is a nonprofit corporation created to benefit the public. OCGA § 36-62-3.

        Olley Valley Estates, supra at 784.

       The record shows that Commissioner Howard did not attend the March 21, 2000 meeting at which the Board of Commissioners approved the rezoning request for a second time. The defendants argue that Howard’s absence precludes the residents’ conflict of interest claim. In Dunaway v. City of Marietta, 251 Ga. 727, 729 (3) (308 SE2d 823) (1983), however, the Supreme Court indicated that a conflict of interest may influence a zoning proceeding even if the conflicted commissioner does not vote.

       In addition, the residents assert that two other members of the Authority had ties to financing banks and helped inflate the property’s purchase price, benefitting these banks. The residents, however, did not try to void the property acquisition in their lawsuits. Instead, they sought to enjoin the rezoning of this property from residential to light industrial use. The residents have made no effort to show how the link between these Authority members and the banks is relevant to their rezoning challenge. The residents similarly have not shown how alleged ties between a financing bank and the county attorney — who provided legal advice to the Board of Commissioners, but was not a member — establishes a conflict of interest sufficient to void the rezoning.

       (Emphasis in original.) Brooks, supra.

        Ianicelli v. McNeely, 272 Ga. 234, 236 (2) (527 SE2d 189) (2000).

       Cf. Wyman v. Popham, 252 Ga. 247-248 (2) (312 SE2d 795) (1984) (evidence that two members of Board of Commissioners provided construction materials and “gutter work” to real estate developer applying for rezoning was sufficient to authorize finding of fraud and corruption); Dunaway, supra (factual issue remained as to conflict of interest where chairman of the planning commission, which voted to approve rezoning, was vice president of the corporation requesting rezoning).


text:
    A01A1612, A01A1613.
    STRONGHAVEN, INC. v. INGRAM; and vice versa.
    (555 SE2d 49)
   Ruffin, Judge.

Wayne Ingram sued his former employer, Stronghaven, Inc. (“Stronghaven”), for breach of his executive stock agreement. After both parties moved for summary judgment, the trial court granted summary judgment to Ingram and denied Stronghaven’s motion.

In Case No. A01A1612, Stronghaven appeals these summary judgment rulings. Ingram cross-appeals in Case No. A01A1613, challenging the trial court’s failure to include attorney fees and prejudgment interest in his summary judgment award. For reasons that follow, we affirm in part and reverse in part Case No. A01A1612, and we dismiss Ingram’s cross-appeal as moot.

Case No. A01A1612

1. In its first enumeration of error, Stronghaven argues that the trial court erred in granting summary judgment to Ingram. Summary judgment is appropriate “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” We apply a de novo standard of review on appeal and “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Viewed in this light, the record shows that Ingram was president of Stronghaven when the parties entered into an executive stock agreement on November 22, 1996. That agreement included a stock repurchase option, which allowed Stronghaven to repurchase Ingram’s company stock if his employment with Stronghaven ceased. As provided by the option:

[Stronghaven] may elect to purchase all or any portion of the Available Securities by delivering written notice (the “Repurchase Notice”) to the holder or holders of the Available Securities . . . within 90 days after the [employment] Termination. The Repurchase Notice will set forth the number of Available Securities to be acquired from each holder thereof, the aggregate consideration to be paid for such securities and the time and place for the closing of such purchase.

In the option clause, the parties stipulated that the closing would take place no more than 30 days from delivery of the Repurchase Notice, on a date designated by Stronghaven. They further agreed that Stronghaven would “receive customary representations and warranties as to ownership, title, authority to sell and the like from the sellers of the Available Securities regarding such sale . . . and . . . such other evidence as may reasonably be necessary to affect [sic] the purchase of the Available Securities.”

Ingram resigned from Stronghaven on May 28, 1998. In a letter dated August 5, 1998, Stronghaven provided Ingram written notice that it was exercising its repurchase option with respect to 28,732 shares of common stock and 1,006.57 shares of preferred stock, valued at $1,274,987.37. The written notice scheduled the closing date for August 18, 1998. It also stated:

If you do not plan to attend the Closing in person, please sign the enclosed Assignment Separate From Certificate [forms] and send [them] to [the Chairman of Stronghaven’s Board] for receipt on or before August 18, 1998 . . . and the Company will then send you a check in the amount of $1,274,987.37 by overnight courier.

Ingram failed to return the assignment forms needed to complete the repurchase by August 18,1998, and the closing did not take place. Over six months later, on March 12, 1999, Ingram submitted the signed assignment forms to Stronghaven and in a cover letter demanded $1,274,987.37. The record shows that Stronghaven neither responded to Ingram’s demand at that point nor returned the signed assignment forms to him. Instead, it placed the forms and accompanying letter in a company file, without taking further action.

On July 14, 1999, Stronghaven sent Ingram a Notice of Special Meeting of the Shareholders. The notice included a voting proxy, as well as a list of shareholders and their respective shares. The shareholder list indicated that Ingram owned 30,422 shares of Stronghaven common stock, which included the 28,732 common stock shares referenced in Stronghaven’s August 5, 1998 Repurchase Notice. According to Ingram, after receiving the Notice of Special Meeting, he informed Stronghaven by letter that he no longer owned the 28,732 shares of common stock, which, in his view, had been repurchased by the company. Stronghaven denied receiving such a letter.

At the ensuing shareholders meeting, Ingram’s attorney delivered his proxy to Stronghaven. Through the proxy, Ingram authorized the designated individuals to “vote ... all of the shares of common stock of Stronghaven, Incorporated held of record [by him].” Stronghaven’s counsel recorded at the meeting that Ingram voted 30,422 common stock shares by proxy.

On January 24, 2000, Ingram informed Stronghaven that, by not paying him $1,274,987.37 for his stock, it had violated “its August 5, 1998 exercise of the Repurchase Option.” Stronghaven responded that it had no obligation to repurchase the stock because Ingram failed to assign his shares to Stronghaven on or before August 18, 1998.

Ingram subsequently sued Stronghaven, alleging the company breached the executive stock agreement by refusing to pay him for his stock. The parties filed cross-motions for summary judgment, and the trial court ruled in Ingram’s favor, granting his motion and denying Stronghaven’s motion.

The trial court found, and both parties agree, that a binding purchase contract arose between the parties when Stronghaven exercised its purchase option. That option specifically required a closing within 30 days after delivery of the Repurchase Notice on a date set by Stronghaven. Ingram does not dispute that he failed to take the steps necessary to permit closing within the specified time period. He admits that he did not fully perform under the contract. Nevertheless, he contends — and the trial court concluded — that by accepting his late-tendered assignment forms and not rescinding the contract, Stronghaven waived timely performance by Ingram as a matter of law. We disagree.

Contractual closing deadlines may be waived, and “conduct before or after the closing date may show waiver.” Our Supreme Court has held that “ £[w]aiver may be established by expressed statements or implied by acts and conduct from which an intention to waive may reasonably be inferred.’ ” We have similarly explained:

Waiver of a contract right may result from a party’s conduct showing his election between two inconsistent rights. Acting on the theory that the contract is still in force, as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach. However, all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.

Where the evidence conflicts, the issue of waiver is a factual question for the jury.

We find that a factual dispute remains as to waiver. Ingram argues that Stronghaven’s failure to return the stock assignment forms tendered six months after the closing date resulted in waiver as a matter of law. The record shows, however, that although Stronghaven did not explicitly reject Ingram’s assignment forms, it simply filed them away. Stronghaven presented evidence that it undertook none of the usual activities associated with purchasing stock shares when it received the assignment forms. The evidence further shows that, as of the July 1999 shareholders meeting, Stronghaven’s corporate stock ledger reflected that Ingram owned over 30,000 shares of common stock, including the stock referenced in the August 5, 1998 Repurchase Notice.

Under these circumstances, Stronghaven’s mere retention of Ingram’s stock assignment forms does not establish, as a matter of law, acceptance of the late tender and waiver of the closing deadline. A jury could find that Stronghaven merely filed the assignment forms without intending to waive the contractual closing period, which expired over six months before Ingram’s tender. Thus, the trial court erred in finding that Stronghaven waived the closing deadline as a matter of law.

The Supreme Court’s decision in Pearson v. George, cited by both Ingram and the trial court, does not require a different result. In Pearson, waiver was clear. The Supreme Court determined that a lessor could not accept untimely rental payments from the lessee, then defend against enforcement of a purchase option in the lease agreement by claiming breach through late payment. As discussed above, the facts do not undisputably establish waiver in this case. Accordingly, the trial court erred in granting summary judgment to Ingram.

2. Although it erred in granting Ingram’s motion, the trial court properly denied Stronghaven’s request for summary judgment. On appeal, Stronghaven contends that, as a matter of law, its conduct does not show an intent to waive the closing deadline. The record establishes, however, that Stronghaven retained the signed assignment forms Ingram submitted in March 1999. Furthermore, Stronghaven has pointed to no evidence that it responded in any way to Ingram’s tender or informed Ingram at that point that the forms were untimely, and thus unacceptable. We find that this evidence raises a factual issue as to whether Stronghaven intended to waive the closing deadline and accept the late-tendered forms. The trial court’s denial of Stronghaven’s summary judgment motion, therefore, must be affirmed.

Case No. A01A1613

3. The trial court awarded Ingram judgment in the amount of $1,274,987.37, the price referenced in Stronghaven’s August 5, 1998 Repurchase Notice. Through his cross-appeal, Ingram argues that the trial court erred in not including pre-judgment interest or attorney fees in that award. In Division 1, however, we reversed the trial court’s award of summary judgment to Ingram. Given that decision, Ingram’s cross-appeal is now moot and must be dismissed.

Judgment affirmed in part and reversed in part in Case No. A01A1612. Appeal dismissed in Case No. A01A1613.

Johnson, P. J., and Ellington, J., concur.

Decided October 2, 2001

Reconsideration denied October 23, 2001

Womble, Carlyle, Sandridge & Rice, George W. Long III, Adam S. Katz, for appellant.

Edward F. Danowitz, Jr., Kim G. Meyer, for appellee.

        Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001).

       Id.

       (Emphasis omitted.)

       Ingram included a conversion claim in his original complaint, but later dismissed that count.

       See Martin v. Schindley, 264 Ga. 142, 143 (442 SE2d 239) (1994) (“An option becomes a contract between the parties binding from the date of its execution when the option is exercised according to its terms.”).

       We note that Ingram did not claim on summary judgment or on appeal that time was not of the essence in this contract.

       The trial court did not explicitly base its summary judgment ruling on waiver. In its order, however, the trial court found summary judgment proper because Stronghaven “did not reject [Ingram’s] tender of the Assignment Forms and . . . never rescinded the exercise of its option.” In addition, it relied upon Pearson v. George, 209 Ga. 938 (77 SE2d 1) (1953), a case cited by Ingram to support his waiver argument.

       (Emphasis omitted.) Frank v. Fleet Finance &c., 227 Ga. App. 543, 545 (1) (a) (489 SE2d 523) (1997). Under the executive stock agreement, North Carolina law applies to “questions concerning the construction, validity and interpretation of [the] Agreement.” Ingram asserts, however, that waiver is a procedural issue governed by Georgia law. Stronghaven does not clearly dispute this assertion and primarily cites Georgia waiver law in its brief, while stating that North Carolina law is “consistent.” Furthermore, the trial court applied Georgia law to the issues in its summary judgment order. Because Stronghaven has not enumerated the trial court’s application of Georgia law as error on appeal, we need not address whether North Carolina waiver law should have been applied. Rather, we consider whether the trial court properly granted summary judgment under Georgia waiver principles. See Manderson & Assoc. v. Gore, 193 Ga. App. 723, 725 (2) (389 SE2d 251) (1989).

        TST, Ltd. v. Houston, 256 Ga. 679-680 (1) (353 SE2d 26) (1987).

       (Punctuation omitted.) Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989). See also MNM 5, Inc. v. Anderson/6438 Northeast Partners, 215 Ga. App. 407, 410 (2) (451 SE2d 788) (1994) (“A party may by Ms conduct waive a legal right but where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless Ms acts or omissions to act are so mamfestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of Ms conduct is possible”).

        McCullough v. McCullough, 263 Ga. 794, 795 (1) (439 SE2d 486) (1994); Kusuma, supra.

       See Frank, supra at 547-548 (2) (seller’s deposit of down payment check after closing deadline did not establish waiver of deadline as a matter of law; record raised question of fact “as to whether [seller] accepted the [check] as the required downpayment on the house, or simply followed its customary practice of depositmg checks from prospective purchasers into an account so that the funds would not be lost, stolen, or misplaced”). See also American Oil Co. v. Studstill, 230 Ga. 305 (1) (196 SE2d 847) (1973) (“The tender and delivery of a check in a stated amount in full and complete settlement of a claim,. . . [where] the check, though retained after receipt, is not presented so as to be charged against the deposit or account of the maker, [do] not amount to an accord and satisfaction of the alleged claim as a matter of law”).

       Supra.

       Id. at 945.

       Under Georgia law, failure to respond to a business letter may raise a presumption that the recipient admits “the propriety of the acts mentioned in the letter.” OCGA § 24-4-23. We express no opinion as to whether that presumption has been raised in this case.

       See Frank, supra at 545. See also American Oil, supra at 306 (3) (“The tender and retention of the check . . . creates a fact issue with respect to accord and satisfaction where there is no separate written acknowledgment . . . and where the check has not been presented and charged against the deposit or account of the maker”).

       See Steele v. Grot, 232 Ga. App. 847, 849-850 (2) (503 SE2d 92) (1998).


text:
    A01A1572.
    JOLLY v. ZARELLA.
    (555 SE2d 798)
   Ruffin, Judge.

Ronald Jolly sued John Zarella alleging that Zarella’s negligence caused an automobile collision between the two. Following trial, the jury returned a verdict in Zarella’s favor. Jolly appeals, asserting that the trial court erred in overruling his objection to certain testimony and refusing to give a curative instruction. For reasons that follow, we affirm.

The record shows that, at the time of the collision, Zarella lived in Massachusetts but was driving from Atlanta to Myrtle Beach to visit friends. Following the collision, a police officer issued Zarella a traffic citation for an improper lane change. Zarella subsequently paid the assessed fine without challenging the citation, and on direct examination his attorney asked why he decided to do so:

Q. Why did you determine to pay that citation? A. Well, I certainly didn’t want to have to come down to Atlanta to come to court and fight a ticket that cost me $80. It would have cost me a lot more than that... so I figured I would pay it. In hindsight, I would never have paid the ticket, you know, realizing how much this was going to cost me. I would . have come down and stood for what is right and wrong and I would have fought this.

(Emphasis supplied.) Counsel then asked whether Zarella wrote on the citation that he admitted his guilt, and Zarella responded that he refused to sign the ticket. Counsel stated, “Okay,” and Zarella stated, “It says sign here for admission of guilt or something.”

Following this line of questioning, Jolly’s counsel requested a bench conference, at which the following colloquy occurred:

[Jolly’s counsel]: There is testimony from Mr. Zarella talking about if I realized what it would cost me. The insurance doesn’t cost him anything and if there’s any evidence of more than circumstances or, you know, what effect that a judgment may have on him and that is utterly inadmissible in this case. The Court: It may be, counsel, but you didn’t object. It came in. ... I can’t rule unless you’re going to object.

The bench conference ended after the judge’s last remark without any further comment by counsel.

After Zarella finished testifying, and following the testimony of two other witnesses, Jolly again raised his complaint concerning Zarella’s statement about “how much this was going to cost [him].” Jolly’s counsel moved for permission to introduce “other evidence about worldly circumstances . . . or in the alternative an instruction to the jury that they are not to consider the worldly circumstances of the defendant either way.” The trial court denied both motions, finding that “there’s no evidence of [Zarella’s] worldly circumstances.” Although the trial judge believed that Zarella’s comment was “intemperate and . . . done to prejudice the jury,” he reasoned that it did not “necessarily mean[ ] money. It could mean aggravation. [It] could mean . . . this is really a lot more than I bargained for.”

On appeal, Jolly asserts that the trial court erred in overruling his objection to Zarella’s comment and in denying his request for a curative instruction. We review Jolly’s assertions under a clearly established appellate standard providing that

the admission of evidence is generally committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion. This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding. Hence, it is only natural that an appellate court should defer to the trial court with regard to the admission of evidence, unless the lower court’s decision is so flawed as to constitute an abuse of discretion.

In reviewing Jolly’s assertion, we note initially that it is unclear whether he properly preserved his objection for appeal. “This State has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” In this instance, counsel did not interject immediately after the disputed comment, but waited until another question was asked and answered before interposing his objection. The transcript does not reveal how much time actually elapsed between the comment and the time counsel requested a bench conference, but the trial judge apparently found it was long enough for the evidence to come in without objection. In the past, we have ruled that motions for mistrial made under similar circumstances were untimely and therefore waived.

Decided October 23, 2001.

Slappey & Sadd, James N. Sadd, for appellant.

Hawkins & Parnell, Michael W. Kitchens, for appellee.

Assuming, without deciding, that Jolly acted timely, we find no abuse of discretion. Our review of the transcript reveals that the trial court had difficulty determining whether Jolly was even lodging an objection to Zarella’s comment. Indeed, at the end of the colloquy, the trial court simply refused to make a ruling without an objection.

Furthermore, based on the trial judge’s response to Jolly’s request for a curative instruction, it is clear that the court did not construe Zarella’s comment as evidence of worldly circumstances. Zarella did not say that this case would have an impact on his financial status, and, as reflected by the trial court’s reasoning, the cost he was referring to could have been the aggravation of traveling from Massachusetts to defend the suit; it “could mean . . . this is really a lot more than [he] bargained for.”

Under these circumstances, we find it appropriate to defer to the trial court’s assessment of the testimony and counsel’s argument and conclude that the trial court did not abuse its discretion in failing to strike Zarella’s testimony. It follows that the trial court was not required to remedy the admission of Zarella’s testimony with a curative instruction.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Although Jackie Jolly was also named as a plaintiff in the complaint, alleging a loss of consortium, she has not appealed from the trial court’s judgment.

       (Punctuation and footnotes omitted.) Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457 (2) (543 SE2d 21) (2001).

        State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997).

        See Altman v. State, 229 Ga. App. 769, 770 (3) (495 SE2d 106) (1997) (motion made two questions later); Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986) (same).

       See Crosby, supra.


author: Blackburn, Chief Judge.

text:
    A01A1605.
    GORDON v. THE STATE.
    (555 SE2d 793)
   Blackburn, Chief Judge.

In his second appeal before this Court, Charles Edward Gordon appeals his convictions for aggravated assault with intent to rape and false imprisonment, contending that his trial counsel was ineffective by (1) failing to move for directed verdict on the specific grounds that it was impossible for Gordon to be convicted of assault with intent to rape a male and (2) failing to present certain mitigation evidence during the sentencing phase. For the reasons set forth below, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” Cox v. State So viewing, the record reveals that Gordon grabbed his 16-year-old male victim, who possessed feminine features, and forced him into a nearby alley, attempted to remove the victim’s pants, and demanded sex. During the struggle, Gordon pulled down his own pants and exposed his penis, which already had a condom on it, and made threatening remarks to the victim which indicate that he believed the victim was a female.

“The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous.” Chapman v. State; see Nickerson v. State.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations omitted.) Chapman, supra at 349-350 (2); see also Strickland v. Washington; Mobley v. State; Johnson v. Stated. Gordon’s counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Nickerson, supra at 831 (2). “‘To show deficient performance, [Gordon] must demonstrate that his [trial] counsel’s performance was not reasonable under the circumstances confronting his [trial] counsel at the time, without resorting to hindsight.’ ” Id.

1. Gordon contends that his trial counsel was ineffective by failing to move for a directed verdict on the grounds that it was legally impossible for Gordon to be convicted of assault with the intent to rape a male. However, Gordon’s premise that he could not be convicted for assault with intent to rape a person who is a male is mistaken. Gordon’s belief that the victim was a female, and his actions taken toward such victim, were sufficient to establish his intent to “rape” (i.e., have carnal knowledge with a female). That the victim turned out to be a male, rendering an actual rape impossible, does not affect his culpability.

Under Georgia law, a defendant who “attempts” to commit a crime cannot use impossibility as a defense when the act would have been possible if “the attendant circumstances [had] been as the accused believed them to be.” OCGA § 16-4-4; Howell v. State (“ ‘[i]t is not necessary that the contemplated murder be factually possible. It is sufficient if it was apparently possible to the defendant’ ”). With “intent” to commit a crime an essential element to the crime of “attempt” to commit the same act, it follows that impossibility would similarly fail as a defense to an “intent” crime. Id. at 454 (4). In fact, courts consider the use of the impossibility defense to be even weaker in connection with an “intent” crime than with an “attempt” crime. See Scroggins v. State, overruled on other grounds, Dunagan v. State (the defendant’s intent and belief that he could transmit HIV through a bite were determinative, and that it might have been impossible to do so “is even less a defense to the charge of assault ‘with intent to murder’ than it would be to an accusation of attempt to murder, since an ‘attempt’ requires a more substantial act towards completion than does mere ‘intent’ ”) (emphasis in original).

In this case, Gordon thought that the victim was a female, and the evidence supported a finding that Gordon intended to rape the victim. The fact that it would have been impossible to do so is no defense. That Gordon thought the alleged victim was a female would support his conviction of aggravated assault with intent to rape.

For these reasons, had Gordon’s trial counsel filed a motion for directed verdict on this specific ground, he would not have been successful. “Trial counsel’s failure to pursue a futile motion does not constitute ineffective assistance.” (Punctuation omitted.) Nickerson, supra at 832 (2) (b). We find no error.

2. Gordon also argues that his trial counsel was ineffective because “he failed to present any mitigatory evidence (or any argument of substance) at the sentencing hearing.” Gordon does not cite to the record, case authority, or otherwise explain his claim contained in parentheses that his trial counsel failed to present “any argument of substance.” Thus, this portion of the enumeration is deemed abandoned. See Court of Appeals Rule 27 (c) (2).

Further, in connection with the trial counsel’s failure to present mitigation witnesses during the penalty phase of trial,

The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.

(Punctuation omitted.) Huff v. State; Nicholson v. State. The “burden was on [Gordon] to inform his counsel of any [mitigation witnesses], and most assuredly to be totally honest with counsel. A self-induced error is too close to premeditated error, hence beyond further appellate scrutiny.” Huff, supra at 115; see also Mack v. State (where defendant “did not assist his counsel and was not forthcoming with information [, h]e cannot now complain of counsel’s alleged deficiencies that were caused by his own failure to communicate and fully cooperate with counsel”).

During the trial court’s hearing on Gordon’s ineffective assistance claim, Gordon proffered his cousin, James Roberts, and Roberts’ wife, Linda, who testified that Gordon had problems with drugs and alcohol, that he had fallen into a downward spiral of drug use, and that they would have testified if they had been called to do so. However, Gordon had never talked to his trial counsel about these witnesses or his alleged substance abuse problems, despite meeting and talking to trial counsel on several occasions prior to trial. In fact, at all relevant times, Gordon continued to maintain that he was the victim, not the perpetrator. Gordon’s trial counsel testified that

Charles’ defense wasn’t that he was under the influence at the time. His defense had been that he had been attacked and robbed, that he was the injured party and not the — and should not have been charged. . . . Based upon that we didn’t do any additional investigation as far as mitigation went. ... I don’t believe we discussed mitigation witnesses at all.

Gordon continued to maintain his innocence, and during the penalty phase, trial counsel simply requested that the court be lenient because Gordon was intoxicated at the time of the incident.

Gordon’s trial counsel was not required to anticipate that Gordon was less than truthful about the events which occurred and potential mitigating reasons for such occurrences. Trial counsel’s failure to discover and present the Robertses’ testimony was not unreasonable. We limit our review to the trial counsel’s failure to discover and call these two witnesses only, since Gordon has not proffered any other alleged mitigation evidence. See Pace v. State; Barber v. State.

The cases relied upon by Gordon are distinguishable because they involve situations where the defendant suffered a documented history of mental illness, of which trial counsel was well aware. For example, in Turpin v. Christenson, trial counsel noticed during his representation that defendant was “aloof and detached,” even having problems with simple communication skills. The defendant had an “extensive history of psychiatric problems and substance abuse,” with a genetic disposition toward alcohol abuse, and had been placed in a psychiatric hospital for inpatient treatment just three years prior to the murder. Id. at 234-235 (12) (B). The defendant was actually evaluated by a state psychologist for a determination of whether he was competent to stand trial. Id. at 235. In finding that counsel was ineffective during the penalty phase, the court found that counsel “possessed a wealth of information regarding [defendant’s] psychiatric problems and drug abuse, which they essentially ignored. This is not a situation where trial counsel was unaware of their client’s psychiatric problems before trial.” (Emphasis supplied.) Id. at 239 (12) (B). In contrast, the present situation is one in which trial counsel was unaware of his client’s psychiatric problems before trial. Thus, Christenson is distinguishable.

Decided October 23, 2001.

Similarly, trial counsel in Turpin v. Lipham was faced with a defendant who had been institutionalized in mental facilities for nine years. Numerous pages of records documenting his illness were generated over that period of time. Counsel not only knew of this history, but also made it a “centerpiece” of the defense. What the court found unreasonable, however, was counsel’s decision to forgo hiring a mental health expert to review the 2,500 pages of records. Id. at 217. In contrast, the “centerpiece” of Gordon’s defense was his alleged innocence, not his mental impairment. Moreover, not one record document has been identified which would have even suggested to trial counsel that his client suffered from a mental impairment, let alone one which would require additional investigation. Zant v. Pitts, rev’d on other grounds, Turpin v. Hill, is also distinguishable, since trial counsel “had at their disposal” mental health expert reports demonstrating that the defendant was “mildly mentally retarded.” Furthermore, Zant v. Hamilton is not instructive. There, the Supreme Court did not conduct an analysis of what representations defendant made to counsel or what information counsel otherwise had at his disposal, and the Court simply determined that the superior court’s finding that witnesses could have been located through investigation was not clear error. Id. at 555 (3). Thus, the authority cited is not applicable.

In any event, even if Gordon’s trial counsel was unreasonable in not discovering and presenting the Robertses’ testimony, we agree with the trial court that Gordon failed to demonstrate prejudice. The trial court’s finding that the witness testimony “indicates that these witnesses were only marginally familiar with the defendant’s character” and that “it is highly unlikely that introduction of the testimony of these witnesses would have been beneficial to the defendant” was not clearly erroneous.

Because Gordon failed to show that his trial counsel’s actions fell below an objective standard of reasonableness, the trial court did not err in denying his motion for new trial.

Judgment affirmed.

Pope, P. J., and Miller, J., concur. Mikell, J., disqualified.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

       After his conviction, Gordon appealed to this Court. Gordon v. State, 244 Ga. App. 265 (535 SE2d 289) (2000). On appeal, we found no grounds for reversal of the convictions, but we remanded the case for the determination of whether Gordon received effective assistance of counsel. Id.

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

        Chapman v. State, 273 Ga. 348, 350 (2) (541 SE2d 634) (2001).

        Nickerson v. State, 248 Ga. App. 829, 831 (2) (545 SE2d 587) (2001).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Mobley v. State, 271 Ga. 577, 578 (523 SE2d 9) (1999).

        Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

       At trial, Gordon’s trial counsel moved for directed verdict on all counts generally. However, in connection with such motion, trial counsel did not specifically argue that Gordon could not be convicted of aggravated assault with intent to rape a male.

        Howell v. State, 157 Ga. App. 451, 456 (4) (278 SE2d 43) (1981).

        Scroggins v. State, 198 Ga. App. 29, 33-34 (1) (b) (401 SE2d 13) (1990).

        Dunagan v. State, 269 Ga. 590, 593 (2) (a) (502 SE2d 726) (1998).

        Huff v. State, 224 Ga. App. 115 (479 SE2d 476) (1996).

        Nicholson v. State, 265 Ga. 711, 714 (4) (462 SE2d 144) (1995).

        Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000).

        Pace v. State, 239 Ga. App. 506, 510 (7) (521 SE2d 444) (1999).

        Barber v. State, 236 Ga. App. 294, 299 (5) (512 SE2d 48) (1999).

        Turpin v. Christenson, 269 Ga. 226, 234 (12) (B) (497 SE2d 216) (1998).

        Turpin v. Lipham, 270 Ga. 208, 216-217 (3) (B) (3) (510 SE2d 32) (1998).

        Zant v. Pitts, 263 Ga. 529 (436 SE2d 4) (1993).

        Turpin v. Hill, 269 Ga. 302, 304 (4) (498 SE2d 52) (1998).

        Zant v. Hamilton, 251 Ga. 553 (307 SE2d 667) (1983).


author: Phipps, Judge.

text:
    A01A2433.
    BEALL v. THE STATE.
    (555 SE2d 788)
   Phipps, Judge.

An accusation charged Charlotte Beall, former Probate Judge of Johnson County, with violating her oath of office by misfeasance resulting in loss of monies lawfully held by her office between January 1, 1997, and September 24, 1999. After pleading guilty, she received a probated sentence conditioned on her payment of $54,000 in restitution to the county. The trial court based the restitution amount on the State’s claim that shortages in probate court bank accounts during the period covered by the accusation totaled approximately $54,000. Beall appeals the restitution order. Among other things, she argues that under the applicable four-year statute of limitation, she should not have been ordered to pay restitution for monies lost more than four years before the April 10, 2001 accusation. Although we find no merit in this argument, we vacate the order based on insufficiencies in its findings.

At the restitution hearing, the primary State’s witness was an accountant who had conducted an audit of Johnson County offices. His attention was drawn to the office of the probate court because it was delinquent in remitting its collections to the county’s general fund and was disorganized. He determined that from January 1, 1994, until May 24,1999, approximately $73,388 in funds paid to the probate court were missing from its bank accounts. He explained that he made this determination based on discrepancies between collections by the court as shown on its official ledger and records of bank deposits. According to the accountant, the monies were taken by someone making bank account deposits either that were not receipted on the ledger or that were receipted for a lesser amount on the ledger. When asked on cross-examination whether this should have resulted in more money in the account than on the ledger, he responded, “It should be, but I think that’s why we’re all here; it wasn’t.” Apparently because the accountant’s calculation of shortage amounts for 1997 through 1999 totaled $55,492.87, the prosecuting attorney informed the court that according to “my math” the shortage in the period of time relevant to the four-year statute of limitation was approximately $54,000.

At the restitution hearing, Beall testified that she was 70 years old, unemployed, had virtually no financial assets or home equity, had a net monthly income of approximately $3,000 from Social Security benefits and a retirement fund, and supported a disabled son.

1. Beall contends that the trial court erred in ordering her to pay $54,000 in restitution to the county because this amount is greater than the county’s actual damages.

“[T]he restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit.” Consequently, the amount of restitution ordered may not be more than the victim’s damages. Beall argues that the county’s damages were less than the $54,000 payable from the probate court into the county treasury because the county must remit approximately 25 percent of probate court fines to various state agencies.

Because Beall did not raise this issue at trial, it has not been preserved for appellate review. We do note, however, that the trial court retains jurisdiction to modify the restitution order to direct the county to distribute the applicable percentages to agencies to which money is owed.

2. Beall contends that in calculating the amount of the shortage in probate court accounts, the court erred in failing to add $16,694.26 in cash on hand at the time of the audit. There is no merit in this contention because the accountant deducted the amount of cash on hand in arriving at his calculation of the $73,388 shortage.

3. Beall argues that under the four-year statute of limitation set forth in OCGA § 17-3-1 (c), she cannot be required to pay restitution for losses suffered from January 1 through April 10, 1997. There is no merit in this argument, because entry of a guilty plea waives statute of limitation defenses.

4. Beall contends that the restitution order should be vacated because it failed to include the specific factual findings required by statute. We agree.

Under OCGA § 17-14-10, factors to be considered by the court in determining the amount of restitution include the “present financial condition” and “probable future earning capacity” of the offender and her dependents. Although the form restitution order stated that factors such as these were considered, the order as entered “is deficient in that it does not show what the trial court has found as fact” relative to such factors. Consequently, we vacate the judgment and remand the case to the trial court for entry of a new order based upon the required written findings.

Decided October 23, 2001.

Page A. Pate, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Judgment vacated and case remanded.

Johnson, P. J., and Ruffin, J., concur. Ellington, J., disqualified.

        Revis v. State, 223 Ga. App. 470 (1) (477 SE2d 880) (1996).

        Garrett v. State, 175 Ga. App. 400, 401 (1) (333 SE2d 432) (1985).

       OCGA § 17-14-9.

       See OCGA Title 15, Chapter 21.

       See OCGA § 17-14-12.

        State v. Barrett, 215 Ga. App. 401, 406 (2) (451 SE2d 82) (1994).