text:
    A95A2335.
    LAROCHELLE v. THE STATE.
    (466 SE2d 672)
   Beasley, Chief Judge.

Larochelle was tried on a five-count indictment and was convicted only of one count of trafficking in cocaine through the knowing possession of 400 grams or more. OCGA § 16-13-31 (a) (1) (C). He was sentenced to 25 years’ imprisonment and ordered to pay a $1,000,000 fine. His motion for new trial was denied. Among other things, he contends that the five-count indictment was vindictive, that a plea offer was not communicated to him by trial counsel, that the search resulting in the seizure of the cocaine was unlawful, and that the evidence was insufficient to establish his knowing possession of the cocaine.

An earlier indictment charged Larochelle, Blanchard and Altona with one count of trafficking in cocaine and one count of possession of a controlled substance with intent to distribute. After Larochelle had made various pretrial motions and demands, including a motion to suppress, a second indictment was returned against the co-indictees. It charged them with four counts of trafficking in cocaine and one count of possession of a controlled substance with intent to distribute. The first indictment alleged that the amount possessed was 28 grams or more, whereas the second indictment alleged 400 grams or more.

The State moved to disqualify defense counsel due to conflict of interests. This motion averred that Larochelle and Blanchard were both being represented by the same attorney and other members of his law firm, and that a potential conflict existed because the State had made a plea offer in exchange for one defendant’s testimony against the other.

At a hearing on the motion, defense counsel objected to the fact that neither Larochelle nor Blanchard was present. Counsel also opposed the State’s motion, stating that the prosecution could not create a conflict by extending a plea offer; that this raised the mere possibility of a conflict which could not be used to deprive his clients of their right to counsel of their choice; and that at this stage of the proceeding he could represent both defendants; but that, if the court denied their motion to suppress, he would secure other counsel for one of his clients. Although defense counsel indicated a disinclination to agree to a plea in exchange for testimony against a co-defendant, he acknowledged that it was his obligation to communicate the offer and let the client decide whether to accept. The prosecuting attorney stated she sought an order of nolle prosequi on the first indictment, explaining that, upon review, she had “under-indicted” the case.

The court granted the nolle prosequi order over defendants’ objection and subsequently denied the motion to disqualify, on grounds that there was only a mere possibility of a conflict and that if a conflict did arise, defense counsel would voluntarily withdraw and assist the defendants in finding alternative counsel. Although the court denied defendants’ motion to suppress, the attorney represented both Larochelle and Blanchard at trial.

The evidence showed that on the evening of September 9, 1993, City of Pooler Police Corporal Whitt was patrolling an area of 1-95 within the city limits, on special assignment with a drug interdiction task force. That night, a drug dog was doing a walk-around of any cars that Whitt stopped.

The first car was a gray Cadillac driven by Larochelle and occupied by Altona and Blanchard. Through a radar device in his patrol car, Whitt determined that the car was moving 67 mph in a 55 mph zone. Whitt stopped the car and instructed Larochelle to exit it. He discovered that Larochelle’s driver’s license was suspended, issued him a citation for that offense (but not for speeding), arrested him, and placed him in the patrol car.

After the arrest, Whitt asked Larochelle if there was anything illegal in the car, and he said no. He then asked Larochelle “if he would have any problem if I searched the vehicle and its contents and he gave me permission to do so.” Altona and Blanchard were then asked to exit the vehicle. Officer Allen, who had arrived to assist Whitt, testified that Altona and Blanchard also verbally consented to a search of the car. This was confirmed by Whitt. Allen testified that all three suspects appeared to be very nervous.

Deputy Sheriff Lider arrived with the drug dog. As the dog approached the car to do the walk-around, he lunged toward it and went directly toward the glove compartment. Lider and Whitt then discovered coffee granules, which are used to mask the odor of cocaine, leaking onto the car’s floorboard from behind the glove compartment. Lider hit the dashboard and something fell from behind it. Whitt reached underneath and felt more coffee grounds. The screws securing the glove compartment appeared to have been tampered with, and the glove compartment was not “factory tight,” so the officers removed it. Therein they found cocaine.

Blanchard testified that Larochelle and one of Blanchard’s sisters have a daughter. He further testified that two days before the traffic stop, he and Larochelle left Delaware to go to Miami in a car borrowed from another sister. On the return they picked up Altona in Fort Pierce, Florida, after which Blanchard drove until Larochelle took over when they stopped at a gas station in Savannah about three or four miles from where they were stopped by Whitt.

1. Larochelle cites Lewis v. State, 101 Ga. 532 (28 SE 970) (1897), in urging error by the court’s failure to conduct a de novo investigation before entering the nolle prosequi orders.

OCGA § 17-8-3 allows the prosecuting attorney to enter a nolle prosequi with the court’s consent before the case has been submitted to a jury, but it requires an examination of the case in open court. After the case has been submitted to the jury, a nolle prosequi shall not be entered except by the consent of the defendant.

The court conducted an examination in open court, as required by the statute. Lewis does not require anything more, procedurally. In Lewis, the defendant’s conviction was reversed and a new trial ordered. On remand, the prosecutor sought a nolle prosequi. The defendant argued that since the case had been submitted to the jury already, a nolle prosequi could not be entered except by his consent. The Supreme Court disagreed, holding that “[t]he new hearing brought up the whole case for a de novo investigation; and consequently, it was right for the judge to deal with it as if it had never been tried at all. . . .” Lewis, supra, 101 Ga. at 534. Thus, the proceedings began anew.

2. Larochelle contends that the trial court erred in entering the nolle prosequi orders because the reindictment of him was vindictive.

“An indictment obtained without the dismissal of a prior indictment is a superseding indictment. A grand jury is not prevented from returning another indictment against an accused, even though an indictment is pending, where there has been no jeopardy upon the first indictment, and the existence of a prior indictment generally is not grounds for quashing the second indictment, although the state may be required to elect upon which indictment it will proceed.” (Footnotes omitted.) 41 AmJur2d, Indictments and Informations, § 54 (1995). However, “[a] reindictment increasing the severity of the charges following the exercise of certain procedural rights may create an appearance of vindictiveness, and where it does so, the burden is shifted to the government to prove that the decision to reindict with more severe charges did not result from any vindictive motive.” (Footnotes omitted.) 42 CJS, Indictments and Informations, § 27 (1991).

In United States v. Goodwin, 457 U. S. 368, 381 (102 SC 2485, 73 LE2d 74) (1982), the Court held that a presumption of vindictiveness is not warranted where the prosecutor makes a pretrial decision to modify the charges after the defendant has invoked procedural rights such as a motion to suppress and other pretrial demands. In this circumstance, the burden is on defendant to prove that the prosecutor’s charging decision was motivated by a desire to punish him for doing something the law allows him to do. See Goodwin, supra, 457 U. S. at 384.

The court was authorized to find that Larochelle did not carry this burden.

3. Larochelle contends that he was denied effective assistance of counsel.

After trial, counsel moved for new trial on the general grounds on Larochelle’s behalf and moved to withdraw as attorney of record. After the motion for new trial was heard, Larochelle’s new attorney filed a “supplemental memorandum” stating that he had spoken with Larochelle and learned that no plea offer made by the State had been communicated to him. He also stated that Larochelle’s consent to be represented by the same attorney as his co-defendant was not made a matter of judicial record. Given the potential conflict and the absence of any proof that there was a knowing and intelligent waiver of said conflict, Larochelle claimed ineffective assistance of counsel. Although he also complained that he was not present at the hearing on the motion to disqualify counsel, he has not enumerated error on the court’s failure to sustain counsel’s objection to his absence.

The trial court determined that Larochelle’s ineffective assistance claim was untimely but denied it on its merits. The court found that Larochelle expressly waived any possible conflict of interest resulting from counsel’s also representing a co-defendant; that counsel was very effective albeit unsuccessful; and that counsel’s dual representation of the co-defendants did not present an actual conflict because both defendants raised the same defense, i.e., that they lacked any knowledge the drugs were hidden in the car.

We do not find any support in the record for the finding that Larochelle expressly waived any conflict resulting from counsel’s joint representation. Also, the amendment to his motion for new trial was not untimely because it may be amended any time on or before the ruling thereon. OCGA § 5-5-40 (b). In its order denying Larochelle’s motion for new trial, the court did not rule on whether trial counsel informed Larochelle of the plea offer.

“Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.” (Footnote omitted.) Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988).

Nevertheless, “[t]he defendant must further show that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.] Logically, such prejudice can only be shown by some indication that the defendant was amenable to the offer made by the state. . . . [We are] to examine the facts of each case and grant relief where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar.” (Footnote omitted.) Id. at (2) (b).

In Holloway v. Arkansas, 435 U. S. 475, 489 (8) (b) (98 SC 1173, 55 LE2d 426) (1978), relied on by Larochelle, the Court did recognize that one of the reasons one attorney cannot represent multiple clients with conflicting interests is because he may well be precluded from exploring possible plea negotiations. See Ruffin v. Kemp, 767 F2d 748, 750 (11th Cir. 1985); see also Baty v. Balkcom, 661 F2d 391, 397 (9) (5th Cir. 1981). Neither Holloway, Ruffin, nor Baty goes so far as to hold that the existence of a plea offer creates a conflict of interest requiring the appointment of separate counsel, if the co-defendants are pursuing a common defense and decide to reject the offer.

Through Larochelle’s amendment to his motion for new trial, he raised a colorable claim of ineffective assistance of counsel requiring an evidentiary hearing to resolve the issues of whether trial counsel informed Larochelle of the plea offer and, if so, whether Larochelle knowingly and intelligently waived counsel’s potential conflict of interest through a decision to reject the offer and continue to pursue his and his co-defendant’s common defense. If either question is answered in the negative, the court must resolve a third question, whether Larochelle would have accepted the plea offer made or something similar. An affirmative response to this question requires a new trial.

4. Larochelle contends that the evidence seized should have been suppressed because the stop was pretextual.

First, Larochelle argues that Whitt was not authorized to stop him for speeding because the city ordinance had raised the speed limit on 1-95 to 65 mph. However, as found by the trial court, the ordinance provided that the 65 mph speed limit would be effective when appropriate signs were erected, and the signs which were posted at the time and place of this traffic stop indicated a speed limit of 55 mph.

Second, Larochelle argues that even if Whitt was authorized to stop him for speeding, he did not cite him for that offense, and therefore his ulterior motive was to search for drugs. The standard for measuring pretextual stops is not whether the officer’s primary motivation for making the stop was to interdict drugs. State v. Tate, 208 Ga. App. 117, 120 (430 SE2d 9) (1993), rev’d on other grounds, Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994). Rather, it is measured by “ ‘ “ ‘an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ and not on the officer’s actual state of mind at the time the challenged action was taken.” ’ The finding of an improper or even illegitimate motivation does not render the stop an unreasonable one. The validity of the stop depends on what the driver was doing and what that reasonably conveyed to the officer, not on what else the officer thought might be occurring.” Tate, supra, 208 Ga. App. at 121. Defendant’s speeding authorized the initial stop. Schmidt v. State, 188 Ga. App. 85, 86 (372 SE2d 440) (1988); see Moon v. State, 194 Ga. App. 777, 778 (1) (392 SE2d 19) (1990).

5. Larochelle contends that he did not voluntarily and freely consent to the search and that the search exceeded the scope of any consent given. The trial court’s findings in these regards must be accepted as they are not clearly erroneous. See, e.g., Moon, supra, 194 Ga. App. at 777 (1).

6. The next question is whether the court erroneously charged the jury that it could presume that Larochelle possessed all property in the car, and Larochelle challenges the sufficiency of the evidence to establish beyond a reasonable doubt that he was in knowing possession of the cocaine.

The court charged the jury that if a person is driving an automobile or has an automobile in his possession, custody or control, it might infer, if it wished to do so, that all property in the automobile was in his possession, but that the inference could be rebutted. The court also charged the jury that if it found that other people besides defendants had equal access or an equal opportunity to place the contraband in the automobile, the jury should acquit the defendants unless it was shown beyond a reasonable doubt that defendants knowingly possessed the contraband or shared possession or control of it with some other person and aided and abetted or procured the other person to possess the contraband and have it under his control.

Larochelle argues that this charge was not authorized by the evidence, in that he had just taken over the responsibility of driving, and other people (i.e., the owner of the automobile, Blanchard, and Altona) had equal access. However, the evidence showed that both Larochelle and Blanchard had been in joint possession of the vehicle for two days prior to discovery of the cocaine, and that Altona did not join them until they arrived in Fort Pierce en route back to Delaware. Under these circumstances, it cannot be said that Altona had equal access to cocaine in a secret compartment of the car not accessible to passengers. Moreover, there was additional circumstantial evidence authorizing the jury to find that although Larochelle and Blanchard were using a borrowed car, they were in knowing joint or constructive possession of the cocaine. Accordingly, the court did not err in charging the jury on the rebuttable presumption. See Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983).

The jury found, as it was legally authorized to do, that the presumption had not been overcome by Larochelle. Spurlin v. State, 168 Ga. App. 16, 18 (2) (308 SE2d 39) (1983); compare Hughes v. State, 215 Ga. App. 6 (449 SE2d 547) (1994); Whipple v. State, 207 Ga. App. 131 (1) (427 SE2d 101) (1993). Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Larochelle was in knowing possession of the cocaine.

7. The last enumeration is that the court erred when it failed to charge the jury on the presumption of innocence at the end of the trial. The transcript shows that when the trial began, the court gave a preliminary instruction on the presumption of innocence, and the court reiterated this principle when it gave its general charge. Compare Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794) (1994).

Decided January 5, 1996

Randall A. Schmidt, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

The judgment of conviction and sentence are affirmed, but the order denying Larochelle’s motion for new trial is vacated and the case remanded for a hearing on the ineffective assistance claim raised by him.

Judgment affirmed in part and vacated in part and case remanded.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A2627.
    SCOTT v. THE STATE.
    (466 SE2d 678)
   Beasley, Chief Judge.

Scott was convicted of armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), and possession of a firearm during the commission of a crime (OCGA § 16-11-106).

1. Scott contends the court erred in restricting his counsel from questioning jurors during voir dire about possible racial bias, thereby violating a substantial right provided by OCGA § 15-12-133. Legare v. State, 256 Ga. 302, 303 (348 SE2d 881) (1986).

Scott has not supplied a copy of the transcript of the voir dire nor did he object to any alleged restriction in questioning prospective jurors but instead, when queried by the court, affirmatively stated he had no objection to the method used to select the jury. “Generally, the failure of a party to raise an objection to the make-up of the jury until after the return of the verdict constitutes a waiver of the issue on appeal.” Vaughn v. State, 173 Ga. App. 716, 717 (3) (327 SE2d 747) (1985). In addition, errors not raised at trial will not be considered. Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980); Tucker v. State, 245 Ga. 68 (263 SE2d 109) (1980); Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987). For both reasons, the decision of the trial court is not subject to appellate review. Grice v. State, 199 Ga. App. 829 (406 SE2d 262) (1991).

2. Scott contends that the court erred in communicating with the jury during his absence from the courtroom, in three instances, while the jury was deliberating.

The court received the first two notes on the afternoon of the first day of the jury’s deliberation. The first note was received while the judge was in the midst of selecting a jury for a different case. The note inquired, “Sir, could we be told when Scott was 1st named by a witness and why was the Sgt. not called as a witness?” Without consulting either side, the court responded, “You will have to decide the case based on the evidence you heard.” Later, when the judge informed counsel of his action, he stated he knew that it was “the only answer that we could possibly come up with” and made the note a part of the record.

In the second note, the foreperson wrote, “We have taken 4 votes and we are still at 10-2.” Again without consulting either side, the court responded, “Would you like to go home and try tomorrow?” After dismissing the jury for the day, the judge inquired whether the defense had any objections to the instructions that had been given and the defense answered in the negative.

A “ ‘ “defendant on trial must be present when the court takes any action materially affecting his case.” [Cits.]’ ” Collins v. State, 191 Ga. App. 289, 290 (381 SE2d 430) (1989). This is to afford an important opportunity to object to the action contemplated, such as the recharge and the manner in which it is given. Collins, supra at 291. It must be vigilantly protected, even when the practical desire for expediency tempts that exception be made. Collins’ conviction was reversed because the trial court charged on a substantive issue in the absence of defendant and his counsel. Collins unlike Scott, nevertheless, objected to the court’s responses and moved for a mistrial. Nevertheless, Scott and his counsel should have been present when the court communicated with the jury.

However, the failure to object and the non-prejudicial nature of the court’s instructions to the jury in these two instances preclude reversal on this basis. “ * “In considering the right of the accused to be present at every stage of the trial, and to have his counsel present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the ground that such an error had been committed by the trial judge. To warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character.” [Cit.]’ ” Collins, supra at 290.

The third instance occurred the next morning when, after about two and one-half hours of deliberation, the foreperson notified the court in writing, “We have an ill juror.” The court responded, “Does it appear that the juror is unable to continue on the case?” To which the foreperson responded, “Yes.” At that point the court replaced the sick juror with the alternate, without consulting the State or Scott. The court did not make its own independent determination that the juror was in fact ill and could not complete deliberations, which it should have done. Applying OCGA § 15-12-172 is a matter requiring an informed exercise of discretion. Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989). When informed of the court’s action, Scott objected.

Decided January 5, 1996.

William H. Turner, Jr., for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

Baptiste did not win a new trial because he had agreed to proceed with 11 jurors, and the trial had not yet begun. In this case, the problem arose after the jury began its deliberation.

In Cleveland v. State, 218 Ga. App. 661 (463 SE2d 36) (1995), the court properly dismissed a juror after determining that the juror had a bona fide medical emergency. In Scott’s case, the court made no inquiry of the juror despite the court’s knowledge that on four occasions during the previous day the jury had split its vote. See Green v. Zant, 715 F2d 551 (11th Cir. 1983), and Peek v. Kemp, 746 F2d 672 (11th Cir. 1984), where the court improperly dismissed jurors without making a reliable determination of whether there was actual incapacitation.

Taking such premature action in Scott’s absence cannot be regarded as harmless. Scott was denied an opportunity to verify that the juror was too ill to continue and to be heard before the court decided what to do. A defendant must be present when the court takes any action materially affecting his case. Collins, supra at 290. Changing the composition of the jury is without doubt a material action. A new trial is required because we cannot conclude that the juror would have been excused if further inquiry had been undertaken and defendant had been heard. She may have been one who voted not to convict.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A95A2100.
    GALE v. NORTH MEADOW ASSOCIATES JOINT VENTURE et al.
    (466 SE2d 648)
   Andrews, Judge.

Hyun-Sook Alexis Gale was shot and killed while working in the rented business offices of her employer, Mon Ami International. Kenneth Gale, as the deceased’s surviving spouse and the administrator of her estate, sued the property owners and managers of the office complex where Mon Ami’s rented office was located, claiming the lessor defendants breached a duty to provide adequate security at the office complex. Kenneth Gale appeals from the order of the trial court granting summary judgment in favor of the defendants.

The lease provided that the lessor would provide security services in the common areas of the office complex and that the lessee was given exclusive control of the portion of the premises rented as office space. The parties agree that Gale was shot and killed by a co-worker between 9:00 and 11:00 a.m. in the office space rented by Mon Ami. Although the record reflects there was pre-existing animosity between the co-worker and Gale arising out of their business relationship, there is no evidence in the record that Gale had any reason to believe the co-worker intended to physically harm her prior to the shooting. The defendants had no prior knowledge of any problems between Gale and the co-worker.

This is not a case based on evidence of prior criminal activity making it foreseeable to the defendants that this type of crime would occur on the premises, thus creating a duty to exercise ordinary care to prevent the criminal attack. See Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995). There was no evidence of any prior criminal activity which would have made the occurrence of a substantially similar crime on the premises foreseeable to the defendants. Id. In any event, the evidence shows this attack arose from pre-existing animosity between Gale and a co-worker, which could not have been foreseeable to the defendants. See Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 237 (416 SE2d 776) (1992). More importantly, it is undisputed Gale was shot and killed, not in a common area of the office complex premises over which the lessor defendants retained control and provided security, but in the Mon Ami office space over which the lessee had exclusive control and in which the lessor defendants had no duty to provide security. Godwin v. Olshan, 161 Ga. App. 35, 36 (288 SE2d 850) (1982). Moreover, this case does not involve forced entry into the lessee’s rented space or any claim that the attack occurred because the lessor breached a duty to provide adequate locks, security devices, or security in the common areas of the office complex. Compare Warner v. Arnold, 133 Ga. App. 174 (210 SE2d 350) (1974).

Nevertheless, appellant claims the lessor defendants had reasonable notice that the attack on Gale in the Mon Ami offices was about to occur and negligently failed to exercise ordinary care to prevent it. This claim is based on evidence that about 9:30 a.m. on the morning Gale was shot and killed, a maintenance worker for the defendants saw a man open the back door of the Mon Ami office from the inside. The worker noticed the man lean out the door, look around, then lean back inside and close the door. A few seconds later, the worker saw the same man again open the door from the inside and take a handkerchief out of his suit coat pocket. With the handkerchief covering his hand, he leaned out to pick up a briefcase sitting just outside the door, then went back inside with the briefcase and closed the door. The man was dressed in a suit and overcoat, appeared “vaguely familiar” to the worker, and was wearing what the worker described as a costume-type wig on his head. After observing these events, which the worker later described as “kind of unusual” and “kind of strange,” the worker did nothing and went on to complete his work at other locations. Later that afternoon, Gale’s body was discovered by a delivery person. When the maintenance worker learned of the shooting later in the day, he reported his observations to the defendants’ property manager and to the police. Sometime after the day of the shooting, the maintenance worker recognized that the man he saw lean out the door was a Mon Ami employee he had seen at the Mon Ami offices prior to and after the day of the shooting. He reported this to the police. The man observed by the maintenance worker was eventually identified as the co-worker the parties agree shot and killed Gale.

In claiming the defendants breached a duty to prevent the shooting, the appellant contends we should apply the rule stated in Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 (165 SE2d 179) (1968), and similar cases establishing that when a proprietor or his employee should reasonably apprehend that an invitee on the business premises is in danger of being injured by the misconduct of another person on the premises, the proprietor has a duty to exercise ordinary care to protect the invitee from the injury. The failure to do so when the proprietor has an opportunity to foresee and prevent the injury may constitute negligence. Id.; see Shell Oil Co. v. Diehl, 205 Ga. App. 367, 368 (422 SE2d 63) (1992).

The rule stated in Shockley, supra, does not control this case. Generally, a landlord, “if he knows, or in the exercise of ordinary care ought to know, of a possibly dangerous situation and fails to take such steps as an ordinarily prudent person, in view of existing circumstances, would have exercised to avoid injury to his tenant, he may be liable. . . .” Warner, supra at 178. However, a landlord’s duty under OCGA § 51-3-1 to keep safe portions of the leased premises designated as common areas in which the landlord has reserved a qualified right of possession, does not extend to the leased areas of the premises over which the tenant has exclusive possession and control. Godwin, supra; Maloof v. Blackmon, 105 Ga. App. 207, 208 (124 SE2d 441) (1962). Even “retention of . . . the right to enter the leased premises in emergencies and during business hours for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate [the landlord’s] limited liability under [OCGA § 44-7-14] and replace it with the liability imposed by [OCGA § 51-3-1].” Godwin, supra at 36; Cooperwood v. Auld, 175 Ga. App. 694, 695 (334 SE2d 22) (1985). Accordingly, the defendants had no duty to provide security in the office space where the shooting occurred, which was in the exclusive possession and control of the tenant, Mon Ami.

The observations of the defendants’ maintenance worker created no duty on the part of the lessor defendants to foresee or prevent the attack on Gale. In the first place, the activity witnessed by the maintenance worker was insufficient, as a matter of law, to have caused any reasonable person to foresee what happened to Gale. Moreover, the defendants’ maintenance worker was obviously not trained as or expected to perform the duties of a security guard. “Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness” in determining duty to foresee and prevent injury. (Citations and punctuation omitted.) Shockley, supra at 675. Since the lessor defendants could not have reasonably foreseen the attack, there is no basis for claiming they should have done anything to try to prevent it.

Even if, based on the events observed by their agent, the lessor defendants could have been charged with reasonably foreseeing that some type of mischief was afoot inside the Mon Ami offices, the defendants had no duty to enter the portion of the premises under the exclusive possession and control of the tenant to investigate or intervene. Godwin, supra; Maloof, supra. Even if the defendants could have immediately called the police and reported what had been observed in the Mon Ami offices, but failed to do so, they breached no legal duty. Since the attack on Gale occurred in an area under the exclusive possession and control of the tenant, and this is not a case where the defendants’ negligence caused the perilous situation, no relation arose which would impose a legal duty on the lessor defendants to make a reasonable effort to render assistance and avoid any further harm. Compare Alexander v. Harnick, 142 Ga. App. 816, 817 (237 SE2d 221) (1977); Thomas v. Williams, 105 Ga. App. 321, 326 (124 SE2d 409) (1962).

There being no evidence that the defendants breached any duty owed to Gale, the criminal act of Gale’s co-worker was the sole proximate cause of Gale’s death. The trial court properly granted summary judgment in favor of the defendants.

Decided December 21, 1995

Reconsideration denied January 9, 1996

Albert A. Chapar, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kathryn A. Cater, Ford & Harrison, F. Carter Tate, Ruth H. Heinzman, for appellees.

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs in the judgment only.


author: Pope, Presiding Judge.

text:
    A95A1958.
    In the Interest of B. D. T., a child.
    (466 SE2d 680)
   Pope, Presiding Judge.

B. D. T., a juvenile, committed a burglary in Fulton County and an armed robbery in Bartow County. He was sentenced as a designated felon under OCGA § 15-11-37, and was committed to the custody of the Georgia Department of Children & Youth Services (“DCYS”) for a period of detention and treatment of not less than 12 months. Five months after sentencing, however, the DCYS still had not retrieved B. D. T. from the Fulton County Detention Center, where he was being detained without treatment, despite Fulton County’s request that the DCYS do so. Concerned that the DCYS was unable to provide adequate treatment and that further confinement without treatment would not provide any meaningful benefit for B. D. T., the juvenile court judge modified his original judgment, staying B. D. T.’s restrictive custody and releasing him to the custody of his father. The State’s motion for reconsideration of this modification was denied, and the juvenile court subsequently set aside its original designated felony sentencing. We granted the State’s application for interlocutory appeal to consider the juvenile court’s authority to modify and set aside its original sentencing order, and now affirm.

“An order of the [juvenile] court may be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the [DCYS], after the child has been transferred to the physical custody of the [DCYS].” (Emphasis supplied.) OCGA § 15-11-42 (b). In this case, the order of the juvenile court which was modified and subsequently vacated was an order committing a delinquent child to the DCYS. Accordingly, the court’s authority to modify and set aside the earlier order turned on the question of whether the child had been transferred to the physical custody of the DCYS. See also Dept. of Human Resources v. J. R. S., 161 Ga. App. 262, 263-264 (287 SE2d 713) (1982) (once a court issues a commitment order and the State takes physical custody, the court cannot set aside the commitment order on the basis that the juvenile has made a satisfactory adjustment while in custody).

The words “physical custody” have a plain meaning, and the obvious answer to the question posed above is that the DCYS never took physical custody of B. D. T.; he was in the physical custody of the Fulton County Detention Center until his release. Nonetheless, the State suggests that the answer is not so obvious or simple. Once a juvenile is sentenced as a designated felon, he is supposed to be placed in a youth development campus (“YDC”) run by the DCYS. Because there are not enough YDCs to meet the demand, however, the juvenile is held in a detention center until a position in a YDC opens up for him. In most regions of the state, sentenced juveniles are detained in detention centers which are actually run by the DCYS, so physical custody is transferred to the DCYS immediately after sentencing. But in Fulton County, sentenced juveniles are instead detained in the Fulton County Detention Center, with the State reimbursing the county for housing the juveniles pursuant to a contract.

The State argues that the DCYS should be deemed to have had physical custody of B. D. T. because it was paying the Fulton County Detention Center to house and care for him. This argument proves too much, however, as the State pays Fulton County for all juveniles in detention, regardless of whether they have been committed to the custody of the DCYS. In any case, the State’s payment for care and housing does not equate to physical custody any more than a father’s child support payment does. The DCYS therefore never took physical custody of B. D. T., and the juvenile court had authority to modify its earlier order under OCGA § 15-11-42 (b).

As the State correctly points out, a court cannot commit a child to the custody of the DCYS but at the same time provide conditions which control or limit the DCYS’s discretion in dealing with the child. See In the Interest of R. D., 141 Ga. App. 843 (234 SE2d 680) (1977); Mack v. State, 125 Ga. App. 639 (4) (188 SE2d 828) (1972). But that is not what happened here. Instead, the court’s original order gave the DCYS complete custody and control. It was only when the DCYS was unable to exercise its control and take physical custody, despite the request of Fulton County that it do so, that the court modified its decision regarding commitment; and the court did not exceed its authority in taking this action.

Decided January 9, 1996.

Lewis R. Slaton, District Attorney, Sally A. G. Butler, Carl P. Greenberg, Assistant District Attorneys, for appellant.

George M. Johnson, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       The juvenile court’s finding that changed circumstances made the modification and subsequent setting aside of the original order in the best interest of the child is not enumerated as error.


author: Blackburn, Judge.

text:
    A95A2204.
    EDWARDS v. CAMPBELL TAGGART BAKING COMPANIES, INC. et al.
    (466 SE2d 911)
   Blackburn, Judge.

Alphonso Edwards appeals the trial court’s summary adjudication of his claims against a bakery and a grocery store that allegedly prepared and sold him an adulterated loaf of bread.

On June 26, 1994, Edwards purchased a loaf of bread prepared by Campbell Taggart Baking Companies, Inc. from J. R.’s Big Bear Foods. He ate several slices of the bread with his breakfast the next morning. At the time, Edwards found nothing unusual with the bread’s taste, smell or texture. Following his breakfast, Edwards experienced a strange taste in his mouth and felt ill for the remainder of the day. He had some more of the bread for breakfast the next morning after which he detected an unusual taste in his mouth, but he did not know whether it was caused by the bread. Edwards then looked at his plate and saw a dark brown spot in the bread slice that he thought was a bug. Though he did not ingest any of the dark brown spot, he immediately began vomiting. Plaintiff then examined the bread and deposed that it smelled “rank.”

The bread was ultimately tested by the State Department of Agriculture. Jane H. Jenkins, a chemist in the food laboratory of the Georgia Department of Agriculture, examined the bread and determined that the dark spot was a discolored clump of “greasy dough” and not an insect. She averred: “[g]reasy dough is baking dough which has accumulated a greater than normal amount of oil and/or grease. . . . Because of the greater than normal amount of oil and grease present, greasy dough is darker in appearance than the remaining product and is often mistaken for a foreign material.” The record reflects that prior to eating the bread, Edwards had a history of digestive problems. On deposition, Edwards’ physician opined that Edwards’ illness was caused by his perception of what he ate and not by the quality of the bread.

The party moving for summary judgment has the burden of demonstrating by reference to the evidence and legal authority that there is an absence of evidence to support the non-moving party’s case. In response, the non-moving party must point to specific evidence giving rise to a triable issue. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. “A plaintiff may prevail in food poisoning cases in Georgia by establishing that the food at issue was defective or unwholesome. Wilson v. Mars, Inc., 121 Ga. App. 790, 791 (175 SE2d 924) (1970); Armour & Co. v. Gulley, 61 Ga. App. 414 (6 SE2d 165) (1939). In the absence of direct evidence of the defectiveness of the food, recovery could be supported by circumstantial evidence if every other reasonable hypothesis as to the cause of the plaintiff’s illness could be excluded. See Payton v. Lee, 88 Ga. App. 422, 425 (77 SE2d 77) (1953).” Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 861 (424 SE2d 33) (1992). Jenkins’ affidavit states that the discolored portion of the bread was nothing more than a clump of dough that contained a higher proportion of oil and grease than the remainder of the dough used to make the loaf and did not render the bread unwholesome. Edwards has offered no evidence in rebuttal as to why this small clump of greasy dough would render the bread defective. His argument that the bakery’s negligent production methods may have contributed to the inclusion of the greasy dough is speculative at best and, thus, is not properly considered in evaluating the summary judgment motion. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Punctuation omitted.) Moore v. Winn-Dixie Stores, 216 Ga. App. 72 (454 SE2d 532) (1995).

Further, while Edwards deposed that the bread smelled rank, he detected no unusual smell upon opening or eating several slices of the bread the previous day. Rather, he only complained of the smell after he noticed the discolored spot he mistook for a bug. As the plaintiff offered conflicting statements as to the foul odor of the bread, evidence of the bread’s smell does not raise an issue of fact as to whether the bread was defective. “If on motion for summary judgment a party offered self-contradictory testimony on the dispositive issue in the case, and the more favorable portion of his testimony was the only evidence of his right to a verdict in his favor, the trial court must construe the contradictory testimony against him.” (Citation and punctuation omitted.) Thomas v. Southwest Ga. Community Action Council, 215 Ga. App. 638, 640 (451 SE2d 800) (1994).

In the absence of any direct evidence that the bread was unwholesome, we must determine whether the circumstantial evidence would exclude every other reasonable hypothesis as to the cause of Edwards’ illness. Edwards ate a variety of different foods in the period just prior to his illness, any one of which could have caused his symptoms. He also had a pre-existing condition that impacted his digestive tract that also may have caused this episode. Finally, as noted by his own doctor, it is possible Edwards’ illness was caused by his perception of what he ate, as opposed to what he actually did eat. As every other reasonable hypothesis as to the cause of Edwards’ illness cannot be excluded, Edwards’ claim fails as a matter of law.

Decided January 9, 1996.

Bruce E. Pashley, for appellant.

Freeman & Hawkins, Barry S. Noeltner, for appellees.

2. Edwards asserts that the trial court erred in relying on Jenkins’ affidavit in evaluating the summary judgment. First, Edwards argues that the affidavit was not clearly based upon Jenkins’ personal knowledge. “The personal knowledge requirement set forth in OCGA § 9-11-56 (e) . . . is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.” (Citation and punctuation omitted.) Logan v. American Bankers Life Assurance Co. &c., 168 Ga. App. 647, 649 (310 SE2d 263) (1983). Although it does not expressly state that it was based on personal knowledge, Jenkins’ affidavit clearly reflects that its contents were rooted in Jenkins’ personal knowledge and observation.

Edwards also asserts that the trial court erred in relying on portions of Jenkins’ affidavit, arguing that it was conclusory. No such error occurred. Jenkins’ affidavit clearly outlined the facts supporting her position thus enabling Edwards an adequate opportunity to rebut either her determinations or any of the facts upon which they were based. See Bridges v. Dept. of Transp., 209 Ga. App. 33, 34 (432 SE2d 634) (1993) (affidavit that provided conclusion without providing its factual basis was not adequate to pierce the facts presented by the movant for summary judgment).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A95A2390.
    ANDREWS v. THE STATE.
    (466 SE2d 909)
   Johnson, Judge.

A jury found Orasama Andrews guilty of possession of cocaine. He appeals following his conviction and the denial of his motion for new trial.

1. Andrews contends that the evidence was insufficient to authorize his conviction because other people had access to the house and bedroom in which the cocaine was found. Viewed in the light most favorable to the verdict, the evidence shows that Andrews lived in his mother’s house at 216 Cindy Street with his mother, Janet White and Marcus Smith. The testimony conflicts as to whether Andrews’ girl friend, Holly Bell, actually lived in the house with him or just spent the night there occasionally. After receiving a complaint that drugs were being sold out of the residence by Andrews, Bell, Smith and White, police conducted an undercover buy in which Smith sold an informant cocaine in the house. Police then obtained a warrant to search the residence. When they entered the house unannounced, they found Andrews leaving a bathroom, White in the southwest bedroom, and Bell and a juvenile in the living room. Officers found three rocks of crack cocaine under the bed in the northwest bedroom. They also found in the same bedroom a checkbook from a joint account bearing Andrews’ and Bell’s names, men’s and women’s clothing and a cellular phone service application completed in Bell’s name.

“The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found.” (Citations, punctuation and emphasis omitted.) Nelson v. State, 199 Ga. App. 487, 488 (1) (405 SE2d 310) (1991). In this case, while there was some evidence that Bell shared the room with Andrews, there was also evidence, including her own testimony, that she lived elsewhere and only spent the night in the house occasionally. “Whether the evidence presented is sufficient to rebut the evidence of equal access is an issue for the jury. [Cit.]” Garvey v. State, 176 Ga. App. 268, 275 (6) (335 SE2d 640) (1985). A jury could have found from the evidence presented that neither Bell nor any other person had an opportunity equal to Andrews to place the contraband in the area where it was found. In addition, we note that possession may be joint or exclusive. Id. at 275 (6). Therefore, the fact that Bell may have also had access to the area where the cocaine was found does not necessarily exculpate Andrews. The evidence is sufficient to authorize a rational trier of fact to find Andrews guilty of possession of cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992); Davis v. State, 203 Ga. App. 315 (1) (416 SE2d 789) (1992).

2. Andrews claims that evidence seized from the residence should have been suppressed because the warrant authorized the search of Smith’s residence, yet the police conducted a search of the entire residence. This argument is without merit. That the search warrant specifically shows 216 Cindy Street as the premises to be searched is sufficient.

Decided January 9, 1996.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

“The failure to name a person in the search warrant is not fatal. Search warrants are not directed at persons; they authorize the search of ‘places’ and the seizure of ‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” (Citations and punctuation omitted.) Bing v. State, 178 Ga. App. 288, 289 (1) (342 SE2d 762) (1986). Furthermore, where “several persons occupy the premises in common, sharing common living quarters but having separate bedrooms, the courts have held that a single warrant describing the entire premises is valid and justifies the search of the entire premises. [Cits.]” Id. at 290 (1). We find no error.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A2670.
    HARRELL v. CITY OF ALBANY POLICE DEPARTMENT et al.
    (466 SE2d 682)
   Beasley, Chief Judge.

We granted Harrell’s application for discretionary appeal in this proceeding instituted by him for a recommencement of disability income benefits based on a change in condition.

On December 1, 1985, Harrell suffered a compensable injury to his left foot during the course of his employment as a city police officer. He was paid temporary total disability benefits, which were suspended effective August 29, 1989, because he returned to work as a State corrections officer earning an average weekly wage equal to or greater than his average weekly wage as a police officer. On May 16, 1992, Harrell stopped working.

In the hearing before the ALJ, Harrell testified on direct examination as follows. He left his job as a corrections officer because he was found sleeping on the job. He has subsequently worked for the City of Albany as a part-time security guard but no more than two or three times, and for no more than two or three hours each time. He has been seeking full-time employment.

On cross-examination, the following was elicited. Harrell has not applied for permanent jobs outside of law enforcement or counseling, although he is qualified to work and has worked in other areas. He gave untruthful deposition testimony when asked whether he had been charged with any crimes and whether he had indicated his physical limitations on all of his employment applications. Following an automobile accident, he falsely stated that he had not had any work-related accidents. He worked for the City of Albany as a security guard far more than he testified to on direct examination. After he was terminated for sleeping on duty, he appealed to the State Personnel Board and, because of procedural flaws surrounding his termination, he was allowed to resign on the condition he not seek re-employment with the State for a period of one year. Some of the jobs he applied for during that period were with the State.

The ALJ found that after leaving his job as a corrections officer, Harrell made a sincere but unsuccessful effort to find other employment suitable to his impaired condition. Citing Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), the ALJ concluded that Harrell carried his burden of showing that his inability to secure suitable employment was proximately caused by his previous accidental injury.

Upon a de novo consideration of the evidence, the appellate division concluded that Harrell failed to carry his burden of proving a change in condition. The appellate division found that Harrell’s testimony was inconsistent and that his assertions concerning his inability to find work were unsupported by credible evidence. Citing Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), the appellate division concluded that Harrell had not met his burden of demonstrating that he made a sincere effort to find work and that he was not hired for reasons related to his job injury.

On appeal to the superior court, a timely order was not entered pursuant to OCGA § 34-9-105 (b), and the decision of the appellate division was affirmed by operation of law. Despite the failure to complete this first stage of review, we must exercise jurisdiction. See Atlanta Family Restaurants v. Perry, 209 Ga. App. 581, 582 (434 SE2d 140) (1993) (Beasley, P. J., concurring specially).

1. Under the 1994 amendment to OCGA § 34-9-103 (a), “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” In Clinical Arts Home Care Svcs. v. Smith, 218 Ga. App. 681 (462 SE2d 757), we held that the appellate division no longer conducts a de novo review of the evidence upon which the ALJ’s findings of fact are based.

In this case, the appellate division substituted its findings for those of the ALJ to the extent it determined that the ALJ’s findings were unsupported by credible evidence. Consequently, we conclude that although the appellate division stated it was engaging in a de novo consideration of the evidence, it in fact employed the proper standard of review.

Decided January 9, 1996.

B. T. Edmonds, Jr., for appellant.

Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, Todd S. Handelman, for appellees.

2. In Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), the Supreme Court overruled such cases as Landon, supra, with respect to their requirement that an employee show the reasons he or she was not hired by prospective employers. In order to receive workers’ compensation benefits based on a change in condition, Maloney holds that “a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Id. at 828. The rule of Bristol, which was confirmed by Maloney, requires the claimant to show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.

In this case, the appellate division concluded that Harrell did not carry the burden of proof mandated by such cases as Landon. Under Maloney, this was error. However, given the record, the appellate division was authorized to, and did, substitute its finding for that of the ALJ on the question of whether Harrell had made a diligent effort to secure suitable employment following his termination. The appellate division would thus be authorized to deny Harrell’s claim for disability benefits on the ground that he did not make a diligent effort to secure suitable employment following his termination and that his inability to obtain suitable employment was not proximately caused by the continuing disability.

We reverse the decision of the appellate division and remand the case to the superior court with direction that the case be recommitted to the appellate division for reconsideration in light of Maloney.

Judgment reversed and case remanded with directions.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2678, A95A2679.
    ARNOLD v. INDCON, L.P.; and vice versa.
    (466 SE2d 684)
   Blackburn, Judge.

In Case No. A95A2678, H. Ross Arnold appeals the trial court’s order granting summary judgment to Indcon, L.P., the plaintiff in the underlying action on a guaranty. In Case No. A95A2679, Indcon contends the trial court made factual errors in its order granting summary judgment.

On November 2, 1993, Arnold executed a document titled Lease Agreement Exhibit C Guaranty of Lease. On November 3, 1993, Ind-con, as landlord, and Millwork Brokers, Inc., as tenant, executed a commercial lease for certain office and warehouse space located in Fulton County. Indcon and Millwork Brokers also initialed the Lease Agreement Exhibit C Guaranty of Lease document. Thereafter, Millwork Brokers defaulted, and Indcon demanded payment from Arnold pursuant to the terms of the guaranty. Arnold failed to make payment and this suit followed.

Case No. A95A2678

1. On appeal, Arnold contends the guaranty is unenforceable because it is vague and indefinite. Pursuant to OCGA § 10-7-1, contracts of suretyship and guaranty are indistinguishable. OCGA § 10-7-3 provides that contracts of suretyship are subject to strict law; and the surety’s liability will not be extended by implication or interpretation. “OCGA § 10-7-3 was interpreted in Johns v. Leaseway of Ga., 166 Ga. App. 472 (304 SE2d 555) (1983) in which this court held [that a] contract of suretyship must be strictly construed in the interest of the surety. A surety’s liability will not be extended beyond by implication or interpretation. The undertaking of a surety being stricti-juris, he cannot, in law or equity, be bound further than the very terms of his contract. There is no construction required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Avec Corp. v. Schmidt, 207 Ga. App. 374, 375-376 (427 SE2d 850) (1993).

In the present case, the guaranty refers to the lease between Ind-con and Millwork Brokers by its reference as Exhibit C to the lease agreement and the tenant’s and landlord’s initials at the bottom. Arnold avers that when he signed the guaranty it was not attached to any other documents. Even if we found that this fact created an ambiguity as to which lease the guaranty applied, the intention of the parties is not in question because during his deposition, Arnold admitted that when he signed the guaranty, he was guaranteeing the portion of the lease regarding the tenant’s repayment of funds advanced by the landlord for improvements. Furthermore, the guaranty specifically delineated that Arnold guaranteed to the landlord the full and prompt payment of the tenant improvement amount as contemplated by paragraph 31 of the lease.

Decided January 9, 1996

Wagner & Johnston, Ralph A. Jordan, Benjamin C. Abney, for appellant.

Our previous holdings in Parker v. Ga. Receivables, 215 Ga. App. 624 (451 SE2d 538) (1994) (guaranty and lease referred to different subject matter); Avec Corp., supra (guaranty referred to lease dated on specific day which was not the date of the lease in question); and Stone v. Palm Pool Prod., 198 Ga. App. 751 (403 SE2d 69) (1991) (guaranty and line of credit referred to different companies) are factually distinguishable because the guaranties therein specifically referenced factors that conflicted with the corresponding contract agreements. In the present case, the guaranty does not conflict with the lease agreement, and as an exhibit thereto is unambiguous.

2. Arnold contends that Indcon was not damaged by Millwork Brokers’ default because Indcon benefitted from the improvements and Indcon’s subsequent lease of the premises to MODE Group, Inc. was more beneficial than the Millwork Brokers’ lease. This argument is without merit because the guaranty unconditionally guaranteed repayment of the landlord’s contribution to the tenant’s improvements. Therefore, as Indcon established the existence of the lease, the guaranty, and default, Indcon was entitled to recover on the guaranty. Cf. English Restaurant v. A. R. II, Inc., 194 Ga. App. 639 (1) (391 SE2d 462) (1990).

Case No. A95A2679

3. In its cross-appeal, Indcon contends the trial court made a factual error in either the computation of damages or the date to which the damages accrued. Our review of the record indicates that Indcon is correct. The record clearly shows that the amount due and owing Indcon as of April 19, 1995, the date of the judgment, was $40,495. Therefore, this case is remanded to the trial court with direction that it correct its finding as to the amount of damages. See Lester v. Bird, 200 Ga. App. 335 (2) (408 SE2d 147) (1991).

Judgment affirmed and case remanded.

McMurray, P. J., and Andrews, J., concur.

Holt, Ney, Zatcoff & Wasserman, Stephen C. Greenberg, for appellee.


author: McMurray, Presiding Judge.

text:
    A95A2025.
    BARNES v. JUSTIS.
    (467 SE2d 3)
   McMurray, Presiding Judge.

Plaintiff Christine S. Justis, formerly married to defendant William G. Barnes, initiated an action for “CHILD SUPPORT AND OTHER RELIEF,” seeking an order that defendant “be temporarily and permanently required to make child support payments to the Plaintiff for the benefit of the parties’ minor child in an amount which is consistent with the statutory guidelines[.]” According to plaintiff’s financial affidavit, the minor Stephanie Barnes was born on November 16, 1976. Defendant denied the material allegations and counterclaimed for certain interest payments allegedly owed to defendant but withheld by plaintiff. On August 2, 1993, the Superior Court of Glynn County, Georgia, entered an “INTERLOCUTORY ORDER,” directing defendant to pay plaintiff “$725.00 per month on the first day of each month, minus [certain trust] income received . . ., beginning with the month of July, 1993 and continuing thereafter on the [sic] until Stephanie marries, dies or reaches the age of majority, or until further Order of the Court, whichever occurs first.”

Plaintiff subsequently moved for a citation of contempt because defendant “prorated” the November 1994, payment. It appears that the sum proffered, $237.50, is calculated by dividing the monthly amount $725 by 2, and then subtracting from that amount ($362.50) the sum of $125 in trust income. In an order entered on February 24, 1995, the superior court found defendant in wilful contempt of the interlocutory order based upon the following circumstances, as recited in the court’s order: “Said child reached the age of majority on November 16, 1994. However, the last child support payment under the aforesaid Interlocutory Order came due before the parties’ child reached the age of majority. Notwithstanding the foregoing, Defendant, Mr. William Guthrie Barnes, prorated that payment, thereby paying only the amount of $237.41 when he should have paid $598.91. ... As a result . . ., the Plaintiff filed a Motion for Contempt. . . . [T]he Court finds the Defendant, William Guthrie Barnes in arrears in his child support obligations under said Interlocutory Order in the amount of $361.50 and that said arrearage is willful and in contempt of this Court’s Order.” This contempt citation allowed defendant to purge himself of the contempt by paying the difference to plaintiff’s counsel on or before March 23, 1995, but awarded plaintiff $500 in attorney fees. The superior court further ordered that, upon being presented with a copy of this order and the affidavit of plaintiffs counsel that defendant had failed to purge himself of the contempt, the Sheriff of Glynn County, Georgia, “shall immediately arrest the Defendant, William Guthrie Barnes and incarcerate him in the Glynn County Jail until he purges himself of said contempt by payment in full. . . .” The superior court stayed enforcement of its contempt citation “for a period of five (5) days . . .’’to allow defendant additional time to purge himself of contempt by paying the balance due on his November 1994 child support.

Decided January 10, 1996.

William G. Barnes, pro se.

Defendant’s application for interlocutory appeal was granted and a timely notice of appeal was filed. Defendant appeals from the order of the superior court holding him in contempt for his failure to pay the full monthly amount of court-ordered child support for the month of November 1994. Held:

1. In his first enumeration, defendant contends the superior court erred in holding him “responsible for paying child support beyond the minor reaching majority on November 16, 1994.” We agree.

A provision in a decree whereby child support payments will include the entirety of that month in which the child turns 18 is “illegal on its face in that it require [s] appellant [as the payor] to pay child support after [the] child [has] reached the age of majority. Code Ann. § 74-105 [now OCGA § 19-7-2]; Clavin v. Clavin, 238 Ga. 421 (233 SE2d 151) (1977).” Kimble v. Kimble, 240 Ga. 100, 101 (2), 102 (239 SE2d 676). In the case sub judice, the superior court’s interpretation of the interlocutory “decree requiring the payment by the [defendant-]father of support beyond the child’s age of majority is unenforceable and must be stricken.” Clavin v. Clavin, 238 Ga. 421, 422, supra. Consequently, defendant’s proffer in the case sub judice of the prorated monthly amount representing that period of November 1994 for which his daughter remained a minor (less trust income) was not any act of defiance, in wilful contempt of the superior court’s interlocutory order. The holding of the superior court that defendant is in contempt is clearly erroneous and is reversed. It follows that the award to plaintiff of $500 in attorney fees for prosecuting this contempt motion also is unauthorized and is reversed.

2. Remaining contentions have been considered and are found to be without merit or else to be rendered moot by our holding in Division 1.

Judgment reversed.

Andrews and Blackburn, JJ., concur.

George M. Rountree, for appellee.


text:
    A95A2068.
    RANSOM v. FLEET FINANCE, INC.
    (466 SE2d 686)
   McMurray, Presiding Judge.

Plaintiff Ransom filed this action against defendant Fleet Finance, Inc., seeking a declaratory judgment that a mortgage loan on plaintiffs residence was usurious and in violation of a criminal usury statute. Plaintiff also sought an injunction to prevent defendant from foreclosing upon his residence. This appeal follows the entry of an order denying plaintiffs request for an injunction and granting defendant’s motion for judgment on the pleadings, which was orally submitted at a hearing on plaintiffs request for an injunction. Held:

1. We deny defendant’s motion to transfer this appeal to our Supreme Court. Only issues of law within the jurisdiction of this Court are raised on appeal.

2. “[T]he question here is whether the undisputed facts appearing from the pleadings show the defendant is entitled to judgment as a matter of law. ... A complaint is not required to set forth a cause of action, but need only set forth a claim for relief. ... If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of his motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. . . . The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.” (Citations and punctuation omitted.) Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489). See also Sulejman v. Marinello, 217 Ga. App. 319, 320 (2) (457 SE2d 251).

Plaintiffs claims for relief are predicated entirely upon allegations that the mortgage loan is in violation of OCGA § 7-4-18. But the complaint is sufficient to show that the loan is not in violation of that criminal usury statute as construed in Fleet Finance of Ga. v. Jones, 263 Ga. 228 (430 SE2d 352), to require the consideration of the total interest paid over the entire period of a loan in determining if a loan is usurious. Furthermore, we find no error in the denial of plaintiffs motion to continue the injunction hearing. As there are no conceivable facts which could be proven in support of the claims in plaintiffs complaint which would authorize a judgment in his favor, the superior court was correct in granting defendant’s motion for judgment on the pleadings.

Decided January 10, 1996.

Ray Ransom, pro se.

Paul, Hastings, Janofsky & Walker, Craig K. Pendergrast, David H. Steinberg, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2364.
    MOORE v. THE STATE.
    (467 SE2d 5)
   McMurray, Presiding Judge.

Defendant Moore appeals his conviction of the offenses of rape, false imprisonment, and possession of a knife during commission of a felony. Held:

The sole enumeration of error questions the sufficiency of the evidence to authorize conviction of the defendant. The evidence stated in the light most favorable to upholding the jury’s verdict shows that defendant was driving around with the victim’s boyfriend while drinking beer and using crack cocaine. They stopped briefly at the victim’s home, then left. The defendant later returned alone to the victim’s home and asked her if she wanted to join him in smoking crack cocaine. At the victim’s suggestion they went to a friend’s apartment and smoked a small amount of crack cocaine. Then, at defendant’s suggestion, they went to his home. After their arrival at defendant’s home, he locked the doors and covered the windows before taking out a rock of crack cocaine and offering it to the victim in exchange for sex. The victim refused. Defendant seemed to accept the victim’s refusal and the two of them smoked the rock of crack cocaine together. Defendant then asked the victim for sex again and she reminded him of her refusal to trade crack for sex. The victim reiterated that she was not going to have sex with defendant. Defendant then began pacing about, obtained a large hunting knife, and began to insist that the victim have sex with him. The victim attempted to talk defendant out of having sexual intercourse by reminding him of his friendship with her boyfriend, telling him she had AIDS, and that she heard someone in the driveway. Defendant continued to demand that the victim take off her clothes. The victim attempted to leave, but defendant caught her, put the knife to her throat, and turned up the stereo to muffle the victim’s screams.

Defendant ordered the victim to lay on the floor and forcibly had sexual intercourse with her. He responded to her resistance by putting the knife to her throat. Afterwards defendant drove the victim back to her home while telling her not to tell anyone.

Decided January 10, 1996.

Harrison & Willis, Bennett T. Willis, Jr., for appellant.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Laura D. Hogue, Assistant District Attorneys, for appellee.

When the victim arrived at home her roommate was there. Because the victim was crying and shaking, the roommate asked what was wrong. After the victim explained that she had been raped by defendant, the victim, the roommate, and a male friend of the roommate drove to defendant’s home. The victim sat in the car while the male friend confronted defendant with the victim’s accusation of rape and defendant denied having sex with the victim or even knowing her.

The male friend drove the victim and her roommate back to their home. The victim then reported the crime by telephone.

Defendant’s argument is primarily directed to questioning the character and thus the credibility of the victim whose testimony provided much of the State’s evidence. As defendant notes, the victim is an admitted crack cocaine addict, who used the drug several times on the night in question, both before and after the rape of which defendant was convicted. In essence, defendant argues that due to these circumstances a rational trier of fact could not rely upon the testimony of the victim. But defendant fails to cite any authority in support of such a proposition and we find none. Questions as to the credibility of witnesses are within the exclusive province of the jury. On appeal of a criminal conviction this Court does not weigh the evidence or determine the credibility of witnesses, but determines the sufficiency of evidence. Phillips v. State, 215 Ga. App. 526, 528 (6) (451 SE2d 517); Jones v. State, 214 Ga. App. 788, 789 (449 SE2d 330); Gray v. State, 213 Ga. App. 507, 508 (1), 509 (445 SE2d 328). The evidence presented at trial was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2515.
    PALMER v. THE STATE.
    (467 SE2d 6)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of armed robbery, aggravated assault and possession of a firearm during the commission of a crime. This appeal followed the denial of defendant’s motion for new trial. In one enumeration of error, defendant challenges the sufficiency of the evidence and in another he claims that his trial attorney was ineffective because she failed to call two alibi witnesses. Held-.

1. Although defendant fails to present argument or citation of authority in support of his challenge to the sufficiency of the evidence, we have reviewed the trial transcript and find that the State’s eyewitness testimony (identifying defendant as the perpetrator of the crimes charged) is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of armed robbery, aggravated assault and possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. With regard to defendant’s claim that his trial attorney ineffectively failed to call two alibi witnesses at trial, we observe that defendant’s trial attorney testified (at a hearing on defendant’s motion for new trial) that she repeatedly asked defendant and defendant’s mother for the names of any alibi witnesses before trial and that the only information she was given (regarding the two alibi witnesses who were purportedly not called to testify on defendant’s behalf) was the name “Alex.” Defendant’s trial attorney explained that she vigorously attempted to discover the whereabouts of “Alex” (or even uncover Alex’s full name) before trial, but that these attempts, which included inquiry with defendant as well as defendant’s mother and brother, were unsuccessful. Defendant, on the other hand, offered evidence opposing to these explanations. The trial court, however, resolved these factual disputes, finding that defendant’s trial attorney “conducted herself appropriately ...” and provided defendant with effective representation at trial. In the absence of clear error, we have no power to set aside this finding. York v. State, 207 Ga. App. 494, 495 (2), 496 (2) (d) (428 SE2d 113).

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). [In the case sub judice, defendant] must overcome the strong presumption that [his trial attorney’s] conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66 (8) (410 SE2d 173) (1991). ‘To establish ineffective assistance of counsel, (a defendant) must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).’ Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992).” Peterson v. State, 212 Ga. App. 147, 150 (4), 151 (441 SE2d 481). In the case sub judice, the trial court rejected the factual basis of defendant’s claim that his trial counsel’s performance was defieient. Consequently, defendant failed to overcome the strong presumption that his trial attorney provided him with effective assistance before trial and during trial. Under these circumstances, we cannot say the trial court erred in rejecting defendant’s claim of ineffective assistance of trial counsel.

Decided January 10, 1996.

Samuel W. Cruse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2533.
    STEWART et al. v. DIEHL.
    (466 SE2d 913)
   McMurray, Presiding Judge.

By warranty deed, plaintiff Donna Diehl conveyed real property to defendant Sandra D. Stewart. The property was subject to an existing first mortgage, “which indebtedness Grantee [Sandra D. Stewart . . .] assume[d] and agree[d] to pay.” Sandra D. Stewart and her mother, defendant Frances Louise Helms, also signed a purchase money promissory note, representing a “second mortgage,” in the principal amount of $6,000. This note was secured by a purchase money security deed to the property, and provided for a default “[s]hould any installment not be paid when due, or should the undersigned [defendants] fail to comply with any of the terms of [the] Purchase Money Security Deed[.]” The purchase money security deed that defendant Sandra D. Stewart gave to plaintiff in turn provided that: “This conveyance is subject to an outstanding Security Deed from Donna B. Diehl to Congressional Mortgage Corporation of Georgia dated July 28, 1986, in the original principal amount of $57,200.00. . . . Any default under the terms of said loan shall constitute a default hereunder. Additionally, any failure to pay the condominium assessments on the above property shall constitute a default hereunder.”

Plaintiff subsequently brought this action on the purchase money promissory note alleging that defendants were in default for “failing to make any mortgage payments since the purchase of the property on the first mortgage or to pay the condominium association fees or special assessment fees.” Defendants’ pro se answer denied default, averring that “being behind on a first mortgage does not cause default on a second mortgage [, . . . and further showing that] the first mortgage is being assigned to HUD to help me with my payments.” In response to requests for admissions, however, defendants’ only reply was: “1. The property has been sold, due to close in January.” As a consequence, each defendant admitted that “the Purchase Money Deed dated May 12, 1994, ... is true, correct and genuine and that the signatures were placed on it on the day indicated[; that] as of September 13, 1994, [both] Defendant, Sandra D. Stewart [and defendant Frances Louise Helms], had not made payments for the months of June, July, August and September to the first mortgagee, Sunbelt National Mortgage [and . . . that she] had not made payments for the months of June, July, August and September to the condominium association . . . for special assessments [. . . nor] for the monthly association dues of $120.00 per month.”

Based on this prima facie case of indebtedness, plaintiff moved for summary judgment. Defendants, represented by counsel, opposed the motion, relying on a contractual provision that ostensibly forgave the note: “[I]f the undersignedf, i.e., defendants] within 9 months from the date hereof is able to refinance and pay off the existing first mortgage with Sunbelt National Mortgage Corporation, ... or to qualify to assume said loan and release Creditor [i.e., plaintiff] from any liability on said loan, then Creditor agrees to cancel this Note in full at that time without any further payment, to satisfy and cancel the Purchase Money Security Deed executed to secure this Note.” Defendants also submitted the affidavit of Sandra D. Stewart, who deposed that she had “only been served with the Demand for Payment of Note[, . . . and never had] been served with any Notice of Confirmation,” Notice of Foreclosure or any other attempt to foreclose upon the real property securing the second mortgage. They argued that plaintiff should have foreclosed first because the value of the real property would cover any notes due from defendants to plaintiff and so plaintiff would be “relieved from liability upon the note and therefore the note discharged.”

The trial court granted plaintiff’s motion for summary judgment and this appeal followed. Held:

In their sole enumeration, defendants contend the trial court’s grant of summary judgment “on Plaintiff/Appellee’s suit on a note violated the provisions of the Georgia Confirmation Statute, O.C.G.A. 44-14-162.”

“The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. He may sue on the note or exercise the power of sale. Gentry v. Hibbler-Barnes Co., [113 Ga. App. 1 (1) (147 SE2d 31)]. See also Oliver v. Slack, 192 Ga. 7 (2) (14 SE2d 593) (1941).” Trust Investment &c. Co. v. First Ga. Bank, 238 Ga. 309, 310 (1) (232 SE2d 828). The debtor “cannot force [the secured creditor] to accept the property in satisfaction of the debt. [Cits.]” American Mini-Storage &c. v. Investguard,, 196 Ga. App. 862, 863 (2) (397 SE2d 199). Consequently, the secured lender’s “failure to foreclose on the . . . security deed [and related failure to seek confirmation under OCGA § 44-14-161 et seq. does not] raise an issuable defense since the option to sue on the note was one of several remedies available to [plaintiff Donna Diehl]. Brown v. Rooks, 240 Ga. 674 (242 SE2d 128).” Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 (268 SE2d 384). “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” OCGA § 11-3-307 (2). By her production of the note and the admissions deemed to have been made by defendants in the case sub judice, plaintiff “presented a prima facie case that [she] was entitled to judgment on the promissory note, and [since defendants did not seek to withdraw their admissions, they consequently] failed to come forward with evidence sufficient to create an issue of fact to be decided by a jury.” Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330, supra. The trial court correctly granted plaintiff’s motion for summary judgment over defendants’ contention that the instant action on a note secured by real property was actually a deficiency action subject to the confirmation procedures of OCGA § 44-14-161.

Decided January 10, 1996.

Douglas R. Daum, for appellants.

Susan H. Irwin, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2752.
    GASKINS v. HAND.
    (466 SE2d 688)
   Blackburn, Judge.

Neal Gaskins, as executor of the estate of Ada Estelle Gaskins appeals the trial court’s entry of summary judgment against the estate’s claims against the former mayor of Nashville, Georgia.

Ada Estelle Gaskins, now deceased, owned a grocery store (“the store”) in Nashville that employed her son, Dennis Gaskins. During 1991 and 1992 the city was transferring control for its sanitation services to a private company. One of the store’s competitors, unhappy at the prospect of seeing its trash collection costs rise, refused to return the city’s dumpsters. At this time, while on break, many of the city’s sanitation workers would frequent the store. Apparently as a joke, some of these workers led Dennis to believe that the city was showing preferential treatment to the competitor. Angered by what he heard, Dennis contacted Dewey Hand, Nashville’s mayor, and threatened to sue the city. In response, Hand issued an edict to the city’s sanitation workers that they could no longer take their breaks at the store. Hand claims that he was acting pursuant to his mayoral powers in trying to effectuate the switch from publicly provided to privately contracted sanitation service as well as trying to keep the city from being sued. However, Gaskins has submitted affidavit testimony of a former sanitation worker who quoted Hand as saying: “I am going to get even with Dennis Gaskins and put him out of business.” Ada Gaskins sued Hand for tortious interference with business relations and for damages under OCGA § 36-33-4. The trial court entered summary judgment on behalf of the mayor, and this appeal ensued.

In reviewing the grant of summary judgment, “the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. [Cit.] This requires a de novo review of the evidence.” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

1. In order to prevail on a claim for tortious interference, “the evidence must show the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” (Citations and punctuation omitted.) Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (451 SE2d 87) (1994). Summary judgment is appropriate if the “evidence is insufficient to create a jury issue on at least one element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Bruno’s, Inc. v. Pendley, 215 Ga. App. 108, 109 (449 SE2d 637) (1994). We determine that summary judgment was inappropriate as a question of fact exists as to each element of Gaskins’ claims.

As to the first and second elements, questions exist as to whether Hand was acting improperly or without privilege and whether his conduct was malicious. Hand claims he was acting in accordance with his broad mayoral powers “to provide for . . . and to regulate the collection and disposal of garbage, rubbish and refuse” granted him by the Nashville City Charter. However, we cannot rule as a matter of law that Hand’s order barring sanitation workers from taking their personal breaks at the store falls within his province as mayor, especially in light of affidavit testimony that questions Hand’s motive in issuing the ban. As to the third element, Hand does not dispute that he caused the sanitation workers not to conduct business with the store. Finally, with regard to the fourth element, Hand admits that his actions could have caused plaintiff’s financial injury, but argues that Gaskins cannot meet this element as the injury is difficult to quantify. “The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the evidence submitted.” (Citations and punctuation omitted.) Johnston v. Lyon, 173 Ga. App. 524, 525 (327 SE2d 519) (1985). Consequently, while plaintiff’s injury may be difficult to quantify, this difficulty alone will not support the trial court’s decision to enter summary judgment.

In light of the questions of fact remaining as to each element of Gaskins’ claim for tortious interference, we find the trial court erred in granting summary judgment to Hand.

2. In the second enumeration, Gaskins asserts that the trial court erred in granting summary judgment on the claim under OCGA § 36-33-4 which provides: “[m]embers of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.” In construing this statute, this Court has held that “[i]t is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption. (Emphasis in original.) Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980).” (Punctuation omitted.) McDay v. City of Atlanta, 204 Ga. App. 621, 622 (420 SE2d 75) (1992). As outlined above, questions exist as to whether Hand was acting within his authority or with malicious intent when he ordered the ban on the store. Thus, the trial court erred in entering summary judgment on Gaskins’ OCGA § 36-33-4 claim.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Decided January 10, 1996.

Allen, Kelly & Sowell, Roy B. Allen, Jr., for appellant.

Drew, Eckl & Farnham, Theodore Freeman, J. Reese Franklin, for appellee.

       Ada Estelle Gaskins filed suit against Hand on September 23, 1993. During the course of litigation, she died, and on July 27, 1995, the trial court issued an order allowing substitution of appellant Neal Gaskins as executor of her estate.


text:
    A95A2764.
    HELTON v. THE STATE.
    (466 SE2d 690)
   McMurray, Presiding Judge.

Defendant Helton appeals his conviction of the offenses of arson in the first degree and arson in the second degree. Held:

1. The first two enumerations of error question the sufficiency of the evidence to authorize defendant’s conviction. In reviewing these enumerations of error we must view the evidence presented at trial in the light most favorable to upholding the verdict of the jury. Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820).

Viewed in this manner, the evidence shows that defendant participated in setting fire to a house rented by Virginia Hill and to her car, which was parked nearby. One of Virginia Hill’s sons was involved in a dispute with co-defendant Slaughter, who paid defendant and co-defendant Powell to set the fires.

Shortly prior to the time of the fire, defendant and co-defendant Powell were driven to a gas station where they purchased gas and were dropped off a few blocks from the scene of the fire with a plastic jug of gasoline. After being dropped off they were seen by other witnesses near the scene of the fire.

Co-defendant Powell entered a plea of guilty to arson in the second degree and testified on behalf of the State that he and defendant went to Virginia Hill’s home with a jug of gasoline and set fire to her car. An expert in fire investigation testified that the vehicle fire never went beyond the hood of the car and that the house fire was of a separate origin. The fire investigation expert also testified that there was a strong odor of gasoline around both the vehicle and the front porch of the house which had been on fire, and opined that the rapidity of the fire and the large surface area to which it had spread indicated that an accelerant was probably used to advance the house fire.

The conviction of arson in the first degree was based on defendant setting fire to the house under circumstances that it was foreseeable that human life might be endangered. The time of the fire, past midnight, plus the fact that the house was occupied by sleeping residents thereof was sufficient evidence of the potential for danger to human life. Contrary to defendant’s argument the evidence shows that the house fire was a second deliberate fire and not an accidental result of the car fire; therefore, defendant’s reliance on Altman v. State, 156 Ga. App. 185, 186 (1) (273 SE2d 923) is misplaced. The circumstantial evidence that defendant participated in setting the house fire is sufficient to exclude any reasonable hypothesis other than the guilt of defendant. Also there was ample evidence to authorize defendant’s conviction of arson in the second degree for the car fire. A rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 10, 1996.

Johnson, Beckman & Dangle, Thomas E. Parmer, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assis tant District Attorney, for appellee.

While defendant was convicted of arson in the second degree in connection with the car fire, the indictment charged him with arson in the first degree for that crime. Defendant enumerates as error the denial of his motion for a directed verdict of acquittal as to the charge of arson in the first degree arising from the car fire. Assuming, as defendant maintains, that there was insufficient evidence to support a conviction for arson in the first degree in connection with the car fire, any error would relate only to the charge of arson in the first degree and not to the lesser included offense of arson in the second degree as to which we have found there was sufficient evidence to authorize conviction of defendant. But any such error was rendered harmless by defendant’s acquittal of arson in the first degree in connection with the car fire. Kilgore v. State, 195 Ga. App. 884, 886 (10) (395 SE2d 337). This enumeration of error is without merit.

2. We find no merit in defendant’s contention that the trial court erred in admitting testimony concerning crack cocaine being given to defendant. While this evidence of another crime would generally be inadmissible, there was no error here since the cocaine was received by defendant in partial payment for committing the crimes with which defendant is charged. The testimony concerning the cocaine was thus admissible as part of the res gestae of the crime. Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625).

3. The remaining enumeration of error contends that the trial court erred when the court misstated the offense with which defendant was charged due to a slip of the tongue. The misstatement that defendant was charged with violations of the Georgia Controlled Substances Act was an obvious slip of the tongue, was immediately corrected, and could not have misled or confused the jury. Manley v. State, 187 Ga. App. 773, 777 (7) (371 SE2d 438).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A94A0259.
    NATIONAL TREASURY EMPLOYEES UNION v. MACON-BIBB COUNTY HOSPITAL AUTHORITY.
    (467 SE2d 1)
    Decided December 19, 1995
    Reconsideration denied January 11, 1996.

      Marcia E. Fishman, Mark J. Sanger, for appellant.

      Sell & Melton, John A. Draughon, for appellee.

      Alston & Bird, Jack S. Schroder, Jr., Daniel A. Kent, amici curiae.
   Smith, Judge.

In Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557 (458 SE2d 95) (1995), the decision of this Court in Nat. Treasury Employees Union v. Macon-Bibb County Hosp. Auth., 213 Ga. App. 724 (445 SE2d 777) (1994), was reversed and remanded to this Court with direction. Accordingly, our original judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

In remanding the case, the Supreme Court directed that the case be remanded “for consideration of any remaining issues.” 265 Ga. at 560-561. Because of the holding in the original appeal, we did not reach the contention of National Treasury Employees Union (“NTEU”) that Macon-Bibb County Hospital Authority (“the Authority”) failed to exhaust its administrative remedies. 213 Ga. App. at 727. The Supreme Court has determined, however, that the Authority’s claims in this action do not arise under the Federal Employees Health Benefits Act (FEHBA), 5 USC § 8901 et seq., and that “the Authority’s allegation of negligent misrepresentation is a ‘run-of-the-mill’ state law claim.” 265 Ga. at 560. The requirement of exhaustion of administrative remedies under FEHBA is therefore inapplicable, and the trial court did not err in denying NTEU’s “Motion for Lack of Jurisdiction Due to Plaintiff’s Failure to Exhaust Administrative Remedies.”

Accordingly, the trial court’s judgment is hereby affirmed.

Judgment affirmed.

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