text:
    A00A0139.
    THE STATE v. RUIZ.
    (531 SE2d 418)
   Blackburn, Presiding Judge.

The State appeals the trial court’s grant of Juan Olivares Ruiz’s motion to suppress approximately 40 kilograms of cocaine found in his car after Ruiz was stopped in a secondary roadblock and arrested for driving without a license. The State contends that, contrary to the decision of the trial court, the roadblock was reasonable and did not violate Ruiz’s search and seizure rights. For the reasons set forth below, we agree and reverse the decision of the trial court.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Viewing the evidence in this light, the record reveals that, on the afternoon of March 13, 1998, Sergeant Martin, a supervisor for the City of Atlanta Police Department, authorized a roadblock on Browns Mill Road. As Sergeant Martin drove down Browns Mill Road on his way to the roadblock, which had already been initiated, he noticed that cars were turning left on Banberry Drive prior to reaching the checkpoint. At that time, Sergeant Martin called for two other officers, Merritt and Griffin, to establish a secondary roadblock on Banberry Drive in order “to catch the cars that [were] turning off from the roadblock” and “to see if they had [a] driver’s license and insurance card.”

After the second roadblock was operational, Ruiz approached the roadblock at Browns Mill Road, he made a sharp, sudden turn onto Banberry Drive without using his turn signal, and after seeing Merritt, he stopped his car approximately 20 yards away from the secondary roadblock on Banberry Drive. Merritt then approached Ruiz’s car and asked for his driver’s license and insurance card. Ruiz told Merritt that he had no license and gave the officer a false name and two dates of birth. Martin then approached, advised Merritt to place Ruiz under arrest for driving without a license, and began to do an inventory search of Ruiz’s car prior to impounding it. Martin discovered a duffle bag in the back seat containing approximately nine kilograms of cocaine. Later, following the arrival of a drug dog which Martin requested after opening the duffle bag, an additional 31 kilograms of cocaine were found hidden in the side panels of the car. Ruiz was thereafter arrested for trafficking in cocaine. He was also cited for turning without using his turn signal.

On May 27, 1998, Ruiz filed a motion to suppress the cocaine found in his car, contending that the roadblock established on Banberry Drive was

nothing more than a sham established as a pretext whereby law enforcement personnel could randomly stop and illegally detain motorists who, for whatever reason, turned left onto Banberry Dr. or legally made a U-turn at the intersection of Banberry Dr. and Browns Mill Rd.

The trial court, without any elucidation, found that the secondary roadblock was not properly established on Banberry Drive. We cannot agree.

“In (State v. Golden), 171 Ga. App. 27 (318 SE2d 693) (1984) and Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989), we addressed several factors in determining whether the roadblocks which were there in issue were reasonable and constitutional. However, neither Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this Court looked at the totality of the circumstances surrounding the roadblock to decide whether the factors in Golden were satisfied. . . . Our Supreme Court, relying on Golden, has held that where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint, and the screening officer’s training and experience [are] sufficient ... , a roadblock is satisfactory and is within the constitutional confines of a routine motorist roadblock. LaFontaine v. State, 269 Ga. 251, 253 (497 SE2d 367) (1998).” (Punctuation omitted.) Heimlich v. State, 231 Ga. App. 662, 663-664 (500 SE2d 388) (1998). See also Brent v. State, 270 Ga. 160 (570 SE2d 14) (1998).

Burns v. State, 236 Ga. App. 3, 4-5 (1) (510 SE2d 865) (1999).

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412) (1990). See Christopher v. State, 202 Ga. App. 40 (1) (413 SE2d 236) (1991).

LaFontaine, supra at 252 (3).

In this case, the decision to implement the roadblock on Banberry Drive was made by Martin, a supervisor for the City of Atlanta Police Department. In addition, all vehicles that encountered the roadblock were stopped, and each driver was asked to produce a driver’s license and insurance card. The officers participating in the roadblock were standing next to marked police vehicles in their patrol uniforms. They were also wearing orange traffic vests which had “POLICE” written across the front. Finally, it is undisputed that the officers involved had the appropriate training to check driver’s licenses and insurance cards. Under the totality of the circumstances, this roadblock was reasonable.

Ruiz’s argument that the police failed to use orange cones and activate the blue lights on their vehicles does not change this result, as the roadblock was accomplished during daylight hours when the police and their cars were clearly visible.

[A] daytime roadblock requires far less “identification” by way of lights and reflective gear than a roadblock at night. No need existed during this daytime roadblock for flashlights or flashing lights. The troopers were in uniform, and the patrol cars were clearly visible.

Boyce v. State, 240 Ga. App. 388, 390 (523 SE2d 607) (1999).

Ruiz also argues that the roadblock was a pretext. In analyzing the propriety of a roadblock,

[t]he totality of the circumstances must show that the roadblock is not being used as a pretext to detain citizens in order to search their cars. LaFontaine, supra at 253 (3). And when viewing the totality of the circumstances, we must keep in mind that the relevant inquiry is whether the evidence shows that it was, in fact, a pretext to stop [an individual] driver, rather than a legitimate law enforcement technique. Christopher, supra at 42 (1).

Boyce, supra at 389.

Contrary to Ruiz’s argument, there is no evidence that the police officers in this case were stopping motorists on a random basis. Here, the officers stopped every vehicle that approached the roadblock. Moreover, there is no evidence that the roadblock was set up as a pretext to stop Ruiz individually in order to search his car for drugs.

Further contending that the roadblock was invalid, Ruiz alludes to the fact that, prior to the roadblock, the police had completed a “reversal detail” at a drug location in the area, implying that it is improper for the police to set up a roadblock in areas where they know that drugs may be in use by drivers. A roadblock, however, is not unreasonable simply because it is set up in areas and at times which are likely to result in the detection of crimes. In an analogous case in which a driver was convicted for DUI, we found that a roadblock was not “ ‘unreasonable’ and ‘unconstitutional’ because it was conducted at a time and place conducive to stopping potentially intoxicated drivers. [Christopher, supra at 41 (1); accord Brimer v. State, 201 Ga. App. 401, 402 (2) (411 SE2d 128) (1991).]” State v. Stearns, 240 Ga. App. 806, 808 (524 SE2d 554) (1999). Thus, a roadblock would not be unreasonable if it were set up in an area where it would be likely to find individuals who might be driving under the influence of drugs, as in this case.

This situation is not, as Ruiz has suggested, analogous to instances where police officers chase cars which legally turn onto roads prior to encountering a roadblock. For example, in Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993), a roadblock was set up approximately 200 feet from the entrance to an apartment complex. The defendant in that case turned into the apartment complex, thereby avoiding the roadblock, without committing any traffic violations. An officer conducting the roadblock then followed the defendant into the apartment complex and stopped him simply because he did not think that the defendant lived there. We held that the stop in that case was improper, as it was based merely on the officer’s hunch that the defendant was guilty of something.

Decided March 17, 2000

Reconsideration denied April 3, 2000

Paul L. Howard, Jr., District Attorney, Alfred D. Dixon, David E. Langford, Elizabeth A. Baker, Assistant District Attorneys, for appellant.

Larry D. Wolfe, Bruce D. Harvey, for appellee.

In this case, to the contrary, Ruiz was never singled out to be stopped. Instead, he was stopped just like every other driver who approached the roadblock on Banberry Drive. As such, cases like Jorgensen, in which an individual driver was singled out and stopped merely for taking legal actions to avoid a roadblock, have no application to the matter at hand.

It is undisputed that Ruiz was driving without a license in violation of the law. He was stopped just like every other car at the roadblock set up on Banberry Drive, and, once he failed to produce a driver’s license, he was appropriately arrested. Due to this arrest, his car was impounded, and an inventory search was conducted, resulting in the discovery of 40 kilograms of cocaine. This evidence, therefore, was properly discovered as a direct result of Ruiz’s failure to produce a license, and it should not have been suppressed.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A1868, A99A1870.
    A99A1869.
    GLYNN-BRUNSWICK MEMORIAL HOSPITAL AUTHORITY v. GIBBONS; and vice versa. ALTA ANESTHESIA ASSOCIATES OF GEORGIA, P.C. v. GIBBONS.
    (530 SE2d 736)
   Phipps, Judge.

Jacquelyn Gibbons, M.D., worked as an anesthesiologist at Southeast Georgia Regional Medical Center. She and her corporation, Southeast Georgia Anesthesiologist, P.C., (collectively hereinafter “Gibbons”) sued for injunctive relief against the implementation of an exclusive services contract between the Glynn-Brunswick Memorial Hospital Authority d/b/a Southeast Georgia Regional Medical Center and Alta Anesthesia Associates of Georgia. Gibbons later added a motion for declaratory judgment that the contract was illegal and void as a general restraint of trade. On December 29, 1998, the trial court entered an order declaring that the contract was patently anticompetitive and that the Authority could not enter into such exclusive services contracts. The order also established the framework for a subsequent damages trial by Gibbons against Alta.

Each party has filed an appeal. The Authority and Alta challenge the declaratory judgment. Alta also challenges an August 21, 1998 ruling allowing Gibbons to amend her complaint to seek damages against Alta. Gibbons challenges the December 29, 1998 order on the basis that it reaffirms an August 21, 1998 tentative ruling by the court that Gibbons could not receive attorney fees and expenses against the Authority.

We find procedural error in the trial court’s entry of declaratory judgment and reverse that portion of the December 29 order. We affirm the judgment of the trial court to the extent that it allowed Gibbons to amend her complaint to seek damages against Alta and denied her attorney fees and expenses against the Authority.

In 1995, the Authority became concerned about lapses in anesthesiology coverage at the hospital and wanted to prepare for the advent of managed care. The Authority decided the anesthesiology needs of the hospital would be met best through an exclusive contract with one provider of anesthesia services. After the Authority notified the hospital’s anesthesiology department of its decision, members of the anesthesiology staff formed Alta with the intention of seeking the contract. Gibbons and two other anesthesiologists on staff opted not to become members of Alta. Alta was awarded the exclusive services contract with the Authority, but the contract allowed the anesthesiologists who were not members of Alta to continue their practices at the hospital. New anesthesiologists would have to be accepted into Alta before they could practice at the hospital.

Gibbons asserts that after the inception of the exclusive contract, Alta manipulated scheduling in the anesthesia department so that Alta anesthesiologists were assigned increased percentages of the more lucrative surgeries and the operations where neither the operating physician nor the patient affirmatively selected an anesthesiologist.

The contract was scheduled to go into effect on August 2, 1996. On July 31, Gibbons filed a complaint and a motion for temporary, interlocutory and permanent injunctions against the implementation of the contract. Gibbons’s complaint alleged that the Authority and Alta had conspired to restrain trade and interfere with her exercise of medical staff privileges in violation of OCGA § 13-8-2 (a) (2) and had violated the medical staff bylaws by hindering her ability to practice based upon her nonmembership in Alta. On February 13, 1997, Gibbons added the motion for declaratory judgment. Subsequently, the Authority and Alta filed motions for summary judgment asserting that Gibbons lacked standing to challenge the contract, that the Authority and Alta were immune from any antitrust liability and that the Authority had the discretion to enter into an exclusive services contract.

The Court reserved ruling on the standing issue and otherwise denied the motions for summary judgment. The court decided to conduct a bifurcated trial. In the first phase, an advisory jury would determine whether Gibbons had suffered any reduction of income as a result of the contract and whether the costs to patients for anesthesia services had increased as a result of the contract. In the second, nonjury phase, each side would be allowed to present legal arguments and expert testimony on whether the contract had anticompetitive effects.

During the jury phase of the trial, the parties reached an agreement designed to end the litigation. Under the agreement, the contract would be amended as follows: (1) Gibbons would receive a proportional share of the cases where no preference for a particular anesthesiologist was expressed; (2) subject to reasonable economic terms, Alta would be required to accept new anesthesiologists into its membership and practice at the hospital if the Authority deemed a need for more anesthesiologists; and (3) Alta would need cause to terminate an anesthesiologist. Alta and Gibbons also agreed to negotiate for up to 30 days on terms under which Gibbons would join Alta. The negotiations were unsuccessful, and Gibbons did not join Alta.

Subsequently, a hearing was held on August 21, 1998, to handle unresolved matters such as attorney fees. After both sides presented evidence, the court expressed concern that Alta had continued to exclude Gibbons from the anesthesiology schedule even after the amendments to the contract. The court tentatively decided attorney fees and expenses were appropriate against Alta from the settlement date forward but that attorney fees and expenses were not appropriate against the Authority. The court also ruled sua sponte that it would give Gibbons 30 days to amend her complaint to seek money damages against Alta. The court dismissed the Authority from the litigation.

Gibbons did amend her claim to seek damages against Alta. And on December 29, 1998, the court entered the order declaring that

the . . . Authority cannot enter into contracts with groups of physicians which allow the physicians to prevent potential competitors from practicing medicine in Defendant’s facility unless they agree to enter into business relationships with those physicians

and that the original contract between the Authority and Alta was “patently anti-competitive.” The court further ruled that Gibbons would be allowed in successive phases to present two damages claims to a jury.

To recover damages for alleged misconduct by Defendant Alta prior to the date the parties agreed to a non-preference case assignment system, Plaintiffs will be required to show that Alta engaged in a concerted policy of referring such cases to other Alta members to the exclusion of Dr. Gibbons, and that such a policy was established with the specific intent of eliminating Dr. Gibbons from the marketplace, for the purpose of obtaining a marketplace advantage for members of Alta. A very different situation is presented by Plaintiffs’ claim for damages allegedly incurred subsequent to the parties’ agreement. That claim can be litigated as a simple breach of agreement claim.

If Gibbons prevailed on either claim, the jury would then be asked to determine whether and to what extent she was entitled to attorney fees and expenses.

The Authority appeals in Case No. A99A1868, Alta appeals in Case No. A99A1869 and Gibbons appeals in Case No. A99A1870. Because the Authority and Alta have presented similar enumerations of error, Case Nos. A99A1868 and A99A1869 will be addressed jointly.

Case Nos. A99A1868 & A99A1869

1. For several reasons, we find the court’s entry of declaratory judgment was inappropriate. A declaratory judgment is authorized when there are

“circumstances showing [a] necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest.”

The purpose of a declaratory judgment is “ ‘to permit one who is walking in the dark to ascertain . . . where he is going, to turn on the light before he steps rather than after he has stepped in a hole. (Cits.)’ [Cit.]”

Where the rights of the parties have already accrued and the party seeking the declaratory judgment does not risk taking future undirected action, a declaratory judgment would be “advisory.” [Cit.] Regardless of when an action reaches the point that it no longer presents a justiciable controversy and presents only a question of academic interest, when it reaches that point, the entry of declaratory judgment is not appropriate, [cit.], because a court “has no province to . . . give advisory opinions. (Cit.)” [Cit.]

Here, Gibbons, the plaintiff, was never in the dark as to any future action she might take that would jeopardize her legal interests. She simply sought a declaration that the actions of others, in executing the exclusive services contract, were prohibited. Furthermore, the action about which Gibbons sought a declaration had already occurred. The Authority and Alta had executed their contract, and the rights of the parties had already accrued.

Finally, declaratory relief had become unnecessary. In its order, the court noted that it was rendering declaratory judgment despite the fact that the offensive provisions of the original contract already had been eliminated by the settlement agreement between the parties. Declaring a defunct contract anticompetitive was in no way a guide to future action in an existing controversy.

The court should have continued with resolution of Gibbons’s claims for other types of relief, but she should not have been granted a declaratory judgment. The legality of the original contract between the Authority and Alta may have arisen in the resolution of other claims, but, if the issue was to be broached, the other claims provided the proper context.

A jury trial was conducted on Gibbons’s damages claims against Alta, and a fourth appeal, which relates to that trial, has been docketed in this court. If the legality of the original contract is an issue that must be addressed in adjudicating the merits of that fourth appeal, we will do so then. In Case Nos. A99A1868 and A99A1869, we find that the court’s entry of declaratory judgment was procedurally erroneous. The court’s order of December 29, 1998, is reversed to the extent it effectuates the declaratory judgment. Remaining issues regarding the validity of the exclusive services contract need not be addressed at this time.

2. Regarding Alta’s claim that the court erred in allowing Gibbons to amend her complaint to seek damages, we are guided by OCGA § 9-11-15 (a):

A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

This section is to be liberally construed in favor of allowance of amendments, particularly when the opposing party is not prejudiced thereby. Like the right of amendment, the discretion of the trial court in controlling it is very broad. Determinations of the trial court in this regard will not be disturbed absent a manifest abuse of discretion.

Alta asserts the amendment prejudiced it by allowing Gibbons to present claims for money damages. In this sense, any such amendment would prejudice the defendant. Invariably, the claimant amends his pleadings to enhance the likelihood or scope of potential relief against the defendant. The record does not indicate and Alta does not suggest that it was in any way impaired in its ability to defend against the merits of Gibbons’s claims for damages. We find no abuse of discretion by the court in allowing the amendment.

Case No. A99A1870

3. Gibbons sought attorney fees and expenses against the Authority for bad faith under OCGA § 13-6-11 and discovery abuses under OCGA § 9-15-14. At the hearing on August 21, 1998, the court found attorney fees and expenses were appropriate against Alta because Alta had acted in bad faith after entering into the settlement agreement with Gibbons. The court did not state a reason for its determination that attorney fees were not appropriate against the Authority. Subsequently, in the December 29,1998 written order, the court ruled, “Since all parties agree the Defendant Hospital Authority has no exposure to an award of damages, it will not be a party to the jury trial.”

The record does not show that all parties agreed that the Authority had no exposure to damages. And Gibbons interprets the language “no exposure to damages” as suggesting the court based its denial of attorney fees and expenses against the Authority on an erroneous legal conclusion that the Authority was immune from an award of attorney fees and expenses. We do not agree with that interpretation, which is belied by the court’s earlier ruling that the Authority did not have immunity from Gibbons’s claim under OCGA § 13-8-2. We also find insufficient evidence in the record to conclude that the court erred in determining that attorney fees should not be levied against the Authority.

OCGA § 13-6-11 provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith [in making the contract] . . . the jury may allow them.” Bad faith under this section relates to actions prior to the institution of the lawsuit. “ ‘When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal.’ ”

Gibbons asserts the Authority acted in bad faith by failing to intervene against Alta’s scheduling abuses. First, the failure to intervene that Gibbons attributes to the Authority would have occurred after the institution of this litigation, which began before the contract was executed. Second, Gibbons has failed to cite portions of the record that support her contention. Finally, even if it were true that the Authority failed to stop Alta’s scheduling abuses, bad faith by the Authority toward Gibbons is not necessarily demonstrated.

Decided March 8, 2000

Reconsideration denied April 4, 2000.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell, Lisa G. Wood, for Glynn-Brunswick Memorial Hospital Authority.

Bouhan, Williams & Levy, Roy E. Paul, Walter C. Hartridge, for Alta Anesthesia Associates of Georgia, RC.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John K. Larkins, Jr., John J. Ossick, Jr., for Gibbons.

OCGA § 9-15-14 gives trial courts the authority to award attorney fees and expenses for abuses of discovery procedures. Gibbons asserts the Authority was recalcitrant in complying with her discovery requests and refers to two motions to compel that she filed. The fact that Gibbons filed motions to compel does not mean the Authority abused the discovery process. Gibbons cites a hearing on one of her motions, but, there, the court ordered her to amend her requests because they were too broad. The record fails to demonstrate an abuse of discovery procedures by the Authority. We find the court did not err in denying Gibbons’s request for attorney fees and expenses against the Authority.

Judgment affirmed in Case No. A99A1870. Judgment affirmed in part and reversed in part in Case No. A99A1869. Judgment reversed in Case No. A99A1868.

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

       (Citation omitted.) Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 344 (489 SE2d 803) (1997).

        Slaughter v. Faust, 155 Ga. App. 68, 69 (1) (270 SE2d 218) (1980).

        Baker v. City of Marietta, 271 Ga. 210, 214-215 (1) (518 SE2d 879) (1999).

       See Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 671 (1) (507 SE2d 525) (1998); McBride v. Bd. of Corrections, 221 Ga. App. 796 (2) (472 SE2d 693) (1996); Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405 (416 SE2d 875) (1992).

       See Baker, supra at 215.

        Bourquine v. City of Patterson, 151 Ga. App. 232 (259 SE2d 214) (1979).

        Henderson v. Easters, 178 Ga. App. 867, 870 (2) (345 SE2d 42) (1986).

       Id.

       Compare Mulkey v. Gen. Motors Corp., 164 Ga. App. 752, 754 (3) (299 SE2d 48) (1982), rev’d on other grounds, Andean Motor Co. v. Mulkey, 251 Ga. 32 (1) (302 SE2d 550) (1983).

       Determinations on whether attorney fees will be awarded under OCGA § 13-6-11 are generally left to the jury; see Jim Andersen & Co. v. ParTraining Corp., 216 Ga. App. 344, 346 (3) (454 SE2d 210) (1995), but, here, the record shows that the court had become the finder of fact.

       See Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251) (1989) (finder of fact’s determination under OCGA § 13-6-11 will be upheld unless clearly erroneous); Hyre v. Denise, 214 Ga. App. 552, 557 (10) (c) (449 SE2d 120) (1994) (abuse of discretion standard governs review of court’s determination under OCGA § 9-15-14).

       “This statute specifically refers to actions in contract and may apply to suits where recovery as to a contract lies in both contract and tort, that is, where the contract was procured or transacted in bad faith or was induced by fraud and deceit.” (Citation omitted.) Country Pride Homes v. DuBois, 201 Ga. App. 740, 741 (2) (412 SE2d 282) (1991).

        Gordon v. Ogden, 154 Ga. App. 641, 642 (2) (269 SE2d 499) (1980).

       (Citation omitted.) Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (5) (481 SE2d 541) (1997).


text:
    A99A2472.
    YEARWOOD v. SOUTHERN LIFE SYSTEMS, INC.
    (531 SE2d 741)
   Phipps, Judge.

Southern Life Systems, Inc. was a distributor of medical equipment. When Southern’s customers bought certain reusable products, they became contractually obligated to make future purchases of disposable parts from Southern for a specified time period. Southern’s sales force was comprised of district managers. Under commission agreements with Southern, they were entitled to commissions based on the initial sale of the equipment and on later sales of parts. Brian Yearwood was a district manager. Following termination of his employment, Yearwood brought suit against Southern, complaining that it had converted commissions due him on sales of parts by selling its customer accounts to another company. Yearwood claims an entitlement to a pro rata share of the proceeds from the sale of the accounts.

Southern moved for summary judgment, arguing that Yearwood is not entitled to post-employment compensation because he was an at-will employee who was lawfully terminated. Yearwood moved for partial summary judgment on the question of whether the parties’ commission agreement entitled him to post-employment commissions. The trial court denied partial summary judgment to Yearwood and granted summary judgment to Southern, on the ground that Southern never promised or agreed to remit to Yearwood any monies received from the sale of the accounts.

An integral part of Southern’s business was its sale of reusable thermometers to hospitals and other health care providers. The thermometers were manufactured by a company known as IMS and have two components: the thermometer itself and a disposable probe cover that allows the thermometer to be reused without sterilization. Under contracts referred to as System Placement Agreements (SPAs), a customer purchasing thermometers obligated itself to continue to purchase probe covers from Southern for periods generally ranging from one to five years. In turn, Southern obligated itself to provide training, maintenance, and repair services to the customer. A distributorship contract between Southern and IMS obligated IMS to supply Southern with disposable parts at preset prices during the term of the SPAs.

The commission agreements provided that district managers who sold thermometers under SPAs would receive commissions from Southern in two ways. For the customer’s initial purchase of thermometers and entry into the SPA, a manager received a commission of 30 percent of the company’s gross profit. For disposable probe covers sold to the customer during the term of the SPA, another commission of between 28 percent and 32 percent of gross profits was payable. Under the commission agreements, commissions were due on the fifteenth of each month based on “items paid by customers” through the end of the previous month. The agreements also provided that “[t]his plan can be modified at any time by the corporation.”

During the term of Yearwood’s employment from 1991 to 1994, Sherwood Medical Company bought IMS. Because Sherwood had a direct sales force of its own, it did not need distributorship services. Approximately one year after purchasing IMS, Sherwood ceased supplying thermometers and probe covers to Southern and other distributors. For business reasons, Southern decided not to pursue a claim against Sherwood for breach of the distributorship contract. Instead, Southern sold its SPAs to Sherwood. Under the buy/sell agreement, the purchase price payable to Southern consisted of $1,550,000; another payment of $1,750,000 was paid to Southern’s president in consideration of his entry into a noncompetition and consulting agreement. After Southern entered into the agreement with Sherwood, Southern’s president informed the district managers that they would no longer receive commissions for future sales of equipment under the SPAs and that their compensation would be converted from a commission to a salary base. Held:

Although the commission agreement between Southern and Yearwood entitled him only to commissions based on the sale of the disposable covers to customers during the term of the SPAs, a question does arise about whether Southern breached its contractual obligation to pay the commissions by selling the SPAs without obligating the purchaser to continue commission payments. Resolution of this question turns on whether the commission agreement gave Yearwood an entitlement to commissions for the sale of the covers based on past or future services.

It is true an employee cannot sue to enforce future performance of a terminable-at-will employment agreement. However, an employee may sue ... for employment terminable at will “for the amount of compensation due him, based upon services actually performed by him up to the time of his discharge, and not for damages or for compensation for services not performed. . . .” [Cit.]

In McLane v. Atlanta Market &c. Co., relied on by Yearwood, a real estate agent was entitled to commissions from her broker when tenants to whom the agent had rented office space entered into amendments to their leases through which they occupied additional square footage. This court held that the agent’s right to commissions was not defeated by reason of the fact that the lease amendments were executed after her at-will employment was terminated. The basis for this holding was that the agent had earned the commissions based on services she had rendered before her employment ended (i.e., past services).

Did Yearwood earn his commission for the sale of disposable covers based on his initial placement of the SPAs (i.e., past services) or based on his servicing of the accounts during the period the customers purchased the disposable covers (i.e., future services)? Yearwood’s deposition testimony shows that the commissions were earned based on future services. His testimony establishes that commissions on sales of the covers were paid to the district manager who serviced the account even if that person did not originate the account. Moreover, Yearwood acknowledged that district managers who left the company’s employ did not thereafter receive commission payments. Consequently, Yearwood has no entitlement to commissions based on the sale of covers after his employment ended. Therefore, Southern has no liability to Yearwood for unpaid commissions.

Decided March 16, 2000

Reconsideration denied April 4, 2000

Belcher, Pakchar & Sams, Pat E. Belcher II, for appellant.

Savage, Herndon & Turner, Brent J. Savage, for appellee.

For these reasons, the court did not err in its rulings on the parties’ summary judgment motions.

Judgment affirmed.

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

        E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 359 (2) (359 SE2d 148) (1987).

       225 Ga. App. 818, 822 (1) (486 SE2d 30) (1997) (physical precedent only), rev’d on other grounds, Atlanta Market &c. Co. v. McLane, 269 Ga. 604 (503 SE2d 278) (1998).


author: Barnes, Judge.

text:
    A00A0089.
    JONES v. THE STATE.
    (532 SE2d 120)
   Barnes, Judge.

Unray Jones was tried for armed robbery and convicted of robbery by intimidation. On appeal he argues that the trial court erred in allowing a state witness who was not on the witness list to testify at trial and in its charge to the jury on the burden of proof. We affirm.

Viewed to support the conviction, the evidence showed that, as the victim was getting in his car in a restaurant parking lot late one evening, a man wearing a dark blue outfit approached him and asked for help starting his car. The victim agreed to help and drove over to a car where the man was apparently trying to raise the hood. After the victim parked, pulled his hood latch, and got out of his car, the man approached him and stuck a gun in his side. He asked for the victim’s money, wallet, and coat, which the victim handed over. The man then jumped into the victim’s car and drove away.

The victim dashed into the restaurant and called 911. After he described his car, the dispatcher kept him on the line for a few minutes, then reported that the police had spotted the car and were in pursuit.

Police Officer Keller testified that he saw the hijacked car pass him shortly after he was advised to be on the lookout for it,, so he turned around and chased the car until the driver crashed into a sign. The driver, who was wearing a blue sweat suit, jumped out of the car, took off and threw down a brown jacket, and began running, but the officer caught and arrested him, using pepper spray to subdue him. Officer Keller identified Jones in court as the person he arrested that night, although the victim could not identify him during the trial. Keller retrieved a .38 caliber revolver from the front passenger side; he also found the victim’s wallet inside the car.

Police Investigator William Hughes testified that while he was taking Jones to wash pepper spray out of his eyes, they passed the victim inside the police station. As they walked by the victim, Jones said, “I’m sorry. I’ll pay you for any damages.” Hughes had not given Jones the Miranda warnings because he did not plan to ask him any questions.

1. Jones elected to proceed under the reciprocal discovery statute, OCGA § 17-16-2 (a). He contends that the trial court erred in permitting the State to call Investigator Hughes as a witness when his name was not on the witness list in violation of OCGA § 17-16-8. The State responded that the witness’s name was included on a supplemental police report it provided to Jones, which described only the statement Hughes overheard. The trial court found that the State did not act in bad faith in leaving Hughes’s name off the witness list and granted Jones an opportunity to interview the witness, which he took. Jones did not seek a continuance.

The reciprocal discovery statute gives trial courts broad discretion to remedy violations of its provisions. OCGA § 17-16-6. The purpose of these remedies is to deter the State from violating its discovery obligations and to correct any resulting prejudice to defendants. Dickey v. State, 179 Ga. App. 383, 385 (1) (346 SE2d 864) (1986) (construing OCGA § 17-16-6’s precursor). To promote these dual goals, trial courts may

order the [S]tate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [Sítate from introducing the evidence not disclosed, ... or may enter such other order as it deems just under the circumstances.

OCGA § 17-16-6; Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996).

In this case, Jones made no showing that he was prejudiced as a result of the State’s failure to make the custodial statement available to him prior to trial or that the State acted in bad faith in failing to list the witness. Further, Jones did not ask for a continuance to cure any prejudice which may have resulted from the State’s failure to comply with OCGA § 17-16-4 (a) (1). Under these circumstances, the trial court did not abuse its discretion in permitting Hughes to testify, although his name was not on the witness list. Maxwell v. State, 233 Ga. App. 419, 423 (4) (a) (503 SE2d 668) (1998); Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997).

2. Jones also argues that the trial court impermissibly shifted the burden of proof to him in charging the jury as follows: “It is not necessary for the defendant to show that another person committed the crime. It is sufficient if there are facts and circumstances in this case which would raise a reasonable doubt as to whether this defendant is, in fact, the person who committed the crime.” Jones contends that the second sentence in the portion of the charge quoted above instructs the jury that Jones must present evidence that would raise a reasonable doubt.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation omitted.) Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992). The trial court’s charge to the jury was taken almost verbatim from the Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, pp. 39-40, on the issue of identity. After charging the jury on the factors that may be considered in assessing the reliability of identification, the court charged the jury on the burden of proof regarding identification. The trial court’s entire burden of proof on identification charge follows:

It is for you to say whether under the evidence in this case, the testimony of the witnesses and the facts and circumstances of the case sufficiently identify this defendant as the perpetrator of the alleged crime beyond a reasonable doubt. It is not necessary for the defendant to show that another person committed the crime. It is sufficient if there are facts and circumstances in this case which would raise a reasonable doubt as to whether this defendant is, in fact, the person who committed the crime. If you do not believe the defendant has been sufficiently identified as the person who committed the crime, if any, or if you have a reasonable doubt as to such then it would be your duty to acquit the defendant. The burden of proof rests upon the State to prove beyond a reasonable doubt the identity of this defendant as being the person who committed the crime alleged in this bill of indictment.

When considered as a whole, the charge clearly instructs the jury that the burden of proof remains with the prosecution. Also, the second sentence in the second paragraph simply says it is sufficient if facts and circumstances raise a reasonable doubt as to whether the defendant committed the crime; nowhere does it state that defendant must prove anything beyond a reasonable doubt. We find no error.

Decided March 21, 2000

Reconsideration denied April 4, 2000.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Clinton K. Rucker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A00A0566.
    DOWIS v. THE STATE.
    (533 SE2d 434)
   Phipps, Judge.

Mark Dowis was convicted of operating a motorcycle without the headgear required by OCGA § 40-6-315 (known as Georgia’s motorcycle helmet law) based on evidence that he was wearing nothing more than a cloth bandanna as a head covering. In this appeal of his conviction, he contends that the trial court erred in denying his motion to quash the accusation. Dowis claims that the Board’s failure to publish lists approving specific types of approved headgear violates OCGA § 40-6-315 and that without such lists the statute is unconstitutionally vague.

OCGA § 40-6-315 (a) prohibits any person from operating or riding upon a motorcycle in Georgia unless he is wearing protective headgear which complies with standards established by the Board of Public Safety. Subsection (d) states that the Board “is authorized” to approve or disapprove specific types of protective headgear and enforce regulations establishing standards and specifications for their approval. If this authority is exercised, subsection (d) provides that the Board “shall” publish lists of all approved headgear by name and type.

Although the Board has chosen not to approve or disapprove specific types of headgear, it has enacted administrative regulations establishing, among other things, standards for determining whether headgear complies with the statute. The regulations require headgear to consist of “a hard, smooth outer surface containing the necessary means of attenuating impact energy and resisting penetration” and to “exhibit a minimum level of shock absorbency upon impact with a fixed, hard object.” The quality of the materials used in the manufacture of the headgear is also set forth. Held:

Decided April 4, 2000

Mullman-Roberts, John A. Roberts, for appellant.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Assistant Solicitor, for appellee.

The statute does not require the Board to approve specific types of headgear. We do, however, interpret the statute as requiring the establishment of compliance standards. In the regulations previously discussed, the Board has established such standards. Although it may be debatable whether particular types of headgear comply with these standards, it is absolutely clear that a cloth bandanna does not. Because Dowis has engaged in conduct which the statute clearly proscribes, he has no standing to make the vagueness challenge. “[Ojne whose own conduct may be constitutionally proscribed will not be heard to challenge a law because it may conceivably be applied unconstitutionally to others.”

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       Ga. Comp. Rules & Regs., Department of Public Safety, Chapter 570-13, Specifications for Protective Headgear for Vehicular Users.

       Regulation 570-13-.03 (1).

       Regulation 570-13-.03 (2).

       Regulation 570-13-.04.

        Ritter v. State, 258 Ga. 551 (2) (372 SE2d 230) (1988).

        Hubbard v. State, 256 Ga. 637, 638 (352 SE2d 383) (1987).


author: Ruffin, Judge.

text:
    A99A2182, A99A2183.
    POWER v. GEORGIA EXTERMINATORS, INC. et al.; and vice versa.
    (532 SE2d 475)
   Ruffin, Judge.

Nancy Power purchased a house that was infested with termites. She sued the sellers, their real estate agent, the company that provided the termite infestation report, and two representatives of the company, alleging that all defendants had defrauded her and that the exterminating company and its representatives were negligent in inspecting and treating the house. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in favor of all defendants except with respect to the negligence and fraud claims against the exterminating company and its two representatives. In Case No. A99A2182, Power appeals the order of the trial court. In Case No. A99A2183, the exterminating company and its representatives appeal. As the two cases involve the same operative facts, we have consolidated them on appeal. For reasons that follow, in Case No. A99A2183, we affirm, and in Case No. A99A2182, we affirm in part and reverse in part.

On a motion for summary judgment, the movant bears the burden of demonstrating that there is no genuine issue of material fact and that the undisputed facts, viewed in favor of the nonmovant, warrant judgment as a matter of law. So viewed, the record demonstrates that, in November 1994, Patsy Bryan, her husband Thomas, and her father, Glenn Newton, purchased a house owned by Jan Harper for $75,000. At the time of the purchase, Patsy Bryan knew there was termite damage in one of the back bedrooms. But, according to a Georgia Exterminators’ wood infestation report dated November 19, 1994, there was no active infestation.

The new owners decided to sell the house, and in January or February 1995, real estate agent A1 Sawyer showed the house to Power. Patsy Bryan, who was present when Power first walked through the house, told Power that she was having work done in the back bedroom to repair termite damage. According to Power, both Sawyer and Bryan told her that the termite damage “was old damage and the only damage and it was all taken care of.” Power did not question them further.

Power agreed to purchase the house for $104,000, and, on February 10, 1995, the parties entered into a sales contract. According to the contract, the buyer had a right and responsibility to inspect the house. If the inspection disclosed any defects in the house, the buyer was required to furnish a copy of the report to the seller along with a proposed amendment to the contract setting forth any defects that the buyer wanted repaired or replaced. The contract further provided that, if the buyer failed to provide a copy of the inspection report to the seller within ten days of the contract signing, the buyer waived the right to any repairs.

With respect to wood infestations, the contract required that the seller provide a wood infestation report from a licensed pest control operator,

certifying that accessible areas are free from all wood-destroying organisms for a period of 90 days. If damages are indicated, Seller shall not be responsible for correcting any structural and/or substantial damages prior to closing. . . . Said inspection will be acceptable only if made no longer than thirty (30) days prior to the date of closing. In the event any termite inspection reveals termites, or wood-destroying organisms, or damage therefrom, Seller shall have the option (a) subject to the Buyer’s option to waive such defect, to correct the problem prior to closing, or (b) to void this Contract.

In accordance with this provision, the sellers provided Power with a wood infestation report prepared by Georgia Exterminators on March 27, 1995.

Power opted not to have the house professionally inspected. Sawyer told Power that home inspections were expensive and that, because the house had just been inspected in November 1994, it did not need to be inspected again. Accordingly, rather than hiring a home inspector, Power paid her cousin, Henry Johnson — whom she described as a “handyman” — $60 to look at the house. According to his report, Johnson found “substantial termite damage” in one of the back bedrooms, but he did not see any signs of an active infestation.

Johnson made additional repair suggestions not related to the termite damage, and Patsy Bryan agreed to make most of them. Following the repairs, Power had her friend, Tim Miller, look at the property. Like Johnson, Miller was not a home or a termite inspector.

Power then closed on the house. In June 1995, several months after closing, Power noticed a cloud of bugs she thought were termites flying near a window. She called Georgia Exterminators, and Ricky Douglas, a representative of the company, came to the house. According to Power, Douglas identified the flying insects as ants and treated the house with Orthene, which kills ants.

Power lacked confidence in Georgia Exterminators, so she had other pest control companies inspect her property. Between June and November 1995, representatives from both Terminix and Orkin inspected the house and found extensive termite damage throughout the house. The representative from Terminix told Power that Georgia Exterminators’ treatment to prevent a termite infestation had been inadequate, and he suggested that she contact the Department of Agriculture.

In fall 1995, Power had wallpaper removed in another bedroom and found live insects in the Sheetrock. She subsequently learned that she had a live termite infestation that had caused extensive damage to the structure of the house.

Power sued Patsy Bryan, Thomas Bryan, Newton (collectively the sellers), Sawyer, as well as Georgia Exterminators, Douglas, and Nelson (collectively Georgia Exterminators) for fraud, asserting that all defendants had known about the termite damage and had actively concealed the extent of the damage from her. She also claimed that Georgia Exterminators, Douglas, and Nelson had been negligent in their inspection and treatment of the house. She attached to her complaint the affidavit of Maxcy Nolan, an entomologist, who averred that he inspected the property on February 20, 1997, and found “clearly visible damage of previous termite and powder post beetles in some areas” that “had clearly existed for many years.”

The sellers and Georgia Exterminators each filed separate motions for summary judgment, and Power filed a motion for partial summary judgment against the sellers as to liability only. The trial court granted the sellers’ motion for summary judgment and denied Power’s motion. The trial court also granted, sua sponte, summary judgment to Sawyer. With respect to Georgia Exterminators, the trial court ruled that these defendants may be held liable “only for damage which would have been identified by an inspection conducted in conformity to standards for inspections in the termite protection industry.” But the trial court also stated that Power was entitled to proceed with her fraud claim against Georgia Exterminators. Both Power and Georgia Exterminators appeal.

Case No. A99A2182

1. In her first two enumerations of error, Power asserts that the trial court erred in denying her motion for partial summary judgment as to the sellers and in granting the sellers’ motion for summary judgment. We disagree.

Under Georgia law, the tort of fraud has five elements: (1) false representation by the defendant; (2) knowledge that the representation is false at the time made; (3) intent to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff. In an action alleging fraudulent concealment, “the allegedly defrauded party must prove that the alleged defrauder[s] had actual, not merely constructive, knowledge of the fact concealed.”

Here, there simply is no evidence that Patsy Bryan, Thomas Bryan or Newton had any actual knowledge of the additional termite damage or that they made any false representations to Power. The record demonstrates that neither Thomas Bryan nor Newton ever visited the property prior to closing, much less that they knew the condition of the property. Although Patsy Bryan had visited the property and was aware of pre-existing termite damage in one back bedroom, she told Power about that damage. Bryan denied knowing about any additional damage.

Power contends that the defendants must have learned of the extensive termite damage while repairing the pre-existing damage and chosen to conceal the damage rather than repair it. But she provides no evidence to support her contention. Indeed, the contractor who repaired the pre-existing termite damage swore that he did not conceal any additional termite damage and that, if a client asked him to conceal such damage, he “would walk off the job.” Moreover, neither Power nor her cousin, Johnson, saw any signs of additional termite damage prior to closing. Under these circumstances, there simply is no evidence from which it can be inferred that the sellers had knowledge of additional termite damage, much less that they concealed this information from Power. “While fraud may be proved by slight circumstances, it must amount to more than mere speculation.” As Power’s fraud claim is based on mere speculation, the trial court did not err in granting the sellers’ motion for summary judgment and in denying Power’s motion.

2. In addition to the sellers, the trial court, sua sponte, granted summary judgment to Sawyer on the ground that the claims against him were also predicated on alleged misrepresentations regarding known termite damage. Power asserts that this was error because there are facts that pertain solely to Sawyer that preclude summary judgment in his favor. Once again, we disagree.

Georgia law allows a trial court to grant summary judgment sua sponte, but the grant must be proper in all respects and the record must support the judgment.

Power points to the following evidence in support of her contention that the trial court erred: (1) Sawyer told her that the house did not need to be inspected; (2) Sawyer said that he would pay to replace the Sheetrock and ceiling in the bathroom; and (3) Sawyer told her that he represented her interests rather than the interests of the sellers. Although Sawyer denies all of these allegations, for purposes of summary judgment, we treat them as true. But even if true, none of the statements shows that Sawyer knew about the extent of the termite damage. Absent evidence that Sawyer had any knowledge of additional termite damage or that he concealed this information from Power, the trial court properly granted summary judgment to Sawyer.

3. Power also sued Georgia Exterminators for fraud, negligent inspection, and negligent treatment of the house. In its order, the trial court correctly noted that, as a general rule, inspectors are liable only for damage that was present at the time of the inspection and that should have been found during a competent inspection. As the trial court recognized,

[a] homeowner may recover for negligent inspection when the evidence shows damage was present and should have been discovered in the course of an inspection. Discovery of damage without proof it had been present at the time of an earlier inspection does not give rise to an action for negligent inspection.

Because Power had the house repaired before any inspector could ascertain which portion of the damage should have been discovered by a nonnegligent inspection, the trial court ruled that Power’s recovery was limited to the damage that her expert, Nolan, listed in his affidavit.

However, the trial court failed to address Power’s negligent treatment claim. A homeowner also may recover for negligent treatment of a house. Thus, Georgia Exterminators can be held financially responsible for any damage proximately caused by its negligence in treating the house.

Here, the record shows that, after closing, Power had Georgia Exterminators treat the house for an insect infestation. Although Georgia Exterminators told Power the insects were ants, the extensive termite damage and the fact that subsequent inspections revealed an active termite infestation support Power’s contention that the insects were, in fact, termites. The record also demonstrates that the Georgia Department of Agriculture, which monitors the pest control industry, fined Georgia Exterminators for failure to comply with proper treatment standards. This evidence suggests that the company and its representatives were negligent.

In its order, the trial court did not account for Georgia Exterminators’ potential liability for additional termite damage proximately caused by its negligent treatment of Power’s house. Thus, the trial court erred in this regard.

Case No. A99A2183

4. In their first enumeration of error, Georgia Exterminators asserts that the trial court erred in failing to grant summary judgment in full with respect to Power’s negligent inspection claim. For reasons set forth in Division 3, however, we disagree.

5. Georgia Exterminators also asserts that the trial court erred in failing to grant it summary judgment based on Power’s failure to exercise due diligence. According to Georgia Exterminators, Power’s failure to have the house inspected despite the fact that she knew the house had sustained termite damage precludes her from recovering for fraud.

“One allegedly defrauded must have exercised due diligence to discover the fraud perpetrated against [her] before [she] can recover.” But here, appellant walked through the house several times prior to closing and had her cousin assist her in examining the house for defects. Neither Power nor the cousin noted any signs of termite damage. Where defects are not obvious, such defects are not discoverable through due diligence. Although, in hindsight, it would have been prudent for Power to retain a professional home inspector, we cannot say that her failure to do so constitutes lack of due diligence as a matter of law. Thus, the trial court did not err in failing to grant summary judgment to Georgia Exterminators based on Power’s lack of due diligence.

Judgment affirmed in Case No. A99A2183. Judgment affirmed in part and reversed in part in Case No. A99A2182.

Andrews, P. J., and Ellington, J., concur.

Decided March 24, 2000

Reconsideration denied April 6, 2000.

Vincent D. Sowerby, for appellant.

Decker & Hallman, William W. Briggs, Gilbert, Harrell, Gilbert, Sumerford & Martin, Lisa G. Wood, for appellees.

       Although the real estate agent did not file a motion for summary judgment, the trial court, sua sponte, granted summary judgment in his favor.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       In her brief, Power contends that Patsy Bryan told her that the house did not need to be reinspected. But according to Power’s deposition, which she cites in her brief, Sawyer made the statement.

        Westminster Holdings v. Weatherspoon, 237 Ga. App. 819, 822 (2) (517 SE2d 80) (1999).

       (Punctuation omitted; emphasis in original.) Webb v. Rushing, 194 Ga. App. 732, 733 (1) (391 SE2d 709) (1990).

       See Westminster Holdings, supra (no fraud claim where purchaser knew of preexisting termite damage).

        Clay v. Clay, 269 Ga. 527 (501 SE2d 208) (1998).

       Compare Quill v. Newberry, 238 Ga. App. 184 (518 SE2d 189) (1999) (issue of fact regarding fraudulent concealment of termite damage where owner recently installed carpet over floor with obvious termite damage and it appeared floor had been propped up).

        Thomas v. Phillips, 240 Ga. App. 600, 602 (1) (524 SE2d 298) (1999).

        Frank v. Fleet Finance &c., 238 Ga. App. 316, 317 (518 SE2d 717) (1999).

        Clay, supra.

       (Citation and punctuation omitted.) Orkin Exterminating Co. v. Durden, 189 Ga. App. 479, 481 (1) (376 SE2d 376) (1988).

       See id. at 480-481.

       Id. at 481.

       See Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624-625 (3) (385 SE2d 725) (1989) (exterminating company’s violation of regulation constituted negligence per se).

       Georgia Exterminators mischaracterizes Power’s claim as one for “negligent misrepresentation,” but it is, in fact, a claim of fraud.

       (Punctuation omitted.) Delk v. Tom Peterson Realtors, 220 Ga. App. 576, 577 (469 SE2d 741) (1996).

        Brookshire v. Digby, 224 Ga. App. 512, 517 (481 SE2d 250) (1997).

       Id.


author: ANDREWS, Presiding Judge.

text:
    A99A2255.
    CLARK et al. v. THE STATE.
    (532 SE2d 481)
   ANDREWS, Presiding Judge.

Tiffney Latrice Clark and Dwon Anthony Johnson appeal from the judgment entered on the jury’s verdict following their convictions of possession of marijuana with intent to distribute (both), possession of cocaine with intent to distribute (both), possession of marijuana (Clark), driving with a cracked windshield and driving with no tag (Johnson).

All eight enumerations deal with issues surrounding the initial stop of Johnson’s vehicle without a warrant and the two search warrants which were thereafter obtained for the residence of Clark and Johnson and the bank where Johnson maintained his checking account and safe deposit box.

In determining the legality of a search, this Court may consider all relevant and admissible evidence of record, including that introduced at the suppression hearing as well as that produced during trial, viewing that evidence in a light most favorable to the verdict. Fritzius v. State, 225 Ga. App. 642, 645 (484 SE2d 743) (1997); Underwood v. State, 218 Ga. App. 530 (1) (462 SE2d 434) (1995).

So viewed, the evidence was that Officer Ware of the Multi Agency Narcotics Squad (MANS) was contacted by an informant regarding Johnson on Wednesday, May 27, 1998. Ware met the informant in person that day around 3:30 p.m. The informant had not previously provided information to Ware or other officers but indicated that Johnson was a major distributor of marijuana and cocaine. The informant described Johnson as an African-American male, 6' 2" tall, weighing approximately 300 pounds. He advised Ware that Johnson charged $900 per pound of marijuana, $250 per quarter-pound of marijuana, and $1,000 per ounce of cocaine. Further, Johnson was said to own several vehicles, including a blue and silver pickup truck bearing a drive-out tag. The informant also provided Johnson’s pager number and said that Johnson lived off Cleveland Highway, giving directions which led to Darrell Lane Road.

On June 1, Ware spoke to the informant around 3:00 p.m. The informant advised he had talked to Johnson who said he was out of marijuana but could deliver an ounce of cocaine. During that conversation, the informant also provided a telephone number for Johnson. On June 2, Officer Ware was called by the informant around 10:40 a.m. The informant said he had talked to Johnson who said he was going to Atlanta to get more marijuana, he would be back in Gaines-ville in a couple of hours, and he would contact the informant. Based on this information, Ware met with Hall County Deputy Sheriff Nix, a patrol officer, and other MANS officers and set up a surveillance for a blue and silver Chevy or GMC pickup truck with a drive-out tag, driven by Johnson.

Around 12:40 p.m., the informant contacted Ware and advised that Johnson had just contacted him and said he would be at a predesignated location at the intersection of Bradford and Myrtle Streets in approximately 15 minutes. Surveillance was set up at that location, and Officer Nix, in his marked car, spotted a truck matching the description traveling on Main Street. The truck turned onto Myrtle Street, and Nix noticed that the paper drive-out tag “was faded ... [and] curled up around the edges, it was faded, the writing was faded somewhat and appeared to [have] been there for some time.” A drive-out tag may be legally used for only 30 days. It is not disputed that, whether Nix had spotted the tag or not, the truck was going to be stopped at the direction of Ware based on the informant’s information. As Officer Nix testified, “[t]he plan that I had was to make the traffic stop on their request [,]” and he acknowledged that the curled drive-out tag was not the primary concern behind the stop.

At that time, Nix stopped the truck. Approximately nine other officers and a K-9 unit also participated in the surveillance and the stop. Johnson was driving, and Clark was in the passenger seat. Johnson produced his driver’s license, insurance card, and a bill of sale dated January 9, 1998. Johnson was issued citations for not having his tag and for a cracked windshield.

Officer Ware asked Johnson if he had any drugs or weapons, which Johnson denied. Ware then asked Johnson if they could search the truck, and Johnson consented. When no substantial amount of marijuana was immediately located by Ware and Officer Neville, the K-9 unit, Officer Neece and Duke, went over the truck. Duke reacted to the floorboard area of the passenger’s side, particularly Clark’s purse, which was lying there. The purse contained less than an ounce of marijuana, and a marijuana seed was found on the floorboard.

Upon getting out of the truck, Clark was asked by Officer Neville for her name and address. She refused to give any information.

Ware interviewed Clark at the scene of the stop, and she told him she had obtained the marijuana from a co-worker the day before and that she intended to give it to her grandfather. She also told Ware that she had been by her residence on Darrell Lane that morning while in possession of the marijuana. Clark denied that Johnson resided at that residence or kept clothing there but said he lived with his mother elsewhere.

Ware then proceeded to a magistrate, where he intended to obtain a search warrant based on the informant’s information, Clark’s possession of less than an ounce of marijuana, and her having been in her residence with that marijuana. Prior to the issuance of the warrant, however, Ware received another telephone call from the informant who advised that Johnson had contacted him and said that he had been stopped and his vehicle searched. Johnson then told the informant he was en route to retrieve the drugs at the place where they were being kept. Ware had posted agents to watch the residence while he attempted to obtain a warrant, and, shortly after receiving the informant’s call, Agent Weaver contacted Ware and said that Johnson had just pulled into the driveway and, upon observing the police car in the driveway, had immediately pulled out of the driveway and left the area.

A search warrant was obtained for Clark and Johnson’s residence, based on both Ware’s original affidavit and a handwritten sworn affidavit obtained by the magistrate, containing the information set out in the preceding paragraph. Upon execution of the warrant, a duffel bag containing five kilos of marijuana and three and one-half grams of cocaine was found in the kitchen of the residence. The marijuana was in 19 plastic bags containing amounts ranging from several ounces to a pound. Also in the duffel bag were additional packaging materials and an electronic scale. A second search warrant was obtained for Johnson’s checking account and safe deposit box, based on his checkbook and the keys to the safe deposit box having been located and seized during the search of the apartment. In the safe deposit box was $8,000 in cash, in stacks held by rubber bands. The checking account contained $9,282.09.

1. The first enumeration is that, because Clark was told she was or could be arrested under OCGA § 16-10-24 (a) (obstruction of an officer), that was an illegal application of that statute and the information and items obtained by the ensuing searches of the residence and bank were illegally obtained and should have been suppressed.

While, as argued by Clark, merely refusing to identify oneself to a police officer is not a crime, one may commit obstruction when knowingly and wilfully hindering an officer in investigating an offense committed by another. Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992) (physical precedent only); see Wynn v. State, 236 Ga. App. 98, 99-100 (2) (511 SE2d 201) (1999). Here, Officer Nix had at least a reasonable suspicion that Johnson was driving without a proper tag, if not for investigation of possible drug possession by him.

Refusal to provide identification in such circumstances can be the basis for prosecution under OCGA § 16-10-24 (a), and whether one is guilty of such an offense is a question for the jury or other factfinder to determine. Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989); Hudson v. State, 135 Ga. App. 739, 741 (2) (218 SE2d 905) (1975).

Therefore, Clark’s argument that detaining her under threat of such a prosecution tainted the following searches is without merit.

2. The second enumeration is that the traffic stop was “pretextual” and in violation of the Fourteenth Amendment of the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution.

In Whren v. United States, [517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996),] the United States Supreme Court held that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. [See State v. Owens, 239 Ga. App. 722 (521 SE2d 860) (1999).]

Smith v. State, 240 Ga. App. 150, 151 (1) (522 SE2d 744) (1999). See also Garmon v. State, 271 Ga. 673, 678 (3) (524 SE2d 211) (1999).

In Smith, the officers had reasonable suspicion, at least, that Smith might be in possession of drugs but saw a traffic violation, an expired tag, before stopping Smith. This Court found that the traffic violation justified the stop. Here, regardless of the officers’ underlying intentions, Nix’s spotting the expired drive-out tag justified the stop.

There was no error in denying the motion to suppress on this ground.

3. Enumerations three, four, five and six all attack the warrant issued to search the house and will be considered together.

In determining probable cause for a search warrant, the magistrate is merely to “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before (the magistrate), including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997), quoting State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The trial court will then examine the issue, and its factual findings regarding probable cause for issuance of the warrant will be upheld unless clearly erroneous. Bryant v. State, 268 Ga. 616, 618 (6) (491 SE2d 320) (1997); Williams v. State, 267 Ga. 771 (4) (482 SE2d 288) (1997). Ultimately, this Court’s role on review is to “determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search (warrant).” DeYoung at 787 (7). See also Grier v. State, 266 Ga. 170, 172 (2) (b) (465 SE2d 655) (1996). And a reviewing court is to give substantial deference to the magistrate’s decision to issue a search warrant after finding probable cause. Id.

(Footnote omitted.) Abraha v. State, 271 Ga. 309, 311 (1) (518 SE2d 894) (1999).

Clark and Johnson argue that there was no showing made to the magistrate of the informant’s reliability. While there had been no previous information provided by this informant which could serve as a basis for determining his reliability, “the magistrate could determine the informant’s reliability through other indicia. Clark v. State, 212 Ga. App. 486, 488-489 (441 SE2d 885) (1994) (informant demonstrated reliability by meeting with investigator and participating in controlled purchase).” Branton v. State, 240 Ga. App. 106, 107 (522 SE2d 694) (1999).

Here, as in Branton, the informant was willing to meet personally with Officer Ware, giving Ware an opportunity to evaluate his demeanor and credibility, and, although it was not completed, he volunteered to attempt to set up a buy from Johnson. Also, the basis of the knowledge provided by the informant may compensate for a lack of showing of “veracity or reliability.” Here, the informant was contacted after the traffic stop by Johnson who described the stop to him and stated that he was in the process of going to the location where the drugs were located. Immediately thereafter, Johnson showed up at the residence and fled upon seeing police. See Illinois v. Wardlow, 528 U. S. 119 (120 SC 673, 145 LE2d 570) (2000) (flight may provide reasonable suspicion for a Terry stop).

Also, the specificity of the information provided by the informant, including Johnson’s beeper number, phone number, and his intended destinations on two occasions, thereafter verified by officers’ observations, provided indications of the reliability of the tip. Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); see State v. Tucker, 242 Ga. App. 3 (528 SE2d 523) (2000); Dupree v. State, 232 Ga. App. 573, 574 (502 SE2d 511) (1998).

Therefore, we conclude that the totality of the information provided along with the observations by police supported the magistrate’s common sense decision that there was a fair probability that marijuana might be found at the residence.

Johnson relies strongly on Ware’s failure to provide certain information about the informant to the magistrate and his attempt to mislead the magistrate, citing Robertson v. State, 236 Ga. App. 68 (510 SE2d 914) (1999), as a basis for suppressing the evidence.

The trial court concluded, as do we, that Ware did attempt to mislead the magistrate in his typed affidavit for the warrant on the residence by stating that:

On June 02, 1998, affiant arrested Tiffany Clark for possession of marijuana following a traffic stop where she was found to be in possession of a quantity of marijuana. After being advised of her miranda [sic] warning, Clark stated that she resides at 3972 Daryl Lane, that being the premises to be searched, and that she had been at her residence on this date with the marijuana.

In fact, Clark told Ware that she obtained the small amount of marijuana from a co-worker and had not spent the previous three nights in the residence.

In Robertson, supra, the officer neglected to inform the magistrate that his informant had been arrested by him for DUI and had told the officer that he could provide information regarding the sale of narcotics in exchange for “help” on his DUI charge. The officer further knew, but did not reveal, that the informant was a convicted felon who was on probation or parole. The officer told the informant he could not promise anything but would make the court aware of his assistance. Thereafter, the informant called the officer and said he had been to Robertson’s home and seen marijuana. The informant was very angry with Robertson because he had made an advance on the informant’s “old lady.” There, we concluded that the officer’s failure to provide the magistrate with the informant’s criminal background, pending criminal charges, possible revocation of his probation or parole, and his anger at Robertson deprived the magistrate of the opportunity to determine the reliability of the informant.

Here, Ware did not advise the magistrate that the informant had been arrested in White County on a “drug-related” charge and that the informant had implied that he and Johnson were former partners in a tattoo parlor. Ware had told the informant that, if the information provided regarding Johnson was corroborated, he would make a recommendation or speak to the district attorney on his behalf.

The informant’s testimony at the hearing on the motion to suppress was that he had no deal with anyone from the Hall County District Attorney’s office regarding anything, because “there is nothing pending against me for me to have something against me.”

While we strongly disapprove, as did the trial court, of the officer’s admitted obfuscation of the facts relating to Clark’s possession of the marijuana and her presence at the residence with it, we do not believe the record in this case compares with the facts in Robertson. There, it was undisputed that the informant was a convicted felon facing possible revocation of probation or parole and that he had a personal grudge against Robertson.

Here, having had a prior business relationship, with no further evidence regarding it, does not rise to that level. In fact, it could be said to have supported the reliability of the informant because of his knowledge of Johnson.

Further, the record is disputed regarding the alleged pending charges against the informant. See Mitchell v. State, 239 Ga. App. 735, 737 (1) (521 SE2d 873) (1999).

“Because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, the resolution of close questions on the determination of probable cause for a warrant should favor validating the warrant. [Cits.]” Branton, supra at 108.

While this is one of those cases, we do not find the trial court’s conclusion that the handwritten affidavit supported the issuance of the warrant for the residence to be clearly erroneous. Denial of the motion to suppress on these grounds was not error.

4. The seventh enumeration is unsupported by argument or citation of authority and is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Decided March 24, 2000

Reconsideration denied April 6, 2000

Herbert Shafer, for appellants.

Lydia J. Sartain, District Attorney, Deborah R. Mitchell, Assistant District Attorney, appellee.

5. Johnson also attacks the warrant issued to search his checking account and safe deposit box. The affidavit in support of that warrant set out the results of the search of the residence; the discovery at the residence of the checkbook and safe deposit box keys; the approximate street value of the marijuana found was $16,500 and the cocaine $400; and that, based on the affiant’s training and experience, “proceeds from drug distribution are maintained several different ways. Two such ways of maintaining drug proceeds is [sic] in a safe deposit box and checking accounts.” Affiant also, based on his training and experience, had commonly found that “United States Currency which comes from the distribution of drugs is maintained by the drug dealer in many different ways, and one of the common ways is in a Bank.”

Using the criteria set out above, we find adequate probable cause for the issuance of the warrant for the checking account and safe deposit box. Ehrlich v. State, 189 Ga. App. 294, 295 (375 SE2d 272) (1988).

Judgment affirmed.

Ruffin and Ellington, JJ, concur in judgment only.

       The informant was identified during the hearing and thereafter testified pursuant to a subpoena requested by Johnson’s attorney. He acknowledged having spoken to unidentified MANS agents about Johnson and drugs but would not be more specific at the hearing.

       This information was acknowledged by the State to be insufficient for issuance of a warrant for the residence.

       This cash was later placed in one of a series of lockers, and Duke reacted to the locker containing the money, indicating the money had been in the immediate presence of an illegal substance.

       No charge for obstruction of an officer was actually filed.

       They are that the affidavit contained no facts allowing the magistrate to conclude drugs were stored there; that the informant was unreliable and the affidavit untrue; that material information concerning the informant was not provided to the magistrate; and that items seized were beyond the scope of the warrant.

         Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       Although a purported copy of the final order in the condemnation case against the money is appended to the State’s brief, it has not been considered because this Court considers only matters of record.


text:
    A99A2465.
    DEPARTMENT OF PUBLIC SAFETY v. SCHUEMAN.
    (532 SE2d 487)
   Ruffin, Judge.

After the Georgia Department of Public Safety refused to reinstate Kirk Schueman’s driver’s license, Schueman appealed to the superior court, which reversed the department’s decision and ordered reinstatement upon the completion of certain conditions. The department appeals, contending that the superior court erroneously construed OCGA § 40-5-75. We agree with the superior court and affirm.

Before discussing the facts of this case, it is helpful to set forth the relevant statutory authority. Pursuant to OCGA § 40-5-75 (a), the driver’s license of any person convicted of certain drug offenses is automatically suspended. Subsection (a) (1) provides that, upon the first such conviction,

the period of suspension shall be for not less than 180 days. At the end of 180 days, the person may apply to the Department of Public Safety for reinstatement of his or her driver’s license. Such license shall be reinstated only if the person submits proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program approved by the Department of Human Resources and pays to the Department of Public Safety a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail.

Subsection (a) (2) provides that, upon the second such conviction within five years, the suspension shall be for three years, but the person may apply for reinstatement one year after the date of conviction, following the same procedure outlined in subsection (a) (1).

Under OCGA § 40-5-75 (b), the periods of suspension begin to run on the date of the person’s conviction. However,

if, at the time of conviction of any offense listed in subsection (a) of this Code section, the person does not have a driver’s license or the person’s driver’s license has been previously suspended, the periods of suspension specified by this Code section shall not commence until the person applies for the issuance or reinstatement of a driver’s license.

Although there is no transcript of evidence in the record, the relevant facts are essentially undisputed. Schueman was convicted of violating the Georgia Controlled Substances Act (VGCSA) on January 17, 1995, and again on October 3, 1995. At the time of these convictions, Schueman’s driver’s license was already suspended for various offenses in DeKalb County, the City of Lawrenceville, and Markham, Illinois. The DeKalb and Lawrenceville suspensions were cleared by August 6, 1996, although the suspension for failure to appear in Illinois was not cleared until March 5, 1998.

At some point before August 6, 1996, Schueman requested that the department reinstate his license. As the trial court noted in its order, however, the only evidence of such request is a letter from the department, dated August 6, 1996, denying the request. In this letter, the department advised Schueman that his suspension for the first VGCSA conviction would go into effect when his license was reinstated for the prior suspensions. According to the letter, 180 days after the suspension went into effect, Schueman could apply for reinstatement from the first VGCSA conviction. Upon such reinstatement, his suspension for the second VGCSA conviction would go into effect, and Schueman could apply for reinstatement from that suspension one year later. The letter informed Schueman that, in connection with his applications for reinstatement, he must provide proof of completion of a DUI program and pay a restoration fee.

On March 24, 1997, Schueman’s attorney wrote a letter to the department stating that “[i]t is our contention that [Schueman] is eligible for reinstatement pursuant to these suspensions immediately.” The department apparently refused to reinstate the license due to OCGA § 40-5-75 (b), and the attorney wrote a second letter, dated July 31, 1997, asserting that Schueman was “eligible for immediate reinstatement upon submission of proof of the completion of the DUI/ Drug Use Risk Reduction Program and payment of a restoration fee.” The letter stated that Schueman “stands ready and willing to submit proof that he has completed the DUI/Drug Use Risk Reduction Program and pay the restoration fee.” The department apparently declined his request, and Schueman appealed to the superior court.

The department argued in superior court that, pursuant to OCGA § 40-5-75 (b), Schueman’s suspension for his first VGCSA conviction did not begin until March 5, 1998, when his preexisting suspension was cleared. The suspension for the second VGCSA conviction would begin upon Schueman’s application for reinstatement from the first suspension. The department contended that, for an application to initiate the start of a new suspension, the application must be “effective” — that is, the applicant must be eligible for reinstatement from the prior suspension.

In reversing the department’s decision, the trial court rejected the proposition that an application for reinstatement must be “effective” in order to trigger the start of a new suspension. The court stated that,

[t]he Code section clearly states that, in computing time periods of suspension, if an applicant’s license is currently under suspension, the time period for a suspension under § 40-5-75 does not begin to run until that party applies for reinstatement. At no point in this statute does the legislature also require that the party be eligible for reinstatement at the time he applies for reinstatement. ... In this case it is undisputed that [Schueman] was not eligible for reinstatement when he applied for such to the Department. Despite this fact, under the express language of § 40-5-75 (b) the computation of time for the suspension of [Schueman’s] driver’s license as a result of his VGCSA convictions should have begun to run at the time he applied for reinstatement.

The court ordered the department to “recalculate the time period for the suspension of [Schueman’s] driver’s license, beginning on the date he requested reinstatement of his license,” and to restore Schueman’s license “upon the completion of this time period, the appropriate DUI Alcohol or Drug Use Risk Reduction Program, and fulfilment of any other conditions mandated by statute.”

Before addressing the merits of the trial court’s analysis, we feel compelled to address an issue not raised by the parties, but which is necessary for a proper evaluation of this case. When referring to an “effective” application for reinstatement, the trial court and the parties appear to be referring to a “timely” application — i.e., an application that is not prematurely filed. However, neither the trial court nor the parties address whether the letters sent by Schueman’s attorney in fact constitute applications for reinstatement at all. OCGA § 40-5-75 (d) expressly states that applications for reinstatement “shall be made on such forms as the commissioner may prescribe and shall be accompanied by proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program and a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail.” OCGA § 40-5-75 (a) (2), which deals with applications for reinstatement following a second VGCSA conviction, states that a person may apply for reinstatement “by submitting proof of completion of a DUI Alcohol or Drug Use Risk Reduction Program approved by the Department of Human Resources and paying to the Department of Public Safety a restoration fee of $210.00 or $200.00 when such reinstatement is processed by mail.” It does not appear that either of the two letters sent by Schueman’s attorney constituted an “application for reinstatement” as set forth in the statute. The letters were not on forms prescribed by the commissioner, were not accompanied by proof of completion of a risk reduction program, and were not accompanied by a restoration fee. Although the attorney indicated that Schueman “stands ready” to submit proof of completion and pay the fee, the statute requires that such items be included as part of the application. In the absence of such items, it cannot be said that the letters constituted applications for reinstatement at all. Assuming, however, that Schueman did properly apply for reinstatement, the trial court correctly construed the statute with regard to the timeliness of applications.

In construing a statute, “the cardinal rule ... is to glean the intent of the legislature.” In gleaning this intent, we “follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.”

Here, the literal language of the statute provides that a person may file an application for reinstatement 180 days after his first conviction for VGCSA. Following a second conviction for VGCSA, a person must wait one year before applying for reinstatement. The department contends that following the literal language would result in an absurdity because it renders language in OCGA § 40-5-75 (b) meaningless. This subsection provides that,

if at the time of conviction of any offense listed in subsection (a) of this Code section, the person does not have a driver’s license or the person’s driver’s license has been previously suspended, the periods of suspension specified by this Code section shall not commence until the person applies for the issuance or reinstatement of a driver’s license.

The department argues that the legislative intent behind this subsection is to punish repeat offenders by having suspensions that run consecutively rather than concurrently. According to the department, allowing a “futile” application for reinstatement to start the reinstatement clock running defeats this purpose. We disagree.

What the department fails to recognize is that not every application starts the reinstatement clock running. Under the express language of OCGA § 40-5-75 (a) (1), a person must wait 180 days from conviction before applying for reinstatement. Thus, had Schueman filed his application for reinstatement only 30 days after his first VGCSA conviction, his application would not have been effective. But Schueman did not apply for reinstatement until well after 180 days after his first conviction. Accordingly, the reinstatement clock began running when he first applied for reinstatement.

With respect to his second VGCSA conviction, OCGA § 40-5-75 (a) (2) provides that a person must wait one year from the date of conviction before applying for reinstatement. If that person has a suspended license, however, he must wait until he applies for the first reinstatement before applying for the second reinstatement. In other words, the 180-day suspension from the first VGCSA conviction will run consecutively to the one-year suspension for the second VGCSA conviction. This construction is not only faithful to the express language of the statute, but it also serves its punitive intent by ensuring that repeat offenders serve no less than one year plus 180 days.

Decided March 24, 2000

Reconsideration denied April 6, 2000.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Neal B. Childers, Senior Assistant Attorneys General, Andrea S. Hirsch, Assistant Attorney General, for appellant.

King, King & Jones, David H. Jones, Bernard S. Brody, for appellee.

The department’s requirement that Schueman actually be eligible for reinstatement prior to filing his application would mean that Schueman’s suspension would last much longer than one year and 180 days. But there is no statutory requirement that a person actually be eligible for reinstatement, and we see no need for creating such a requirement. Accordingly, the trial court properly reversed the decision of the department.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 40-5-75 (b).

        Ga. Pub. Svc. Comm. v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382, 384-385 (1) (489 SE2d 350) (1997).

       (Punctuation omitted.) Id. at 385.

       (Emphasis supplied.)

       The exact date Schueman first applied for reinstatement is not in the record. It appears, however, that he first applied shortly before August 6, 1996, the date the department responded by letter.

       See Quiller v. Bowman, 262 Ga. 769, 771 (1) (425 SE2d 641) (1993).