text:
    A01A1569.
    THAKKAR v. ST. IVES COUNTRY CLUB.
    (553 SE2d 181)
   Eldridge, Judge.

St. Ives Country Club brought an action against Chittranjan Thakkar for the removal by Thakkar of 13 loblolly pine trees growing on plaintiffs property, which pines provided a buffer between Thakkar’s house and the eleventh hole of plaintiffs golf course. Following a bench trial, the Superior Court of Fulton County awarded damages and attorney fees in favor of plaintiff and against Thakkar, who now appeals. Upon review of the record, we affirm.

1. Thakkar claims that two discovery abuses require reversal of the instant case. We disagree.

(a) Thakkar contends the trial court erred in denying his motion brought pursuant to OCGA § 9-11-16 seeking to exclude the testimony of four of plaintiffs lay witnesses whose names were served on Thakkar the Friday before the Monday trial date as individuals who could testify as to the number of pines removed from plaintiff’s property. However, “[t]rial courts have broad discretionary powers under the discovery provisions of the Civil Practice Act and appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse.” Here, the record does not show that the names of the witnesses were deliberately concealed to prejudice Thakkar, and plaintiff supplemented its earlier discovery with the names of the witnesses as soon as they were located. Thus, plaintiff complied with the supplemental discovery provision of OCGA § 9-11-26 (e) (1) (A).

Moreover, in his written motion, Thakkar did not seek a continuance or postponement of trial in order to depose the witnesses about whom he complains, but sought solely to exclude their testimony. And “[e]xclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.”

Finally, two of the witnesses are golfers at St. Ives Country Club and thus were referenced in plaintiff’s initial witness list as “Golfers of St. Ives, as of yet unidentified, who played at St. Ives Country Club both before and after Defendant’s removal of trees from the St. Ives property”; in fact, one of the golfers listed was Chairman of the St. Ives Grounds Committee and had been in communication with Thakkar about the tree removal; thus, his testimony was known to Thakkar. A third witness was the superintendent of the golf course whose identity, location, and testimony were known to Thakkar. And the fourth witness was the employer of a previously named witness who would testify to the same facts as the named witness; Thakkar, however, never deposed the named witness. In fact, Thakkar did not depose a single witness in this case, and he fails to show how an earlier receipt of the four witnesses’ names would have altered this yearlong course. Under such circumstances, we find no abuse of the trial court’s discretion in permitting the four witnesses to testify.

(b) Thakkar claims error in the admission of testimony from the plaintiff’s expert witness, surveyor Leroy James, because James was identified as a witness the day before his testimony. However, James was called solely to establish the boundary line between Thakkar’s and plaintiff’s properties. At trial, the court asked Thakkar’s attorney if he wished to interview James so that he would not be surprised by his testimony. The attorney did so, stating, “I’ve been given a copy of the deed and the survey. So I think I know what I need to ask him.” After the interview, the following ensued:

[Court:] Have you had a chance to talk to the plaintiff’s witness, the surveyor?
[Defense Counsel:] Yes, your Honor.
[Court:] Do you need any more time?
[Defense Counsel:] I don’t believe I do.
[Court:] All right. Is there anything else that we need to discuss before calling this witness?

Thereafter, Thakkar did not register any objection, claim surprise, move to continue, or move for mistrial.

“The only appropriate remedy for [plaintiff’s] alleged failure to update . . . discovery responses or . . . expert witness’ deposition testimony in the case sub judice (if any such update was even required) was postponement of trial or a mistrial.” Since the record shows that James’ name was not withheld deliberately; his name was provided as soon as discovered; the substance of his testimony was known to Thakkar; and no continuance was requested or motion for mistrial made, we find no abuse of the trial court’s discretion in permitting James to testify.

2. We likewise find no error in the trial court’s use of the replacement costs of the loblolly pines as the proper measure of damages in this case. Plaintiff testified as to the aesthetic value and use of the pines as a buffer surrounding the eleventh hole of the golf course, which buffer masked the surrounding homes and enhanced the beauty of the course. Several photographs of Thakkar’s home taken from the eleventh hole after the trees were cut show the stark contrast between Thakkar’s house and the surrounding houses which continued to be masked by the loblollys. And Thakkar admitted that he cut plaintiff’s trees in order to improve his view of the golf course from his house.

An owner of real estate has a right to enjoy it according to his own taste and wishes, and the arrangement of buildings, shade trees, fruit trees, and the like may be very important to him and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially compensated.

In light of the testimony about the uses to which plaintiff put the land and the reasons for maintaining the trees on its property, the trial court did not err in receiving evidence and awarding damages based on “the cost of restoration that has been or may be reasonably incurred” through replacement of the lost pines.

3. The boundary line between plaintiff’s property and Thakkar’s property was sufficiently established through the introduction of a plat of St. Ives Country Club; plaintiff’s deed containing a description of the property boundaries of the club; and expert testimony from the registered land surveyor as to the exact location of plaintiff’s boundary in relation to Thakkar’s property. Such evidence showed that title to the land from which the pines were removed was in plaintiff. Thakkar’s claims to the contrary are without merit.

4. The trial court did not abuse its discretion in reopening the evidence in order to permit plaintiff to prove an essential element of its case. Nor do we find error in the fact that the trial court informed plaintiff that it perceived a defect in plaintiff’s proof, thereby preventing Thakkar from obtaining a directed verdict for failure to prove a prima facie case.

The appellant in this case essentially asserts that if the plaintiff is thus allowed to “cure” the defects in his case, then in effect no defendant will ever be entitled to a directed verdict at the close of a plaintiff’s case. That might be true if a plaintiff could never amend his case or show additional evidence, and if the directed verdict were a mere technical device to dispose of plaintiffs who fail to present an instantly perfect prima facie case; but this is not so. The directed verdict is a substantive procedure for removing the case from the [factfinder] when the plaintiff’s evidence viewed in the most favorable light is without conflict, and all the reasonable deductions therefrom demand a verdict for the defendant. . . . [S]ound reasoning dictates we not elevate procedure and form over substance by reversing the case on this basis, when the plaintiff’s case was in fact ultimately made out.

5. We reject Thakkar’s contention that conversion of timber under OCGA § 51-12-51 requires proof that he sold or personally “used” the trees as lumber. Conversion is the “unauthorized assumption and exercise of the right of ownership over goods or chattels belonging to another.” Our timber conversion statute states in pertinent part that “Every person [who] . . . removes ... or otherwise converts to the use of himself. . . any trees growing or grown on . . . land shall be liable to the holder of the legal title for such trees . . . removed ... or otherwise converted by him.” In that regard, we find that when one, without authority, removes another person’s trees in order to improve one’s view of a golf course, there is an unauthorized exercise of ownership rights over the trees. To what specific “use” the trees are then put after the unauthorized removal — lumber, sale, or trash heap — does not impact on the fact that, in removing the trees without authority, the remover has converted them to his own “uses.”

6. The trial court found as “not credible” Thakkar’s testimony that he did not know he was removing the trees from plaintiff’s property. The court found that Thakkar knowingly removed the pines from plaintiff’s property in order to improve the view between his house and the golf course and that Thakkar assumed plaintiff would not pursue the matter because he sold the house bordering plaintiff’s property and moved to a different location. There is evidence of record to support the trial court’s factual findings. “[A]n appellate court will not disturb the factual findings of the trial court when there is any evidence to sustain such findings.” Accordingly, Thakkar’s remaining two enumerations regarding the failure to prove intent are without merit.

Decided July 31, 2001.

Chamberlain, Hrdlicka, White, Williams & Martin, James L. Paul, Matthew J. McCoyd, for appellant.

Nelson, Mullins, Riley & Scarborough, Lance P. McMillian, for appellee.

Judgment affirmed.

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

       (Citation omitted.) Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (9) (373 SE2d 372) (1988).

       OCGA § 9-11-26 (e) (2), (3); City of Monroe v. Jordan, 201 Ga. App. 332, 335-336 (411 SE2d 511) (1991).

        Hunter v. Nissan Motor Co. &c., 229 Ga. App. 729 (1) (494 SE2d 751) (1997).

       Id. at 730 (1).

        Klingshirn v. McNeal, 239 Ga. App. 112, 118 (4) (520 SE2d 761) (1999).

       (Punctuation omitted.) Id. at 118-119.

        KDS Properties v. Sims, 234 Ga. App. 395, 397-398 (506 SE2d 903) (1998).

        Walker v. GRO Assoc., 227 Ga. App. 569 (489 SE2d 366) (1997).

       (Citations and punctuation omitted.) Id. at 569 (1).

       Black’s Law Dictionary (5th ed. 1979), p. 300.

       OCGA § 51-12-51 (a).

        BMH Real Estate Partnership v. Montgomery, 246 Ga. App. 301, 302 (1) (540 SE2d 256) (2000).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A1587.
    HILL v. THE STATE.
    (553 SE2d 289)
   Eldridge, Judge.

A DeKalb County jury found Mark Anthony Hill guilty of rape, kidnapping with bodily injury, aggravated sodomy, and armed robbery (motor vehicle). He appeals and, in six enumerations of error, challenges the admissibility of taped statements given to the police and the sufficiency of the evidence to support his conviction. Upon review of the errors as enumerated, we affirm.

A thorough review of the taped statements put before the jury, as well as the trial testimony introduced, is necessary for resolution of the specific issues raised on appeal. To that end and in a light most favorable to upholding the jury’s verdict, the evidence of record shows that, at approximately 8:30 p.m. on Friday, March 3, 2000, while on her way to her daughter’s house, the victim stopped at the Chevron gas station at the corner of Oak Grove and Lavista Roads. The victim testified at trial that she briefly went into the station in order to pay for the gas she had just pumped. While she was inside, appellant Hill entered the victim’s red Plymouth Voyager minivan — which she had left unlocked — and went through her purse; he hid in the back of the van as the victim approached. When the victim got into the van, she put the keys in the ignition and then noticed that the contents of her purse were strewn across the passenger seat. The victim testified that, at that time, Hill came from behind her and held a steak knife to her throat. He grabbed the victim’s wrist, and “He started pulling me out of my seat and trying to push me over. And I was screaming and I was crying, and he was telling me to shut up. And he was trying to push me into the passenger’s seat and eventually did.” Hill got into the driver’s seat. He made the victim put her hands over her face, “[a]nd he proceeded to drive out of the service station ” While Hill was driving down Lavista, the victim testified that he “took me by the back of the neck and pushed me between the seats to where my face was in the backseat.” The victim suffered a neck injury from Hill’s actions.

Eventually the van came to a stop, and Hill got out. He told the victim “to stay down and to stay quiet because there were people that were watching [her].” Hill returned a few minutes later, and the victim testified that she heard a cigarette lighter, explaining, “I don’t know what he was doing, maybe smoking his crack or whatever, you know.” Then the van backed up: “it seemed like we were going in reverse.” When the van stopped, Hill ordered the victim to “turn around and suck this.” The victim testified, “that’s when he held the knife to my throat and forced my head to his penis.” Thereafter, the victim stated Hill “pushed me away and told me to pull my pants down.” Hill had forcible sexual intercourse with the victim.

Thereafter, Hill “started to drive”; the victim testified that “he pulled me up into the seat. And he just drove continuously around in a circle.” During this time, Hill prepared a crack pipe and smoked it. He told the victim to smoke the pipe: “And I told him, ‘No, I don’t smoke crack,’ you know. And so then he forced me to; he told me to take it.” Hill and the victim drove for approximately 20 minutes smoking crack. Eventually, Hill pulled into the driveway of a house on Valley Brook Drive in DeKalb County belonging to a man named “George.” Hill got out of the vehicle; when he returned, Hill and the victim followed a white van to a location off Hollywood Drive in DeKalb County. Hill again left the vehicle. The victim stated that he removed the keys each time he left the minivan. After Hill returned, he and the victim followed the white van back to George’s house on Valley Brook Drive. When they arrived, the victim testified that “[t]his other guy came up, and he [Hill] went to the back of the van and talked to him. And then the guy came up to the window on the driver’s side and looked in and said, ‘Hi, I’m Fats.’ ” Fats asked the victim if she would give him a ride “down the road somewhere.” The victim agreed, and Hill said he would drive. “He cranked the van and proceeded to drive. And Fats, the Fats guy started talking to me and asking me if we could go out, if we could get together and all this stuff And I was like, ‘No. I’m on my way to my daughter’s. He knows I have to go to my daughter’s.’ And then we drove to different places where they tried to purchase crack.”

Hill, Fats, and the victim drove to “six or seven, maybe more” places in the “Scottdale, Decatur area.” The victim testified that, while they were driving, Fats smoked a cigarette laced with crack. He passed it to Hill, who thereafter handed it to the victim; she testified, “I said, ‘No,’ and he shoved it to me, and he gave me this evil look and I took it.”

Hill, Fats, and the victim drove around the Scottdale/Decatur area “maybe two hours.” Eventually, they returned to George’s house, where Hill told the victim “to come in for a few minutes.” The victim stated, “So I got out of the van, and I started to walk in, between the two of them.” There were several people in the house, and “[a] 11 of them had their own little glass thing, and they were smoking crack. There was a thing of crack laying on the table. I mean there was a lot of stuff laying there.” The victim sat down; she testified that she refused an offer of more crack, but asked for “some of that joint [marijuana] over there.” The victim testified that “I wanted to look like I was — I was playing a part; I was having to be his friend.”

After she smoked, Hill called her into another room. The victim testified that “I got up and I walked in there, and he grabbed my arm again and told me I was going to have to have sex with the Fats guy. And I started crying and begging to leave.” The victim stated that Hill “told me to shut up or he was going to torch me in my van.” The victim testified that she went to the bathroom and, thereafter, “I opened the door and I started screaming, ‘Please help me. He’s abducted me and he’s raped me.’ ” The victim decided to make outcry “because I didn’t want to have sex with anybody. I didn’t want to be taken advantage of anymore.” After making outcry, the victim testified that “the Fats guy started talking to me and asking me what was happening. And I was like, ‘Look, I want to go home. Get my keys.’ And they, then, they proceeded to make him [Fats] go out there and get my keys.” The victim left in her minivan and drove to her daughter’s house.

The police were contacted, and the victim went to the hospital where a rape kit was done at approximately 1:00 a.m. on March 4, 2000 — about four hours after the rape which the victim reported as occurring at 9:00 p.m. the prior evening, March 3. The rape kit tested positive for sperm, although the sperm sample was “probably a day to a day and a half old when taken,” i.e., the sexual act had occurred approximately 24 to 36 hours from the time the rape kit was done. A subsequent DNA test on the sperm sample matched the DNA from a blood sample taken from Hill.

Pursuant to investigation, Fats, a/k/a Morrell Dorsey gave a taped statement to the police. In his statement, Dorsey confirmed that he first saw Hill and the victim together in the victim’s red minivan. Thereafter, he asked Hill if he could get a ride to the store from the Valley Brook residence belonging to his employer, George, and Hill said, “let me ask my friend if I can run you to the store.” According to Dorsey, Hill asked the victim if he could take Dorsey to the store, and the victim personally told Dorsey “come on” and motioned for him to get into the van. Dorsey confirmed that the threesome drove through the Scottdale/Decatur area, but claimed that only Hill and the victim were looking for drugs. He maintained that he never smoked crack, but only drank beer. Dorsey stated that, the whole time, Hill and the victim were “talking to each other like they knowed each other”; that from their behavior, he thought “they were together.” Dorsey stated that the victim was acting “normal,” and “relaxed”; that “she was not tensed up or nothing.”

When they returned to George’s house, the victim told Hill, “I can come in for a few minutes.” Dorsey stated that the victim introduced herself to everyone when she walked in the house and shook hands with George, the owner; Dorsey stated that the victim was sitting “calm and cool” at the table in the house, “getting acquainted” with everyone. He stated that Hill called the victim over to the bathroom for a minute and, when she returned, she sat back down at the table. Dorsey stated that thereafter Hill came by and wanted to leave, asking, “Let’s go baby. Ready to go?” He claimed that when Hill took her arm to go, the victim “bust out crying.” It was then the victim told the men at the table that Hill had “snuck into her van” at the “Texaco or Amoco” and “put a knife to my throat” and raped her. Dorsey stated that she begged them to help get her keys back from Hill. Dorsey stated that he was “shocked” by this news. Hill and he had grown up in the same area, and Dorsey “never knew him to do anything like that.” Hill had gone outside during the victim’s outcry. Dorsey followed him outside, and when confronted by Dorsey with the victim’s story, Hill “said fuck that shit or something like that. He was cursing.” Dorsey stated that Hill gave the victim’s keys back after Dorsey paid him $20 to do so.

Appellant Hill also gave a taped statement to the police. In it, he claimed that he knew the victim because he is an infrequent patron of the Tattletales lounge, where the victim is a waitress. He stated that the victim was with Dorsey on the Friday night in question and that the victim and Dorsey picked him up in order to buy crack cocaine. All three went to George’s house on Valley Brook Drive, and all three smoked crack cocaine there. Hill stated that the victim allowed him to borrow her minivan in order to buy more drugs from dealers in the Scottdale area. Hill stated that he gave the victim crack cocaine in order to use the van. Hill stated that, when he returned to George’s house, he came back with a girl named “Vicky”; that the victim got upset; and that she was “screaming and yelling.” He stated that he gave the victim’s car keys to Fats when asked, because it was time to go; that people were “raising hell”; and that “you can’t get high with a bunch of conflict.” Hill stated that he knew what the victim had accused him of, but “don’t know where the accusation came from.” Hill denied having sex with the victim.

At trial, the State called Dorsey to the stand. After answering a few initial questions, including that he first saw the victim when she and Hill drove up in the victim’s van to “where I was at,” Dorsey asked, “Excuse me, do I got to answer these questions? ... I mean I ain’t had a chance to talk with nobody thoroughly.” When told that he was required to answer the questions, Dorsey could not remember anything further about either the night in question or what he had said in his statement to the police: “I mean I need a chance to talk to somebody, you know.” No transcript of Dorsey’s taped statement had been prepared, and thus Dorsey’s memory could not be refreshed therefrom. After the prosecutor attempted unsuccessfully to elicit further testimony from Dorsey, the trial court stated, “He is not going to remember anything. We are just wasting our time with this, aren’t we? He is not going to testify. He is not going to remember.” Later, over a hearsay objection, the trial court permitted the State to play Dorsey’s taped statement as a prior inconsistent statement.

Hill took the stand and testified on his own behalf. He testified that he knew the victim from the Tattletales lounge, but had not seen her for over a year. He testified that he saw her again for the first time when he went to George’s house on the day before the incident date, i.e., Thursday, March 2, 2000. The victim was already at George’s house smoking crack cocaine. Hill testified that he started making small talk with her because he wanted to get the victim “to go in the back room.” He asked the victim “did she want some crack, to go have sex in the back room.” The victim agreed. Hill testified that he and the victim spent approximately an hour and a half together smoking crack and that he spent “[a] 11 the money I had so, you know, I probably had about $75 or whatever.”

Hill testified that he returned to George’s house the next night, the night in question March 3, 2000. The victim arrived five minutes later. Hill stated that the victim, and Dorsey, and he left in the victim’s van to buy drugs in the Scottdale area. He testified that everyone in the car was smoking crack cocaine. When they all returned to George’s house, the victim went inside and “sat there at the table and smoked crack.” Hill claimed that he gave the victim a “dime” bag of crack in order to borrow her minivan; that he borrowed the victim’s van; and that thereafter he returned to George’s house with a “neighborhood junky” named “Vicky” and went into the back bedroom with her to have sex for drugs. Hill claimed that while he was in the bedroom with Vicky, the victim got upset; Hill testified that “I guess she [victim] got mad because she couldn’t get no more dope, and then she went in a little panic, rage, you know.” He testified, “[a]nd all of a sudden she jumped up and said something; I don’t know what. I wasn’t at the table, so I couldn’t tell you what she said. The only thing, they came back and told me that she out here acting crazy.”

Hill stated that he went out to the table to “see what was going on”; that he “heard the accusations”; and that he knew the victim accused him of raping her, but he was not worried “because I know everything she said is not true, so.” Hill testified that “I thought she [victim] just said that [rape] just to get some dope”; he claimed that the victim cried rape “[b]ecause everybody would have felt sorry for her, so she could get some cocaine.” Held:

1. In his first three enumerations of error, Hill contends the trial court erred in admitting the taped statement of Dorsey as a prior inconsistent statement since Dorsey did not deny the facts contained therein, but simply did not “remember” them. Thus, Hill contends, the taped statement was inadmissible as hearsay. We agree that the statement was not admissible as a prior inconsistent statement, but we conclude that its admission was harmless.

“[Wjhere a witness merely states that he does not remember, he cannot be impeached by the showing of former statements with respect to the facts which he claims not to remember.” This is true regardless of whether the witness’ failure to “remember” is real or contrived, as it appeared to be in this case. Here, a transcript of Dorsey’s taped statement should have been prepared and used to refresh his memory, thereby giving him a chance to either admit or deny making his statements. The tape’s admission would then be based on the answers received from a recollection refreshed, no matter how reluctantly so. As this was not done, Dorsey’s taped statement was neither inconsistent nor consistent with his otherwise nonexistent trial testimony, and its admission as a prior inconsistent statement was error.

However, “[t]he erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced.” In this case, Dorsey’s statement added nothing to the information already before the jury through the testimony of both Hill and the victim.

The allegations contained in Dorsey’s taped statement of a rape at knifepoint that occurred earlier in the evening at a “Texaco or Amoco” came solely from the victim, and Dorsey had no personal knowledge of a rape. In that regard, the victim testified at trial she told Dorsey that Hill had raped her at knifepoint earlier at a “Chevron” station. Appellant Hill, himself, acknowledged in his statement to the police that the victim accused him of forcible rape on the night in question; that the victim was “yelling and screaming”; and that he left George’s house because “you can’t get high with a bunch of conflict.” Indeed, Hill testified at trial that, at George’s house on the night in question, the victim accused him of rape, but he was “not worried” because he knew the accusation was false. Thus, it is undisputed that an allegation of an earlier forcible rape was made by the victim at George’s house on the night in question. Such provided no issue for the jury to decide. And Dorsey’s statement simply repeated the undisputed fact that a rape allegation was made by the victim.

The only issue for the jury was the credibility of the allegation of the prior forcible rape, which by extension included the credibility of the victim’s explanation about her continued presence with Hill after the rape, both in her vehicle and at George’s house. We find that, as a matter of fact, Dorsey’s taped statement did not impact on this credibility issue to the detriment of Hill. In fact, Dorsey’s statement — on its face — was more of an aid to the defense in terms of the victim’s credibility.

Dorsey testified that, during the time he was with Hill and the victim, the victim’s behavior was “normal”; that she was calm, cool, relaxed, and friendly; that at no time did she act “tense”; that, the whole time they were together, she and Hill acted like they “knowed each other”; that, from their conduct, Dorsey thought “they were together”; that the victim wanted to enter George’s house “for a few minutes”; that the victim shook hands with George when she entered his house and sat at the table with everyone else “getting acquainted”; that the victim smoked marijuana while at the table; that Dorsey was “shocked” at the sudden allegations of rape because he had known Hill since childhood and had never known him to do anything like that. Thus, there was nothing about Dorsey’s statement that would lend credibility to the victim’s contention that the entire time she was with Dorsey, she was the kidnapped victim of an earlier forcible rape at the hands of Hill.

Before this Court, Hill contends that the error in the admission of Dorsey’s statement was harmful because Dorsey “was the only other witness to testify as to the interaction between the Appellant and [the victim].” However, as discussed, Dorsey’s taped statement about the personal interaction between Hill and the victim was completely exculpatory to Hill. “A party seeking a reversal must show not only error, but injury arising from the error alleged.”

Moreover, Dorsey’s taped statement factually contradicted the victim in several key aspects: he stated that the victim told him the rape occurred at the “Texaco or Amoco” gas station — as opposed to the victim’s testimony that Hill drove her from a Chevron station to another location and'raped her; Dorsey stated that he never made a sexual overture to the victim — as opposed to the victim’s testimony that Dorsey asked, “if we could go out, if we could get together and all this stuff”; Dorsey stated that he never used drugs and was not driving around smoking crack with Hill and the victim — as opposed to the victim’s testimony that the threesome drove around the Scottdale area and purchased crack cocaine which Dorsey mixed with cigarette tobacco and smoked; Dorsey stated that it was the victim’s idea to go into George’s house — as opposed to the victim’s testimony that Hill required her to go inside; Dorsey stated that the victim made her outcry suddenly at the table in response to Hill’s request to leave the house, “Let’s go baby,” — as opposed to the victim’s testimony that her outcry was made from the bathroom after Hill told her that she must have sex with Dorsey in the bedroom of the house. Thus, Dorsey’s taped statement could be seen as impeaching with regard to the testimony of the victim and did not serve to bolster her credibility.

In sum, the taped statement of Dorsey was cumulative of evidence from both Hill and the victim regarding the undisputed fact that, while at George’s house on the night in question, the victim accused Hill of an earlier forcible rape, a fact about which Dorsey had no personal knowledge. Further, the portions of Dorsey’s taped statement about which he had personal knowledge did not prejudice Hill with regard to the credibility of the victim’s allegations, since Dorsey’s statement factually contradicted the victim’s testimony in several key respects, and in many other respects — including the personal interaction between Hill and the victim — factually corroborated Hill’s defense that the victim was with him voluntarily/consensually. Accordingly, any error in the admission of Dorsey’s taped statement does not require reversal of the instant conviction as it is highly probable that it did not contribute to the verdict.

2. We reject the contention that the taped statement of Dorsey contained an improper comment on Hill’s silence after Dorsey confronted him about the victim’s accusation of rape. Our review of the tape, as well as the portions thereof cited in the appellant’s brief, shows that Hill did not remain silent in the face of the victim’s rape allegation, but “[h]e said fuck that shit or something like that. He was cursing.” We will not construe Hill’s responsive expletives as denoting a “tacit[ ] acquiescence] by remaining silent” so as to warrant reversal.

3. Hill challenges the sufficiency of the evidence. On appeal, the evidence must be viewed in a light most favorable to the verdict, and Hill no longer enjoys a presumption of innocence; “moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” In that regard, the evidence in this case was not overwhelming. From the record, the verdict was based on the jury’s determination as to who was telling the truth about what happened between Hill and the victim prior to their arrival at the Valley Brook residence referred to as “George’s house,” facts to which only the victim and Hill were privy. Such credibility determination is solely within the province of the jury and will not be disturbed by this Court; for us, “[t]he evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt.”

Here, the victim testified that, prior to arriving at George’s house, Hill entered her minivan; held a knife to her throat; forced her into the back of her van, causing injury to her neck; drove her van to another location; forced her to commit oral sodomy on him; and forced her to have sexual intercourse with him. This testimony of the victim, alone, was sufficient for a rational trier of fact to have found beyond a reasonable doubt each of the elements of the offenses for which Hill was convicted. Accordingly, the evidence is sufficient as a matter of law to uphold the verdict.

4. Hill contends that, following a Jackson-Denno hearing, the trial court erred in admitting his inculpatory in-custody statement, because he was under the influence of cocaine and alcohol at the time the statement was made. We find no error.

Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson-Denno hearing will be upheld on appeal. Whether there was a knowing and voluntary waiver of rights depends upon the totality of the circumstances. In this case, the record shows that Hill was read the Miranda warnings at the beginning of his statement and signed a waiver of rights form. He affirmed that he understood his rights, that he was aware of his surroundings, that his statement was voluntary, and that he was not required to respond to the officers’ questions. At the Jackson-Denno hearing, the officers who interviewed Hill testified that he was coherent, that his answers were responsive to the questions, and that he did not appear to be under the influence of drugs or alcohol. Under the totality of these circumstances, the trial court was authorized to find that Hill knowingly waived his rights, despite his purported previous consumption of alcohol and drugs. The trial court’s finding, supported by the evidence, is not clearly erroneous and must be upheld.

Decided July 31, 2001.

Ruth L. Rocker, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Joseph N. Walden III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        Jowers v. State, 244 Ga. App. 292, 293 (1) (535 SE2d 294) (2000).

       (Punctuation omitted.) Johnson v. State, 255 Ga. 552, 556 (4) (a) (341 SE2d 220) (1986).

        Bischoff v. Payne, 239 Ga. App. 824, 826 (522 SE2d 257) (1999); Brown v. State, 266 Ga. 633, 635 (469 SE2d 186) (1996).

        Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999).

       See Moore v. State, 245 Ga. App. 641, 644 (2) (537 SE2d 764) (2000); Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990).

        In the Interest of D. S. R., 246 Ga. App. 426, 427 (2) (541 SE2d 61) (2000).

       See Moore v. State, supra at 644 (2); Assad v. State, supra at 693 (2).

        Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

        Wallace v. State, 272 Ga. 501, 503 (2) (530 SE2d 721) (2000).

       (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       (Footnote omitted.) Shaw v. State, 247 Ga. App. 867, 869 (2) (545 SE2d 399) (2001).

        Smith v. State, 246 Ga. App. 191, 192 (539 SE2d 881) (2000). See also OCGA § 24-4-8 (testimony of a single witness sufficient to establish a fact).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Bishop v. State, 268 Ga. 286, 288 (2) (486 SE2d 887) (1997).


text:
    A01A1590.
    JEFFERSON RANDOLPH CORPORATION et al. v. PROGRESSIVE DATA SYSTEMS, INC. et al.
    (553 SE2d 304)
   Eldridge, Judge.

This is an appeal from the confirmation of an arbitration award made by the American Arbitration Association (“AAA”) against Jefferson Randolph Corporation d/b/a JRC Trucking, Inc. and Thurman Carpets, Inc., plaintiffs, for Progressive Data Systems, Inc., William A. Crozier, Jr., and Thomas G. Taylor, defendants, based on their counterclaims. Plaintiffs contend that the trial court erred in confirming an award when the arbitrator overstepped his authority and entered an award on issues not submitted to him, granted OCGA § 9-15-14 attorney fees without identifying conduct authorizing the award, awarded postjudgment interest at 18 percent on the entire principal, and awarded prejudgment interest on the principal arbitrator’s award. We agree and reverse.

Jefferson Randolph Corporation d/b/a JRC Trucking (“JRC”) is in the business of hauling carpet inventory for carpet manufacturers but also sold carpet products through its sister corporation Thurman Carpets (“Thurman”). On May 24, 1996, under an Equipment Sales, Software License, and Service Agreement, JRC bought computer software and hardware from Progressive Data Systems (“PDS”) for $167,935.26, which it paid in full, to track the movement of its trucks with inventory and to process the various carpet transactions in which Thurman was involved. The basic software deliverable had a distribution modification that required customization to perform order entry, inventory, and purchasing; however, 15 months after the Agreement was entered into, PDS had not delivered a completed distribution modification under the contract.

JRC came to believe that Crozier and Taylor, principals of PDS, had made false and untrue representations concerning the work that they would perform as to timely performance, contract services, and features. JRC gave notice of its rescinding the Agreement.

On April 22, 1999, JRC sued to rescind the Agreement and for fraud. The defendants answered, counterclaimed, filed a motion to dismiss for failure to have an indispensable party, Thurman, and moved to stay and compel arbitration under the contract under the Federal Arbitration Act. JRC added Thurman as an additional plaintiff.

Initially, JRC opposed arbitration, because Thurman, Crozier, and Taylor were not parties to the Agreement requiring arbitration and were not bound to arbitrate. Subsequently, JRC and the other parties agreed to arbitration, but the parties could not agree upon the issues to submit to arbitration. On December 8, 1999, the trial court ordered the parties to proceed to arbitration “pursuant to the terms of the arbitration provisions included in the contract between the parties.” PDS initiated a demand for arbitration before the AAA.

On July 26 and 27, 2000, at the arbitration hearing, PDS made claims only for the unpaid software license fees and all future licensing fees as liquidated damages, prejudgment interest at the rate of 1.5 percent per month on the accelerated future licensing fees, and expenses of litigation. At the direction of the arbitrator, PDS revised and sought additional damages. JRC and Thurman sought rescission of the Agreement and recovery of consequential damages. PDS never terminated the Agreement nor sent JRC an invoice and demand for the accelerated future invoice payments for eighteen years and three months as liquidated damages.

On August 18, 2000, the arbitrator entered an award against JRC and Thurman and for the defendants on their counterclaims in the amount of $81,540 in compensatory damages, which did not disclose what were consequential damages and prejudgment interest; $64,875 in attorney fees; $2,487 in administrative fees and expenses; and $1,782.99 in expenses and compensation of the arbitrator totaling $150,685. The attorney fees were not differentiated as to what was incurred to collect the future license fees, what had been incurred in defense to plaintiffs’ case, and what was reasonable for prosecuting the counterclaim.

PDS moved for the trial court to confirm the award. The plaintiffs moved to vacate or modify the award, because the arbitrator exceeded his authority and made an award as to issues not submitted to him. On February 12, 2001, the trial court confirmed the award. On the same date, the trial court entered a final judgment for such award and further awarded the defendants on their counterclaim “post-award prejudgment interest” in the amount of $12,261.22 on the gross sum of $150,685 and “additional attorney’s fees” of $5,000 without any findings of fact or conclusions of law or any hearing, and postjudgment interest on $150,685 at 18 percent per year.

1. Plaintiffs contend that the trial court erred in confirming the arbitrator’s award, because he “overstepped his authority.” We agree.

Under Section 3.15 of the Agreement, PDS was entitled to damages:

Upon the occurrence of an Event of Default, Vendor may (1) terminate this Agreement and invoke all rights Vendor possesses upon termination and (2) if Customer remains liable for any monetary obligation created under this Agreement, accelerate and declare all obligations of Customer as a liquidated sum and proceed against Customer in any lawful way for satisfaction of such sum, or repossess as much of the System as remains in Customer’s possession.

Prior to suit, PDS never terminated the Agreement, which would have been a useless act, because JRC had already given notice of the rescission of the Agreement and ceased to use the system. However, JRC had fully paid $167,935.26, the cost of the system, as well as the $7,500 a year licensing fee; on January 8, 1998, after termination of the Agreement, JRC ceased to pay the annual fees owed under the contract for eighteen years and three months, which PDS sought as compensatory damages in its counterclaim. PDS never sent JRC an invoice or demand to pay the accelerated future license fees for eighteen years and three months prior to suit. From the time of the termination notice until the time of the arbitrator’s award, approximately 27 months of license fees had been unpaid and 16 future years of license fees had not accrued, absent an acceleration of the obligation as liquidated damages. By PDS’ claim for damages, it sought $7,500 as nominal damages under the breach of confidentiality provision. The rest of PDS’ damages were claims for the liquidated damages of $136,875, prejudgment interest of 1.5 percent per month, and attorney fees.

The arbitrator correctly found in his award that the liquidated damages provision of Section 3.15 was a penalty under OCGA § 11-2-718, regarding liquidated damages; plaintiffs brought this Code section to the arbitrator’s attention prior to the award. The $7,500 for breach of confidentiality as nominal damages would have been appropriate damages in the absence of consequential damages. OCGA § 13-6-6; Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (1) (194 SE2d 499) (1972). However, nominal damages are not recoverable when the claimant seeks and recovers special damages, as well as nominal damages. See Bennett v. Associated Food Stores, 118 Ga. App. 711, 716 (2) (165 SE2d 581) (1968). The only other contract damages that were owed at the time of the award were license fees for the 27 months at $7,500 a year plus prejudgment interest. Therefore, contract damages of $81,540 are unsupported by any evidence and must be in whole or in part attributable to liquidated damages for the future licensing fees, as well as prejudgment interest on an alleged commercial account that constituted accelerated future lost income.

(a) In this case, the arbitrator, by denominating the acceleration of future license fees as a penalty rather than recoverable liquidated damages, correctly recognized that, under Georgia law and public policy, liquidated damages are a penalty to deter a breach of contract, where the liquidated damages are unreasonable and there is no difficulty ascertaining future damages. OCGA §§ 11-2-718 (1); 13-6-7; AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (2) (444 SE2d 314) (1994); Carter v. Tokai Financial Svcs., 231 Ga. App. 755, 758-759 (2) (500 SE2d 638) (1998). For a liquidated damages clause to be enforceable in Georgia, such damages must demonstrate: (1) that the injury caused by the breach must be difficult or impossible of estimation; (2) that the parties must intend to provide for damages; and (3) that the sum stipulated must be a reasonable pre-estimate of the probable loss. Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976); Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641 (507 SE2d 823) (1998); Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560 (359 SE2d 383) (1987). Where, as here, both liquidated and other damages are recoverable under the Agreement, the liquidated damages are an unenforceable penalty. Southeastern Land Fund v. Real Estate World, supra at 228. As in this case, where half of a long-term retainer fee is treated as liquidated damages, such provision is unenforceable as a penalty to deter termination. AFLAC, Inc. v. Williams, supra at 354. Here, the liquidated damages are all the future license fees without reduction for expenses or for present cash value and interest imposed as if it were a past due debt instead of accelerated future fees, not yet earned. Future economic loss of earnings must be reduced to present cash value, since the fees have not been earned. See generally OCGA § 51-12-13; Chouinard v. City of East Point, 237 Ga. App. 266, 270 (5) (b) (514 SE2d 220) (1999); Crosby v. Spencer, 207 Ga. App. 487, 488 (2) (428 SE2d 607) (1993). If liquidated damages are recoverable, then the parties cannot elect between liquidated and actual damages; prejudgment interest would be actual damages. OCGA §§ 7-4-16; 13-6-13; Southeastern Land Fund v. Real Estate World, supra at 230. Where there is a loss of future business earnings, this is a recovery for lost future profits after the projected expenses of earning the projected revenue has been deducted and not the recovery of the gross revenue collected, because the claimant is not permitted to recover expenses never incurred, putting him in a better position than if the contract had been performed. Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 599 (1) (399 SE2d 92) (1990); City of Atlanta v. J. A. Jones Constr. Co., 195 Ga. App. 72, 75 (3) (392 SE2d 564) (1990), rev’d on other grounds, 260 Ga. 658 (1) (398 SE2d 369) (1990).

Interest on a commercial account cannot be recovered absent an invoice and demand for payment prior to suit, causing the sum to become due and payable, and the opportunity to pay to avoid the imposition of such interest. “In the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable.” Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988); see also Dalcor Mgmt. v. Sewer Rooter, 205 Ga. App. 681, 682-683 (4) (423 SE2d 419) (1992). Defendant never rendered an invoice for a liquidated claim due by the plaintiff as a liquidated demand prior to suit, but sued for breach of contract for future damages, which it sought to accelerate under the Agreement and which was contested. As such, the claim was not for a commercial account, allowing prejudgment damages, but a breach of contract action only. See OCGA § 7-4-16; Dalcor Mgmt. v. Sewer Rooter, supra at 683; see also Trebor Corp. v. Nutmeg Indus., 208 Ga. App. 697, 698 (1) (431 SE2d 402) (1993). As a breach of contract action only, PDS was entitled to prejudgment interest only from the time of the award of the arbitrator. See Southern Water Technologies v. Kile, 224 Ga. App. 717, 720 (4) (481 SE2d 826) (1997); Hayden v. Sigari, 220 Ga. App. 6, 11 (8) (467 SE2d 590) (1996).

(b) In entering his award, the arbitrator manifestly disregarded the law, regarding penalties, which he expressly recognized by identifying the damages as a penalty and not liquidated damages; thus, he did not merely erroneously interpret the law. See Montes v. Shearson Lehman Bros., Inc., 128 F3d 1456 (11th Cir. 1997).

While PDS invoked arbitration under the Federal Arbitration Act, which the Agreement did not specify, all the parties who were not bound by the Agreement subsequently agreed in court to submit to this arbitration; thus, such agreement to arbitration would appear to be under the Georgia Act rather than the Federal Arbitration Act. OCGA § 9-9-1 et seq.; Greene v. Hundley, 266 Ga. 592, 594 (1) (468 SE2d 350) (1996); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236-237 (4) (335 SE2d 708) (1985). However, we do not have to decide such issue, because Georgia courts will not confirm an arbitration award that constitutes a manifest disregard of the law applicable under the Federal Arbitration Act. Ralston v. City of Dahlonega, 236 Ga. App. 386, 390-391 (6) (512 SE2d 300) (1999); Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (395 SE2d 64) (1990), rev’d on other grounds, Pace Constr. Corp. v. Northpark Assn., 215 Ga. App. 438, 439 (450 SE2d 828) (1994).

Where an arbitration occurs under the Federal Arbitration Act, if the arbitrator manifestly disregarded the law, i.e., that he was conscious of and deliberately ignored the law, then Georgia courts will not confirm such arbitration awards. Ralston v. City of Dahlonega, supra at 391.

(c) The trial court erred in confirming the award where the arbitrator overstepped his authority by manifestly disregarding the statute regarding penalties. OCGA § 9-9-13 (b) (3); Greene v. Hundley, supra at 596 (3); Mid-American Elevator Co. v. Gemco Elevator Co., 183 Ga. App. 88, 89 (357 SE2d 838) (1987).

2. The plaintiffs contend that the trial court erred in confirming the arbitration award, because the arbitrator entered an award on a matter that was not submitted to him. Plaintiffs failed to reference the record or give citation of authority, regarding this enumeration of error. Under Court of Appeals Rule 27 (c), such enumeration is deemed abandoned.

3. Plaintiffs contend that the trial court erred in awarding attorney fees incurred in responding to plaintiffs’ motion and application to vacate and/or modify the arbitration award. We agree.

While the trial court has broad discretion to award attorney fees and expenses of litigation under OCGA § 9-15-14, the trial court must include in its award findings of conduct authorizing such award or the order must be vacated. Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991); see also City ofCumming v. Realty Dev. Corp., 268 Ga. 461, 463 (2) (491 SE2d 60) (1997); Coker v. Mosley, 259 Ga. 781, 782 (2) (c) (387 SE2d 135) (1990). Thus, the award of attorney fees by the trial court is vacated because no findings as to conduct were made in the judgment.

4. Plaintiffs contend that the trial court erred in awarding postjudgment interest at 18 percent per annum on the principal amount of the award. We agree.

Under Georgia law, 12 percent is the rate of interest, even on commercial accounts, unless the judgment is entered on a written contract, providing for interest at a greater specified rate. OCGA § 7-4-12; ADC Constr. Co. v. Hall, 202 Ga. App. 119, 120 (413 SE2d 522) (1991) . While Section 1.2 provides that “[ejquipment shall be shipped freight collect or billed according to PDS’s standard rates [and that] Customer will pay a late charge at 1.5% per month, but not to exceed the lawful maximum interest rate, on the unpaid balance,” such Agreement provision did not apply to the accelerated future license fees as an exception to OCGA § 7-4-12. From its plain and unambiguous terms, this provision setting the rate of 1.5 percent per month applied to the initial contract price only. Sellers v. Nodvin, 207 Ga. App. 742, 747-748 (4) (429 SE2d 138) (1993); Chilivis v. Rogers Oil Co., 135 Ga. App. 176, 177 (3) (217 SE2d 179) (1975). The Agreement, under Section 1.2, only provides for interest for unpaid equipment charges; therefore, since JRC paid all equipment and software charges except 27 months of license fees prior to the acceleration of all future fees, then the Agreement provided no interest rate exception under these facts and circumstances of this case. OCGA § 7-4-12. Thus, the statutory rate controls, and the trial court erred in using any other rate of interest. Further, since the arbitrator returned a gross sum which was not differentiated by consequential damages and interest, any interest awarded would be interest upon interest.

Decided July 31, 2001

Michael A. Dailey, for appellants.

Peter H. Strott, for appellees.

5. Plaintiffs contend that the trial court erred in awarding the defendants post-award prejudgment interest on the principal amount of the award. We agree.

Defendants sought to recover interest on the accelerated payment of future licensing fees as liquidated damages before the arbitrator. The arbitrator’s award was a gross sum and not separated into damages and prejudgment interest. Interest cannot be recovered upon interest, as the trial court appears to have granted. See State Hwy. Dept. v. Godfrey, 118 Ga. App. 560, 561 (2) (164 SE2d 340) (1968); see also Hubbard v. McRae, 95 Ga. 705, 707 (22 SE 714) (1895).

Judgment affirmed in part and reversed in part.

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


text:
    A01A1778.
    STOVALL v. THE STATE.
    (553 SE2d 297)
   Eldridge, Judge.

A bench trial was held in the Superior Court of Henry County, and David Wilson Stovall was found guilty of possession of cocaine. He appeals, and upon review, we affirm.

A black truck was being driven recklessly, running people off the road. When the truck stopped at a BP gas station, a concerned citizen stopped too and called the police therefrom. When the police arrived at the BP, the concerned citizen directed the investigating officer to the driver of the truck, Stovall, who was standing at a bank of telephones. Pursuant to Stovall’s consent to a search of his pockets and wallet, several purple baggies of powdered cocaine were found therein. Following Stovall’s arrest and a search of his truck, five syringes, two additional purple baggies of powdered cocaine, a rock of crack cocaine, a crack pipe, and a bottle of prescription codeine were also recovered. Held-.

1. Stovall challenges the trial court’s denial of his motion to suppress the drugs found pursuant to the consensual search of his pockets and wallet. He contends that, during the five minutes between the officer’s approach and Stovall’s arrest, the officer’s questions were not sufficiently related to the reckless driving investigation for which Stovall was detained, which conduct is proscribed by our recent holding in State v. Gibbons, 248 Ga. App. 859, 863 (2) (547 SE2d 679) (2001), wherein we determined that “[a]n officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.” Based thereon, we reversed Gibbons’ conviction for drug possession on Fourth Amendment search and seizure grounds because, dining Gibbons’ brief four-minute detention, the content of some of the officer’s questions was unrelated to the seat belt violation for which he was stopped: “by asking questions unrelated to the seat belt violation, the trooper exceeded the authorized scope of the original stop.” As a consequence, we invalidated Gibbons’ voluntary consent to search because “the continued detention became illegal because of the inappropriate questioning.” This resulted, even though

a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. The issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop. Therefore, only unrelated questions which unreasonably prolong the detention are unlawful.

Now, less than two months after the Gibbons decision, this Court is faced with one of what will most assuredly be many, many cases in which we are asked to divine precisely when an otherwise brief, legal detention becomes “illegal” due to the content of the investigative questions asked therein.

To that end, Stovall claims that, during a reckless driving investigation, the

expected type of questions would be “can I see your license?” and “were you having trouble steering?” and “will you submit to some field sobriety tests?” and questions of this nature. Instead, the officer extends the search into a deep pocket search, then had the defendant remove the wallet from the back pocket. . . . [T]his is the bottom line — the officer exceeded the scope of permissible police investigation of a citizen who supposedly was driving recklessly

We do not agree.

Although Stovall attempts to pound the square-peg facts of the instant case into the hole that is Gibbons, we are not dealing herein with questioning during a Terry-type detention; indeed, the officer in this case simply approached an already stopped Stovall and made inquiry; “[i]t is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather ‘clearly falls within the realm of the first type of police-citizen encounter.’ ” What Stovall is actually challenging is the search of his wallet during a police-citizen encounter, and he claims that the search was unjustified.

However, the officer testified that Stovall would not answer his questions; was evasive; became increasingly nervous; had needle markings, i.e., “track marks,” on his legs, one of which was bleeding from what appeared to the officer to be a fresh puncture wound; had been reported as driving dangerously; and would not keep his hands out of his pockets, even after a request to do so. Thus, after the second time Stovall put his hands into his pockets, the officer asked, “Would you mind if I pat you down for weapons? That way, I don’t have to worry about you sticking your hands in your pockets.” Stovall consented. “Inasmuch as the search was justified based on consent, we need not address the issue of whether the search was also justified as a Terry pat-down frisk for weapons.”

Following the pat-down during which the officer felt several very large indeterminate objects in Stovall’s front pockets and back pocket, the officer asked Stovall “if he would mind emptying his pockets.” Stovall emptied his front pockets, which contained bullets, a wallet, and miscellaneous other items. However, he did not empty the back pocket. The officer asked Stovall if he would mind emptying the back pocket, and Stovall did; it contained another wallet which Stovall voluntarily handed to the officer. The officer asked him, “Do you have a problem with me searching through this wallet? And he [Stovall] said, ‘No, I don’t have a problem with it.’ ” The drugs were found pursuant to this consensual search of Stovall’s wallet. “[R]equests to search made during the course of a first level police-citizen encounter do not transform such encounter into a second-tier Terry stop: ‘it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.’ ”

Decided July 31, 2001.

Lloyd J. Matthews, for appellant.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. Here, the trial court specifically found that the officer “had the right to be where he was and ask the questions asked. And everything flowing from that was consented to willfully and voluntarily, without any threats, coercions.” The record supports such finding. Accordingly, there was no error in denying Stovall’s motion to suppress.

2. It was error, however, to refuse to consider Stovall for first offender treatment simply because he did not enter a plea, but opted for trial. We have held that “[t]he trial court’s refusal to consider first offender status after a verdict is a refusal to exercise discretion.” Such holding, of course, in no way implies that first offender treatment must be granted to Stovall or to any other defendant requesting such. We hold only that first offender treatment, whether or not ultimately rejected, may not mechanistically be precluded without consideration on the merits as a part of the exercise of the trial court’s discretion during sentencing.

Judgment of conviction affirmed, sentence vacated and case remanded for resentencing.

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

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

        State v. Gibbons, supra at 863.

       Id. at 868 (Ruffin, J., concurring specially).

       (Punctuation omitted; emphasis in original.) Id. at 870-871 (1) (Eldridge, J., dissenting), citing United States v. Purcell, 236 F3d 1274, 1279-1280 (11th Cir. 2001).

        Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999); Voyles v. State, 237 Ga. App. 886, 887 (517 SE2d 113) (1999).

       These factors are sufficient to objectively justify the officer’s concern for his safety so as to conduct a pat-down search of Stovall’s person, because “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

        McNeil v. State, 248 Ga. App. 70, 72 (545 SE2d 130) (2001).

        State v. Ledford, 247 Ga. App. 412, 414 (1) (a) (543 SE2d 107) (2000).

        McBride v. State, 246 Ga. App. 151, 152 (539 SE2d 201) (2000).

        Jackson v. State, 244 Ga. App. 477, 479 (3) (535 SE2d 818) (2000).


text:
    A01A1847.
    CALLAWAY v. THE STATE.
    (553 SE2d 314)
   Eldridge, Judge.

Dextrell Callaway filed a direct appeal from an order denying his plea in bar and demand for acquittal based on the denial of his constitutional right to a speedy trial under the analysis established in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). He cites a physical precedent, Ould v. State, 186 Ga. App. 55 (366 SE2d 392) (1988), as authority for the proposition that a direct appeal is available under these circumstances. Because Ould is not a binding precedent, because we find that the reasoning offered therein does not withstand careful scrutiny, and because we find no other legitimate basis to exercise appellate jurisdiction at this time, we conclude that Callaway’s direct appeal must be dismissed as premature.

The defendant in Ould v. State moved for a discharge and acquittal on the day before his scheduled trial. He appealed from the denial of that motion. The Ould court devoted its first Division to the matter of jurisdiction, stating as follows:

Although the case is primarily interlocutory in nature, a direct appeal is permissible because it indirectly implicates the issue of double jeopardy resulting from the failure to grant an accused a speedy trial. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985), allowing interlocutory appeal from denial of a motion to dismiss based on the statutory demand which as to purpose is analogous to the federal constitutional right to a speedy trial. Cook v. State, 183 Ga. App. 720 (1) (359 SE2d 716) (1987) follows Hubbard, and Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983) precedes it. The reasoning in these cases applies here and recommends the same result, which we adopt. Thus, a direct appeal lies from a denial of discharge based on an alleged denial of a constitutional right to a speedy trial.

Id. at 55-56 (1). A careful reading of the Smith, Hubbard, and Cook cases, however, reveals no support for the proposition that a claimed failure to grant an accused a speedy trial, when made outside the context of a statutory demand for trial under OCGA § 17-7-170, “indirectly implicates the issue of double jeopardy.”

As our opinion in Smith v. State, supra, makes clear, any analogy between the denial of a plea of double jeopardy and a plea in bar based on OCGA § 17-7-170 is clearly not rooted in any functional similarity between the substantive considerations underlying the two motions.

A plea of double jeopardy is premised upon the alleged violation of an individual’s guarantee against being twice put to trial for the same offense. On the other hand, an OCGA § 17-7-170 motion proceeds on the theory that the defendant has never been put in jeopardy and tried for the crime charged. Under this view, it would follow that the denial of an OCGA § 17-7-170 motion does not constitute the denial of a plea of double jeopardy — there being no former trial — but is merely a determination that the state’s previous failure to place the accused in jeopardy does not bar the state from so placing him in the future.

(Citations and punctuation omitted; emphasis in original.) 169 Ga. App. at 251-252 (1). The analogy between a double jeopardy plea and one based on OCGA § 17-7-170, as explained in Smith, lies in the demand statute’s automatic acquittal function.

Where a demand [under OCGA § 17-7-170] has been regularly made and allowed, and two regular terms of court are thereafter held, and the accused is not placed on trial, no motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law, provided qualified juries were impaneled competent to try the case, and the failure to try is not due to the voluntary absence of the accused, or to some other conduct on the part of himself or his counsel. Thus, the denial of an OCGA § 17-7-170 motion does not constitute the trial court’s refusal to grant the accused an acquittal and thereby terminate the original prosecution. Rather, the denial of an OCGA § 17-7-170 motion constitutes the trial court’s determination that the prosecution has not already resulted in an automatic acquittal of the accused by operation of law. Therefore, to the extent that the denial of an OCGA § 17-7-170 motion allows the prosecution to proceed, it is an adjudication that the impending trial of the accused will not place him in jeopardy for the commission of a crime for which he has previously been acquitted. To this extent, the denial of an OCGA § 17-7-170 motion is — at the very least — in the nature of a ruling on the accused’s double jeopardy rights. If the OCGA § 17-7-170 motion is erroneously denied, and the accused is subsequently tried and convicted, the conviction will be reversed on double jeopardy grounds, but only after the accused has been forced to undergo a trial which never should have been held. Accordingly, the same “compelling reasons” which led the Supreme Court in Patterson v. State, [248 Ga. 875, 877 (287 SE2d 7) (1982)], to hold that the denial of a plea of double jeopardy is directly appealable, lead us to the same conclusion with regard to the denial of an OCGA § 17-7-170 motion. “ ‘[If] a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.’ [Cits.]” (Emphasis in original.) Patterson v. State, supra at 876.

(Citations and punctuation omitted; emphasis in original.) Id. at 252-253 (1).

Our analysis in Smith was approved by the Supreme Court in Hubbard v. State, supra. The Supreme Court correctly observed that “[i]n the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. These values are of a magnitude similar to the values at stake in double jeopardy claims.” 254 Ga. at 695. While acknowledging that the underlying values are of similar magnitude, the Supreme Court did not go further and state that all denials of motions for acquittal based on the accused’s assertion that his or her right to a speedy trial has been denied should be directly appealable. On the contrary, the Supreme Court’s decision in Hubbard, like this Court’s decision in Smith, supra, is based squarely on the automatic acquittal feature of OCGA § 17-7-170.

In double jeopardy claims the accused is saying, “I may not now be tried because I have previously been placed in jeopardy.” In a claim based on OCGA § 17-7-170 the accused is saying, “I may not now be tried because the time during which I must have been placed on trial has passed.” The circumstances bearing on the right to appeal are analogous. Therefore, we hold that the denial of a motion to dismiss based upon OCGA § 17-7-170 is directly appealable under OCGA § 5-6-34 (a).

(Emphasis supplied.) Id.

The circumstances bearing on the right to appeal in Ould v. State as well as in the present case are very different from those presented in appeals based on the rejection of double jeopardy claims. Defendant Callaway is not claiming that any further proceedings against him would be void because he has already been effectively acquitted as a matter of law or that the time during which he must have been tried has passed; rather, Callaway’s essential position in this appeal is that the trial court abused its discretion in failing to find that Callaway’s constitutional right to a speedy trial has been violated. Accord Thomas v. State, 233 Ga. App. 224, 225 (2) (504 SE2d 59) (1998). We therefore conclude that appellate jurisdiction to consider Callaway’s appeal, assuming it exists, may not be grounded on the reasoning applied in Hubbard, supra, and Smith, supra.

The remaining question is whether there nevertheless exists an appropriate basis to hear Callaway’s appeal that is separate and distinct from the reasoning offered in Ould v. State, supra. The underlying mechanism allowing pre-trial direct appeals based on a plea of double jeopardy or on the failure of the State to comply with a demand for trial brought under OCGA § 17-7-170 is known as the “collateral order” exception to the final judgment rule. Patterson v. State, supra. “[T]he exception applies if the order: ‘(1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is “substantially separate” from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is “effectively unreviewable on appeal.” (Cit.)’ [Cit.]” Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 79 (485 SE2d 525) (1997). The Supreme Court of the United States fully examined the relevant considerations bearing on this question in United States v. MacDonald, 435 U. S. 850 (98 SC 1547, 56 LE2d 18) (1978). The Court specifically noted that

[i]n sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial, of a motion to dismiss on speedy trial grounds does not represent “a complete, formal and, in the trial court, a final rejection” of the defendant’s claim. Abney v. United States, 431 U. S. [651, 659 (97 SC 2034, 52 LE2d 651) (1977)]. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. As is reflected in the decisions of this Court, most speedy trial claims, therefore, are best considered only after the relevant facts have been developed at trial.

435 U. S. at 858.

The reasoning in MacDonald, which we find persuasive, makes plain that an unfavorable ruling on a constitutional speedy trial claim possesses none of the characteristics enumerated in Johnson & Johnson v. Kaufman, supra. We likewise find persuasive MacDonald’s strong rejection of the notion that the constitutional right to a speedy trial is sufficiently analogous to the constitutional right to avoid double jeopardy to mandate pre-trial appeals at the defendant’s insistence.

There perhaps is some superficial attraction in the argument that the right to a speedy trial — by analogy to these other rights — must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

435 U. S. at 860-861.

The Supreme Court of Georgia has likewise declined to expand the collateral order exception to the final judgment rule in classes of cases where, as here, “there has been no prior adjudication favorable to the appellant(s) , by operation of law or otherwise. [Cits.]” Turner v. Giles, 264 Ga. 812, 813 (1) (450 SE2d 421) (1994) (rejecting application of the collateral order doctrine to orders denying claims of qualified immunity in a 42 USC § 1983 action); see also Waldrip v. Head, 272 Ga. 572 (532 SE2d 380) (2000) (declining to give collateral order status to orders compelling discovery in habeas proceedings). It has also been suggested that, as a policy matter, the application process is most appropriate in those cases where the subject matter is to be reviewed under the deferential abuse of discretion standard. In the Interest of J. P., 220 Ga. App. 895, 901 (470 SE2d 706) (1996) (Beasley, C. J., concurring specially). We observe that the interlocutory appeal procedure appears particularly appropriate where, as here, the speedy trial ruling complained of will be affirmed absent a finding of abuse of discretion. Thomas v. State, supra.

Finally, allowing constitutional speedy trial issues to be appealed by pre-trial direct appeal would have two negative effects in a “real world” application. First, it would create a Hobson’s choice for the defendant who sincerely believes that the trial court may have abused its discretion in failing to grant an acquittal but who does not otherwise want to delay a potential trial any more than necessary. Such a defendant may either elect to undergo the ordeal of a trial that could ultimately be ruled nugatory on appeal or choose to delay that trial for several more months in order to facilitate pre-trial appellate review.

Second, there exists a significant underlying potential for abuse by defendants who may only wish to delay trial. A motion to dismiss based on the abridgement of the constitutional right to a speedy trial has none of the procedural safeguards present under the statutory right, OCGA § 17-7-170, which may discourage such a motion from being filed for purely dilatory purposes. Under OCGA § 17-7-170, a demand for speedy trial must be filed within a specific time period well in advance of any trial date; the time period in which the trial must be held is clearly specified; and service of notice must be accomplished. With such procedures in place, a motion to dismiss based on a violation of OCGA § 17-7-170 is not unexpected when meritorious and insufficient to divest the trial court of jurisdiction when clearly frivolous. Strickland v. State, 258 Ga. 764, 765 (373 SE2d 736) (1988); Dixon v. State, 196 Ga. App. 15, 17-18 (395 SE2d 577) (1990); Rielli v. Oliver, 170 Ga. App. 699, 700 (318 SE2d 173) (1984). See also Abiff v. State, 260 Ga. 434-435 (1), (2) (396 SE2d 483) (1990). On the other hand, none of these specific procedural safeguards are present when filing such motion under the constitutional right to a speedy trial. A motion to dismiss based on constitutional grounds can be filed immediately prior to trial without notice, without indication that speedy trial concerns are at issue, and without merit. Indeed, when interposed for purposes of delay, the denial of such motion will accomplish its goal if direct appeal is available as a matter of right.

Decided July 31, 2001

Elizabeth M. Grant, for appellant.

Kenneth W. Mauldin, District Attorney, Anna E. Watkins, Assistant District Attorney, for appellee.

We think that these dilemmas can be greatly reduced by affording defendants the expedited treatment the interlocutory appeal procedure provides. “We note that the application process will allow appeals to come to the attention of the appellate court more quickly. This ability to seek expedited review and relief through the application process is warranted in cases involving [claims involving the constitutional right of speedy trial].” Schmidt v. Schmidt, 270 Ga. 461 (1) (510 SE2d 810) (1999) (holding that contempt orders entered in family violence actions are subject to the discretionary appeal procedure under OCGA § 5-6-35 (a) (2)).

For all of the foregoing reasons, Callaway’s appeal is dismissed as premature.

Appeal dismissed.

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

       It should be noted that the Supreme Court has on one occasion addressed the merits of a pre-trial direct appeal in a capital murder case based solely on the purported denial of the defendant’s constitutional right to a speedy trial. Boseman v. State, 263 Ga. 730 (438 SE2d 626) (1994). Although Boseman does cite Hubbard v. State, supra, as authority for its assertion of jurisdiction, it does not follow that the Supreme Court, by that citation of authority alone, has made an affirmative determination that appellate jurisdiction to hear pre-trial appeals based on the denial of a defendant’s right to a speedy trial should be extended beyond those cases in which the defendant is contending that he has already received an acquittal as a matter of law under OCGA § 17-7-170 or § 17-7-171. On the contrary, Boseman simply cites Hubbard as direct authority for its assertion of jurisdiction, without further acknowledging the underlying procedural distinctions between the two cases. We therefore conclude that the Supreme Court’s assertion of jurisdiction in Boseman does not effect a binding expansion of the holding in Hubbard. See generally Douglas v. Wages, 271 Ga. 616, 617, n. 2 (523 SE2d 330) (1999); see also Smith v. State, 196 Ga. 595, 602 (27 SE2d 369) (1943) (“a decision is not an authority upon a question not considered by the court, though involved in a case decided. [Cits.]”).

       A defendant in Callaway’s position is precluded from arguing that the time during which he “must” have been tried has passed, since it is well settled that “the presumptive prejudice arising from delay ‘cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.’ [Cit.]” Boseman v. State, supra at 732 (1) (a).

       Of course, as the preceding analysis suggests, interlocutory appeals would rarely be allowed by this Court based solely on constitutional speedy trial grounds. Nevertheless, the availability of this avenue of appeal offers the potential to prevent a “nonspeedy trial” from being held when the underlying circumstances appear particularly egregious.


author: Phipps, Judge.

text:
    A01A1858.
    WALKER et al. v. BLACKWELL.
    (553 SE2d 171)
   Phipps, Judge.

Esler and Angie Walker filed a petition to vacate a judgment of the Superior Court of Carroll County. The judgment awarded Bill Blackwell punitive damages and attorney fees against the Walkers. The Walkers appeal the superior court’s dismissal of their petition due to insufficiency of service of process. Blackwell is an Alabama resident, and the Walkers attempted to serve him by certified mail. In an action such as this, the Civil Practice Act requires service on “the defendant personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.”* Because service by certified mail was thus insufficient, the court did not err in dismissing the Walkers’ petition.

Decided July 20, 2001

Reconsideration denied August 1, 2001.

Esler C. Walker, pro se.

Angie G. Walker, pro se.

Smith, Wallis & Scott, Christopher B. Scott, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 9-11-4 (e) (7).

       See generally Kim v. Platt, 229 Ga. App. 92 (493 SE2d 249) (1997).


text:
    A00A0728.
    LEE et al. v. AMERICAN CENTRAL INSURANCE COMPANY et al.
    (553 SE2d 347)
    Decided August 1, 2001.

      Smith & Harrington, Wilton D. Harrington, John P. Harrington, Robert S. Slocumb, for appellants.

      Mozley, Finlay son & Loggins, Robert M. Finlayson II, Edward C. Bresee, for appellees.
   Eldridge, Judge.

In American Central Ins. Co. v. Lee, 273 Ga. 880 (548 SE2d 338) (2001), the Supreme Court reversed the judgment of this Court’s opinion in Lee v. American Central Ins. Co., 243 Ga. App. 759 (530 SE2d 731) (2000). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Blackburn, C. J., and Barnes, J., concur.


author: Miller, Judge.

text:
    A01A1199.
    McKINNEY v. JENNINGS.
    (553 SE2d 344)
   Miller, Judge.

Randy McKinney was incarcerated in a South Carolina prison when another man filed a petition and sought a hearing in a Georgia court to adopt McKinney’s natural son. McKinney requested that the Georgia court make arrangements to have him transported to the hearing or to participate by telephone, which request the court denied. The question on appeal is whether due process requires that a court make arrangements to have a party, who is incarcerated in another state, transported to an adoption hearing or present telephonically. We answer this question in the negative and thus affirm the decree granting the adoption.

While in jail in South Carolina for sexual offenses, McKinney was served with Alvin Jennings’s petition, in which Jennings sought to adopt Brandon, McKinney’s natural son. Following the grant of the petition, we vacated the judgment and remanded the matter to conduct a hearing with a 30-day advance notice in accordance with OCGA § 19-8-14. The court gave the proper notice, whereupon McKinney moved the court to make arrangements for him to be transported to the hearing or for him to participate telephonically. The court denied that motion and held the hearing, at which McKinney was represented by counsel who submitted affidavits on his behalf. The court considered all evidence presented and, pursuant to OCGA § 19-8-10 (b), granted the adoption petition, effectively terminating McKinney’s parental rights. McKinney appeals, arguing that he was denied his Fourteenth Amendment due process rights when the court denied his motion to participate personally or telephonically.

Due process requires that, prior to the termination of his parental rights, McKinney receive notice and an opportunity to be heard. McKinney does not contest that he received proper notice, but complains that his right to be heard was compromised by the refusal of the court to make arrangements to have him transported to the hearing or to have him participate by telephone.

We have repeatedly rejected this argument. “We know of no constitutional entitlement mandating the father’s right to appear personally at the termination hearing.” Nor is there any authority that he should be allowed to participate by telephone. Rather, he was invited to appear personally at the hearing, and it was “[d]ue to his own inability to conform to the law [that] he was unable to avail himself of the opportunity to appear in person. . . .” The trial court has no obligation to make arrangements for an out-of-state prisoner to attend.

Decided August 1, 2001.

Mark R. Gaffney, for appellant.

Morris, Manning & Martin, Latina H. Bryan, for appellee.

Moreover, an imprisoned out-of-state parent has the opportunity to present testimony to the court by deposition or affidavit. Here McKinney did just that, submitting two affidavits. As McKinney also had the opportunity to be heard through his counsel, who represented him at the hearing, we hold that his Fourteenth Amendment due process rights were not violated.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        McKinney v. Jennings, 246 Ga. App. 862, 863 (2) (542 SE2d 580) (2000).

        In the Interest of C. C. E., 246 Ga. App. 584 (540 SE2d 704) (2000).

       (Citation and punctuation omitted.) Id. at 585; accord In the Interest of C. T., 247 Ga. App. 522, 525 (2) (544 SE2d 203) (2001); In the Interest of F. L. S., 232 Ga. App. 100, 101 (502 SE2d 256) (1998); In the Interest of M. G. F., 222 Ga. App. 816, 818 (476 SE2d 100) (1996); see generally In the Interest of R. J. P., 222 Ga. App. 771, 772-773 (3) (476 SE2d 268) (1996).

       C. T., supra, 247 Ga. App. at 525 (2); see C. C. E., supra, 246 Ga. App. at 584-585.

       (Citation and punctuation omitted.) C. C. E., supra, 246 Ga. App. at 585; see M. G. F., supra, 222 Ga. App. at 817.

       See R. J. P., supra, 222 Ga. App. at 773 (3).

       C. C. E., supra, 246 Ga. App. at 585.

       See id. at 584-585.


text:
    A01A1224.
    ERFANI v. BISHOP.
    (553 SE2d 326)
   Eldridge, Judge.

Mohammad R. Erfani sued Mary Bishop for malicious prosecution, defamation, and false imprisonment. The defendant answered and moved for summary judgment. After a hearing, the trial court granted the motion. We affirm.

Erfani was a tenant at will of Bishop at an office building located at 1234 Moreland Avenue, Atlanta, DeKalb County. He paid a rental fee plus metered utilities to be reimbursed on a timely basis; he incurred utilities arrearages that he could not catch up and gave notice of less than a month that he was vacating the premises. On April 16, 1996, Erfani made his last rental payment prior to vacating the premises to Bishop “for rent up to May 1996.” Bishop contended that Erfani owed her a month’s rent for May, because he failed to give her a month’s notice of vacating. Erfani disputed this.

After vacating the premises, Erfani left some furniture in a storage room accessed through the suite that he had rented. Bishop changed the lock on the door to the suite after he vacated and prior to May 1. On May 1, 1996, about 6:30 p.m., someone broke the door, entered, and removed Erfani’s property. An eyewitness identified Erfani as the person who broke into the office he had previously vacated. By affidavit, Erfani admitted that he returned to the office on May 1, stating: “On May 1, 1996,1 was vacating the premises and moving my belongings from the premises. When I was making my final trip to the premises to remove the remaining items from there, I had difficulty opening the door to my office and had to push it open to be able to get in. On May 1, 1996, I was vacating the premises and moving my belongings from there, and did not damage the property of Mary Bishop.”

On May 8, 1996, Bishop swore out a warrant against him for criminal trespass. On August 31, 1998, Erfani was arrested on this warrant. On October 27,1998, the DeKalb County Solicitor-General’s Office filed a notice with the State Court of DeKalb County that the statute of limitation on the criminal trespass, a misdemeanor, had run and that an accusation would not be drawn.

1. Plaintiff contends that the trial court erred in granting summary judgment because there existed material issues of fact. We do not agree.

(a) Malicious prosecution is defined under OCGA § 51-7-40: “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.”

The essential elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. Atlantic Zayre v. Meeks, 194 Ga. App. 267, 268 (1) (390 SE2d 398) (1990); Commercial Plastics & Supply Corp. &c. v. Molen, 182 Ga. App. 202, 203 (1) (355 SE2d 86) (1987); J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987); Medoc Corp. v. Keel, 166 Ga. App. 615-616 (1) (305 SE2d 134) (1983).

(b) While the arrest warrant was valid when sworn out, the statute of limitation of two years for a misdemeanor of criminal trespass ran before the warrant was executed. OCGA § 17-3-1 (d); Flint v. State, 12 Ga. App. 169, hn. 2, 173 (76 SE 1032) (1913). The issuance of the arrest warrant does not toll the criminal statute of limitation. While the presentment of an indictment or accusation will toll the statute, neither was done. Flint v. State, supra at 171-172. Thus, Erfani could not be prosecuted for a misdemeanor criminal trespass at the time of his arrest, because the offense occurred more than two years prior to the arrest. Cain v. State, 144 Ga. App. 249 (1) (240 SE2d 750) (1977); Austin v. State, 104 Ga. App. 795-796 (3) (122 SE2d 926) (1961). However, a criminal act was charged and a valid warrant was issued, which was not barred by the statute of limitation when issued. The civil statute of limitation for malicious prosecution commences to run upon the termination of the criminal prosecution in plaintiff’s favor. OCGA § 51-7-41; Daniel v. Ga. R. Bank &c. Co., 255 Ga. 29, 31 (334 SE2d 659) (1985); Waters v. Walton, 225 Ga. App. 119, 120 (483 SE2d 133) (1997). Thus, the trial court erred in granting summary judgment on this ground; however, if the trial court is right for any reason, then it must be affirmed. Bennett v. Cotton, 244 Ga. App. 784, 787 (2) (536 SE2d 802) (2000).

(c) In this case, plaintiff ceased to be a tenant upon his vacating the defendant’s premises prior to the end of the rental term and thereafter was a trespasser thereon. Plaintiff paid rent to the end of April and was in arrears as to utilities. He gave less than 30 days notice that he was terminating the rental agreement. The defendant contended that he owed for another month because he gave less than a month’s notice. The defendant changed the locks after plaintiff moved out, exercising dominion and control over the premises with the intent to exclude the plaintiff. The plaintiff admitted that he returned to the premises on May 1,1996, and forced the door to enter to get the remainder of his property. His attempted reentry was after the term of his rental had expired and after he had abandoned the premises.

Where there is an oral agreement, the law treats the agreement as a tenancy at will, which requires the tenant to give a 30-day termination notice prior to vacating the premises. OCGA §§ 44-7-6; 44-7-7; Diner One v. Bank South, 219 Ga. App. 702, 703-704 (466 SE2d 234) (1995); Stepp v. Richman, 75 Ga. App. 169, 170 (42 SE2d 773) (1947). The end of a terminated rental term occurs on the last day of the required notice month and not on the first day of the next month. See generally Lamons v. Good Foods, 195 Ga. 475, 478 (24 SE2d 678) (1943); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 484 (1) (333 SE2d 685) (1985); Jones v. Atlanta Housing Auth., 148 Ga. App. 605, 607 (2) (252 SE2d 19) (1979). The tenant can terminate a tenancy at will with a full month’s notice; if less notice is given, then he is obligated to pay another full month’s rent. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 19, 21-22 (1874). When the tenant vacates the premises prior to the end of the term, this constitutes an abandonment of the tenancy. See generally White v. Orton Indus., 224 Ga. App. 342, 343-344 (480 SE2d 620) (1997); Treisch v. Doster, 61 Ga. App. 292 (6 SE2d 128) (1939); Baldwin v. Lampkin, 14 Ga. App. 828, 832 (3) (82 SE 369) (1914). Where the tenant abandons the premises prior to the end of the lease term and the landlord changes the locks, this gives rise to the inference that the landlord accepted the surrender of the premises, although a mere surrender of the keys to the premises may not give rise to the inference of acceptance of surrender of the premises. See generally Jenkins v. Smith, 92 Ga. App. 296 (3) (88 SE2d 533) (1955); Kessler v. Slappey, 34 Ga. App. 614, 617 (130 SE 921) (1925). When a former tenant reenters the abandoned tenant-premises after the term has expired, such entry is not in the legal relationship as landlord-tenant, which ceased upon the expiration of the term. Lasseter v. Fenn, 66 Ga. App. 173, 175 (17 SE2d 303) (1941). Thus, Erfani’s entry into the property of the defendant on May 1 was not as a tenant holding over, but as a trespasser, because he had abandoned the premises and the defendant had accepted the surrender by installing the locks to keep him and anyone else out without her express permission for entry.

An eyewitness reported to the defendant and to the police that on May 1, 1996, he heard someone break in and saw Erfani coming out of the defendant’s premises with Erfani’s property. Erfani told the eyewitness that he was getting his things and moving out. The defendant and the police found that the former offices of Erfani had been broken into through a locked door and that Erfani’s property stored there was missing. Thus, no longer being a tenant and having made a forceful entry into defendant’s property, Erfani was trespassing. From knowledge of the existence of such facts and circumstances then existing, such would excite the belief in a reasonable mind, acting on such knowledge had by the defendant on May 8, 1996, that Erfani had committed criminal trespass. This constituted probable cause to swear out the warrant in this case. OCGA § 51-7-43; Melton v. LaCalamito, 158 Ga. App. 820, 823 (2) (282 SE2d 393) (1981). The magistrate’s binding the case over to the state court is prima facie evidence of probable cause but not conclusive. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 452 (2) (186 SE 464) (1936). Where Erfani admits entering the premises on May 1 and having to force the door, the facts are not in dispute; therefore, probable cause becomes a legal issue for the court instead of a mixed question of law and fact for the jury. Gantt v. Patient Communication Systems, 200 Ga. App. 35, 38 (2) (406 SE2d 796) (1991); Medoc Corp. v. Keel, supra at 616 (1); Melton v. LaCalamito, supra at 822. Since the defendant had reasonable cause to believe that plaintiff committed the criminal offense, then there was probable cause to take out the warrant, and summary judgment was proper. Atlantic Zayre v. Meeks, supra at 269; Melton v. LaCalamito, supra at 823-824.

2. Plaintiff contends that the trial court erred in granting summary judgment on his other theories of liability for false imprisonment and for defamation, because these theories of liability were not argued before the trial court, and there was no evidence regarding these issues. We do not agree.

While the trial court’s order does not seem to focus on these claims, the evidence regarding the arrest warrant affidavit and the issue of defamation is sufficient to demonstrate that such issue is barred as a matter of law; likewise, the evidence regarding the issue of malicious prosecution is undisputed and subject to disposition by the trial court as a matter of law. There was no transcript of the hearing on the motion for summary judgment filed by the plaintiff; therefore, we cannot know what was argued before the trial court.

(a) Plaintiff amended his complaint to set forth a count for false imprisonment.

An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be. Thus, when the detention is predicated on no process, false imprisonment is an available remedy and liability depends upon whether a detention without supporting process was legally authorized under the circumstances. When the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, . . . because detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not “unlawful.” ... In the event that procedurally void or defective process is secured, there is a cause of action for false imprisonment, but only if the process was itself secured in bad faith.

(Citations and punctuation omitted; emphasis in original.) Williams v. Smith, 179 Ga. App. 712, 714 (2) (348 SE2d 50) (1986).

Since the arrest warrant was procedurally valid when taken out and the successful termination of the prosecution occurred only because the failure to execute the arrest warrant timely by the sheriff allowed the statute of limitation to bar prosecution, then summary judgment for false imprisonment was appropriately granted where a valid warrant caused the arrest in this case. Thus, as a matter of law no false imprisonment action could exist. Franklin v. Consolidated Govt. of Columbus, 236 Ga. App. 468, 470 (1) (512 SE2d 352) (1999); Reese v. Clayton County, 185 Ga. App. 207 (363 SE2d 618) (1987). Thus, no additional facts were necessary to decide this issue of law on summary judgment.

(b) Plaintiff also brought a count for defamation in swearing out the warrant. The statements in an affidavit in support of an arrest warrant are absolutely privileged unless made falsely and with malice, which was not alleged in the complaint in this case. OCGA § 51-5-8; Skoglund v. Durham, 233 Ga. App. 158, 159 (502 SE2d 814) (1998); Hardee’s Food Systems v. Hall, 184 Ga. App. 586, 588 (2) (362 SE2d 143) (1987); Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172, 173 (2) (358 SE2d 477) (1987); Tetrault v. Shelton, 179 Ga. App. 746, 747 (1) (347 SE2d 636) (1986). Further, the statute of limitation for injury to reputation runs from the publication in one year, and in this case, the action was not timely filed. OCGA § 9-3-33; Daniel v. Ga. R. Bank &c. Co., supra at 30. Therefore, summary judgment was properly granted on such theory and required no additional evidence to rule as a matter of law.

Decided August 1, 2001.

Slater & King, Scott R. King, for appellant.

Scott Walters, Jr., for appellee.

Judgment affirmed.

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