author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A1209.
    COMMERCIAL EXCHANGE BANK v. JOHNSON et al.
    (398 SE2d 817)
   Deen, Presiding Judge.

Appellees Max and Betty Johnson executed a promissory note, as makers, to the order of appellant Commercial Exchange Bank, as holder and payee, in the amount of $194,182.20. The note was secured by four separate Deeds to Secure Debt, each deed conveying a separate tract or tracts of land to appellant as grantee. Max Johnson, individually, was grantor in two of the deeds; Shiloh Venture, Inc. (“Shiloh”), of which Max Johnson is Chairman of the Board and primary shareholder, was grantor of one deed; and Johnsoncraft Homes, Trust (“Johnsoncraft”), of which appellees are trustees, was grantor in the fourth deed. Each of the Deeds to Secure Debt contained a “dragnet” clause. In addition to the Deed to Secure Debt, Shiloh also executed a waiver of its rights to notice and hearing.

Appellees defaulted on the note, whereupon appellant properly initiated foreclosure proceedings on the land conveyed to it, pursuant to the powers of sale contained in the four Deeds to Secure Debt, Appellant bid a total of $87,000 for all of the properties being foreclosed. Appellant then filed a timely complaint for confirmation of the foreclosure sale in order to obtain a deficiency judgment against appellees for the difference between the amount of the debt and the amount the land was sold for at foreclosure. The complaint named as defendants Max and Betty Johnson only, and not Shiloh or Johnson-craft.

The trial court denied appellant’s request to confirm the sale of lands conveyed by Shiloh and Johnsoncraft, holding that they were debtors under OCGA § 44-14-161 (c) and should have been named in the complaint to confirm. The trial court also denied confirmation of the sale of the Johnsons’ residence, stating that the bank did not offer evidence of that property’s fair market value. The trial court did, however, confirm the sale of the parcel conveyed by Max Johnson in the fourth Deed to Secure Debt.

1. In its first enumeration of error, appellant contends that Shiloh and Johnsoncraft were not “debtors” within the meaning of OCGA § 44-14-161 (c) and thus not required to receive notice of the confirmation hearing. We agree and therefore must reverse and remand that part of the lower court’s decision regarding the denial of the confirmation of the foreclosure sales of the land conveyed by Shiloh and Johnsoncraft.

OCGA § 44-14-161 requires a confirmation as a condition precedent to an action for a deficiency judgment, Windland Co. v. Fed. Dep. Ins. Corp., 151 Ga. App. 742 (261 SE2d 407) (1979). The purpose of this Code section is to protect debtors from deficiency judgments when the forced sale of their property brings less than the fair market value. See First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565 (197 SE2d 446) (1973). Accordingly, in this case, the term “debtor” in OCGA § 44-14-161 (c) appears to refer to the debtor on the underlying debt, i.e., the promissory note, as that is the only party against whom the deficiency may be enforced.

Although it has been held that this section protects guarantors and sureties, see Redman Indus. v. Tower Properties, 517 FSupp. 144 (N.D. Ga. 1981), our narrow interpretation of “debtor” is inapplicable to guarantors and sureties in circumstances, as in the case sub judice, where the guarantor has limited liability as to the underlying debt. In Kunes, supra at 568, this court, construing Code § 67-1503 (now OCGA § 44-14-161), defined debtor to include “all who were presently subject to payment of the debt, or who might be subjected to payment thereof. . . .” On the basis of this language, Shiloh and Johnsoncraft, as grantors of separate Deeds to Secure Debt, were debtors until the foreclosure was complete. However, once the foreclosure on the respective conveyed properties was complete, Shiloh and Johnsoncraft satisfied their obligations as guarantors because their responsibility was limited to the proceeds from the conveyed properties. Since Shiloh and Johnsoncraft had no stake in the deficiency judgment, they were not debtors within the meaning of OCGA § 44-14-161 because, as previously stated, the purpose of this Code section is to regulate deficiency judgments. Therefore, the lower court erred by not confirming the foreclosure sales of the properties conveyed by Shiloh and Johnsoncraft in their respective Deeds to Secure Debt.

2. Appellant contends that the trial court erred by not allowing Jim Smith, the bank’s senior vice-president, to testify regarding the value of the Johnsons’ residence unless he could identify the comparable properties he used as the basis of his opinion. We disagree and affirm the lower court’s decision on this matter.

A witness does not need to be an expert to testify as to the fair market value of land as long as “he has an opportunity for forming a correct opinion.” OCGA § 24-9-66. “To give an opinion on value the witness must supply reasons by showing knowledge, experience or familiarity as to value. Testimony that the witness ‘is familiar with the value of the item in question is sufficient foundation.’ [Cit.]” City of Alma v. Morris, 180 Ga. App. 420, 421 (349 SE2d 277) (1986). Accord Schoolcraft v. DeKalb County, 126 Ga. App. 101, 103 (2) (189 SE2d 915) (1972).

Comparing the facts in the case sub judice with those in the line of cases cited, supra, it would seem that a sufficient foundation had been laid to support Smith’s opinion of the property’s value. Smith testified that he had been in banking for over 21 years and had made thousands of residential construction loans. Additionally, he made a personal examination of the exterior of the home and performed an evaluation of the most recent sales in that subdivision, along with a valuation of the properties that were currently on the market.

It is well settled, however, that “ ‘ “[admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” ’ ” Gully v. Glover, 190 Ga. App. 238, 242 (378 SE2d 411) (1989), accord Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829 (386 SE2d 709) (1989). It is likewise well settled that “[w]hether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is a decision to be made by the trial court, and this decision will not be disturbed absent an abuse of discretion.” Getz Svcs. v. Perloe, 173 Ga. App. 532, 536 (327 SE2d 761) (1985). Unlike the cases cited, supra, in the instant case, in a bench trial, the court herself was the finder of fact and was in the best position to decide whether a sufficient foundation or basis had been provided and also to determine the weight and credibility of evidence. Thompson v. Maslia, 127 Ga. App. 758 (195 SE2d 238) (1972); accord Alexander v. Weems, 157 Ga. App. 507 (277 SE2d 793) (1981). The court would presumably give no credence to Smith’s testimony absent identification of comparables; thus we find no indication that she abused her discretion in making this determination, and we therefore find no merit in this enumeration.

3. Our holdings, supra, moot the issue raised by appellant’s second enumeration of error. This case is remanded for proceedings not inconsistent with the above.

Judgment reversed and case remanded.

Pope, J., concurs. Beasley, J., concurs specially.

Decided November 8, 1990.

Robert E. Flournoy III, for appellant.

The Nodvin Firm, Marvin P. Nodvin, for appellees.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3.1 concur in the conclusion that the enumeration ruled on in Division 2 does not raise reversible error. The reason I concur is because the court as factfinder patently would have discredited it even if the evidence had been admitted by the court as determiner of legal questions. Thus the exclusion was harmless, although precedent such as that cited would allow the opinion evidence. No legal authority is cited for the basis for excluding the evidence. That was the proposition that the comparable sales properties would have to be identified as prerequisite for the expert’s opinion on the subject property’s value. Instead identity would be ascertainable by cross-examination and, if not forthcoming, would affect the weight and credibility of the expert’s opinion. Thus it was legal error to exclude the evidence for the foundational deficiency. The exercise of discretion, when bottomed on misconception of the law, constitutes “abuse.”

       It should be ‘noted, however, that this waiver was invalid, as OCGA § 44-14-162.3 expressly states: “No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale. . . .”


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A1473.
    FLOYD DAVIS SALES, INC. v. CENTRAL MORTGAGE CORPORATION OF MICHIGAN.
    (398 SE2d 820)
   McMurray, Presiding Judge.

Plaintiff Floyd Davis Sales, Inc., d/b/a Woodstock Door and Trim Company, filed this action for a judgment on an indebtedness against defendant Central Mortgage Corporation of Michigan, d/b/a Central Funding Company. The complaint alleges that plaintiff delivered goods to Walter Luce & Associates, Inc., for use in the improvement of real property, that defendant guaranteed payment for those goods, and that the debt has not been paid. Defendant moved to dismiss plaintiff’s complaint for failure to join indispensable parties, Walter Luce & Associates, Inc., and Walter Luce, individually, who had also guaranteed payment of the debt. Plaintiff appeals from the grant of defendant’s motion to dismiss. Held:

Defendant’s position that Walter Luce & Associates, Inc., and Walter Luce, individually, are indispensable parties is based on the supposition that they, along with defendant, are joint, but not several obligors. “[W]here joint obligors to a contract are not joined, the case must be dismissed. Wall v. Wall, [176 Ga. 757, 759 (168 SE 893)].” Turner Outdoor Advertising v. Old South Corp., 185 Ga. App. 582, 583 (2), 584 (365 SE2d 149).

Plaintiff responded with reliance upon OCGA § 10-7-1 which, in addition to removing the former distinctions between contracts of suretyship and guaranty, provides in part that “[s]ureties, including those formerly called guarantors, are jointly and severally liable with their principal unless the contract provides otherwise.” Due to the absence of any contractual language altering the statutory terms, it is clear that defendant and Walter Luce & Associates, Inc., are several, as well as joint obligors, and thus beyond the purview of Turner Outdoor Advertising v. Old South Corp., 185 Ga. App. 582, 583 (2), 584, supra.

Defendant further argues that the cosureties, that is, defendant and Walter Luce, individually, as between themselves, are joint, but not several obligors, so that the holding in Turner Outdoor Advertising v. Old South Corp., 185 Ga. App. 582, 583 (2), 584, supra, is applicable. In support of this contention, defendant raises two points. First, defendant notes that the language of OCGA § 10-7-1, while stating a presumption that principal and surety are joint and several obligors does not explicitly state a similar presumption as between cosureties. Secondly, defendant relies upon Todd v. Windsor, 118 Ga. App. 805 (165 SE2d 438), for the proposition that the liability of co-sureties, as between themselves is not a joint and several obligation.

Defendant’s reliance upon Todd v. Windsor, 118 Ga. App. 805, supra, is misplaced as this decision relates only to those circumstances which exist where a cosurety has paid the total amount of his defaulting principal’s debt and thus has become subrogated to the rights and remedies of the creditor and entitled to enforce his right to contribution against his cosureties. See OCGA § 10-7-56. In such an action, a cosurety plaintiff is bound by the substantive rules pertaining to contribution and is not entitled to enforce these obligations against his cosureties in exactly the same manner and in the same amounts as could the creditor. Even if applicable to the case sub judice, Todd v. Windsor, 118 Ga. App. 805, supra, is not supportive of defendant’s position since it holds that as to the cosurety which paid the principal’s debt, the liability of each of the remaining cosureties is several and not joint.

The cosureties in the case sub judice, Walter Luce, individually, and defendant, set forth in different instruments their separate promises to pay the debt of their principal. Thus, the reciprocal rights and liabilities among the cosureties which arise from the relationship, such as the right to contribution and to the benefit of security and indemnity in the hands of the other, are not founded on contract but on general considerations of justice and equity. See 72 CJS, Principal & Surety, §§ 261; 262; 266. In the case sub judice, there is no contract to which both cosureties are parties, therefore they are not joint contractors or obligors. The rule followed in Turner Outdoor Advertising v. Old South Corp., 185 Ga. App. 582, 583 (2), 584, supra, is not applicable to the case sub judice and offers no support for the trial court’s determination that Walter Luce was a necessary party under OCGA § 9-11-19 (a) (1). The trial court erred in granting defendant’s motion to dismiss plaintiff’s complaint.

Decided November 8, 1990.

Wallace C. Clayton, for appellant.

Abraham A. Sharony, for appellee.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A1892.
    MASON v. THE STATE.
    (398 SE2d 822)
   Deen, Presiding Judge.

On December 18, 1986, a Rockdale County police officer made a traffic stop that resulted in charging the driver, who identified himself as Steven G. Stubblefield, with driving under the influence and driving without brake lights. The driver presented at that time a driver’s license bearing the name of Stubblefield. On February 23, 1987, the person posing as Stubblefield appeared before the probate court and signed a petition for plea of nolo contendere on the DUI charge, which was accepted by the probate court. This “Stubblefield” also paid a $440 fine on the spot. An attorney signed the petition on Stubblefield’s behalf.

In June 1987, the real Stubblefield contacted the Rockdale County Sheriffs Department after being informed by the Georgia Department of Public Safety that his driver’s license was being suspended due to the December 1986 DUI. The arrest record was pulled, and the photograph of the person arrested was not that of the real Stubblefield. The sheriff’s department contacted the person who had bonded out the imposter, and consequently pulled the fingerprint records on file of a Thomas Mason, Jr., for comparison with the fingerprints taken on December 18, 1986, of the individual arrested. A latent print examiner with the state crime lab had no doubt that the fingerprints matched.

Subsequently, Mason was arrested, tried, and convicted of driving under the influence, perjury, forgery in the first degree, and giving a false name to a law enforcement officer. He appeals only the judgment of conviction entered on the perjury and forgery charges. Held:

1. After the state made its opening statement, defense counsel indicated his preference to wait until the state rested in its case-in-chief before making opening statement. The trial court, however, ruled that if defense counsel wanted to make an opening statement, he would have to do so immediately following that of the state. Consequently, defense counsel made no opening statement, and on appeal Mason contends that the trial court’s policy denied him effective use of counsel and due process of law.

Rule 10.2 of the Uniform Superior Court Rules provides that “[djefense counsel may make an opening statement immediately after the state’s opening statement and prior to introduction of evidence, or following the conclusion of the state’s presentation of evidence. Defense counsel’s statement shall be restricted to expected proof by legally admissible evidence, or the lack of evidence.” Rule 10.2 apparently gives defense counsel the option to wait until the state rests its case before making an opening statement, but in the instant case we are unable to find any harm in the trial court’s dishonor of that option. The defense presented no evidence. Given that circumstance, the only purpose of making an opening statement following the presentation of the state’s evidence would have been to comment on that evidence, which the defense had the opportunity to do during the closing argument.

2. Mason contends that under OCGA § 24-5-31, the trial court erred in admitting into evidence the original records from the probate court. “While later decisions of the Supreme Court criticize the propriety, and seem to throw some doubt upon the admissibility, of such evidence ([cits.]), this court is bound by the unqualified earlier decision in the case of Rogers v. Tillman, 72 Ga. 479, wherein it was held: ‘While the practice of carrying original court records from one county to another for use as evidence is disapproved, yet where an original record has been brought into court and admitted to be such, it is admissible in evidence. A certified copy would not be higher or better evidence than the original.’ ” Moody v. Bd. of Commissioners, 29 Ga. App. 21, 22 (113 SE 103) (1922).

3. The evidence proved the offenses of forgery in the first degree, as defined at OCGA § 16-9-1, and perjury, as defined at OCGA § 16-10-70. Mason correctly points out that proof of perjury requires either two witnesses or evidence of corroborating circumstances. OCGA § 24-4-8, generally. However, that evidentiary requirement was met in the instant case by the testimony of the probate judge and the attorney who signed the nolo petition on behalf of “Stubblefield.” For that reason, along with the fact that Mason introduced no evidence, no harm resulted from the trial court’s failure to charge the jury on this evidentiary requirement. Oxford v. State, 40 Ga. App. 511 (150 SE 466) (1929).

4. The trial court charged the jury on the state’s burden of proving beyond a reasonable doubt Mason’s guilt as charged. Mason now contends that the trial court should have also given a charge on identification, even though none was requested. The jury charge as given, however, clearly informed the jury of its task of deciding whether the state had proven that Mason had committed the offenses as charged. There was no need to give a charge on identification, which usually applies to cases involving the defense of misidentification. See, e.g., Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975).

5. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Mason guilty beyond a reasonable doubt of perjury and forgery in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Pope, Judge,

concurring specially.

The parties are entitled to rely on the rights and procedures set forth in the Uniform Superior Court Rules. The Supreme Court of Georgia, with the advice and consent of the Council of Superior Court Judges, promulgated Rule 10.2 and saw fit to grant defendants in criminal cases the right to wait and see what the State proved or failed to prove before setting forth their statement of the case to the jury. The very purpose of adopting the Uniform Rules was to assure uniformity of practices among the many trial courts of Georgia. The trial judge in this case ignored the Uniform Rules and announced, in effect, it is the policy of his court to require even the defendant to make whatever opening statement he wishes to make before any evidence is presented. This is erroneous and violates defendants’ rights to rely on the Uniform Rules to plan trial strategy.

Here, for example, directed verdict of acquittal was granted on the count charging defendant with driving while there was .12 percent or more by weight of alcohol in his blood because of the State’s failure to present evidence of the lab results. If defendant had made his opening statement before the presentation of the State’s case, in compliance with the trial court’s local rule, defendant would have been required unnecessarily to comment upon the expected evidence when, in fact, the State did not present the evidence. We can imagine a scenario in which the defendant would be required, by the rule imposed by this trial court, to announce his intention to present evidence of certain matters when, if he had been allowed to wait and see what evidence the State would present, as provided in the Uniform Rules, he might have chosen to rest or not to present the evidence referred to in his opening statement. A defendant should be able to rely on the Uniform Rules when planning his trial strategy. However, here the defendant did not make an opening statement before the State’s evidence was presented, he obtained a directed verdict in his favor on one count of the indictment and he chose not to present any evidence. In this case, we see no way in which defendant’s right to plan his trial strategy in reliance upon the Uniform Rules was impaired. Therefore, the conviction need not be overturned where, as here, no prejudice is shown to the complaining party by the trial court’s failure to follow a procedural rule. See Cox v. State, 197 Ga. App. 240 (1) (398 SE2d 262) (1990) (in which the trial court’s failure to rule prior to trial on the admissibility of evidence of similar transactions, as required by Rule 31.1, was not reversible error because no prejudice was shown to the defendant under the specific facts of the case). However, I do not wish the affirmance of this case to be interpreted as showing disregard for the enforcement of the Uniform Rules. The trial courts are required to follow them.

Decided November 8, 1990.

Paul S. Weiner, for appellant.

Robert F. Mumford, District Attorney, for appellee.

I am authorized to state that Judge Beasley joins in this special concurrence.


author: Deen, Presiding Judge.

text:
    A90A2299.
    McCLASKEY v. JIFFY LUBE, INC. et al.
    (398 SE2d 825)
   Deen, Presiding Judge.

Edward D. McClaskey brought a lawsuit against Jiffy Lube, Inc., and Richard Bradshaw for personal injuries allegedly arising out of an incident which occurred at a Jiffy Lube store, where appellant had been employed prior to his discharge some eight days earlier. The case went to trial before a jury, and the court granted appellees’ motion for a directed verdict at the close of the plaintiff’s evidence. This appeal follows the denial of appellant’s motion for a new trial. Held:

In granting the motion for a directed verdict the trial court held that “after considering all the evidence introduced, with all reasonable deductions therefrom, and after hearing arguments of counsel, the court finds that all of the claims of plaintiff are barred pursuant to the Georgia Workers’ Compensation Act.” In his notice of appeal, appellant specifically stated that the “transcript of the evidence and proceedings will not be filed for inclusion in the record on appeal.”

The party asserting error on appeal has the burden to show it affirmatively by the record. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). The appellant has a duty to provide the appellate court with a transcript “where an appeal is taken which draws in question the transcript of the evidence and proceedings. . . .” OCGA § 5-6-41 (c). “This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.” Sheffield v. Zilis, 170 Ga. App. 62, 65 (316 SE2d 493) (1984). An appeal in which a consideration of the enumeration of errors is dependent upon a consideration of the evidence heard by the trial court will be affirmed if a transcript is not included as a part of the appellate record. Curry v. State, 148 Ga. App. 59 (251 SE2d 86) (1978). The party asserting error has a duty to show it by the record. York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577) (1983).

Decided November 8, 1990.

Emmett J. Arnold IV, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, Smith, Gambrell & Russell, Thomas E. McCarter, David A. Handley, for appellees.

As the instant appeal requires a transcript to determine whether the evidence showed that appellant’s sole remedy was under the provisions of the Georgia Workers’ Compensation Act, it must be assumed that the evidence supported the trial court’s finding, and the judgment must be affirmed. Gillespie v. Gillespie, supra.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Pope, Judge.

text:
    A90A1227.
    JOHNSON v. THE STATE.
    (398 SE2d 826)
   Pope, Judge.

Appellant Tonja Johnson was convicted of possession of cocaine and possession of marijuana. On appeal, he argues that the trial court erred in refusing his motion to suppress the fruits of the search.

Assistant Chief Moore received an anonymous telephone tip that two black men in a black truck were selling drugs to kids on Lewis Street. No details about the men or the truck or the alleged drug activity were provided. A call was put out by police radio and Officer Thurston went to the area and stopped a black truck with two black men in it. He testified that the stop was based solely upon the radio bulletin. He observed no suspicious activity by the men in the truck. Officer Thurston had Johnson get out of the truck and step to the rear of it. There he detained Johnson, explained why he was stopped and examined his driver’s license. Lt. Floyd then arrived and asked to search the truck. Johnson questioned the police about the stop and the necessity of the search. Chief Gilmer then arrived and told Johnson that they could get a search warrant and after that Johnson signed a waiver and allowed the search. Lt. Floyd first searched the truck and found nothing. Chief Gilmer then searched and turned up a small pouch between the seats containing the drugs. Held:

We reverse. The initial stop of Johnson’s vehicle, based solely on an anonymous telephone tip that two black men in a black truck were selling drugs on Lewis Street, “would not warrant a man of reasonable caution in the belief that a stop was appropriate.” (Punctuation and citation omitted.) Alabama v. White, — U. S. — (110 SC 2412, 110 LE2d 301) (1990). The Supreme Court in White, supra, made clear that for an anonymous telephone tip to provide a basis for. articulable suspicion for police to make an investigatory stop (see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)), the tip must provide some basis for predicting the future behavior of the subject of suspicion. In White, the anonymous telephone informant not only gave an accurate and detailed description of the suspect and her vehicle, the information also accurately predicted the suspect’s subsequent activity and behavior. The informant stated that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with a broken right taillight lens, that she would go to Dobey’s Motel and would be in possession of about an ounce of cocaine in a brown attache case. Officers went to the apartments and saw White leave the building and get into the car described in the tip. She headed in the direction of the motel and was stopped just short of it. She consented to a search and police found cocaine in her purse and marijuana in a brown attache case in the car. The Supreme Court upheld the validity of the Terry stop based on the detail of the anonymous tip and the corroboration of information in the tip by police observation.

Here, by contrast, the description of the suspect was general and completely lacking in detail. The tip made no prediction about future behavior by which its reliability could be tested. The tip alone “provide [d] virtually nothing from which one might conclude that (the caller) is either honest or his information reliable; likewise, the (tip) [gave] absolutely no indication of the basis for the (caller’s) predictions regarding [the suspect’s] criminal activities.’ [Cit.] By requiring ‘(s)omething more’ ... we merely apply what we said in Adams [v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972)]: ‘Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.’ [Cit.]” White, supra, 58 LW at 4748-4749.

The tip in the present case completely lacked any indicia of reliability. No names were given, no detailed description of the vehicle was provided, nor was any detail given of the alleged illegal activity. Although the tip certainly warranted police investigation, further observation and corroboration was required before a forcible stop was authorized. In White, the Supreme Court stated that the facts of that case made it a close issue. White, supra at 4749. The facts in the present case clearly put it beyond the pale. We hold that the initial stop of Johnson was not valid because it was not based upon reasonable suspicion. Therefore, the subsequent consent to search was invalid and the trial court erred in not granting the motion to suppress.

Decided November 9, 1990.

Crumbley & Crumbley, James T. Chafin III, for appellant.

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

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A90A1446.
    MILES v. GREAT SOUTHERN LIFE INSURANCE COMPANY.
    (398 SE2d 772)
   Sognier, Judge.

Delores Miles brought suit against Great Southern Life Insurance Company, alleging claims for breach of contract, fraud, and bad faith refusal to pay an insurance claim. She appeals from the grant of partial summary judgment to Great Southern on the fraud claim.

During the relevant time period, appellant was an employee of Gulfstream Aerospace Corporation (“GAC”), which provided its employees the opportunity to purchase group life insurance from appellee as part of GAC’s employee benefit plan. On December 2, 1987, appellant discussed the insurance plan with Tamara Williams, an insurance counselor with Tarkenton/Watkins Insurance Group, the insurance broker responsible for servicing the plan. Williams provided appellant with a brochure describing the plan, which stated in pertinent part that employees and their spouses and children were eligible for “Guaranteed Issue coverage” of a specified amount, and that “[n]o health questions or physical examinations are required on applications within the Guaranteed Issue amount.” Appellant decided to purchase the Guaranteed Issue coverage for herself, her husband, and her son. Williams completed the application forms and appellant signed them. In response to question 19 on appellant’s application, which asked whether the proposed insured had been hospitalized within the past 90 days, Williams wrote “N/A,” but the applications for appellant’s husband and son are marked “no” in response to the query. The parties agree that appellant informed Williams that her husband had cancer, but they disagree regarding whether appellant stated her husband had been hospitalized periodically, whether Williams completed the responses to question 19 in appellant’s presence and before she signed the forms, and whether Williams informed appellant that the statement in the brochure that dependents and spouses did not have to provide medical information for the Guaranteed Issue coverage was in error. The policies appellant sought were issued, but when her husband died on February 1, 1989, appellee refused to pay the claim because the insured had been hospitalized within .90 days of the time the application was submitted.

1. The trial court held that appellee was entitled to summary judgment on appellant’s fraud claim because there was no special relationship between appellant and appellee that would give rise to a tort claim for appellant’s refusal to pay benefits under the insurance contract, and thus appellee was entitled to judgment as a matter of law. Appellant contends that the issuance of the group policy either made appellee an agent of GAC or vice versa. Accordingly, she maintains, the trial court erred by failing to find that a fact question was presented regarding whether her relationship with her employer, GAC, constituted a confidential relationship with concomitant duties, the breach of which could be the basis for a tort claim against appellee.

As appellant acknowledges, a breach of contract cannot constitute a tort unless there exists between the parties a special or confidential relationship of the type described in OCGA § 23-2-58. E.g., Thomas v. Phoenix Mut. Life Ins. Co., 142 Ga. App. 550 (236 SE2d 510) (1977). Only when such a relationship is present can a party to a contract bring an action ex delicto against the party who owes a duty imposed by law as a result of the special relationship. She also recognizes that as a general rule there is no confidential relationship between an insurer and its insured, e.g., Walsh v. Campbell, 130 Ga. App. 194, 198 (202 SE2d 657) (1973), but contends the alleged special relationship between her and GAC provides the basis for appellee’s liability to her.

The presence of a confidential relationship between an employer and employee arising from the procurement by the employer of insurance benefits for the employee turns on the nature of the activities engaged in by the employer. Our courts have recognized that when an employer takes action to procure group coverage for its employees — e.g., when the employer selects a group insurer, negotiates for new coverage or changes in existing coverage, and obtains applications from the employees to be submitted to the insurer — the employer acts as an agent of the employees. Dawes Mining Co. v. Callahan, 246 Ga. 531, 534 (272 SE2d 267) (1980); see City of Brunswick v. Carney, 187 Ga. App. 634, 635-636 (1) (a) (371 SE2d 201) (1988) (employer is employee’s agent when changing to another group insurance carrier); Woodman Co. v. Adair, 164 Ga. App. 603 (294 SE2d 579) (1982) (employer is liable ex contractu when it gives employee erroneous information about a change in coverage of group health insurance policy). However, once the policy is issued, when the employer performs duties necessary to make the group policy effective or applicable to individual employees, the employer becomes the insurer’s agent. Dawes, supra at 533-534.

In the case at bar, the group life insurance plan had been in effect since 1985. GAC provided a forum one week each month for Williams or another of appellee’s representatives to meet with employees to service existing accounts and solicit new ones. The information provided to appellant concerned coverage previously established by GAC and appellee, and there is no evidence any changes in the coverage or the carrier were involved. Compare Carney, supra. Accordingly, at the time appellant applied for the coverage at issue, GAC was an agent of appellee, not appellant, and thus we agree with the trial court that there is no material question of fact regarding appellant’s claim of a confidential relationship between her and GAC. Therefore, appellant’s theory of the case, which is based on the assumption that GAC was her agent, must fail. Although a breach of a duty imposed by virtue of any confidential relationship that might exist between appellee and GAC could provide the basis for tort liability of GAC to its principal, appellee, the relationship does not provide the necessary foundation for a tort action between appellee and appellant.

The cases cited by appellant do not support her position. The holding in Capriulo v. Bankers Life Co., 178 Ga. App. 635 (344 SE2c 430) (1986) is not applicable because no fraud claim was assertec against the insurer. In that case, which involved a claim by an employee against his employer for breach of contract, negligence, anc fraud, and against his group insurance carrier for breach of contract, we found that because a fact question remained as to the existence of a confidential relationship between the employer and the employee through the employer’s procurement of insurance for the employee, the employer was not entitled to summary judgment on the fraud claim, but we affirmed the grant of summary judgment to the insurer on the contract claim. Cochran v. Murrah, 235 Ga. 304 (219 SE2d 421) (1975), is distinguishable because the Supreme Court found a confidential relationship between the employer and the employee arising from unique facts not present here.

Consequently, we concur in the. trial court’s conclusion that appellant’s claim against appellee lies in contract only, and accordingly affirm the grant of summary judgment to appellee on the claim for fraud.

2. Appellant maintains in her remaining enumeration that the trial court erred by denying her motion to compel appellee to respond to certain requests for admission and interrogatories. Appellee objected to six requests for admission concerning the insurance plan brochure distributed to GAC employees on the ground that the merger clause in the insurance contract rendered any statements in the brochure irrelevant, and objected to the interrogatories, which sought information about other claims denied for similar reasons and profits earned from the sale of coverage under the type of policy at issue, as unduly burdensome. Our review of the record discloses that each disputed discovery request either was outside the scope of permissible discovery or sought information relevant only to appellant’s demand for punitive damages on the fraud claim, and accordingly we find no abuse of the trial court’s discretion. Whisenaut v. Gray, 189 Ga. App. 314, 316 (375 SE2d 619) (1988).

Decided October 29, 1990

Rehearing denied November 14, 1990

Clarence L. Martin, for appellant.

Miller, Simpson & Tatum, John M. Tatum, H. Pearce Scott, for appellee.

Judgment affirmed.

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


author: Sognier, Judge. Carley, Chief Judge,

text:
    A90A1485, A90A1486.
    CHEELEY et al. v. HENDERSON; and vice versa.
    (398 SE2d 787)
   Sognier, Judge.

Robert Henderson brought a legal malpractice action against Robert Cheeley, Joseph Cheeley, Jr., Cheeley & Chandler, and Joseph E. Cheeley, Jr., P.C. (hereinafter referred to collectively as “Cheeley”) seeking damages for matters arising out of its handling of Henderson’s litigation with Glen Oaks, Inc. The trial court denied Cheeley’s motion for summary judgment, and we granted the application for interlocutory appeal. Henderson cross appeals from the denial of his motion for partial summary judgment.

1. Cheeley contends the trial court erred by not dismissing Henderson’s complaint on the basis that the expert affidavit filed therewith failed to comply with OCGA § 9-11-9.1 (a) because it did not specify one negligent act or omission allegedly committed by Cheeley. Henderson’s complaint, filed in December 1987, set forth in detail the factual bases for his claim and specified, in paragraph 19, “numerous errors and omissions” in Cheeley’s representation of him including, inter alia, Cheeley’s failure to conduct discovery or investigate certain claims asserted by Glen Oaks; Cheeley’s waiver of certain jurisdictional defenses, its failure to seek a continuance, and its lack of preparedness at trial, including a failure to assert certain evidentiary objections; and its entrusting of the conduct of the trial to appellant Robert Cheeley rather than appellant Joseph Cheeley, Jr., the more experienced attorney.

Attached to Henderson’s complaint was the affidavit of Thomas Metzloff, an attorney licensed to practice in Georgia. The affidavit stated it was made on the affiant’s personal knowledge and set forth the affiant’s qualifications, including that he is an associate professor of law at Duke University School of Law. Professor Metzloff averred that both as a practicing attorney and as an educator specializing in legal ethics, he was familiar with the standard of skill, care, and diligence normally possessed and utilized by attorneys in Georgia and elsewhere who represent clients in commercial litigation, such as the matters involved in the litigation between Henderson and Glen Oaks. Based on his conversations with Henderson and his examination of the pleadings, transcripts of trial proceedings, and other documents generated in that litigation, Prof. Metzloff averred that “[i]t is my opinion that the representation [of Henderson by Cheeley] fell below the required standard of skill, care, and diligence, and that certain errors and omissions on the part of [Cheeley], including those set forth in the Complaint, constituted legal malpractice.”

In its answer filed January 28,1988, Cheeley asserted as the third defense that “[Henderson’s] Complaint fails to comply with the condition precedent to the institution of this action and therefore the instant action is null and void and of no legal effect and should be dismissed.” Ten months later Henderson served his second interrogatories on Cheeley seeking, inter alia, clarification of the bases for Cheeley’s third defense. Cheeley responded that Professor Metzloff’s affidavit failed to meet the degree of specificity required by OCGA § 9-11-9.1 (a). Henderson then amended his complaint and submitted an amended affidavit by Prof. Metzloff, in which the affiant elaborated on the negligent acts and omissions in paragraph 19 of the original complaint.

OCGA § 9-11-9.1 (a) provides “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis.supplied.) As Cheeley correctly notes, there is not set forth in Prof. Metzloff’s affidavit itself any one negligent act or omission claimed by Henderson to have been committed by Cheeley, and nothing in OCGA § 9-11-9.1 provides for the satisfaction of that requirement by the incorporation in the expert’s affidavit of a reference to other documents. We also agree with Cheeley that its third defense adequately raised the defense of insufficiency of the expert’s affidavit for purposes of OCGA § 9-11-12 (b), compare Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988), and note furthermore that had any confusion existed as to the grounds for that defense, an interrogatory addressing the matter could have been presented to Cheeley earlier than the ten month delay seen in the case at bar.

We need not here address Henderson’s argument that prior to the enactment of OCGA § 9-11-9.1 (e), (f), he was entitled to amend his complaint to correct the failure of his expert’s affidavit to comply with OCGA § 9-11-9.1 (a). But see St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989). In the preamble to Ga. L. 1987, p. 887, the Legislature stated that the intended purpose of the Act creating OCGA § 9-11-9.1 was to require plaintiffs to “set forth the particulars of the claim.” Accordingly, the statute 'has been construed as having the purpose of preventing frivolous or unsustainable malpractice actions. Precision Planning v. Wall, 193 Ga. App. 331, 332 (387 SE2d 610) (1989); Housing Auth. of Savannah v. Greene, 259 Ga. 435, 439 (383 SE2d 867) (1989), quoting 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). “The filing requirement of subsection 9-11-9.1 (a) protects professionals from having to defend lawsuits unless they are supported by an expert competent to testify. . . . Under the statute, failure to obtain [an] affidavit might be a fatal defect. Failure to file it with the complaint is an amendable defect because ‘Is not the chief object of amendment the correction of mistakes?’ [Cit.]” (Footnote omitted.) St. Joseph’s Hosp., supra at 154-155 (1) (b).

The record reveals that Henderson brought this malpractice action against Cheeley in a complaint which detailed precise and definite acts or omissions constituting the negligence for which he was seeking recompense. Henderson filed his complaint less than six months after the effective date of OCGA § 9-11-9.1 and more than nine months before this court decided Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988), the first reported appellate court opinion to construe OCGA § 9-11-9.1 as applying to legal malpractice actions. It cannot be denied that Henderson’s suit was supported by the opinion of an expert competent to testify that specific acts of malpractice had occurred. However, although Henderson correctly obtained an expert’s affidavit, compare Barr, supra, he misinterpreted OCGA § 9-11-9.1 (a) as allowing that expert to incorporate by reference into the affidavit the “one negligent act or omission” required by the statute. Thus, Henderson had the information necessary under OCGA § 9-11-9.1 (a) at the time he filed his complaint: he just failed to copy that information from paragraph 19 of his complaint to paragraph 7 of Prof. Metzloff’s affidavit.

We are not suggesting that OCGA § 9-11-9.1 (a) authorizes any plaintiff to fulfill its requirements by filing an affidavit which incorporates by reference to other documents those matters which must be stated within the affidavit. However, given the special circumstances of this case as outlined above, and given the holding in St. Joseph’s Hosp., supra at 154-155 (1) (b), we find that because Henderson had obtained an affidavit but, due to a misinterpretation of OCGA § 9-11-9.1 (a), failed to incorporate into the affidavit itself the specific negligent acts and omissions detailed in the complaint, Henderson’s amendment of his complaint to rectify this mistake was proper. Therefore, the trial court correctly denied Cheeley’s motion to dismiss the complaint on this issue.

2. Cheeley contends the trial court erred by denying its motion for partial summary judgment on Henderson’s tort claims. Cheeley argues that because Henderson admitted in his interrogatory answers that all allegations of tortious conduct occurred on or before June 1985, Henderson’s complaint filed after June 1987 resulted in the statute of limitation running on those claims. Based on its argument that Henderson’s tort claims are barred by the statute of limitation, Cheeley argues it was entitled to summary judgment on Henderson’s claim for punitive damages.

In his complaint, Henderson seeks to recover damages from Cheeley for the jury verdict entered against him in his litigation with Glen Oaks, lost rent on the leased premises involved in that litigation, and the legal fees he incurred appealing from that verdict. He also alleged that the errors and omissions in paragraph 19 constituted “bad faith, willful misconduct, and a conscious disregard [by Cheeley] for the consequences of [its] acts and omissions, by reason of which [Henderson] is entitled to recover general damages for mental anguish and damage to his business and credit reputation,” as well as attorney fees and punitive damages.

The parties to this appeal agree that the contract claims raised in Henderson’s complaint remain viable. Further, it is apparent that the statute of limitation in OCGA § 9-3-33 has run on any tort claims Henderson might have asserted for injuries to his person. However, Henderson argues that the trial court properly denied Cheeley’s motion because OCGA § 9-3-33 is inapplicable here since all of the tort claims in his complaint pertain to injuries to property, i.e., pecuniary losses. Thus, he asserts that the applicable limitation period is the four year period set forth in OCGA § 9-3-31.

“It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. [S]uch a cause of action (can) also sound in tort and, thus, be subject to the one-year and/or two-year limitation of OCGA § 9-3-33. Thus, a plaintiff who alleges legal malpractice has two years to bring an action for tort, and four years to bring an action for breach of contract.” (Citations and punctuation omitted.) Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1986).

We reverse the trial court’s denial of Cheeley’s motion for summary judgment on this issue. First, in view of the allegations in the complaint seeking damages for injury to Henderson’s reputation (albeit business and credit reputation) and damages for the mental anguish he suffered as a result of Cheeley’s alleged bad faith and wilful misconduct, which are damages in tort for personal injuries, see Hamilton v. Powell, Goldstein &c., 167 Ga. App. 411, 415-416 (2) (306 SE2d 340) (1983) aff'd 252 Ga. 149 (311 SE2d 818) (1984), we cannot agree with Henderson’s characterization of his complaint as containing only claims for property damages. Accordingly, we find that those claims are barred by OCGA § 9-3-33. See generally Kilby v. Shepherd, 177 Ga. App. 462 (339 SE2d 742) (1986).

Second, our review of Henderson’s complaint discloses that with the running of the statute of limitation on the above damages for personal injuries, the only viable damages remaining in the complaint are those resulting from Cheeley’s alleged negligent breach of duties imposed by the attorney-client contract of employment. Compare Shapiro v. Southern Can Co., 185 Ga. App. 677 (365 SE2d 518) (1988). Henderson is unable to cite and our research has not uncovered one single appellate opinion in Georgia in which property damages stemming from a breach of an attorney-client contract of employment have been treated as tortious property damage rather than contractual property damage. “Despite dicta to the contrary in [Loftin v. Brown, 179 Ga. App. 337 (1) (346 SE2d 114) (1986) and like cases], this is a suit on a contract, albeit for negligent breach of the contract.” Royal v. Harrington, 194 Ga. App. 457, 458 (390 SE2d 668) (1990). Accordingly, we find that the applicable statute of limitation is set forth in OCGA § 9-3-25, not OCGA § 9-3-31. See, e.g., Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92) (1980); Royal, supra at 458.

Therefore, because the statute of limitation had run on all but the contractual aspect of Henderson’s legal malpractice claim, Cheeley was entitled to summary judgment on Henderson’s tort claims as a matter of law. OCGA § 9-11-56 (c). The only remaining cause of action being a suit on a contract, Royal, supra at 458, Cheeley was entitled to a grant of summary judgment in its favor as to the damages Henderson sought based on those claims, i.e., punitive damages and mental distress. OCGA §§ 51-12-5; 51-12-6; Hamilton, supra.

3. “ ‘Questions of negligence . . . are not ordinarily susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a jury. (Cits.)’ [Cit.]” Tolbert v. Tanner, 180 Ga. App. 441, 445 (349 SE2d 463) (1986). Although issues of negligence and proximate cause may be decided by the court as a matter of law in plain, palpable, and indisputable cases, see Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986), such is not the case here. The trial court properly denied the motions made by both Cheeley and Henderson for partial summary judgment on the merits of the complaint. See generally Fletcher v. Ford, 189 Ga. App. 665, 667-668 (2) (377 SE2d 206) (1988).

Decided October 30, 1990

Rehearings denied November 14, 1990

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Edward H. Lindsey, Jr., Savell & Williams, Charles M. Dalziel, Jr., Carrie L. Christie, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, for appellants.

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, James McGuire, for appellee.

Judgment affirmed in part and reversed in part in Case No. A90A1485. Judgment affirmed in Case No. A90A1486.

Carley, C. J.,

and McMurray, P. J., concur specially.

Carley, Chief Judge,

concurring specially.

I concur in the judgment. With specific regard to Division 1 of the majority opinion, I cannot agree with the analysis of the majority upon which it bases its conclusion that the original affidavit was not sufficient, but that the amendment was permissible under St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989). To the contrary, I believe that the trial court correctly refused to dismiss the complaint because the original affidavit was sufficient in that it properly adopted or incorporated by reference the specific facts set forth in the complaint. See OCGA § 9-11-10 (c).

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.


author: Beasley, Judge.

text:
    A90A1510.
    DUNCAN v. AMERICAN MUTUAL FIRE INSURANCE COMPANY.
    (398 SE2d 759)
   Beasley, Judge.

In this declaratory judgment action, defendant Shirley Duncan appeals the grant of plaintiff American Mutual’s motion for summary judgment and also assigns error on the denial of her motion for partial summary judgment. The principal issue involves the construction of an automobile liability insurance policy which American Mutual issued to Rodney James Duncan, Shirley Duncan’s husband. Within the policy’s effective dates, Rodney Duncan was killed when a tree fell on the car he was driving. Shirley Duncan sought reimbursement under the personal injury protection (PIP) provisions of the policy and was paid $5,000 by American Mutual. Through counsel she demanded an additional $45,000 in excess PIP benefits and offered to pay any additional premiums due for such coverage. American Mutual sought a declaration that it had paid the maximum amount owed under the policy.

Shirley Duncan contends that the form her husband executed in conjunction with the issuance of the policy failed to comply with OCGA § 33-34-5 (b): “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” She also contends that the application fails to assure a knowing waiver of privileges by applicants who sign it.

The Code section “mandates that for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in boldface, and (3) that the statement be signed by the applicant.” Southern Guar. Ins. Co. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778) (1989).

The application contained the following statement signed by Rodney Duncan: “I affirm that all options set forth above and on the reverse side of this application have been offered and explained to me as required by State Law or Regulation.” The amount of coverage set forth under the section “Personal Injury Protection” stated: “(All States) P. I. P. Limit - $5,000.” The figure was typed in. The application contained a section designated “INSUREDS OPTIONS” which listed “PERSONAL INJURY PROTECTION” and, under that, “GEORGIA - LIMITS: $5,000, $10,000, $25,000, $50,000.” The trial court, in an explanatory order, concluded that the above sufficiently described the amount of PIP coverage available to an insured. It also noted that the statement was in bold, black type with the words “options,” “offered” and “explained” in bold, red type. It adjudged that this met the Supreme Court’s interpretation of the statute’s requirement of “boldface.”

The words are “sufficiently heavy in appearance to cause [them] to be more conspicuous than the print which surrounds [them].” Goddard, supra. The appellant had the burden of showing error and she has not demonstrated that the observation and conclusion were incorrect. Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).

Decided October 24, 1990

Rehearing denied November 14, 1990

Kaufman & Associates, C. Jeffrey Kaufman, W. Cary Herin, Jr., for appellant.

Darroch & Obenshain, Robert M. Darroch, C. David Vaughan, for appellee.

The application contained, as “INSUREDS OPTIONS,” amounts from $5,000 to $50,000 which is the aggregate limit prescribed by OCGA § 33-34-5 (a) (1). It provided that the amount selected be inserted, as a stated figure, into the form as the “P. I. P. Limit.” After the statement that coverage had been explained and offered to the insured, in somewhat smaller but still black type was the further statement: “Except as indicated hereon they are hereby rejected.” While there are undoubtedly clearer and more straightforward ways of accomplishing an explanation which meets the Georgia requirements, the method used by American Mutual does not violate the precepts articulated by our cases. See Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11 (348 SE2d 658) (1986); Hardy v. Nationwide Ins. Co., 182 Ga. App. 311 (356 SE2d 38) (1987); Ervin v. Auto. Club Ins. Co., 184 Ga. App. 496 (361 SE2d 870) (1987); West v. Southern Guar. Ins. Co., 194 Ga. App. 412 (390 SE2d 619) (1990). Compare Striggles v. Hanover Ins. Co., 194 Ga. App. 76 (391 SE2d 767) (1989).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1587.
    PICKENS v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    (398 SE2d 792)
   Deen, Presiding Judge.

On June 27, 1989, Starlette Pickens brought suit against Mikeli Walbei and Vijay Udeshi (Walbei’s employer) for injuries that she sustained in an automobile collision with a vehicle driven by Walbei on July 3, 1987. The complaint against Udeshi was voluntarily dismissed two months later. Pickens’ efforts to locate Walbei during the six months prior to filing suit indicated that he was not residing at the address provided at the time of the accident, and a skip-tracer was unable to locate him. Nevertheless, Pickens attempted to serve Walbei at his last known address. Nationwide, appellant’s uninsured motorist carrier, was apparently also served and answered the complaint. On November 2, 1989, Nationwide filed a motion for summary judgment. Six days later, Pickens petitioned the court for an order permitting service by publication on Walbei. Pickens appeals from the denial of its motion for service by publication and from the grant of Nationwide’s motion for summary judgment.

OCGA § 33-7-11 (d) requires service upon both the uninsured motorist and the uninsured motorist carrier. The plaintiff bears the burden of investigating and learning the defendant’s whereabouts. Jones v. Brown, 174 Ga. App. 632 (331 SE2d 24) (1985). The two-year statute of limitation in personal injury cases is tolled by the filing of a civil lawsuit within the statutory period. Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134) (1983). OCGA § 9-11-4 (c), however, requires that service of the complaint be made within five days of filing. “If an action is filed within the [statute of] limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co. at 676. The plaintiff bears the burden of showing lack of fault for failure to perfect timely service. Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988). OCGA § 33-7-11 (e) provides that where the owner of a vehicle which causes injury or damage is known, but the person resides out of state, has departed from the state, cannot be found after due diligence within the state, or conceals himself to avoid service of process, an order for service by publication may be granted upon satisfactory showing to the trial court.

In the instant case the plaintiff had made an extensive investigation to learn the defendant’s whereabouts prior to filing the complaint. The sheriff’s return of service indicated that personal service could not be made upon him at his last known address, and previous inquiry determined that he could not be located within the state. Yet she made no attempt to serve him by publication until after Nationwide moved for summary judgment some four months after personal service was attempted. The trial court did not err in denying the plaintiff’s motion for service by publication, as the determination of whether the plaintiff exercised due diligence in perfecting service after the running of the statute of limitation is within the trial court’s discretion, which will not be disturbed on appeal absent abuse. Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984). Where, as here, the plaintiff fails to petition the court for service by publication until more than four months have elapsed from the date of filing, the complaint was filed shortly before the running of the statute of limitation, and the plaintiff knew that the defendant could not be located within the state at the time the complaint was filed, we find no abuse of the court’s discretion. See Webb v. Murphy, 142 Ga. App. 649 (236 SE2d 840) (1977); Early v. Orr, 135 Ga. App. 887 (219 SE2d 622) (1975).

Decided October 30, 1990

Rehearing denied November 14, 1990

Donald B. Walker, for appellant.

Murray, Temple & Dinges, William A. Dinges, Gregg P. Counts, John C. McCaffery, for appellee.

Appellant argues that failure to perfect service is a matter in abatement which cannot be appropriately disposed of by a motion for summary judgment. Wentworth v. Fireman’s Fund &c. Ins. Co., 147 Ga. App. 854, 859 (250 SE2d 543) (1978); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). While we agree that this rule is controlling, we do not think that Nationwide’s denomination of its motion is controlling. On summary judgment, the court looks to the merits of the case, Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974), whereas in the instant case, the insurance company was seeking only dismissal of the case for failure to timely perfect service. We therefore find that the trial court correctly dismissed the complaint. See Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300) (1990).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0772.
    JOHNSON v. THE STATE.
    (398 SE2d 828)
   Pope, Judge.

Appellant Garwayne Johnson was convicted of possession of a firearm by a convicted felon. He also was charged with several drug violations, but was acquitted of those. On appeal, he argues the trial court erred in denying his motion to suppress and that the evidence was insufficient to convict him.

1. Johnson argues the search of his store/residence pursuant to one of two search warrants (the other was for another residence) was illegal because police obtained the warrants solely as a result of deception. The record shows the alleged deception was a phone call to the Johnsons placed after agents of the GBI and the Bacon County Sheriff’s Department had arrested James (Jabber) Lee and his wife Jenny on charges of possession of cocaine. After Garwayne Johnson’s wife had made several phone calls to the police station asking to talk to Jenny Lee, police became suspicious.

A confidential source who had dealt with “Jabber” Lee reported that Lee had told him that Johnson was supposed to have supplied him with cocaine the night before Lee was arrested. The evidence also shows that officers of the Bacon County Sheriff’s Department and the GBI had been conducting an ongoing investigation into a drug ring in which Johnson was suspected as a supplier. Agent Denson testified at the hearing on the motion to suppress that a confidential informer had purchased cocaine at Johnson’s store/residence within the ten days preceding the search. Because of this knowledge and the numerous phone calls from Johnson’s wife about the status of the Lees, police decided to have a jail trusty call the Johnsons and say that the police had arrested the Lees and were now heading toward the John-sons’ place. In fact, police already had the premises under surveillance when the call was placed. After the call, police observed the Johnsons pull their truck up to the premises and load something in it and then leave at a high rate of speed.

Because of the speeding and another traffic violation, police tried to stop the Johnson truck. However, Johnson did not stop, even with several cars in pursuit with their lights on. During the chase, police saw something being thrown from the Johnson vehicle. After the Johnsons were stopped, police went back and found cocaine and marijuana in small plastic bags. At this point, based on all of this information (which was provided to the magistrate in Agent Denson’s affidavit in support of his request for a search warrant), police obtained a warrant to search the Johnson store/residence. During the search, police seized 26 firearms in plain view because they knew Johnson was a convicted felon.

“In determining whether probable cause supported issuance of a search warrant, a ‘totality of the circumstances’ test is employed. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (Punctuation and citations omitted.) Butler v. State, 192 Ga. App. 710, 712 (1) (386 SE2d 371) (1989).

The evidence in the present case supports the trial court’s finding that the search warrant was issued properly upon probable cause. Contrary to Johnson’s argument, the action of police in having the trusty phone the Johnsons to tell them that the law was on its way was not the sole factor in the issuance of the search warrant. Police already suspected the Johnsons of being involved in selling drugs. The call was merely a ruse used to see what the Johnsons would do. The Johnsons’ reaction to that call caused police to apply immediately for a search warrant in the wake of the events of the evening. However, that the call was a ruse does not invalidate the issuance of the search warrant. See Saylor v. State, 185 Ga. App. 634 (365 SE2d 493) (1988).

Decided November 14, 1990.

Fred R. Kopp, George L. Hoyt, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

2. Johnson argues the evidence was insufficient to show that he had actual or constructive possession of the firearms. We disagree. Smith v. State, 180 Ga. App. 657 (350 SE2d 302) (1986), relied upon by Johnson, is distinguishable from the present case. In Smith, the court found the evidence of possession insufficient because the only evidence presented was that Smith was the “head of the household.” However, here we have more. In his direct testimony, Johnson testified that some of the guns belonged to the store he owned and ran and had been taken as collateral in pawn transactions. This evidence is sufficient to show at least constructive possession of some of the firearms and to sustain a conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0907.
    JONES v. BIENERT.
    (398 SE2d 830)
   Pope, Judge.

Appellee H. J. Bienert, Jr., M.D., filed an action on account against appellant Tira Denise Jones for medical services rendered. Jones answered and raised a plea to jurisdiction and venue. She also counterclaimed pursuant to OCGA § 9-15-14 for litigation costs and attorney fees and alleged abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The trial court entered an order transferring the case pursuant to Uniform Superior Court Rule 19.1. However, before the costs were paid, Dr. Bienert voluntarily dismissed his action. Jones then moved the court to vacate its transfer order and to retain jurisdiction over the counterclaim. The trial court refused to do so and found that all claims were dismissed by operation of law because the costs had not been paid pursuant to Uniform Superior Court Rule 19.1. Jones appeals and argues this was error. Held:

We affirm in part and reverse in part. The trial court’s order transferring the case read: “Upon consideration of Plaintiff’s Motion to Transfer; after review of the pleadings, the Court finds that the defendant, Tina [sic] Denise Jones, is a resident of Henry County and pursuant to Uniform Superior Court Rule 19.1, said motion is GRANTED.” Uniform Superior Court Rule 19.1 (F) (applicable to state court as well) reads: “No action or proceeding may be transferred except upon the written order of the court in which the action pends (transferor court), reasonable notice of which shall be given to all parties. This order shall specify the court to which the matter is to be transferred (transferee court) and shall state that unless plaintiff pays all accrued court costs within 20 days of mailing or delivery of the cost bill to plaintiff, the action shall automatically stand dismissed without prejudice.” (Emphasis supplied.) Thus, although the order purported to effect the transfer immediately, by operation of Rule 19.1 (F) it could not be effected before payment of costs. The record shows that within four days of the entry of the order (and apparently before a bill of costs was prepared and certainly before 20 days had passed) Dr. Bienert voluntarily dismissed his action. Thus, Dr. Bienert’s voluntary dismissal preceded the effective date of the transfer and the provision relating to dismissal for failure to pay costs never applied. OCGA § 9-11-41 (a) then applied and the voluntary dismissal could only be allowed if Jones’ counterclaim could stand and be adjudicated independently.

We hold that Jones’ claim for abusive litigation was dismissed properly by the court, though for the wrong reason. Although Jones argues that her counterclaim contains claims independent of the one for abusive litigation, including intentional infliction of emotional distress, harassment, and tortious interference with property rights, we hold that the only other claim contained in her pleading is one for expenses of litigation and attorney fees pursuant to OCGA § 9-15-14. Each of the alleged independent claims relates solely to the filing of the suit against Jones. She alleges no facts in her counterclaim claim-ling damage as a result of anything other than the filing of the suit by Dr. Bienert.

OCGA § 51-7-84 (a), which became effective April 3, 1989, requires that one asserting a claim for abusive litigation must send a notice of the claim to the other party as a condition precedent to the claim. Jones’ counterclaim was filed after the effective date of this Code section and Jones sent no such notice of the claim. Thus, the dismissal of the claim for abusive litigation was proper. “A correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” Coker v. City of Atlanta, 186 Ga. 473 (1) (198 SE 74) (1938).

Decided November 14, 1990.

Donald B. Walker, for appellant.

Levy & Adams, D. Merrill Adams, Paul J. Gallo, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, for appellee.

However, no such bar exists regarding the claim for expenses of litigation and attorney fees allowed pursuant to OCGA § 9-15-14. The trial court erred in dismissing this aspect of Jones’ counterclaim. The transfer order never took effect and the trial court retains jurisdiction to hear and adjudicate the claim for expenses of litigation and attorney fees pursuant to OCGA § 9-15-14.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1102.
    LOWMAN et al. v. THE STATE.
    (398 SE2d 832)
   Pope, Judge.

Defendants Kenneth Lavoid Lowman, Gary Marvin Lowman, Craig Dewight Lowman and Stacy Marie Kearney Lowman were convicted by a jury of the offense of criminal damage to property in the first degree. Kenneth Lowman and Gary Lowman appeal from the denial of their motions for new trial. Held:

1. Defendants contend that the circumstantial evidence presented against them was insufficient to support their convictions of the offense of criminal damage to property in the first degree. “To warrant a conviction on circumstantial evidence, proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. In such cases it is not necessary that the circumstances remove every possibility of the defendant’s innocence.” (Citations omitted.) Huncke v. State, 137 Ga. App. 299, 301 (223 SE2d 492) (1976). Our review of the transcript shows the evidence presented here satisfied this standard and clearly authorized any rational trier of fact to find defendants guilty of the offense charged beyond a reasonable doubt. See, e.g., Crumley v. State, 185 Ga. App. 795 (1) (366 SE2d 171) (1988).

2. In their second enumeration of error defendants argue that the trial court erred in refusing to disqualify for cause those jurors who were members, or related to members within the prohibited degree, of the Okefenokee Rural Electric Membership Corporation, the “victim” whose property was damaged here. The State argues that any error in the trial court’s ruling was harmless because defendants failed to exercise all their peremptory challenges. “However, the Georgia Supreme Court abandoned the rule espoused by the State and held that a defendant’s ‘failure to exhaust his peremptory strikes before the twelfth juror was impaneled does not render the error (the trial court’s refusal to strike an unqualified juror) harmless.’ Harris v. State, 255 Ga. 464 (2) (339 SE2d 712) (1986). We therefore turn to the merits of [defendants’] enumeration. [Cit.]” Howard v. State, 191 Ga. App. 418, 419 (2) (382 SE2d 159) (1989). See also Bass v. State, 183 Ga. App. 349 (358 SE2d 837) (1987).

The provisions governing the organization of and membership in an electric membership corporation are codified at OCGA § 46-3-170 et seq. OCGA § 46-3-260 makes membership in the electric membership corporation mandatory for those who receive or have agreed to receive electric service from the corporation. Members of the corporation have the right to vote (OCGA § 46-3-266), to bring derivative actions (OCGA § 46-3-272), and to remove directors and certain officers and agents (OCGA §§ 46-3-295 and 46-3-302 (b), respectively). Although OCGA § 46-3-340 (a) provides that electric membership corporations are operated without profit to their members, subsection (c) of that provision mandates that the bylaws of the corporation “contain provisions, consistent with subsection (a) of this Code section, for accounting for, allocating, assigning and disposing of its revenues and assets and may establish classes of members for such purposes.” A mechanism is also provided for returning revenues upon the death of a member (OCGA § 46-3-341).

Based on factors such as the foregoing this court previously has determined that “the members of an electric membership corporation are in the same position as the stockholders of a corporation or the policyholders of a mutual insurance company as regards their right to share in the net earnings of the business.” Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561, 562-563 (278 SE2d 143) (1981). Thus the court in Thompson concluded that the “members of an electric membership corporation are disqualified from service as jurors in the trial of a case in which damages are sought from the corporation.” Id. at 563. The issue presented here is whether the holding in Thompson should be extended to the facts of this case so as to disqualify members of electric membership corporations from serving as jurors in criminal trials in which the corporation is the victim of the crime charged. We hold that it should. In reaching this conclusion we note first that the corporation here was not listed as the actual prosecutor so as to trigger automatically the provisions of OCGA § 15-12-163. “If the corporation had, in this case, been the actual prosecutor, there would be no difficulty at all in holding that neither its stockholders nor persons related to them as [within the prohibited degree] would have been competent to serve upon the jury. We do not think it makes any substantial difference that the corporation was not the formal prosecutor. It was the person injured, and therefore occupies, practically, the position of a party at interest.” McElhannon v. State, 99 Ga. 672, 680-681 (26 SE 501) (1896). See also Gossett v. State, 201 Ga. 809 (41 SE2d 308) (1947). Based on the foregoing we agree with defendants that jurors who were members of the membership corporation should have been disqualified, and the trial court thus erred in denying defendants’ motions for new trial.

Decided November 14, 1990.

Earl Daniel Smith, Jr., for appellants.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1130.
    GILL v. THE STATE.
    (398 SE2d 833)
   Sognier, Judge.

Donald Warren Gill was indicted for theft by shoplifting of a cellular phone. He was convicted of theft by taking in a bench trial, and he filed this appeal.

1. Appellant contends the evidence was insufficient to authorize the conviction for theft by taking. The evidence adduced at trial established that in September 1988, appellant telephoned Larry Hill, a principal in Radio Systems, Inc., concerning the purchase of a cellular telephone. Hill, who acknowledged that he was acquainted with appellant through the communications industry and had sold equipment to appellant on a few prior occasions, testified that after he and appellant agreed on price and model, he arranged for appellant to pick up the telephone at the company’s Riverdale office provided appellant paid for the merchandise in full by cash or check at the time he received the phone. After appellant obtained the telephone on September 30, 1988, Hill learned from Bobbie Edmonds, an employee at the Riverdale office, that appellant had informed her that Hill had agreed appellant could take the equipment with him and pay at a later date. Hill testified that he had not made such an agreement with appellant, that appellant had never paid for the telephone, and that Hill was aware the telephone had been activated for use. On cross-examination, Hill acknowledged that appellant had been sent written invoices for the phone on September 30, 1988, January 13, 1989, March 14, 1989, and June 14, 1989, the last billing date apparently being after another Radio Systems official swore out the warrant for appellant’s arrest. Additional evidence was adduced that during the same time period appellant was invoiced for additional items purchased July 17, 1988 on account.

Appellant testified that he had explained to Hill initially that the telephone was to be procured for a friend of appellant who wanted to inspect it before paying, that he never agreed to pay in full when he picked up the phone, and that he called Hill from the Riverdale office and had him explain the credit arrangement to Edmonds. He stated that after this call, Edmonds gave him the phone and invoice no. 801144, which indicated that the phone had been “picked up from Riverdale,” listed the “account no.” as “30106,” and described the terms as “ten days.” Appellant admitted having sold the phone.

In her trial testimony, Bobbie Edmonds confirmed that appellant told her he had arranged to pay for the telephone at a later time, but neither she nor Hill recalled appellant making a call to Hill from the Riverdale office. On rebuttal, Hill testified that he had once agreed to allow appellant to take a telephone out on approval, but that transaction had no connection with the equipment appellant received on the date in question. Additional evidence was adduced that appellant had tendered payment to Radio Systems at some point prior to the trial, but payment had been refused.

The indictment charged that appellant, “with intent of appropriating said merchandise to his own use, without paying for same, did take possession of a certain cellular phone . . . [which was the] property of Radio Systems, Inc.” The trial judge found appellant guilty of theft by taking in violation of OCGA § 16-8-2, which provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property.” Appellant contends the evidence demands a finding that title of the phone was conveyed to him, and accordingly he cannot be convicted of unlawfully appropriating the “property of another.”

We agree and reverse. “ ‘ “[I]f one, meaning to steal another’s goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.” [Cit.]’ ” Stull v. State, 230 Ga. 99, 103 (196 SE2d 7) (1973). Here, as in Elliott v. State, 149 Ga. App. 579 (254 SE2d 900) (1979), the evidence shows that appellant , obtained the telephone upon offering to pay in the future for goods to be delivered in the present. Although appellant and Hill gave conflicting testimony on the question whether appellant was to tender payment at the time of purchase, the undisputed facts show that appellant was allowed to take the phone from the Riverdale office with only an invoice indicating that payment was due in ten days, and that he was subsequently billed for this and another purchase made on account. “Thus, there was a completed ‘sale’ of the goods in question, and the appellant had not only rightful possession of the [phone], but title to [it] as well. The sole ‘interest’ that [Radio Systems] had in the goods was a right to future payment pursuant to the sales contract. It is thus clear that the property did not belong to ‘another’ and the appellant cannot be charged under [OCGA § 16-8-2] with theft of property to which he has not only ‘rightful possession,’ but also title. . . .” Id. at 581.

Nonetheless, as the Elliott and Stull courts recognized, one who fraudulently obtains title to another’s goods may be convicted of theft by deception under OCGA § 16-8-3 if the transaction amounts to an “indictable cheat.” The definition of deception applicable here is “intentionally . . . creating] or confirm[ing] another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false.” OCGA § 16-8-3 (b) (1). Construed to uphold the verdict, Hill’s testimony suggested that appellant may have misled Edmonds with regard to the agreement between Hill and appellant. However, that testimony is refuted by the issuance of the invoice, which referenced appellant’s account number and stated the credit terms of the purchase, and by the subsequent invoices sent to appellant seeking payment for the merchandise. Further, even if appellant did misrepresent his agreement with Hill, the representation upon which he received the phone was his promise to pay on account, which pertained to the future and cannot be the basis for a conviction for theft by deception. See Elliott, supra at 581. Thus, we cannot say that the State proved intentional misrepresentation of an existing fact beyond a reasonable doubt, and we are constrained to hold that the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) was not met here. See Elliott, supra.

2. We need not address appellant’s enumeration concerning a fatal variance between the allegata and the probata.

Judgment reversed.

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

Decided November 14, 1990.

Thomas L. Washburn III, for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.


text:
    A90A1289.
    VAUGHN v. THE STATE.
    (398 SE2d 836)
   Pope, Judge.

Defendant Tommy Vaughn was convicted of obstruction of an officer (misdemeanor). On appeal, his sole enumeration of error is that the evidence was insufficient. Held:

We affirm. On appeal, the evidence is viewed in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988). The record shows that police were called about a domestic disturbance at the home of Vaughn and his wife Judy. The caller told the police dispatcher that the man had a knife and was drunk. Before officers could get to the house, the police dispatcher received a second call asking police to cancel the call for help. The police decided to stop at the house and make sure everything was all right. Lt. Storey of the Whitfield Sheriff’s Department arrived at Vaughn’s house and was backed up by Officer Wilcoxen. Lt. Storey knocked on the door and was invited in by Judy Vaughn. He asked if there was a problem. Judy Vaughn told him everything was okay and Tommy Vaughn told him that the guy causing the problem had left. Judy Vaughn then attempted to tell Lt. Storey “what really happened” and Tommy Vaughn began to shout and curse the officer. Lt. Storey asked Vaughn several times to be quiet so he could hear Judy Vaughn. Vaughn refused and continued to shout and curse so loudly that Lt. Storey could not hear. He then advised Vaughn that he was under arrest for disorderly conduct pursuant to county ordinance. When Lt. Storey tried to place Vaughn under arrest, Vaughn violently resisted and it took both officers several minutes to subdue him.

Vaughn argues that the evidence supporting the conviction is insufficient because the State failed to prove the county ordinance which Lt. Storey told Vaughn authorized his arrest for disorderly conduct. Consequently Vaughn contends the State cannot show that the officer was in the lawful discharge of his official duties at the time of his arrest. We note that Vaughn apparently was not charged with disorderly conduct. Nonetheless, we agree with the State that Lt. Storey was in the lawful discharge of his duties in trying to investigate the complaint of domestic violence and to ensure that everything was all right at the house and that Vaughn knowingly and wilfully hindered that effort by shouting and cursing so that the officer could not hear what Judy Vaughn was saying. Thus, the offense of obstructing an officer was complete at that time and the officer was authorized to make the warrantless arrest. See Patterson v. State, 191 Ga. App. 359 (1) (381 SE2d 754) (1989).

Decided November 14, 1990.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

The present case is distinguishable from Smith v. State, 84 Ga. App. 79 (65 SE2d 709) (1951), cited by Vaughn. In Smith, police were summoned to Smith’s residence by his daughter who told them he was drunk. When the officer arrived and inquired about the problem, Smith’s- wife told him her husband had arrived home drunk and “jumped on her” and that she wanted him in jail. During this, Smith merely stood in his door. The officer then attempted to arrest him for public drunkenness, disorderly conduct and resisting an officer. The court in Smith found the evidence insufficient to support a conviction of assault and battery and held that the initial arrest was unlawful and that Smith was justified in resisting it. Vaughn cites Smith for the proposition that the State must plead and prove a crime committed pursuant to county ordinance. However, as the State points out, it is irrelevant in the present case that the officer on the scene said he was arresting Vaughn for disorderly conduct when, in fact, Vaughn’s actions constituted obstruction of an officer. This is the distinguishing factor from Smith, supra. In Smith, the court analyzed the facts and found that no state offense had been committed and no local offense had been proved.

Vaughn, having committed the offense of obstruction of an officer in the officer’s presence, was subject to warrantless arrest. Waits v. State, 172 Ga. App. 524 (1) (323 SE2d 624) (1984). Vaughn’s actions in resisting arrest also constituted obstruction of an officer. The evidence was sufficient to enable a rational trier of fact to find Vaughn guilty beyond a reasonable doubt.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A90A1360.
    HAYES v. MEDICAL DEPARTMENT OF DeKALB COUNTY JAIL et al.
    (398 SE2d 837)
   Cooper, Judge.

Appellant files this pro se appeal from an order of the trial court denying appellant’s motion to amend the complaint and dismissing appellant’s case with prejudice.

The underlying facts of this case involve incidents which occurred in April and May 1988 while appellant was incarcerated at the DeKalb County Jail. Appellant filed his complaint alleging that he was given another inmate’s thorazine medication by mistake. The other inmate, who had the same last name as appellant, had been previously transferred from the cell then occupied by appellant. Appellant alleges that he entered a guilty plea on a kidnapping charge while under the influence of the mistaken medication and consequently could not adequately defend the charges against him. Appellant became aware of the mistake on April 29, 1988, at which point appellant had been taking the thorazine for two or three weeks. On May 3, 1988, appellant prepared two affidavits, one of several inmates who witnessed appellant being given the wrong medication, and one of appellant himself reciting the facts involved. Around the same time, appellant filed a grievance with the jail authorities, and soon thereafter attempted to obtain a new trial of his criminal case. This civil tort case for negligence was filed on October 12, 1989, against “Medical Department” and “unknown John or Mary Doe.” After these defendants answered, claiming that the named defendants were neither a legal entity nor persons capable of being sued, appellant then filed a motion to amend the complaint to add real party defendants, including individuals employed by the county in their official capacity. The trial court ruled appellant’s amendment to be time barred and void because the complaint itself was time barred due to appellant’s failure to file the complaint within 12 months of the accrual of the claim as required by OCGA § 36-11-1. The court denied appellant’s motion and dismissed the case with prejudice because appellant failed to appear when the case was called for trial.

1. We first grant appellees’ motion to file an out-of-time brief. The brief filed by appellant does not reflect a Certificate of Service to appellees, and consequently we will consider their brief on this appeal.

2. OCGA § 36-11-1 provides that all claims against counties must be presented within 12 months after the claims accrue or become payable or else they are barred. Appellant’s first enumeration asserts that this statute of limitation was tolled because the jail officials promised some future relief in response to the grievance filed by appellant, which relief was never forthcoming. The response to the grievance form, which is in the record, states that appellant’s complaint was “previously granted” and specifies the relief that was in fact granted. Appellant’s argument provides no basis for tolling of the limitation period. Appellant then argued that the discovery rule as set forth in King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981), provides an exception to the court’s decision. “A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” Id. at 320. The record reveals that appellant was aware of any injury that may have occurred and whose conduct was involved by early May 1988. Thus, this is when the claim accrued and appellant had 12 months from this time to file his civil suit. Since the suit was in fact filed months late, the court did not err in its decision that the suit and the amendment were therefore time barred.

3. Appellant next alleges that he suffered a continuing tort which tolled the limitation period. Even if appellant’s allegation that a continuing tort occurred is true, “the statute of limitation . . . commence [s] to run under these circumstances . . . [when] the continued tortious act producing injury is eliminated. . . .” Everhart v. Rich’s Inc., 229 Ga. 798, 802 (2) (194 SE2d 425) (1972). The record is clear that the mistaken medication ceased to be administered to appellant at the end of April 1988. The claim is thus time barred.

4. Appellant’s next enumeration that the court erred in failing to weigh the evidence in a light favorable to the appellant is without merit. Appellant fails to discuss this contention at all, but instead supports this enumeration with constitutional arguments that are raised for the first time on appeal. The court, in its order, correctly discussed the facts and the law involved in this case, and we find no error in its decision. As to the constitutional arguments of appellant, “ ‘ “(a)n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” ’ ” Fulton County v. Collum Properties, 193 Ga. App. 774, 777 (2) (388 SE2d 916) (1989). Therefore, these issues are not properly before this court for review. Id.

5. In the fourth enumeration, appellant argues that the limitation period should be tolled because the mistake diminished his mental capacity such that he was not capable of bringing suit within the required time period. Based on appellant’s activities shortly after discovering the mistake, such as preparing and obtaining affidavits and attempting to obtain a new trial in his criminal case, we conclude that appellant’s mental capacity did not prevent him from filing a civil action within the limitation period.

6. Appellant’s assertion that the appellees committed fraud by leading him to believe that future relief was forthcoming in response to his filed grievance is without merit. As stated above, the response to appellant’s grievance stated what relief was previously granted and there is no hint of evidence in the record of any fraud committed by appellees.

Decided November 14, 1990.

Joe Hayes, pro se.

Johnson & Montgomery, Albert S. Johnson, Harry W. MacDougald, for appellees.

7. Appellant finally argues that the court erred by not applying the lenient standards applicable to pro se litigants. Appellant cites no authority for the proposition that exceptions to the statute of limitation exist for pro se litigants. Appellant missed the filing deadline by several months. The court did not err in denying the motion to amend and in dismissing the complaint.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.