text:
    A95A0614.
    OCONEE REGIONAL MEDICAL CENTER et al. v. HAYGOOD et al.
    (458 SE2d 400)
   Beasley, Chief Judge.

Michael Haygood, age two, fell into the Jorises’ swimming pool. Michael’s grandparents, the Whatleys, were neighbors of the Jorises and were caring for Michael at the time. He died ten days later.

Kevin Haygood, in both his capacity as Michael’s father and as the administrator of Michael’s estate, and Martha Haygood, Michael’s mother, settled with the Whatleys and their insurer for $25,000 without suit. The proceeds were allocated $1,000 to the estate, which the probate court approved, and $24,000 to Michael’s survivors. The release document stated that the Whatleys and their insurer were released from any further liability and that the settlement was in compromise of a disputed claim.

After the Whatley settlement, the Haygoods sued the Jorises, for negligently failing to secure entry to their pool, and Oconee, for negligently failing to respond by ambulance in a timely manner. Oconee and the Jorises moved for summary judgment, which was denied. Oconee’s application for interlocutory review was granted; the Jorises have not sought appeal.

Oconee contends the release document between the Haygoods, the Whatleys, and the Whatleys’ insurer operates to relieve it of liability. According to Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) (1987), the release of one joint tortfeasor does not discharge others from liability for the same harm. In clarifying the rule set forth in Posey, the Supreme Court stated, “[o]nly those parties named in the release will be discharged by that instrument.” (Footnote omitted.) Lackey v. McDowell, 262 Ga. 185, 186 (415 SE2d 902) (1992). The only parties named in the release are the Haygoods, the Whatleys, and the insurer.

Oconee contends that this principle does not resolve the question, however, pointing to language in the release that the $25,000 “constitutes a full satisfaction and acceptance of full compensation for all of Michael Dallas Haygood’s injuries and damages . . . including the full value of [his] life.” It argues that this language shows the Haygoods have received full satisfaction for the injuries and to allow any further recovery would result in multiple satisfactions. In setting forth the Posey rule, the Supreme Court specifically stated, “[w]e adhere to the principle that plaintiff is entitled to but one satisfaction.” Posey, supra at 59.

Posey relied heavily upon Williams v. Physicians &c. Hosp., 249 Ga. 588 (292 SE2d 705) (1982), for its reasoning. In Williams, the Court examined the release document to determine whether it was intended to have any effect on a successive tortfeasor. As the Whatleys, Jorises, and Oconee are alleged to be successive tortfeasors, Williams applies.

“ ‘[A] plaintiff should never be compelled to surrender his cause of action against any wrongdoer unless he has intentionally done so, or unless he had received such full compensation that he is no longer entitled to maintain it.’ ” Id. at 589. Although Oconee argues that the release demonstrates that the Haygoods have received full satisfaction and should be precluded from maintaining any further action, the inclusion of satisfaction language in the release does not necessarily demonstrate that such was the true intent of the parties, nor does it, by itself, indicate that full satisfaction has been received. “[C]ourts should look to the real intention of the parties to a general release rather than relying on an artificial conclusive presumption of law based on general, boilerplate language contained in the release. [Cit.]” Id. at 590. When a stranger to a release claims coverage under it, an explanation of the intent of the parties to the release must be sought. Id.

“ ‘ “The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of (the instrument) together, and to consider this with the surrounding circumstances.” [Cits.]’ [Cit.] ‘[W]hether the plaintiff has received full satisfaction and whether the parties intended the result of their negotiations to be a complete freedom from further liability for all the [defendants], should be paramount in determining the effect of any agreement purported to operate as a release and should be inquired into whenever the problem arises in a case.’ [Cit.]” Crim v. Jones, 204 Ga. App. 289, 290-291 (419 SE2d 130) (1992).

The release shows no indication the parties intended the $25,000 paid to be considered full compensation and satisfaction for Michael’s life as to other tortfeasors, nor to produce “a complete freedom from further liability” for Oconee. The document is styled “RELEASE OF ALL CLAIMS AND INDEMNIFICATION AGREEMENT”; but it is only between the Haygoods ánd the Whatleys and their insurers. There is no mention of satisfaction in the title of the instrument, and the body refers to satisfaction only insofar as the named parties are concerned. The release does not name any person or entity other than the Whatleys and their insurer. The text consistently refers to the document as a “release,” states it is in compromise of a claim, and addresses its binding effect on the parties.

The portion of the release upon which Oconee focuses reads: “The undersigned further represent to the persons, firms, and corporations hereby released that the acceptance of said payment constitutes a full satisfaction and acceptance of full compensation for all of Michael Dallas Haygood’s injuries and damages arising out of or related to the aforesaid occurrence or accident including the full value of the life of Michael Dallas Haygood and any and all claims which could be brought against Gene and Lynda Whatley and [their insurer] and its affiliates.” The passage itself states it is a representation made from one party to another. It is written in the context of a release agreement between those parties and there is no suggestion that it is intended to be extended to any party not named.

The circumstances surrounding the release also show it was not intended to give the effect Oconee urges. The release was not an agreement between strangers; the Whatleys were Michael’s grandparents. It can be inferred that the low amount of $25,000 for the child’s life and injuries was accepted not because it represented the full value the Haygoods would place on Michael’s life, but for other reasons such as to protect the integrity of the family relationship. It is a significant fact that $25,000 was the limit of the Whatleys’ insurance policy. These considerations would support a finding that the $25,000 figure was agreed upon not as an attempt to gain a full satisfaction for the life and injuries, but only a full satisfaction from the grandparents and their insurer with respect to their liability. We cannot conclude as a matter of law that this was accepted as anything more than the contribution from Michael’s grandparents practically available to be applied to an ultimate satisfaction.

Additionally, the probate court did not appear to consider the $1,000 portion of the settlement assigned to the estate to be a full satisfaction of the estate’s claim. Its order allows Kevin Haygood to execute releases and settle claims specifically as to the Whatleys and their insurer. There is no mention of other parties and no suggestion that the court considered the sum to be a full satisfaction.

There is no evidence Michael was not a healthy two-year-old with a normal life expectancy. It is inferable from this alone that the parties to the release agreement did not intend it to be a “satisfaction” document as to the rest of the world. It is a reasonable inference that the parties would put a greater value on the child’s life than the $25,000 recited in the document as “full value.”

Finally, Oconee does not suggest that the $25,000 would, as a factual matter, be a reasonable value to place on Michael’s life. Its only argument for the proposition that the parties intended the sum to be full satisfaction is the inclusion of the language in the document. The argument does not address the issue of the true intent of the parties.

Decided June 14, 1995

Jones, Cork & Miller, C. Ashley Royal, W. Kerry Howell, for appellants.

Thomas J. O’Donnell, for appellees.

There is ample evidence that the parties intended the document to provide simply a settlement between the parties and protection to the Whatleys and their insurer from further liability. Neither the language concerning satisfaction and full compensation alone, nor the language and the circumstances, establish a bar to recovery from any other party, as a matter of law, and the court did not err in denying Oconee’s motion for summary judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A0773.
    FULP v. THE STATE.
    (458 SE2d 395)
   Beasley, Chief Judge.

Fulp appeals a December 1, 1994, order of the Superior Court of Berrien County granting the State’s “Motion to Set Aside Order of Revocation,” denying defendant’s “Motion and Plea of Former Jeopardy,” and reinstating instanter the original terms and conditions of Fulp’s sentence entered by that court on September 15, 1992. An application for discretionary appeal was also filed but was dismissed because the ruling is directly appealable. OCGA § 5-6-35 (a) (5) addresses appeals from orders revoking probation. Fulp correctly contends the court lacked jurisdiction to enter the order and it subjected Fulp to double jeopardy because it incurred punishment after he served his sentence under the court’s order of revocation.

A chronology sets the stage. After trial by jury, Fulp was sentenced by the Superior Court of Berrien County on two counts of failure to pay for natural products or chattels, OCGA § 16-9-58 (Case Nos. 92-287, 92-288). The sentence in Case No. 92-287 was five years probation and $13,539.60 restitution and in Case No. 92-288, five years probation to be served consecutively and $15,725.60 restitution. Fulp was to remain at a diversion center until all monies were paid in full.

The following March, Fulp pleaded guilty in the Superior Court of Cook County to various offenses indicted during the January 1993 term: failure to pay for natural products between February 1, 1990, and December 31, 1990 (sentence: five years to serve, Case No. 92F-332); felony bad check, OCGA § 16-9-20, on November 14, 1990 and May 15, 1992 (sentence: three years to serve on each count, Case Nos. 93F-45, 92F-335); and theft by taking, OCGA § 16-8-2, between February 1, 1992 and July 28, 1992 (sentence: five years to serve, Case No. 92F-303).

On April 16, 1993, the Berrien court revoked Fulp’s probation based upon the later Cook County pleas. The order, which bore both Berrien case numbers at the top, expressly stated that the factual basis for the revocation was the stipulation by Fulp and his counsel that Fulp’s actions in Cook County violated his original sentence in Berrien Case Nos. 92-287 and 92-288. The order directed that “the probation of [Fulp] be revoked in its entirety and that [t]he defendant shall serve the next five (5) years at such place as the Department of Corrections may direct.” It further ordered that all restitution previously collected be immediately dispersed to the victims. Fulp went to prison.

After Fulp was paroled, the Berrien court held a hearing on August 11, 1994, regarding the revocation order. The State argued that the statement in the order that Fulp was to serve the next five years was a “typographical error” inasmuch as two consecutive five-year sentences, i.e., ten years, had been originally imposed. Fulp’s counsel maintained that there had been an agreement with the State that Fulp’s probation would be revoked in its entirety, that Fulp would serve five years on the Berrien charges concurrently with his Cook sentences, and that he would no longer be obligated under the original terms of the Berrien probated sentences. The court agreed with the State and ruled that Fulp was still obligated on the second five-year Berrien sentence (Case No. 92-288). On October 10 it amended the revocation order of April 16, 1993, to reflect the intent to revoke Fulp’s probation only in Case No. 92-287.

Shortly thereafter the State filed the motion to set aside the April 16 order of revocation and reinstate the original sentences of September 15, 1992, because the Cook convictions upon which the revocation was based were for violations which had occurred before the sentences of probation were imposed. In the motion, the State took a position inconsistent with its earlier one that the order of revocation was entered as to both Berrien cases. Fulp filed a “Motion and Plea of Former Jeopardy,” asking that the State’s motion be dismissed and arguing that any attempt to further punish him under the Berrien cases would constitute double jeopardy under the federal constitution. On December 1, 1994, the Berrien court set aside the order of revocation and reinstated the original terms and conditions of Fulp’s “sentence of September 15, 1992.” The validity of that order is the question before us.

The original April 16, 1993, order revoking Fulp’s probation plainly was meant to apply to both Berrien charges for which he had received probated sentences. The order repeatedly mentioned both case numbers and stated unequivocally that Fulp’s probation was revoked in its entirety. It further directed that all restitution that had been collected “in these cases” be dispersed.

Decided June 14, 1995.

Barham & Dover, J. Carol Sherwood, Jr., for appellant.

Robert B. Ellis, Jr., District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

The fact that the order also stated Fulp was to serve five years rather than ten did not render it ambiguous or as a matter of law require the finding that Fulp’s probation in one of the cases remained in place or was to be reinstated upon his release. OCGA § 42-8-38 (c) authorizes the court, if probation is revoked, to “order the execution of the sentence originally imposed or of any portion thereof.” It can change or modify the terms of the original sentence so long as it does not increase it. See Howell v. State, 160 Ga. App. 562, 563 (1) (287 SE2d 573) (1981), applying former Code Ann. §§ 27-2713 and 27-2502.

Even if the statement of a five-year term is regarded as ambiguous, “ ‘[sentences for criminal offenses should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.’ (Citations and punctuation omitted.) [Cit.]” Hulen v. State, 207 Ga. App. 465 (1) (428 SE2d 405) (1993).

The trial court’s attempt, one-and-one-half years after the revocation and after Fulp had served in prison and was on parole, to then interpret or modify the revocation order so as to obligate Fulp on the second probated sentence, was a nullity. So, too, was the court’s grant of the State’s motion to set aside the revocation. Even if the basis for the revocation was invalid, i.e., violations of law which occurred prior to the imposition of the probated sentences which could not be violations of probation, the revocation itself could not be set aside because its terms had already been carried out. Fulp served his time and was not subject to further punishment under the original Berrien probated sentences. “[T]he sentencing court may not increase a sentence once the defendant begins serving it without violating the prohibition against double jeopardy in both the Georgia and Federal constitutions. [Cits.]” Harris v. State, 261 Ga. 859, 860 (2) (413 SE2d 439) (1992).

Judgment reversed.

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


text:
    A95A0820.
    HIXSON v. THE STATE.
    (458 SE2d 402)
   Beasley, Chief Judge.

An indictment was returned against Hixson charging him with sale of cocaine in Troup County in April 1993, in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30.

Twelve days before trial, the State filed notice of intent to seek a life sentence as provided in OCGA § 16-13-30 (d), based on Hixson’s conviction of a February 1991 sale of cocaine in the same county. Six days before trial, the State filed notice of intent to present evidence of the earlier sale as a similar transaction. At the hearing on the latter, the court deferred ruling until submission of briefs.

The State sought to introduce evidence of the prior crime through the testimony of a sheriffs department investigator for the purpose of showing that defendant had a “propensity” to sell cocaine and had done so. After the court expressed some reservation of that as a legitimate purpose, the State changed the purpose to “motive, identity, and course of conduct.” Defendant argued that the evidence was not justified for these purposes.

When the trial commenced, defense counsel asked for a continuance if the court elected to allow the State to present evidence of the prior crime. Concluding that the State had made the three affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991), and that the probative value of the evidence outweighed its prejudicial impact, the court ruled that the evidence was admissible. The motion for a continuance was denied on the ground that Hixson failed to show a need.

The investigator testified that on February 7, 1991, he was making undercover buys in a drug-populated area in LaGrange. About an hour before dark, he and a confidential informant went to a house in which people were smoking crack cocaine. After being informed he could purchase cocaine from Hixson, the investigator met him behind the house and told him what he wanted. Hixson opened his hand, displayed several rocks of crack cocaine, and told the investigator to pick one. The investigator took one and gave Hixson $20.

As to the incident on trial, a female undercover drug agent testified that on the night of April 23, 1993, she and a confidential informant went into an area known for drug dealing in the Benjamin Harvey Hill projects in LaGrange. They were outside an apartment when Hixson approached them and asked what they were doing. The agent said, “We’re out partying and looking for a ten.” Hixson said, “Wait right here; I’ll be right back.” He went around the building, returned in about a minute, and handed, the agent a little baggie of cocaine. In return, she handed him $10.

The confidential informant told the agent that the name of the individual who had sold the cocaine to her was Scottie Hixson. The agent wrote a report identifying Hixson as being 5'9" tall, weighing approximately 210 pounds, having black hair, brown eyes, and a rather large build. Approximately ten to fifteen minutes after the sale, she returned to the stationhouse and readily corroborated her identification of Hixson when a narcotics investigator showed a photograph (mugshot) of him to her. She was shown this photograph at tried, and she testified that there was no doubt in her mind that the person in the photograph was the same person who sold the cocaine. She identified Hixson, seated in court, as that person.

Hixson testified he had never met the undercover agent and at the time in question was at his girl friend’s house. His testimony was supported by that of his girl friend and other alibi witnesses.

The court charged the jury that “the law provides that evidence of another offense or transaction of the defendant that might be similar in terms of common design, scheme, plan, course of conduct, or other factors connected to the offense for which the defendant is on trial may be admissible and may be considered by you for the limited purpose of showing identity, if in fact it does show, the identity of the defendant as the perpetrator of this crime or his state of mind or intent in connection with the crime charged in the case now on trial. Such evidence, if any, may be considered by you only for that purpose and no other purpose. The defendant is on trial only for the particular offense set forth in the bill of indictment, which you will have out with you. ... If you believe that he has committed a prior offense, however, you are strictly limited in your consideration of such evidence to the extent that it might show identity or state of mind in connection with the offense set forth in this indictment.”

1. Hixson contends that the court erred in allowing the State to introduce evidence of his prior conviction and in charging the jury as to the permissible purposes for which the similar transaction could be considered. He concedes that he is the defendant in the prior case but not that it is sufficiently similar to be admissible for a legitimate purpose. It is clear that similarity was established.

As to the prerequisite of legitimate purpose, defendant’s contentions are controlled adversely to him by Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (1993). A majority of this court held that in Evans’ trial for selling crack cocaine, the court did not err in admitting: (1) his prior guilty plea to a charge of selling cocaine to corroborate the identification of him as the seller, and (2) testimony by an eyewitness to a previous attempt to sell (which resulted in a plea of guilty to a charge of possession) to establish his guilty knowledge.

2. Hixson contends that the court erred in failing to grant a continuance of the trial to conform to Uniform Superior Court Rule 31.1.

“ ‘Although Rule 31.1 requires the [State’s] notice [of its intent to present evidence of similar transactions or occurrences] to be filed at least 10 days before the trial, it authorizes the exercise of a trial court’s discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. (Cit.)’ [Cits.]” McFarren v. State, 210 Ga. App. 889, 891 (2) (437 SE2d 869) (1993). Hixson has not shown that the trial court abused its discretion in finding that the six days’ notice provided to him was sufficient.

3. Hixson contends that the court erred in denying his motion to suppress his in-court identification by the undercover agent.

The argument is that the undercover agent was a citizen volunteer without any prior law enforcement training, and that her identification of him through the display to her of a single photograph was impermissibly suggestive and tainted both her pretrial and in-court identification. In denying Hixson’s motion to suppress, the trial court ruled that the display of the single photograph to aid the undercover agent in identifying Hixson did not, under the totality of the circumstances, result in a very substantial likelihood of misidentification.

“ ‘(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ [Cits.]” Talley v. State, 137 Ga. App. 548, 551 (2) (224 SE2d 455) (1976).

Although the display was impermissibly suggestive, misidentification was not likely because the witness had ample opportunity to view the criminal at the time of the crime, her degree of attention was focused upon him because she knew that her entire purpose in the transaction was to identify the seller of the drugs, she gave a detailed and apparently accurate description of him after the sale, she readily corroborated her identification of him when shown the photograph approximately ten to fifteen minutes after the sale, and she positively identified him at trial. See Bradley v. State, 152 Ga. App. 902, 903 (264 SE2d 332) (1980).

4. Hixson contends that the court erred in admitting his mugshot in evidence, because it reinforced and compounded the prejudice resulting from the similar transaction evidence.

Given our holding in Division 1, that the admission of the similar transaction evidence was not error, error in admission of the mugshot did not exacerbate earlier prejudice. Nor did it create prejudice. See Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987); cf. Holloway v. State, 190 Ga. App. 528, 529 (2) (379 SE2d 542) (1989). Although it showed a date in June several months after the February 1991 incident, rather than being innocuously indicative of having been taken in connection with the incident on trial, the jury already knew of the 1991 incident.

Decided June 14, 1995.

Wesley T. Leonard, for appellant.

Peter J. Skandalakis, District Attorney, David• S. McLaughlin, Monique F. Kirby, Assistant District Attorneys, for appellee.

5. Hixson challenges the sufficiency of the evidence based on his contention that the undercover agent’s identification testimony should have been suppressed.

Having found that contention without merit in Division 3, this contention fails as well.

6. Hixson contends that the mandatory life sentence for the sale of one-tenth of one gram of cocaine for $10 constitutes cruel and unusual punishment and denies him equal protection of the laws and due process of law under the federal constitution. Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988), ruled otherwise.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A0016.
    ALLENBRAND v. THE STATE.
    (458 SE2d 382)
   Smith, Judge.

Ray Allenbrand was charged by accusation with driving under the influence of alcohol, OCGA § 40-6-391, failure to maintain lane, OCGA § 40-6-48, and no proof of insurance, OCGA § 40-6-10. A jury convicted Allenbrand on the charge of driving under the influence. His motion for new trial was denied and he appeals.

1. Allenbrand first asserts the trial court erred in denying his motion to suppress, contending the stop of his vehicle was pretextual and made without probable cause or reasonable suspicion. “When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Barrett v. State, 212 Ga. App. 745, 746 (443 SE2d 285) (1994).

Construed in favor of the trial court’s ruling, the evidence shows the arresting officer was on patrol in eastern Cobb County when he observed a vehicle in front of him “weaving within its lane of travel and going onto the center line. He was in the outside lane, and he was weaving onto the center line and then jerking back into its lane of travel.” The vehicle did this “on several occasions.” When the vehicle’s left tires actually crossed into the adjoining lane, the officer pulled the vehicle over.

“In determining when an investigatory stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose. We have no hesitation in concluding that a reasonable officer would have stopped defendant after observing him weave [several] times on the . . . highway. The trial court did not err in denying the motion to suppress on the ground that the stop was unreasonably pretextual.” (Citations and punctuation omitted.) Guerrero v. State, 198 Ga. App. 397 (1) (401 SE2d 749) (1991).

Allenbrand insists his acquittal on the failure to maintain lane charge invalidates the stop. At trial, Allenbrand’s counsel provided a copy of OCGA § 40-6-48 to the arresting officer, then elicited testimony from the officer that “according to what he just read,” Allen-brand did not violate OCGA § 40-6-48, because he did not pose a danger to other traffic at the time his left tires crossed into the other lane. However, the officer’s opinion at trial is irrelevant here. Whether a citation is issued is “of no consequence” in determining the officer’s probable cause to stop the vehicle. Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994). Allenbrand’s eventual acquittal on the charge of failure to maintain lane is equally irrelevant in considering whether the officer had probable cause to stop Allenbrand at the time he observed his vehicle weaving within his lane and eventually crossing the line. Allenbrand’s explanation at trial that his vehicle was weaving because the tires and steering were defective is also of no consequence in determining probable cause. The trial court did not err in denying Allenbrand’s motion to suppress on this ground.

2. Allenbrand, relying on State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994), contends the trial court improperly admitted evidence of his refusal to submit to a State administered breath test. The trial court in a well-reasoned order correctly rejected this contention. Unlike Leviner, Allenbrand did not tell the officer he did not understand the implied consent warnings, and presented no evidence at trial that he did not understand them. Instead, he immediately told the officer that “attorneys in the past had advised him never to take the breath test.” As the trial court observed in its order, “[b]y following this advice of counsel in refusing to take the State’s breath test . . . [Allenbrand] knowingly, and understanding^, waived his rights under the Implied Consent laws, and admitting his refusal to take the State’s test was proper.” By his own statement, Allenbrand demonstrated he was not deprived of an opportunity to make an informed choice; he had already made his choice based on the advice of counsel.

Decided May 31, 1995

Reconsideration dismissed June 19, 1995.

James H. Carter, Jr., for appellant.

Benjamin F. Smith, Jr., Solicitor, Cindi Yeager, Barry E. Mor gan, Assistant Solicitors, for appellee.

3. Allenbrand’s reliance on State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995), is similarly misplaced. While he contends the trial court erred in admitting evidence of his refusal to take the breath test because as an out-of-state resident he was misinformed on the consequences of refusal, Allenbrand was not “deprived of making an informed choice,” 216 Ga. App. at 599. He did not refuse the test because he was misinformed, but because he was following the previous advice of counsel.

4. Finally, Allenbrand attempts to rely on this court’s recent ruling in State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994), because the warning given to him did not fully advise him of his right to an independent test pursuant to OCGA § 40-6-392 (a) (4). Assuming without deciding that this issue would not be controlled by Allen-brand’s refusal of the breath test on advice of counsel, he has failed to preserve it for appeal. On page 16 of a 23-page omnibus document containing 11 pleadings and filed three months before trial, Allen-brand arguably asserted that the officer failed to advise him of his right to an independent test. This argument, however, was not made at the hearing on the motion to suppress or at trial. “Defendant’s attempt to raise on appeal arguments which were not raised during the motion to suppress or at trial will not be considered. [Cit.]” Holden v. State, 202 Ga. App. 558, 562 (2) (414 SE2d 910) (1992). This enumeration of error has no merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

         This assertion is tantamount to a concession that Allenbrand’s vehicle was weaving repeatedly.

       Allenbrand contends he submitted no evidence of his confusion because the trial court refused to limit the State’s cross-examination on this issue. But once a defendant testifies on his own behalf, the State has the right to a full and searching cross-examination. Driver v. State, 155 Ga. App. 726, 727 (1) (272 SE2d 580) (1980). As trial counsel acknowledged, a tactical decision was made not to call Allenbrand to testify to his confusion because of concern that evidence of his prior DUI offenses would be elicited on cross-examination.

       This court also noted in Coleman that a distinction can be made between those circumstances in which the motorist submits to a breath test and those in which a test is refused, because “it is unlikely that overstating the penalty for refusing to take the test would coerce someone into refusing to take the test.” 216 Ga. App. at 600.


author: Blackburn, Judge.

text:
    A93A2221.
    GILBERT et al. v. RICHARDSON et al.
    (458 SE2d 405)
   Blackburn, Judge.

In Gilbert v. Richardson, 211 Ga. App. 795 (440 SE2d 684) (1994), we affirmed the trial court’s grant of summary judgment to the defendants on the grounds that they were immune to suit under the doctrine of sovereign immunity. The Supreme Court granted certiorari and affirmed in part and reversed in part our decision in Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994).

Prior to the 1991 amendment, Art. I, Sec. II, Par. IX of the 1983 Constitution provided for a waiver of sovereign immunity for any claim against “the state or any of its departments and agencies” to the extent of any liability insurance. Under the 1983 Constitution the courts interpreted the phrase “the state or any of its departments and agencies” to include counties, county school boards, municipalities, Board of Regents, and hospital authorities. See Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992) (municipalities); Wilson v. Bd. of Regents &c. of Ga., 262 Ga. 413 (419 SE2d 916) (1992) (Board of Regents); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347 (411 SE2d 75) (1991) (hospital authorities); Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59 (335 SE2d 112) (1985) (counties and county school boards).

The 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution (1991 amendment) provided sovereign immunity extended to the “state and all of its departments and agencies,” except to the extent provided for by the Georgia legislature. Under the Georgia Tort Claims Act (GTCA), although the “state”, waives its sovereign immunity to the extent of insurance, the statute specifically excludes “counties, municipalities, school districts, other units of local government, [or] hospital authorities” from the definition of “state.” OCGA § 50-21-22 (5).

The Supreme Court has construed differently the same phrase contained in the pre-1991 amendment versus the post-1991 amendment for the apparent purpose of changing the impact of the GTCA. The Supreme Court has determined that the 1991 amendment does include counties but does not include municipalities. See Gilbert v. Richardson, 264 Ga. 744, supra (1991 amendment includes counties); City of Thomaston v. Bridges, 264 Ga. 4 (439 SE2d 906) (1994) (1991 amendment does not include municipalities).

In this case, the plaintiffs brought suit against the Walker County sheriff and deputy sheriff seeking damages for injuries sustained in a collision with the deputy sheriff while the deputy was responding to an emergency call. The Supreme Court noted that it had previously determined that the phrase “state or any of its departments or agencies” contained in former Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution included counties of the State of Georgia. The Court reasoned that “[t]he language used in the 1991 amendment is virtually identical to that used in the 1983 amendment to describe the entities to which sovereign immunity applies. . . . [Therefore,] [a]bsent any evidence that the legislature intended a different interpretation or to indicate that the electorate did not intend to extend sovereign immunity to counties, we hold the 1991 amendment’s extension of sovereign immunity to ‘the state and its departments and agencies’ must also apply to counties. See Bibb County v. Hancock, 211 Ga. 429, 432 (86 SE2d 511) (1955); Thompson v. Talmadge, 201 Ga. 867, 885 (41 SE2d 883) (1947) (courts should accord virtually identical language in successor provisions the same construction given the original language); see also Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994) (identifying counties as departments or agencies of the state).” Gilbert, supra at 747.

However, the Supreme Court disregarded its opinion in City of Thomaston, where it interpreted the phrase “the state and all of its departments and agencies” as contained in the 1991 amendment so as not to include municipalities. City of Thomaston, supra at 7. The Court reasoned, “although in Hiers we construed the language in former Art. I, Sec. II, Par. IX to include municipalities, we cannot allow that construction, which effectuated the intent behind the 1983 provision, to bind this Court to a construction which directly conflicts with the obvious intent of the drafters of the 1991 amendment and contravenes the cardinal rule of construction.” City of Thomaston, supra at 6.

The Supreme Court in City of Thomaston inferred that the intent of the 1991 amendment was “manifest from the vote of the electorate and the express language of the General Assembly that the 1991 amendment was intended to address ‘the inherent unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,’ OCGA § 50-21-21 (a), while limiting the exposure of the state treasury to tort liability by means of the [GTCA], OCGA § 50-21-20 et seq. Viewed in light of the conditions and circumstances under which it was framed, see generally Birdsey v. Wesleyan College, 211 Ga. 583, 586 (87 SE2d 378) (1955), nothing in the history of the 1991 amendment intimates any intention by the voters or the legislature to reinstate sovereign immunity in an absolute form so as to terminate completely the public’s ability to bring an action for damages against a Georgia governmental entity.” City of Thomaston, supra at 5.

Decided June 19, 1995.

Hill & Henry, W. Ralph Hill, Jr., for appellants.

Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, George W. Carpenter, Stuart F. James, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Larry L. Cash, for appellees.

The Supreme Court in Gilbert failed to acknowledge that in City of Thomaston they had previously determined that evidence existed of the “obvious intent of the drafters of the 1991 amendment” (emphasis supplied) for a different interpretation of the phrase “state and its departments and agencies” from that same phrase contained in former Art. I, Sec. II, Par. IX. However, the Supreme Court’s decision in each case is final. Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur in the judgment only.


author: McMurray, Presiding Judge.

text:
    A95A0232.
    GIBBS v. THE STATE.
    (458 SE2d 407)
   McMurray, Presiding Judge.

Defendant Gibbs appeals his conviction of “criminal attempt of robbery by intimidation.” Held:

Both of defendant’s enumerations of error relate to a question asked by the prosecuting attorney of a police officer who had participated in the investigation of the crime of which defendant was convicted. The question was: “All right, now, Officer Gervin, once you had Mr. Gibbs in custody, did he provide you with any statement?” The officer answered: “I advised him of his rights and he refused to give a statement.” Defense counsel immediately requested the opportunity to present a motion out of the presence of the jury but was required to wait until the conclusion of the trial to submit a motion for mistrial on the grounds that the quoted exchange was an impermissible comment on defendant’s exercise of his right to remain silent. The motion for mistrial was overruled, and on appeal defendant continues to maintain that this testimony was an improper reference to the exercise of his right to remain silent.

Contrary to the State’s contention, defendant’s motion for mistrial was timely. Immediately following the question and answer at issue, defense counsel sought to submit a motion for mistrial. The delay in presenting this motion was attributable to the directions of the trial court, that the case be finished and the motion be taken up later. Defense counsel was not required to place himself in contempt by contravening the directions of the trial court in order to preserve the issue he sought to present.

We agree that the record shows an error of constitutional dimension. Even though there was not detailed testimony in this regard, the rights of which defendant was advised were apparently those set out in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) and thus included the advising of defendant’s right to remain silent and a warning that any statement he made could and would be used against him. It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes. Doyle v. Ohio, 426 U. S. 610, 619 (96 SC 2240, 49 LE2d 91). See also United States v. Shaw, 701 F2d 367, 381 and Durden v. State, 250 Ga. 325, 327 (3) (297 SE2d 237).

The remaining question is whether the constitutional error was harmless. The method for resolving this issue has evolved somewhat over time from early attempts to provide rigid categorization of various circumstances to the realization that a case-by-case analysis is necessary. United States v. Shaw, 701 F2d 367, 382-383, supra; Hill v. State, 250 Ga. 277, 281 (4), 283 (295 SE2d 518). “The true focus of this court’s inquiry must be whether the testimony produced a trial which was so fundamentally unfair as to deny defendant due process. Smith v. State, 244 Ga. 814, 815 (262 SE2d 116) (1979). ‘To reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury. . . .’ Cape v. State, 246 Ga. 520, 523 (272 SE2d 487) (1980) cert. den. 449 U. S. 1134 (101 SC 956, 67 LE2d 121) (1981). See also Harrell v. State, 249 Ga. 48 (288 SE2d 192) (1982).” Duck v. State, 250 Ga. 592, 595 (300 SE2d 121).

There are a number of factors which may be identified as relevant to the question of whether the error was harmful. While the transcript shows the question asked by the prosecuting attorney and that the officer’s answer was responsive to the question asked, the State argues that a more innocuous question was intended and that the comment to defendant’s right to remain silent was not intended as an instrument of argument of defendant’s guilt. However, this argument is contradicted by the transcript. Following the violation enumerated, the prosecuting attorney made further reference to defendant’s decision to remain silent by asking the officer, “All right, so when he did not give you a statement, did you question him further?” (Emphasis supplied.) After receiving a negative response, the prosecuting attorney moved on to inquire concerning the victim’s statement and received testimony that the victim had made a statement which was consistent with his testimony at trial. This sequence of events has the effect of contrasting defendant’s silence with evidence that the victim had given a statement, and with bolstering of the victim’s testimony via evidence that his statement was consistent with his testimony at trial.

Decided June 19, 1995.

T. Lee Bishop, Jr., for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assis tant District Attorney, for appellee.

Defendant presented no evidence at trial and rested his defense upon questioning the credibility of the identification made by the victim who was confronted by the perpetrator of the crime for only a few seconds. The identification testimony of one witness who has only a brief opportunity to view a perpetrator not previously known does not amount to the overwhelming evidence such as has been noted to support a conclusion of harmless error in other cases dealing with a similar constitutional error. Cape v. State, 246 Ga. 520, 522 (2), 523, supra. Under the circumstances of the case sub judice, it would be naive to suggest that the evidence concerning defendant’s silence did not weaken defendant’s position in the minds of the jurors, particularly in view of the juxtaposition of the comment on defendant’s silence and the evidence concerning the statement of the victim.

Contrary to the State’s assertion, there were no curative instructions given to the jury. While a reference during colloquy immediately preceding the charge of the jury advances the possibility of the trial court instructing the jury concerning defendant’s right to remain silent and while the jury charge contains instructions that no inference should be taken from defendant’s decision not to testify or otherwise present evidence, there is nothing in the jury charge directed towards correcting the error at issue, the comment on defendant’s right to remain silent following his arrest. While the lack of curative instructions may not support a conclusion that the erroneous comment on defendant’s right to remain silent was harmful, it does constitute the absence of a circumstance sometimes noted in support of conclusions that similar errors are harmless. Hill v. State, 250 Ga. 277, 282, supra.

Under the particular facts and circumstances of the case sub judice, the constitutional error must be deemed harmful and reversible error. Defendant’s motion for mistrial should have been granted.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0294.
    In the Interest of J. P., a child.
    (459 SE2d 431)
   McMurray, Presiding Judge.

J. P., a child, was tried before the juvenile court and found to be delinquent based on a petition charging him with a delinquent act constituting the offense of theft by shoplifting if committed by a person 17 years of age or older. This appeal followed. Held:

1. J. P.’s first enumeration of error urges that the juvenile court erred in restricting his attorney’s cross-examination of the State’s key witness regarding the existence of surveillance cameras at the victim’s retail establishment.

An undercover security officer employed by the victim testified that he observed J. P. and J. P.’s sister shoplifting at the victim’s retail establishment, explaining that the siblings acted in concert to conceal their illegal activities. On cross-examination, this witness refused to tell J. P.’s attorney whether surveillance cameras are used at the victim’s retail establishment. The following then transpired: “THE COURT: How is that relevant to this case? I’m not going to force him to disclose . . . unless they’re coming in here alleging something about security cameras and they don’t seem to be. [J. P.’s ATTORNEY]: Your Honor, I would contend that it’s relevant, because if [the victim] has those kinds of security cameras, then they ought to have some verification of the events that this man is testifying to. THE COURT: I disagree with that. They don’t have to — They can take their chances coming in here with as little or as much evidence as they want to. . . . [J. P.’s ATTORNEY]: What I’m saying is there may be some exculpatory information on those kinds of tapes if they exist. That’s — I think that’s a legitimate question. THE COURT: You’ve not filed any motion or anything seeking any exculpatory. There’s been no Brady motion or anything like that filed. [J. P.’s ATTORNEY]: That’s right[, but] it’s cross examination. THE COURT: No. I’m not going to allow it under the circumstances presently simply to say that there are cameras there or not. You can certainly argue if they had cameras, they should have come here with such. They didn’t do that because they’re afraid to bring it here. You know, you can argue all that because they don’t have it. They’ve got places where they were installed. You’re free to do that, because they’re not here. You know, it’s kind of like a missing witness if they’re there. But that’s my ruling.”

“Although evidence of collateral matters may shed some remote light on the main issues, it is nevertheless necessary that the trial judge restrict such evidence to that which is material and relevant. Childers v. State, 130 Ga. App. 555, 562 (203 SE2d 874); Head v. John Deere Plow Co., 71 Ga. App. 276 (1) (30 SE2d 662).” Hornsby v. State, 139 Ga. App. 254, 256 (3), 258 (228 SE2d 152). In the case sub judice, the existence of hidden surveillance cameras at the victim’s retail establishment was not directly material to the State’s case as the security officer who observed J. P.’s illegal activities testified that he “was on the floor . . .” during the surveillance. Under these circumstances, we cannot say the trial court abused its discretion in restricting cross-examination regarding the existence of surveillance cameras at the victim’s retail establishment. Smith v. State, 154 Ga. App. 190, 191 (2) (267 SE2d 826). Compare Bracknell v. State, 125 Ga. App. 345, 346 (1) (187 SE2d 575).

Decided June 19, 1995.

Jeffrey G. Gilley, for appellant.

Harry N. Gordon, District Attorney, for appellee.

2. J. P. next contends the testimony of the victim’s security officer is insufficient to support the juvenile court’s finding him to be delinquent. This contention is without merit.

“The credibility of the witnesses is solely a question for the trier of fact. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980).” In the Interest of W. N. N., 196 Ga. App. 30, 31 (1) (395 SE2d 354). In the case sub judice, testimony of the victim’s security officer along with proof that J. P. and J. P.’s sister were caught immediately after leaving the victim’s store in possession of the victim’s misappropriated merchandise is sufficient to authorize the juvenile court’s finding, beyond a reasonable doubt, that J. P. committed a delinquent act constituting the offense of theft by shoplifting if committed by a person 17 years of age or older. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of A. B., 194 Ga. App. 665, 666 (2) (391 SE2d 683).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A95A0319.
    RAINEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (458 SE2d 411)
   Johnson, Judge.

Marilyn Reynolds had three car insurance policies with State Farm Mutual Automobile Insurance Company. The policies included uninsured motorist coverage. Her father, William Rainey, lived with Reynolds intermittently. When Rainey was injured in a car accident, he filed suit against the other driver and had State Farm served as an uninsured motorist carrier claiming entitlement to coverage as a relative living with the named insured. State Farm moved for summary judgment, arguing that on the date of the accident, Rainey was not living with Reynolds. The trial court agreed and granted State Farm’s motion for summary judgment.

Rainey contends that State Farm failed to prove conclusively that he did not reside with the named insured and that the issue therefore should have been submitted to a jury. Because the record does conclusively establish that Rainey maintained a separate household and was not living with Reynolds when the accident occurred, we affirm the judgment of the trial court.

The insurance policies in question provide uninsured motor vehicle coverage to relatives of the named insured. The policies define a relative as “a person related to [the named insured] by blood, marriage or adoption who lives with [the named insured].” Unfortunately, the policies do not define the phrase “lives with,” and our research has uncovered no cases in which we have had to interpret the meaning of that particular phrase. Apparently, however, both parties equate the phrase with “resides with,” “is a member of the household,” or “is a resident of the household” and cite cases interpreting these phrases. We agree that these phrases are sufficiently similar to “lives with” to provide guidance in this case.

In determining whether a relative is a resident of the insured’s household for uninsured motorist coverage purposes, the aggregate details of the family’s living arrangements must be considered. Davenport v. Aetna Cas. &c. Co. of Ill., 144 Ga. App. 474, 475 (241 SE2d 593) (1978). Of critical importance to such an analysis is whether the family members have established and maintained separate households under different managements. See Cotton States Mut. Ins. Co. v. McEachern, 135 Ga. App. 628, 631 (218 SE2d 645) (1975); State Farm &c. Ins. Co. v. Snyder, 122 Ga. App. 584, 586 (178 SE2d 215) (1970). A household relationship may end if one of the relatives has demonstrated an intent to remove himself from the household and has taken some action toward doing so. Keene v. State Farm &c. Ins. Co., 114 Ga. App. 625, 626 (2) (152 SE2d 577) (1966).

The record in this case reveals the following: In his deposition, Rainey states unequivocally that on May 16, 1993, the date of the accident, he lived in an apartment in Tifton. His daughter lived in Albany at the time. Rainey deposed further that he lived with Reynolds in her Albany home before November 1991 and after October 1993. On the day of the accident, by his own admission, he was driving from his Tifton apartment to his job in Albany. Rainey’s income tax return dated February 11, 1993, shows him as having a Tifton address and lists Reynolds, with an Albany address, as his closest relative not living with him. Rainey’s cancelled rent checks reveal that he maintained his Tifton apartment from December 1992 through May 1993. Rainey states in his affidavit that from January 1993 to June 1993, he maintained an apartment in Tifton but contributed toward rent and bills on Reynolds’ Albany home, where he slept in a bedroom set aside for his use an average of three nights each week. He also took showers when he stayed there and left some of his personal effects at Reynolds’ home. In her affidavit, Reynolds makes the same statements adding that Rainey had a key to and ate meals in her home. Even construing the evidence in Rainey’s favor as the nonmovant, there is no question that he and Reynolds maintained separate households and did not live together at the time of the accident. He admitted on deposition that he was living in Tifton and not Reynolds’ Albany home on the date in question. This admission is corroborated by other evidence, such as the tax return and cancelled checks. Nowhere in the record is there evidence which directly contradicts the admission. Rainey makes no statement in either his affidavit or deposition that he was living with Reynolds when the collision occurred. Rainey simply states he had a bedroom, shared rent, and spent several nights per week in the Albany home. He never says he lived there. The affidavit submitted by Reynolds also stops short of contradicting Rainey’s admission that he lived in his own apartment. While Reynolds says she considered Rainey to be a member of her household at the time, she never actually says he lived with her. In fact, Reynolds’ statement that Rainey “had a key to the house where my son and I lived” supports State Farm’s claim that Rainey did not live there.

Moreover, Rainey demonstrated an intent to remove himself from Reynolds’ household when he moved out of her home and into his own apartment in 1991, which residence he continued to maintain through the date of the accident. It is clear from the evidence that Rainey and Reynolds maintained separate residences and were heads of their own households when the accident occurred.

Rainey relies on Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52 (286 SE2d 305) (1981) (overruled on other grounds in Grange Mut. Cas. Co. v. Brinkley, 182 Ga. App. 273 (355 SE2d 767) (1987)), to support his position that his maintaining living accommodations in Reynolds’ home renders him a resident of her household. In that case, the court defined the phrase “one residing in the same household” as meaning “one who physically maintains permanent or frequently utilized living accommodations in the principal insured’s home.” Robertson, supra at 53 (1). It is clear from our review of the cases, however, that physically maintaining living accommodations in the insured’s home is one, but not the sole, consideration. If maintaining living accommodations in an insured’s home is in and of itself sufficient to establish where someone lives, there would be no need to consider issues such as whether separate households have been established and maintained, whether family members intend to discontinue membership in the household, and whether they have taken steps to remove themselves from the household. See Grange, supra at 275; Varnadoe v. State Farm &c. Ins. Co., 112 Ga. App. 366, 368 (145 SE2d 104) (1965). More than mere physical presence and transient visitation is required to make a person a resident of a household. Sanders v. Ga. Farm &c. Ins. Co., 182 Ga. App. 279, 280 (1) (355 SE2d 705) (1987). As stated above, the court must consider the aggregate details of the family’s living arrangements, not any one factor. See Davenport, supra. Because State Farm conclusively established that Rainey did not live with his daughter at the time of the accident, the trial court did not err in granting the insurer’s motion for summary judgment. See generally Martin v. Cotton States Mut. Ins. Co., 210 Ga. App. 32 (435 SE2d 258) (1993).

Decided June 19, 1995.

Beauchamp & Associates, Robert M. Beauchamp, Alexander R. Nemajovsky, for appellant.

Sims, Fleming & Spurlin, John S. Sims, Jr., John C. Spurlin, for appellee.

Judgment affirmed.

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


text:
    A95A0607.
    AUSTIN et al. v. COCA-COLA COMPANY et al.
    (458 SE2d 409)
   McMurray, Presiding Judge.

Plaintiffs Austin and Delvin are husband and wife, and shareholders of plaintiff BreakTime Fountain Service, Inc. The corporate plaintiff acquired a distributorship for Coca-Cola products via low-volume dispensers called “BreakMate Machines.” The BreakMate Machines were microwave oven-sized devices which dispensed three flavors of fountain soft drinks at competitive prices and were intended for placement in commercial locations.

The business enterprise undertaken by the corporate plaintiff was not successful due at least in part to greater than expected problems with the reliability of the BreakMate Machines and less than anticipated revenues. After the business failure, litigation commenced and more than a half dozen cases have been filed in the state and federal courts of Texas and Georgia with essentially the same parties. The Coca-Cola Company and related parties were successful in an action filed in the United States District Court for Northern Georgia, obtaining a judgment against plaintiffs for an amount of money owed based on Coca-Cola’s financing of the purchase of BreakMate Machines. Plaintiffs have repeatedly asserted the same claims presented in their complaint in the case sub judice. These claims are predicated on theories of breach of contract and warranty, negligence, and fraud.

The named defendants who were served with summons and process in this case include the Coca-Cola Company and a number of its subsidiaries. The defendants named, but unserved, include Break-Time Enterprises, Inc., the distributor of the BreakMate Machines, which at the time of the transactions in question was unrelated to the Coca-Cola parties.

This appeal is taken from the grant of summary judgment in favor of the Coca-Cola parties and against plaintiffs. The order entered by the superior court sets forth multiple reasons for the judgment entered. Plaintiffs have presented enumerations of error addressed to most of the issues identified in the superior court order. Since we affirm because the plaintiffs’ claims are barred by the doctrine of res judicata, most of the issues raised are rendered moot and will not be discussed. Held:

The superior court stated two separate and independent theories underlying its conclusion that plaintiffs’ claims were barred by res judicata. First, the superior court concluded that all of the claims asserted by plaintiffs in this action could and should have been asserted as counterclaims to the Coca-Cola parties’ monetary claims in the Georgia federal action in which these monetary claims were finally adjudicated in a consent judgment against the plaintiffs in the case sub judice. We will not reach the merits of plaintiffs’ arguments against this conclusion but will decide this appeal on the basis of the second reason given by the superior court for finding plaintiffs’ claims barred by res judicata.

In 1990, and again in 1991, actions were initiated in the state courts of Texas which raised the same issues raised in the case sub judice. In each instance, the action was removed to the United States District Court for the Southern District of Texas where the plaintiffs in the case sub judice voluntarily dismissed their claims. The superior court correctly determined that the second of these dismissals operated as an adjudication on the merits under the rule set forth in FRCP 41 (a) (1). Manning v. South Carolina Dept. of Highway & Public Transp., 914 F2d 44, 47 (II).

Those familiar with the federal rules recognize that a distinction exists between a notice of dismissal and a stipulated dismissal, and that the two-dismissal rule is triggered only where the second dismissal is by notice of dismissal. Sutton Place Dev. Co. v. Abacus Mtg. &c. Co., 826 F2d 637, 640 (II). Plaintiffs argue that they “have never filed a notice of dismissal.” But this is incorrect. The record on appeal shows that in August 1991, plaintiffs filed a notice of dismissal in regard to their claims in one of the Texas federal cases and that this followed a stipulated dismissal of the same claims in the same court the previous year.

Decided June 19, 1995.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellants.

W. Thomas Haynes, Elizabeth F. Johnson, for appellees.

“ ‘A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-40. In order for the res judicata doctrine to apply, three prerequisites must be established: (1) identity of parties; (2) identity of the cause of action; and (3) prior adjudication by a court of competent jurisdiction. Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (270 SE2d 883) (1980). Also OCGA § 9-12-42 provides the merits of the case must have been adjudicated for the judgment to be a bar to subsequent action.” State Bar of Ga. v. Beazley, 256 Ga. 561, 562 (1) (350 SE2d 422). See also Greene County Hosp. Auth. v. Waldroup, 215 Ga. App. 344, 347 (2) (451 SE2d 62). Since plaintiffs’ claims were previously adjudicated, they are now barred by the doctrine of res judicata. The grant of summary judgment in favor of the Coca-Cola parties was not error.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0619.
    CURRY v. THE STATE.
    (458 SE2d 385)
   McMurray, Presiding Judge.

Defendant was indicted for the offenses of aggravated assault and armed robbery. The evidence adduced at a jury trial reveals the following: At about 11:30 in the evening on December 3,1992, defendant and an accomplice entered a liquor store in Athens, Georgia, and shot the owner of the store (during a gun battle) as he was preparing to close the business. Although wounded, the victim returned fire and shot defendant just before the assailants made off with the store’s cash register. A few minutes later, defendant appeared at a neighbor’s home complaining that he had been wounded during a drive-by shooting. Defendant was taken to a hospital and a physician found a bullet lodged “in the deep musculature of [his left] leg.” Further ex-animation revealed that the wound was not life-threatening; that extracting the bullet via surgical means was medically unnecessary and that such a procedure presented unwarranted health or safety risks to defendant. Nonetheless, law enforcement officials pressed defendant’s physician to remove the bullet, but he refused to perform the surgery required to retrieve the evidence without defendant’s consent. The physician did, however, give defendant the option of surgery after advising defendant that police officials wanted the bullet removed; that extracting the bullet was medically unnecessary and that the surgical procedure posed a risk of certain medical complications. Defendant declined to consent to surgery and the State filed a petition (in the superior court) to force surgical removal of the bullet. The trial court granted this petition, but defendant’s physician remained firm. He would not perform surgery “for other than medical reasons . . .” without his patient’s consent and, to this extent, defendant would not yield. As a consequence, surgery was never performed and the bullet remains in defendant’s leg.

After the jury found defendant guilty of aggravated assault and armed robbery, the trial court merged the aggravated assault charge with the armed robbery charge and sentenced defendant to life in prison. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first two enumerations, defendant contends the trial court erred in ordering surgical removal of the bullet from his leg and in permitting testimony regarding his refusal to consent to surgery. Specifically, defendant argues that the trial court’s order infringes upon his Fourth Amendment right against unreasonable intrusions into his body and that testimony regarding his refusal to consent to the surgery infringed upon his state and federal constitutional rights against coerced self-incrimination by sanctioning an inference that “he ‘had something to hide.’ ”

“[E]vidence of a defendant’s refusal to comply with a lawful court order has been held to be admissible in other [jurisdictions] on the ground that ‘(a)n attempt by a criminal defendant to suppress evidence is probative of consciousness of guilt and admissible on that basis.’ United States v. Wagner, 834 F.2d 1474, 1484 (9th Cir. 1987) (quoting United States v, Castillo, 615 F.2d 878, 885 (9th Cir. 1980)).” United States v. Jackson, 886 F2d 838, 845 (7th Cir. 1989). Georgia courts have embraced parallel logic, adopting “[t]he broad premise . . . that a statement or conduct by [a] defendant which indicates a consciousness of guilt is admissible against him. Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471) (1980).” Parker v. State, 181 Ga. App. 590, 591 (2) (353 SE2d 83). We cannot say, however, that this principle is broad enough to encompass reasonable opposition to unlawful governmental intrusions. To say otherwise would not only chill justified resistance to unlawful police practices, but would leave criminal suspects with the unfavorable option of either giving up the right to privacy or resisting unlawful police intrusions knowing that such opposition will be available to support an inference of guilt without running afoul of state and federal prohibitions against coerced self-incrimination. Similar was the presentation offered by government officials in Howard v. State, 237 Ga. 471, 474 (228 SE2d 860), where the Georgia Supreme Court held that a defendant’s silence in the face of actions amounting to unlawful police interrogation is not admissible to support an inference of guilt. Id. at 475.

The controlling issue in the case sub judice is therefore whether defendant was constitutionally justified in defying law enforcement efforts to have the bullet surgically extracted from his leg. To this extent, we observe that the State’s compelling need to retrieve evidence of a crime is, alone, insufficient to justify an intrusion into the body of a living human being. There must also be proof that the surgical procedure required to accomplish the seizure is reasonable, i.e., unsubstantial. Creamer v. State, 229 Ga. 511, 514 (2), 515 (192 SE2d 350). Of course, the measure for determining what bodily intrusions are “reasonable” or “unsubstantial” is not always a subject for rigid objective analysis. Each case must be measured on its own merits. Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908). We are guided in the case sub judice by the United States Supreme Court’s decision in Winston v. Lee, 470 U. S. 753, 754 (105 SC 1611, 84 LE2d 662), where an order directing surgical removal of a bullet from a criminal suspect was found to be too obtrusive under Fourth Amendment standards. The Supreme Court decided that society’s interest in accurately determining guilt or innocence (as measured by the strength of other evidence supporting the government’s case) was outweighed by the severe and involuntary nature of the intrusion into the suspect’s body. “Surgery without the patient’s consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient’s ordinary control over surgical probing beneath his skin.” Id.

In the case sub judice, it is undisputed that a general anesthetic would have been required to surgically extract the bullet from defendant’s leg and there is proof that the surgery posed a risk to defendant’s health. In this regard, defendant’s physician testified that the bullet was buried deep within the muscle of his patient’s left leg; that the projectile was close to vital bodily components; that there was no medical reason to remove the bullet and that the procedure required to retrieve the evidence posed an unnecessary risk to defendant’s health, including the possibility of infection and paralysis. Under these circumstances and in light of the overwhelming wealth of alternative evidence supporting the State’s case, the trial court’s order requiring surgical removal of the bullet from defendant’s leg oversteps defendant’s Fourth Amendment right to be secure in his person. Id. at 755. Defendant was therefore justified in resisting efforts by law enforcement officials to have the bullet forcibly removed from his leg. And since reasonable opposition to unlawful governmental intrusion provides no basis for an unfavorable inference of guilt, the trial court erred in allowing testimony regarding defendant’s resistance to removal of the bullet from his leg. However, “ ‘the determination of whether this was harmful or harmless error must be determined when “juxtaposed against the strength of the evidence of [defendant’s] guilt. (Cit.)” (Cit.)’ Glanton v. State, 189 Ga. App. 505, 507 (3) (376 SE2d 386) (1988).” Blige v. State, 203 Ga. App. 151 (2), 152 (416 SE2d 160). In this regard, a neutral eyewitness positively identified defendant as a perpetrator of the armed robbery; a relative observed defendant and several others in close proximity to handguns (on a bed in defendant’s home) shortly before the armed robbery; defendant appeared at a neighbor’s home a few minutes after the armed robbery suffering from a gunshot wound to the leg and the victim’s spouse saw defendant the day before the armed robbery lurking outside her husband’s liquor store. In light of this overwhelming evidence of defendant’s guilt, we find it highly unlikely that admission of testimony regarding defendant’s refusal to consent to surgical removal of the bullet from his leg influenced the jury’s verdict. Hamilton v. State, 239 Ga. 72, 76-77 (235 SE2d 515); Carpenter v. State, 167 Ga. App. 634, 640 (7), 641 (307 SE2d 19).

2. Defendant next contends the victim’s spouse was exposed to an unduly suggestive pretrial photographic lineup. This contention presents no grounds for reversal since defendant failed to object when this witness testified that she saw defendant lurking outside her husband’s liquor store on the day before the armed robbery. May v. State, 159 Ga. App. 565, 566 (2) (284 SE2d 70).

3. In his final enumeration of error, defendant contends his life sentence is void because OCGA § 17-10-1 (a) (1) requires that he be given a determinative sentence for a specific number of years. This contention was decided adversely to defendant in Jefferson v. State, 209 Ga. App. 859, 862 (2) (434 SE2d 814). Defendant also contends his life sentence constitutes cruel and unusual punishment. This contention is not supported by argument or citation of authority and is therefore deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided June 1, 1995

Reconsideration denied June 20, 1995

D. Todd Wooten, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

       In Winston, the surgery required to accomplish the seizure involved debate over health or safety risks to the suspect and a bodily intrusion which would have likely been more than skin deep.


text:
    A95A0069, A95A0070.
    JARRETT v. THE STATE; and vice versa.
    (458 SE2d 414)
   Johnson, Judge.

John Jarrett, while represented by counsel, entered a plea of guilty to simple battery and a plea of nolo contendere to simple assault. On the simple battery charge, the trial court sentenced Jarrett to twelve months, three months to be served in confinement, the remainder on probation. In addition, Jarrett was ordered to undergo counseling, pay a fine and make restitution. The trial court also sentenced Jarrett to 12 months probation on the simple assault charge, to run consecutively to the first sentence. Ten months after sentencing, Jarrett moved to withdraw the pleas, claiming the pleas were not knowingly and willingly made, the sentences amounted to cruel and unusual punishment, and the sentencing judge was biased. The state moved to dismiss Jarrett’s motion to withdraw his pleas as untimely because it was filed after the term in which the pleas were entered. After the sentencing judge recused herself, the assigned judge granted Jarrett’s motion to withdraw his nolo contendere plea to simple assault, denied Jarrett’s motion to withdraw his guilty plea to simple battery, and denied the state’s motion to dismiss Jarrett’s motion. In Case No. A95A0069, Jarrett appeals from the trial court’s denial of his motion to withdraw the guilty plea to simple battery. In Case No. A95A0070, the state appeals from the grant of Jarrett’s motion to withdraw the nolo contendere plea to simple assault and from the denial of its motion to dismiss Jarrett’s motion.

Case No. A95A0069

1. Jarrett contends the assigned judge erred in not allowing him to withdraw his guilty plea because the sentencing judge failed to notify him that she intended to reject the negotiated plea, in violation of Uniform Superior Court Rule 33.10. The state argues that the assigned judge properly refused to allow Jarrett to withdraw the plea because, among other things, Jarrett’s motion was untimely. We agree with the state.

The state court judge entered Jarrett’s sentences on December 14, 1992. That term of court ended in January 1993. Ga. L. 1987, p. 4773, § 1. Jarrett filed his motion to withdraw his pleas on October 14, 1993, more than four terms after the term in which the sentences were entered. “A defendant may withdraw his plea of guilty as a matter of right before sentencing is pronounced. Even after sentencing, the trial court would have discretion to allow withdrawal of the plea prior to the expiration of that term of court. After the term, the prescribed means to withdraw the plea would be through habeas corpus proceedings.” (Citations and punctuation omitted.) Sanders v. State, 179 Ga. App. 168 (1) (345 SE2d 677) (1986). “As to any attempt to modify a judgment, the trial court loses jurisdiction after the term. This rule applies equally to a withdrawal of a plea; otherwise, there would be no limit to time to withdraw a plea and no end to the case. . . . [T]he trial court was without authority to permit [Jarrett’s] plea to be withdrawn [four terms] after sentence.” State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985).

Jarrett argues that because the sentencing judge did not comply with superior court rules regarding the acceptance of pleas, the sentences are void and that void sentences are not controlled by jurisdictional time constraints. Jarrett’s argument that the time limits applicable to the withdrawal of pleas do not apply to void sentences is correct. The argument, however, does not support this enumeration. Where a sentence is void, meaning it imposes punishment that the law does not allow, the court may resentence the defendant at any time. Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991); Wade v. State, 231 Ga. 131, 133 (II) (200 SE2d 271) (1973). We note that we have examined the record and do not believe Jarrett’s sentences are void. Even assuming his sentences are void, however, the trial court is only authorized under such circumstances to impose new and valid sentences. See Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991); Sherman v. State, 142 Ga. App. 691, 692 (237 SE2d 5) (1977). The court here did not resentence Jarrett, but allowed him to withdraw his plea. Our research reveals and Jarrett cites no cases authorizing the trial court to allow the withdrawal of a plea after the expiration of the term, even where the sentence is void. In fact, it is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings. Sherwood v. State, 188 Ga. App. 295 (1) (372 SE2d 677) (1988); Staley v. State, 184 Ga. App. 402 (361 SE2d 702) (1987). Jarrett’s motion to withdraw pleas, filed against the state in the county of his conviction, cannot be considered a habeas corpus petition. See Stargell v. State, 204 Ga. App. 45 (418 SE2d 372) (1992).

Decided June 20, 1995.

H. Bradford Morris, Jr., for appellant.

Jerry Rylee, Solicitor, Brett D. Turner, Assistant Solicitor, for appellee.

In arguing that because the pleas are not valid, the sentences are void and therefore no time limits apply, Jarrett is attempting to circumvent the well-settled rule that after the court term and appeal period have expired, pleas may be withdrawn only through a habeas corpus proceeding. He cannot do indirectly what the law says cannot be done directly. See Johnson v. State, 156 Ga. App. 496, 498 (274 SE2d 837) (1980). The judge did not err in denying Jarrett’s untimely motion to withdraw his plea. See Stuckey v. State, 204 Ga. App. 793, 794 (1) (420 SE2d 655) (1992).

2. Jarrett’s second enumeration, that the sentencing judge failed to establish on the record a factual basis for the pleas, as required by Uniform Superior Court Rules 33.9 and 33.11 (C), was neither argued nor ruled upon below. This court will not consider issues which were not raised and passed upon in the trial court. Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994).

3. Jarrett contends that the assigned judge should have allowed him to withdraw his guilty to simple battery plea because it was connected to and plagued by the same problems as the simple assault plea. Because the motion to withdraw his pleas was untimely, the trial court was without jurisdiction to allow the withdrawal of either plea. This enumeration is therefore without merit.

Case No. A95A0070

4. In its appeal, the state argues that the judge erred in allowing Jarrett to withdraw his nolo contendere plea because, inter alia, the motion was untimely. As discussed in Division 1 above, the motion was untimely and the court was without jurisdiction to consider it. The trial court therefore erred in granting Jarrett’s motion. For the same reason, the trial court erred in denying the state’s motion to dismiss Jarrett’s motion.

Accordingly, the posture of these appeals is as follows: The judgment of the trial court granting the motion to withdraw the nolo contendere plea to simple assault is reversed, and the plea and sentence are reinstated. The trial court’s order denying Jarrett’s motion to withdraw the guilty plea to simple battery is affirmed. The trial court’s order denying the state’s motion to dismiss Jarrett’s motion to withdraw the pleas is reversed.

Judgment in Case No. A95A0069 affirmed. Judgment in Case No. A95A0070 reversed.

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


text:
    A95A0196.
    METRO ATLANTA TRUCKING COMPANY, INC. et al. v. KYZER et al.
    (458 SE2d 416)
   Smith, Judge.

Plaintiffs Christopher M. Kyzer, as administrator, and Larry A. Kyzer, as surviving spouse, brought this action against defendants Metro Atlanta Trucking Company, Inc. (Metro), and Johnny McFadden for the wrongful death of Ruth Kyzer. Viewing the facts most strongly to support the verdicts and judgment from which this appeal is taken, the deceased, who at the time was attempting to make a left-hand turn, was killed when one of Metro’s trucks, driven by McFadden, collided with her vehicle. The evidence showed that as McFadden approached Ruth Kyzer’s vehicle, he was traveling at least 73 mph in a 40-mph zone with defective brakes and no way to monitor his speed. McFadden’s estimated speed at the time of impact was 48 mph.

Even taking into account McFadden’s speeding, had the truck’s brakes been operating properly, Ruth Kyzer at worst would have experienced only a minimal, non-lethal impact. Moreover, had McFadden not been speeding at the time, the truck’s brakes, though seriously defective, nevertheless would have stopped McFadden’s vehicle some 180 feet short of the point of the fatal impact. Instead, the truck proceeded an additional 87 feet beyond the original point of impact, pushing Ms. Kyzer’s vehicle that same distance.

The jury awarded plaintiffs $875,000 for the wrongful death of Ruth Kyzer, $50,000 for pre- and post-impact pain and suffering, and subsequently awarded $250,000 in punitive damages against defendant Metro. Metro and McFadden seek retrial based on various claims of reversible error at trial. Finding none, we affirm the judgment entered on the verdicts.

1. Defendants moved for a continuance based on the unavailability of a material witness due to health reasons. It is evident that no such continuance was granted on this basis. From the record before us, however, it is not clear whether the trial court affirmatively ruled on the motion before trial. The mere fact that the trial proceeded despite the existence of the written motion for continuance in the record cannot suffice to show that the trial court erred in failing to grant the requested continuance. “ ‘It was the duty of counsel to invoke a final ruling on his motion, and his failure to do so precludes our review of the motion on appeal.’ [Cit.]” Staggs v. Wang, 185 Ga. App. 310, 312 (3) (363 SE2d 808) (1987). See generally Tadlock v. Duncan, 215 Ga. App. 441, 442-443 (1) (451 SE2d 80) (1994).

2. During their case in chief, plaintiffs posed the following question to the Clayton County Medical Examiner: “Based upon your medical training and experience and the facts that I have given you, do you have an opinion as to whether Ms. Kyzer experienced anticipatory pain or pre-impact fright, shock or terror even before the infliction of the injuries that you saw at autopsy?” Defendants’ counsel objected, contending the question was compound, that the witness had not been qualified on this particular issue, and that it called for random speculation.

The court sustained the objection, ruling that a foundation must be laid and that if such a foundation were established, the questioning should nevertheless be “broken down into various components rather than into a compound question.” Plaintiffs’ attorney proceeded to lay that foundation, followed by voir dire from defendants’ counsel, during which time no additional objections were made that were not in fact sustained. Immediately after voir dire, plaintiffs’ counsel again asked, this time without objection, whether Ms. Kyzer “experience [d] anticipatory pain prior to the impact in this case.” Since no renewed objection was made after plaintiffs offered foundation evidence, no alleged error has been preserved for appellate review. Accord Henderson v. State, 203 Ga. App. 733, 735 (3) (417 SE2d 413) (1992).

3. The trial court allowed plaintiffs to introduce otherwise inadmissible evidence of McFadden’s driving history based on videotaped testimony presented by defendants that “Johnny (McFadden) had a clean record.” See generally Smith v. Tommy Roberts Trucking, 209 Ga. App. 826, 829 (3) (435 SE2d 54) (1993) (evidence of a driver’s past record inadmissible because prejudicial and irrelevant to issue of driver’s negligence in a particular instance). We find no error.

Defendants were not entitled to represent to the jury that Metro’s driver had a “clean record” if that was not in fact so, and the trial court was within its discretion in allowing plaintiffs to clarify this matter, since it was injected into the case by defendants to the plaintiffs’ detriment. Moreover, to the extent plaintiffs may have misled the jury regarding a prior offense on which McFadden entered a plea of nolo contendere rather than guilty, we find no error necessarily warranting mistrial in light of the court’s curative instructions on the issue. See, e.g., Ross v. Hagler, 209 Ga. App. 201, 203 (1) (433 SE2d 124) (1993).

4. Defendants unsuccessfully moved for mistrial after plaintiffs asked a witness an improper question (which was never answered) regarding an accident reconstructionist retained by defendants but not called to testify. Although “we cannot say the other evidence in this case demands the verdict, it is clear that the other evidence does support the verdict, and it therefore cannot be said that the effect of the question itself was manifestly prejudicial to the [defendants] so as to require a reversal or that the denial of a mistrial on the basis of this improper question resulted in an unfair trial.” (Citations and punctuation omitted.) Morgan v. Hawkins, 155 Ga. App. 836, 839 (3) (273 SE2d 221) (1980). We find no error.

Decided June 20, 1995

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, for appellants.

Butler, Wooten, Overby & Cheeley, George W. Fryhofer III, Keith A. Pittman, Freeman & Hawkins, J. Bruce Welch, Bondurant, Mixon & Elmore, Michael A. Sullivan, for appellees.

5. Ms. Kyzer’s duty to stop at the stop sign placed at the intersection and to yield to oncoming traffic was beyond all dispute, and the trial court properly charged the jury on this relatively simple matter. Nevertheless, defendants contend the trial court erred in failing to give their requests to charge on the same basic principle as applied specifically to a “through highway” and a “through street.” See OCGA §§ 40-1-1 (64), 40-6-70 (b); Lee v. Bartusek, 205 Ga. App. 551, 552-553 (2) (422 SE2d 570) (1992). We fail to see how defendants’ requests could have possibly clarified the matter further and therefore find no reversible error on this basis.

6. Defendants’ remaining enumerations are without merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0428.
    BROWN v. LITTLE.
    (458 SE2d 669)
   McMurray, Presiding Judge.

Plaintiff Debbie L. Brown brought this contract action against defendant Richard E. Little, alleging that on March 1, 1990, she had loaned defendant $20,000 and defendant offered to pay interest at the rate of $200 per month; that defendant had promised he would repay the loan at any time plaintiff demanded; and that on September 1, 1990, plaintiff requested that defendant repay the money but that defendant “stated he did not have the money and could not do so.” The complaint also alleged that defendant had paid back “$2,300.00 out of the $7,800.00 that he should have paid to Plaintiff as interest. . . .” Defendant denied the material allegations and subsequently amended his answer to plead the Statute of Frauds, OCGA § 13-5-30, contending that the alleged agreement “was not required to be performed within one year of its alleged making, and was based upon an alleged lending of money[.]”

The case was tried before the Superior Court of Fayette County without a jury. Plaintiff testified that she received an inheritance and that on March 1, 1990, she gave defendant (at that time her brother-in-law) her personal check for $20,000 in order to help him start a day-care center. Defendant was to repay her whenever she “asked for it back.” Plaintiff expressly denied that she accepted defendant’s proposition: “I’ll pay you back when I can, when I have the money[.]” She “asked for a portion of the money in October of [1990,]” but acknowledged receiving only two payments totaling $2,300. In opposition, defendant acknowledged receipt of the loan but testified that his understanding of the repayment term was: “when my day care and I got in financial shape where I could pay her back, ... I’d pay her back as I could.” However, on cross-examination, defendant clarified that payment “wasn’t whenever [he] felt like it. It was when . . . she needed money,. . . if I could get a — if I could get it, even if I had to borrow it or whatever, I would give it to her.” Consistent with plaintiff’s testimony that she made a demand for payment in October 1990, defendant testified that he gave her $200 in cash. Defendant explained that check number 475 drawn on the account of Little Peoples Complete Day Care, Inc., while made out by defendant to himself on October 16, 1990, had been endorsed over to plaintiff. This check was negotiated under plaintiff’s signature and deposited in account number 1 101 50 331.

Defendant also claimed that he repaid his loan by giving money to plaintiff’s then-husband, Ray Little, who is also defendant’s brother. Defendant introduced three other checks which he claimed were repayments on the loan. Defendant’s personal check number 6239 was dated November 30, 1990, and made out to defendant’s brother, Ray Little, in the amount of $5,000. This was negotiated under the signature of Ray Little but was not deposited in the same account into which plaintiff deposited the acknowledged $2,100 payment. Rather, it appears to have been presented for cash. A second check in the amount of $5,000 was made out to Ray Little on March 23, 1991. This was check number 880, drawn on the account of Little Peoples Complete Day Care, Inc. This check was not deposited into plaintiff’s account. The third check made out to Ray Little, in the amount of $1,515.78, was drawn on defendant’s personal account as of July 12, 1991. This was negotiated under the signature of Ray Little but was not deposited in the plaintiff’s account. Defendant further testified that he made other payments on behalf of plaintiff, in the nature of set off. Specifically, he claimed that he “paid off one loan that they[, i.e., plaintiff and her husband,] had at the bank because they was fixing to repossess her car.” According to defendant’s reckoning: “I figure I still owe her around $6,000.00.”

The trial court found as a matter of fact and of law that the contract alleged in the complaint was governed by the Statute of Frauds, and that no enforceable contract exists. From the judgment for defendant rendered after this bench trial, plaintiff appeals. Held:

1. In related enumerations, plaintiff contends the trial court erred in concluding that the Statute of Frauds barred the enforcement of the oral contract. We agree.

OCGA § 13-5-30 (5) requires a writing signed by the party to be charged in order to make binding on the promisor “[a]ny agreement that is not to be performed within one year from the making thereof[.]” In the case sub judice, plaintiff tendered her check (the loan money) which defendant negotiated on March 2, 1990. No later than October 1990, she made demand on him and defendant responded with a partial payment. Nevertheless, the trial court concluded at the close of the evidence that the oral contract was unenforceable because “the only evidence on the issue of when the loan was to be repaid was plaintiff’s testimony that the defendant was to repay her when he was financially able. No evidence [was] presented from which it could be concluded that the loan could not have been paid back within one year.”

“No date [for repayment] is specified as to [defendant’s performance under] the alleged oral agreement, and [the trial court concluded] that it falls under the Statute of Frauds in that it is not a contract to be performed within one year. Although there is a possibility that performance of [defendant’s acknowledged obligation to repay the $20,000 he admitted receiving from plaintiff] would occur after a period of time greater than [one] year, there is also the possibility that this contract would be performed within one year, and the possibility of performance within one year is sufficient to remove the alleged oral contract from the Statute of Frauds. Burney v. Ball, 24 Ga. 505, 506 (4), 515; Henderson v. Touchstone, 22 Ga. 1, 4.” Weems v. Assn. Life Ins. Co., 154 Ga. App. 552, 554 (269 SE2d 57). Moreover, “[t]he provisions of Code Section 13-5-30 do not extend to the following cases: . . . Where there has been performance on one side, accepted by the other in accordance with the contract^]” OCGA § 13-5-31 (2). The judgment for defendant, who “figure [s] [he] still owe[s] her around $6,000.00,” cannot be sustained on the ground that this agreement, completely executed by plaintiff and acknowledged to exist by defendant, was unenforceable within the purview of OCGA § 13-5-30 (5). “ ‘(I)t is apparent that the trial court’s [judgment] in the case sub judice rests upon an erroneous legal theory. The trial court’s reliance on an erroneous legal theory requires reversal. (Cits.)’ Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984).” All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429).

2. Remaining enumerations have been considered and are found to have been rendered moot by our disposition in Division 1.

Decided June 5, 1995

Reconsideration denied June 21, 1995.

Paul S. Liston, for appellant.

M. Byron Morgan, for appellee.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A0583.
    HANKINS v. CITY OF ALPHARETTA.
    (458 SE2d 858)
   Andrews, Judge.

The issue here is when the Uniform Traffic Citation (UTC) charged a violation of “OCGA § 40-6-391” without specifying whether subsection (a) (1) or (a) (4) was meant and the evidence would have supported either subsection, was the superior court’s affirmance of the city court’s denial of a motion to quash for ambiguity reversible error? We find, on the record before us, that it was not.

No transcript of the proceedings below was produced and, therefore, we are limited to consideration of the record. The UTC charged that, on a specific date and time and in a specific location, Hankins was charged with “DUI (Test Administered: . . . BREATH . . . DUI Test Results .28 grams ... in Violation of Code Section 40-6-391 of State Law. ...”

Although the city court concluded the accusation was sufficient, despite the admonition of Scott v. State, 207 Ga. App. 533, 536 (428 SE2d 359) (1993), the superior court, while conceding that the UTC “failed to meet appropriate standards, and the court below erred in failing to quash,” concluded that the error was “harmless.”

The superior court additionally concluded, however, that the citation “gave Appellant sufficient notice that he was on trial for driving under the influence of alcohol. The reference on the citation to a breath test and the results of the test (.28 gms) are only applicable to driving under the influence of alcohol. OCGA § 40-6-392.” The court relied on Kuptz v. State, 179 Ga. App. 150 (345 SE2d 670) (1986), which had not been disapproved of in Scott.

Further, the court found no probability that the State meant to charge Hankins under OCGA § 40-6-391 (1), involving endangering a child while driving under the influence, because to do so the State would have had to specify “sufficient factual allegations, or specific reference to subsection 1, to put [Hankins] on notice. ...” This argument is not pursued here and is not further addressed.

Decided June 7, 1995

Reconsideration denied June 21, 1995

Joseph J. Felker, Jr., for appellant.

Robert A. Harris, Solicitor, for appellee.

Because Hankins has failed to show harm by the record, as was his obligation, Gale v. Obstetrics &c. of Atlanta, P. C., 213 Ga. App. 614, 615 (2) (445 SE2d 366) (1994), we need not resolve whatever conundrum is created by Scott, if any. See also Crawford v. City of Forest Park, 215 Ga. App. 234, 235 (2) (450 SE2d 237) (1994).

Because this case is factually on all fours with Morgan v. State, 212 Ga. App. 394 (442 SE2d 257) (1994), it is controlled by it. Charging OCGA § 40-6-391, without specifying whether subsection (a) (1) or (a) (4) will be the method of proof used, is not harmful error. Id.; Kuptz v. State, supra at 150 (4).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.