text:
    A94A0497.
    ANTHONY v. THE STATE.
    (444 SE2d 393)
   Pope, Chief Judge.

Defendant Margaret B. Anthony attacked Louise Doty in Doty’s carport. Defendant repeatedly struck Doty with a hatchet and tried to choke her, yelling that she would kill Doty for taking defendant’s husband. Neighbors heard Doty’s cries for help and called the police. When a police officer arrived and told defendant to drop the hatchet, defendant refused to do so. Instead, she threatened the officer with the hatchet, telling the officer she would kill him, too.

After a jury trial, defendant was convicted of two counts of aggravated assault. She appeals, arguing in her sole enumeration of error that she was deprived of a fair trial because the array of potential jurors from which her jury was selected did not represent a proper cross-section of the community. Specifically, she argues that the jury administrator’s practice of allowing full-time college students to defer their jury service to their next school break resulted in an array in which those under 25 years of age were overrepresented. (Defendant’s trial was held during the first week in January.)

1. The State suggests we need not address the merits of defendant’s argument because her challenge of the array was oral and untimely. The record shows that defendant orally challenged the array after voir dire but before selection of the jury. The trial court denied defendant’s challenge on the merits, and the parties proceeded to select the jury and have the trial. While defendant’s challenge was not in writing at the time it was made, defendant did include her challenge to the array in her written motion for new trial.

“The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed.” OCGA § 15-12-162. Our Supreme Court has held that “when a panel of jurors is put upon the [accused], he should challenge the array for any cause which would go to show that it was not fairly and properly put upon him, and that if he fails to do so, the objection is waived. . . .” Williams v. State, 210 Ga. 665, 667 (1) (82 SE2d 217) (1954). Moreover, we have held that a panel is “put upon” the accused (for purposes of determining when such a challenge must be made) when the array is seated and voir dire begins. See Guest v. State, 186 Ga. App. 318 (1) (367 SE2d 105) (1988). Accord Spencer v. Kemp, 781 F2d 1458, 1463-1465 (11th Cir. 1986). As explained by the Eleventh Circuit in Spencer, the policy underlying this waiver rule is to prevent a defendant from waiting until he sees how he does in jury selection before raising his challenge to the array, see id. at 1465; and the rule is not unduly burdensome because defendants and their attorneys generally “have ample opportunity to acquaint themselves with information upon which to base a decision to abide or attack the jury” in advance. Id. at 1464.

However, our appellate courts have also held that a challenge to the array is not waived as long as it is raised at the earliest opportunity to do so, and that if the defendant has no fair opportunity to put his challenge in writing at that time, he may do so for the first time in a motion for new trial. See Cobb v. State, 218 Ga. 10 (3, 4) (126 SE2d 231) (1962); Morgan v. State, 161 Ga. App. 484 (1) (287 SE2d 739) (1982). In Morgan, the defendant was indicted for several offenses, and one was severed from the rest for separate trial. When voir dire for the second trial began, the defendant realized that the array for that case was the same array from which the jury in the first trial was chosen. He orally challenged the array at that time but did not put his challenge in writing until after the trial, in his written motion for new trial. Under these circumstances, we held that the defendant was not required to anticipate this problem with the array and come to voir dire with a written challenge. Thus, the written challenge in the motion for new trial was adequate to preserve the issue, and we addressed the defendant’s challenge on the merits. 161 Ga. App. at 484-485.

Unlike the situation anticipated by the Eleventh Circuit in Spencer, defendant’s challenge in this case is not to the entire jury roll of the county but only to the array called for the week of her trial. Thus, the problem of overrepresentation of young people could not have been discerned from a pre-voir dire review of the jury roll by defense counsel. Nor was the problem revealed by juror questionnaires, since it was not the policy of the county to require potential jurors to fill out such questionnaires at that time. Moreover, the panel of prospective jurors was not “put upon” defendant all at one time; the panel was presented and questioned in two separate groups, and it was not until the second group was brought up that the problem of overrepresentation of young people became apparent. Even then, questioning was required to confirm the apparent problem. The waiver rule’s underlying policy as set forth in Spencer is not present here because the challenge was orally raised before actual selection of the jury. At the same time, application of the rule seems unfair and unduly burdensome because defendant could not have acquired the information necessary to challenge his array prior to voir dire. See Spencer, 781 F2d at 1464-1465. As in Morgan, defendant raised her challenge orally as soon as she was aware of the basis for her challenge and, unable as a practical matter to put her challenge in writing at that time, she included it in her motion for new trial. Accordingly, as in Morgan, we conclude that defendant did not waive her challenge and will address the merits of defendant’s argument.

2. A defendant’s Sixth Amendment right to a jury chosen from a fair cross-section of the community is implicated when a group is significantly underrepresented in the array and that group is distinct or cognizable. See Potts v. State, 259 Ga. 812 (1) (388 SE2d 678) (1990). Moreover, the burden of showing both significant underrepresentation and cognizability is on the defendant. See Hicks v. State, 256 Ga. 715 (7) (352 SE2d 762) (1987). In this case, defendant has failed to make either of these necessary showings.

First, defendant failed to establish the significant overrepresentation of those under 25 (and concomitant underrepresentation of those 25 and older). A document from Cobb County Information Services indicates thac 9.6 percent of the total petit jury pool is 18 through 24 years of age. However, voir dire was not transcribed and the record does not show how many members of this age group were included in defendant’s array. Defendant’s trial counsel stated at the hearing on the motion for new trial that the panel of 30 contained 13 to 17 students. This statement is not evidence, of course. See Thomas v. State, 208 Ga. App. 367 (1) (430 SE2d 768) (1993). The only actual evidence presented in this regard is the testimony of the jury administrator that at least seven of the potential jurors called that week were students; she could not give a more definite number because juror information sheets were not required from all jurors. This evidence is not sufficient to show a significant overrepresentation/underrepresentation.

Second, defendant failed to show that the underrepresented group is cognizable. “ ‘To show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group’s interests cannot be adequately represented if the group is excluded from the jury selection process. [Cit.]’ ” Potts, 259 Ga. at 813. Although earlier Georgia Supreme Court cases stated that age is not a recognized class for purposes of jury representation, see, e.g., Cobb v. State, 244 Ga. 344 (2a) (260 SE2d 60) (1979), subsequent cases have held that whether age is a cognizable class for jury selection purposes is a question of fact which will depend in each case upon such factors as the time and location of trial. See Hicks, 256 Ga. at 718; Parks v. State, 254 Ga. 403 (6b) (330 SE2d 686) (1985). At least one trial court has found young people (18 to 29-year-olds) to be a cognizable group, and defendant urges us to do the same here. See Parks, 254 Ga. at 409-410. Unlike the defendant in Parks, however, defendant here failed to produce evidence of common attitudes and values on the part of the alleged group. Nor did she show that the group had a definite composition; indeed, defendant argued at some points below that the overrepresented group was 18 to 24-year-olds and in others that it was 18 to 29-year-olds. Moreover, defendant’s argument ignores the fact that the group of 18 to 24-year-olds are over rather than underrepresented. Thus, even if those under 24 are shown to be a distinct and cognizable group for jury selection purposes, those 25 and older clearly are not, and they — the underrepresented group — are the pertinent group in this analysis. Accordingly, defendant failed to establish that a cognizable group was significantly underrepresented in her array, and the trial court did not err in rejecting her challenge.

Decided May 26, 1994.

Howard & Delaney, Stephen A. Delaney, for appellant.

Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur. McMurray, P. J., not participating.

       We further note that even if an age group is a cognizable class, it is not a highly protected class. See Parks v. State, 254 Ga. 403 (6b) (330 SE2d 686) (1985). Thus a policy or practice resulting in a significant underrepresentation of such a group would be constitutionally acceptable as long as it was rationally related to a legitimate State purpose. Id.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A0649.
    WYATT v. THE STATE.
    (444 SE2d 397)
   Pope, Chief Judge.

Defendant, a 17-year-old male, had sexual intercourse with an 11-year-old female and was convicted of statutory rape. Following the denial of his motion for a new trial, he appealed his conviction.

1. Defendant first argues that the trial court erred in instructing the jurors at the beginning of the trial that they should pay close attention because they would not be able to ask during post-trial deliberations what a witness did or did not say. Citing Williams v. State, 208 Ga. App. 460 (2) (431 SE2d 130) (1993), defendant asserts the court’s instruction was an incorrect statement of the law, which does allow the trial court, in its discretion, “ ‘to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. [Cit.]’ [Cit.]” Id. at 461. Defendant did not object to the challenged instruction when it was given, however. Although he reserved his objections after the trial court’s final charge to the jury, such a reservation of rights applies only to the final charge and does not relieve defendant of the obligation to object to instructions given by the court during the course of the trial. See Hambrick v. State, 204 Ga. App. 668 (1) (420 SE2d 308) (1992). Accordingly, defendant’s first claim of error was not properly preserved for review.

2. Defendant also contends the trial court erred in allowing Officer Kim Tesalona (the investigating officer) to testify, over defendant’s hearsay objection, that the victim’s mother told Tesalona that defendant had threatened the victim. Before Tesalona’s testimony was elicited, the victim testified that defendant threatened her, and the victim’s mother testified that the victim said defendant threatened her. Officer Tesalona did not mention the threat in her direct testimony. In cross-examining Tesalona, however, defendant focused on the fact that the victim had not told Tesalona about the threat during the investigation, thereby putting into issue the question of whether the story about the threat was recently fabricated. Thus, when the State elicited on redirect that even though the victim had not told Tesalona about the threat, the victim’s mother did tell her about it a few days after Tesalona had taken over the case, Tesalona’s testimony regarding the mother’s statement was not inadmissible hearsay because it was not offered to show the truth of the statement. Instead, it was offered to show that the statement was made and that it was made early in the course of the investigation, and thus that the story about the threat had not been recently fabricated. See Walker v. State, 184 Ga. App. 558 (3) (362 SE2d 135) (1987). It follows that the trial court did not err in allowing the testimony.

Decided May 26, 1994.

Nancy K. Peterson, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert W. Houman, Jeffrey H. Brickman, Robert E. Statham III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Although defendant failed to preserve this claim of error, we note that the use of an instruction which precludes any jury request to rehear evidence during deliberations cuts off the trial court’s ability to exercise its discretion based on the circumstances of the case; and we have previously taken a dim view of rigid judicial policies which unnecessarily restrict or eliminate the court’s discretion. See Cottingham v. State, 206 Ga. App. 197 (424 SE2d 794) (1992).


text:
    A94A0751.
    SULLIVAN v. THE STATE.
    (444 SE2d 392)
   Pope, Chief Judge.

Defendant Lloyd Sullivan was jointly tried with Malcolm Freeman and Torri McKissick. He was convicted of burglary and arson in the first degree and appeals his convictions.

1. Defendant, who presented no evidence at trial, contends the trial court erred in denying him the right to make the opening and concluding argument to the jury. However, after the State rested, co-defendant Freeman, who testified on his own behalf, recalled a State witness to the stand. Freeman had not reserved the right to call the witness for further cross-examination nor did he state at the time he recalled the witness that he was doing so for further cross-examination. Noting this, the trial court ruled the witness had been called as a witness for the defense such that the State had the right to open and close the argument to the jury.

Generally, if the defendant in a criminal case introduces no evidence at trial, he is entitled to present argument to the jury both before and after the State makes argument. OCGA § 17-8-71. This right is not forfeited when the defendant testifies on his own behalf, provided he introduces no other evidence. OCGA § 24-9-20 (c). However, this right is not absolute, and if one defendant offers evidence in the trial of co-defendants, the right to open and close is lost to all defendants. McDuffie v. Jones, 248 Ga. 544, 546-547 (2) (283 SE2d 601) (1981); see also Rogers v. State, 205 Ga. App. 739, 744 (6) (423 SE2d 435) (1992).

“In this instance, [co-defendant Freeman] called for further testimony of a witness who had theretofore testified in behalf of the state. Although the extent of the witness’ testimony was limited, [Freeman] did not invoke any ruling from the court to permit him to further cross examine the witness after the state had closed. Thus, the court could well have concluded that [Freeman] was calling the witness as his own witness, which he had a right to do.” Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979); see also Phillips v. State, 238 Ga. 497, 500 (233 SE2d 758) (1977).

Decided May 26, 1994.

J. Roland Dewitt, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Barry I. Mortge, Assistant District Attorneys, for appellee.

We thus find the trial court did not err in ruling that co-defendant Freeman called the witness as his own and denying defendant the right to make the opening and concluding argument. See Rogers, 205 Ga. App. at 744.

2. Defendant also argues his in-custody statement should have been suppressed because the State violated OCGA § 17-7-210 by failing to provide him with the actual tape recording of his statement until the time of trial. This enumeration is without merit. OCGA § 17-7-210 provides for the exclusion of a defendant’s in-custody statement if a copy of it has been requested, but has not been provided by the State. The State fully complied with this section by providing defendant with a copy of the transcript of his taped statement well in advance of trial. See Johnson v. State, 261 Ga. 236 (2) (404 SE2d 108) (1991); Todd v. State, 261 Ga. 766 (6) (410 SE2d 725) (1991). Moreover, defendant has made no showing of surprise or prejudice since his counsel was allowed to compare the tape to the transcript prior to its being used at trial and pointed to no material changes or inconsistencies in the content of the statement. See Van Kleeck v. State, 250 Ga. 551, 552 (1) (299 SE2d 735) (1983).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0005.
    TURNER v. STATE OF GEORGIA.
    (444 SE2d 372)
   McMurray, Presiding Judge.

Appellant Turner is a claimant in this action seeking forfeiture of certain real property pursuant to OCGA § 16-13-49. This appeal is taken from a final order of disposition of the property. Held:

1. “This appeal was originally filed in the Supreme Court, which transferred it to this court. The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious. In the Matter of J. S. S., 175 Ga. App. 361, 364 (1) (333 SE2d 417).” Krause v. Vance, 207 Ga. App. 615, 622 (19) (428 SE2d 595). Thus, the challenges to the constitutionality of OCGA § 16-13-49 submitted by appellant must be deemed to lack merit.

2. The superior court did not err in determining that the provisions of OCGA § 9-11-55, relating to default judgments, are not applicable to the special statutory procedure created by OCGA § 16-13-49 and at issue in the case sub judice. Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726); State of Ga. v. Britt Caribe Ltd., 154 Ga. App. 476, 477 (268 SE2d 702). Thus, appellant’s attempt to assert the provisions of OCGA § 9-11-55, which provide relief to a defendant who has failed to timely file an answer, was properly rejected by the superior court.

3. While appellant did not file an answer within 30 days of service of the complaint in this action, he did file a motion to dismiss the complaint which maintained that the superior court lacked jurisdiction over the subject matter of the action and failed to state a claim upon which relief can be granted. Insofar as the denial of the motion to dismiss is enumerated as error, this issue must be deemed as abandoned since claimant has failed to support this contention with either argument or citation of authority. Court of Appeals Rule 15 (c) (2).

However, we do note that the superior court did not fail to rule on appellant’s motion to dismiss. Appellant contends that he was entitled to file an answer after the ruling on this motion and before entry of an order of disposition but has cited no authority, and we find none, supporting this proposition.

Appellant also maintains that the superior court should have found that his motion to dismiss the complaint was a responsive pleading in the nature of an answer. We disagree, since as noted by the superior court in rejecting this proposition, the motion to dismiss did not raise an assertion that the property was not subject to forfeiture as required by OCGA § 16-13-49 (o) (3), nor did the motion to dismiss contain even a general denial of the averments of the allegations of the complaint such as would have satisfied OCGA § 9-11-8 (b).

4. Appellant maintains that there was no lawful forfeiture of the property at issue because the condemnation action was not filed within 60 days following the seizure of the property as required by OCGA § 16-13-49 (h) (2). Cited in support of this contention are Freeman v. City of Atlanta, 195 Ga. App. 641, 642 (394 SE2d 784); State of Ga. v. Luke, 183 Ga. App. 182 (358 SE2d 272); and State of Ga. v. Waters, 173 Ga. App. 274 (326 SE2d 243) which held (or stated dicta to the effect) that failure to file condemnation actions within the former 30-day time limit, following seizure of the property, precluded a lawful forfeiture action. However, the change in the time limits was not the only amendment to the applicable portion of the statute. The later of these cases was decided in 1990, while the events at issue in the case sub judice transpired during 1992. In the intervening period the forfeiture statute was rewritten and revised. Ga. L. 1991, p. 886. As amended, the legislature has addressed the consequences of a failure to initiate a forfeiture proceeding within the time allowed by the statute by providing that the “property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section. . . .” OCGA § 16-13-49 (h) (3). Thus, the revision of the statute provides a scheme which supersedes the remedy fabricated by this court in the decisions cited by appellant. This is apparent since the earlier decisions of this court cannot be reconciled with the new statutory provisions.

Decided May 11, 1994

Reconsideration denied May 27, 1994

Van C. Wilks, for appellant.

Peter J. Skandalakis, District Attorney, A. Thomas Jones, Victoria Aronow, Assistant District Attorneys, Wiggins & Camp, Daniel P. Camp, for appellee.

We also note that appellant’s reliance upon Henderson v. State, 205 Ga. App. 542 (422 SE2d 666) is misplaced. This case is not relevant since it deals with a different 60-day time limit which is not applicable here due to appellant’s failure to file a timely answer.

The statutory revision controls several issues raised by appellant and renders irrelevant the contested question of when the property was seized. Under the revised statutory scheme, appellant’s sole remedy for any failure by the district attorney to initiate the present action within 60 days of seizure of the property was to request the return of the property pending further proceeding under the forfeiture statute. Since there is no showing that such a request was made in the case sub judice, any error made by the superior court in determining if or when a seizure of the property had occurred prior to the final order in the forfeiture proceeding was harmless.

5. Appellant’s remaining enumerations of error, not being supported by argument or citation of authority, must be deemed abandoned. Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Cooper, Judge.

text:
    A94A0061.
    ARBY’S, INC. v. COOPER.
    (444 SE2d 374)
   Cooper, Judge.

This appeal arises out of a lawsuit brought by plaintiff, a former employee of defendant Arby’s, Inc., for unpaid annual bonuses totaling $100,000 and expenses in the amount of $20,137.30. A jury returned a verdict in favor of plaintiff in the amount of $120,137.30 plus attorney fees in the amount of $30,000. Defendant appeals from the judgment entered on the jury verdict.

Defendant contends the trial court erred in denying its motion for directed verdict. Defendant has admitted liability for the expenses due to plaintiff but argues that the oral promises to pay bonuses were not enforceable because plaintiff was an employee at will with a fixed salary and the promise of a bonus was a mere gratuity. “In determining whether the trial court erred by denying defendant’s motions for a directed verdict . . . this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. ...” (Punctuation omitted.) Stone v. Allen, 201 Ga. App. 842 (1) (412 SE2d 605) (1991).

Viewed in the light most favorable to the verdict, the evidence reflects that in 1985, plaintiff was hired by defendant as a top level executive in defendant’s franchising division. His annual compensation package was based on a salary, bonus, and other benefits such as a company car and health insurance. Plaintiff did not qualify for a bonus in 1985 but received bonuses for 1986 and 1987. At the end of 1988, Len Roberts, defendant’s president, met with plaintiff to determine his 1988 bonus. Roberts testified that to calculate the bonus, he used a formula which took into account such factors as the overall success of the company in reaching certain goals, the profitability of the company and the amount of plaintiff’s previous bonus. Roberts stated that an agreement was reached that plaintiff’s 1988 bonus would be $60,000. The 1988 bonus was supposed to be paid in early 1989, However, by the end of 1989, plaintiff’s 1988 bonus had still not been paid, and Frank Belatti was defendant’s new president. Plaintiff testified that a similar procedure was followed in determining his 1989 bonus, and he reached an agreement with Belatti that his bonus for 1989 would be $75,000. Belatti confirmed in his deposition that an agreement was reached with plaintiff that his 1989 bonus would be $75,000 and that this amount was approved by the compensation committee. Plaintiff received assurances from Belatti and defendant’s owner that both the 1988 and 1989 bonuses would be paid. In March 1990, plaintiff received $35,000 as partial payment of his 1988 bonus, and shortly thereafter, plaintiff resigned. Defendant never paid plaintiff the balance of his 1988 bonus or his 1989 bonus.

Defendant’s argument that the oral promise to pay a bonus is unenforceable is without merit. Plaintiff agreed to render certain services to defendant in exchange for a fixed salary, bonus and other benefits. Defendant’s promise to pay plaintiff a bonus in addition to his fixed salary was not a mere gratuitous gesture. It was extra compensation, the amount of which was to be ascertained at a future time. “Such a promise, made at the beginning of the employment, is enforceable, though it would not be if made pending the term or after performance was complete. [Cits.]” Phillips & Co. v. Hudson, 9 Ga. App. 779, 781 (72 SE 178) (1911). Therefore, we find no error with the trial court’s denial of defendant’s motion for directed verdict.

Decided May 12, 1994

Reconsideration denied May 27, 1994

Gorby & Reeves, Michael E. Fisher, Martha D. Turner, for appellant.

Rubin & Wildau, Martin H. Rubin, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge. Blackburn, Judge,

text:
    A94A0110.
    CLARK v. THE STATE.
    (444 SE2d 806)
   Birdsong, Presiding Judge.

Johnny Lewis Clark appeals his convictions for possession of cocaine with intent to distribute, obstruction of an officer, and two counts of the sale of cocaine.

The State showed that on October 8, 1991, following a confidential informant’s tip that a large black man wearing a yellow jump suit was selling crack cocaine on Cynthia Avenue, two Macon police officers drove to that location and saw appellant, whose appearance matched the description. When one officer asked appellant to approach, appellant grew irate and asked why the police were picking on him. Before approaching the police car, appellant stepped aside to another parked car and put his right hand in his pants. The other officer saw appellant throw down a plastic bag. Appellant then approached the police car, denied he had anything and said the police could search him. A pat-down search unleashed from appellant’s pocket $280 in cash in tens and twenties. The plastic bag found where appellant had made a throwing motion contained 36 pieces of crack cocaine. Appellant left the scene while the police were looking for the plastic bag, and was later found on Ibec Street in Macon, in a house where police entry was blocked by appellant’s relatives. When the officers tried to arrest appellant, he gouged and hit one officer on the head with his fingers and his fist. Appellant finally surrendered when police told him they would get a warrant.

On November 26, 1991, an undercover officer approached Terrence Hill at the corner of Cynthia Avenue and Houston Avenue in Macon to buy crack cocaine. Hill had only three pieces but the officer wanted five, so Hill offered to go to Ell Street and get more. The officer drove Hill to Ell Street and Hill went into a yard to see appellant. The officer saw appellant give Hill a clear plastic bag. Hill returned to the officer and gave him six pieces of crack cocaine for $50.

On December 6, 1991, the same officer went to make a buy from appellant on Ell Street. He saw appellant outside a house and told appellant he wanted six pieces. On appellant’s orders, an old man got some crack cocaine from the house and gave it to appellant, who gave six pieces to the officer for $60. Held:

1. On appeal of a criminal conviction, appellant no longer enjoys the presumption of innocence; the jury has determined the credibility of witnesses and has weighed the evidence; on appeal of the jury’s conviction, we do not weigh the evidence or determine witness credibility but merely determine sufficiency of the evidence to support the conviction. Feagin v. State, 198 Ga. App. 460 (402 SE2d 80). Construing the evidence in favor of the jury’s verdict, we find it sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of all the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err in denying appellant’s motion to sever trial of Counts 1 and 2 from Counts 3 and 4. The test for determining this issue is whether, in light of the number of offenses charged and the complexity of the evidence, the jury will be able to distinguish the evidence and apply the law intelligently to each offense. Dobbs v. State, 204 Ga. App. 83, 84 (418 SE2d 443). When offenses are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan, severance is discretionary, not mandatory, and the trial court may order severance if necessary to achieve a fair determination of the defendant’s guilt or innocence on each count. Villarreal v. State, 198 Ga. App. 501 (402 SE2d 104). We do not agree that Counts 3 and 4 were joined solely because they were of the same or similar character. “Although the two events were separated in time, the facts show a continuing course of criminal conduct and a series of acts constituting a common scheme or plan — that is, appellant’s activities in supplying cocaine for each transaction.” Id. at 502-503. Moreover, the evidence shows a police operation to ferret out the drug activities on Cynthia Avenue in Macon and of appellant, within two months of his arrest on October 8 on Cynthia Avenue while in possession of a large amount of cocaine. Anderson v. State, 207 Ga. App. 717 (1) (429 SE2d 128). See also Davis v. State, 158 Ga. App. 549 (281 SE2d 305). Further, the separate drug sales showing appellant’s drug activity at the same location and area within a short period of time would be admissible as “similar crimes,” which refutes appellant’s assertion of fatal prejudice in their joint prosecution. See generally Williams v. State, 261 Ga. 640 (409 SE2d 649). For all these reasons, denial of the motion to sever was not an abuse of the trial court’s discretion.

3. Appellant contends the State did not prove venue as to Counts 3 and 4 for the sale of cocaine on Ell Street. While a court may judicially notice the location of cities within a county, it may not notice the location of streets in a city (Harmon v. Harmon, 209 Ga. 474 (2) (74 SE2d 75); Collins v. State, 172 Ga. App. 100 (321 SE2d 823)), and testimony of witnesses relating to certain streets which fails to specify the municipality or the county in which the streets were located is not sufficient to prove venue. Patterson v. State, 157 Ga. App. 233 (276 SE2d 900). But, “ ‘[e]vidence as to venue, though slight, is sufficient where there is no conflicting evidence.’ ” Johns v. State, 239 Ga. 681, 682 (238 SE2d 372). The evidence shows that the first sale on Ell Street (November 26, 1991) originated at a corner of Cynthia Avenue in Macon, Bibb County, which was established as the location where appellant was first arrested for possession of cocaine with intent to distribute on October 8, 1991. Officers of the Macon Police Department were involved in all the cases, including the buys on Ell Street. There is no evidence these officers were acting outside their jurisdiction or authority, and there was no allegation that Ell Street lies in a county other than Bibb County. We therefore find the evidence sufficient to prove venue in Bibb County for the sales on Ell Street. Salley v. State, 199 Ga. App. 358 (1) (405 SE2d 260); Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384). See also Melton v. State, 252 Ga. 97 (311 SE2d 471); Johns, supra.

Judgment affirmed.

Cooper, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur in the judgment reached by the majority and with all that is said in the majority opinion with the exception of the discussion contained in Division 3 of that opinion. “[V]enue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved [by the state] beyond a reasonable doubt.” (Citations and punctuation omitted.) Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981). The only evidence establishing venue in this case is that there was no evidence that the arresting officers were acting outside their jurisdiction and authority. I believe this is insufficient evidence to establish venue beyond a reasonable doubt and effectively shifts the burden of proof to the accused to prove a lack of venue. Although I do not agree with the majority’s opinion in this regard, I feel constrained to follow the outcome on this issue as this court has previously held such evidence sufficient to establish venue in criminal cases. See Salley v. State, 199 Ga. App. 358 (1) (405 SE2d 260) (1991); Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989).

Decided April 7, 1994

Reconsideration denied May 27, 1994.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.


author: Beasley, Presiding Judge.

text:
    A94A0231.
    PROPERTY SYSTEMS LAND CORPORATION v. TULLIS.
    (444 SE2d 366)
   Beasley, Presiding Judge.

Appellant Property Systems Land Corporation (Property Systems) brought this action against Jerry Tullís to recover a real estate commission allegedly due it on the sale of Tullís’ land. After a bench trial, the trial court found for Tullís.

The evidence at trial showed that Tullís sought to sell a 12.86 acre tract of land he owned. On April 13, 1992, Tullís entered into a “Land Marketing Authorization” with Property Systems giving it the exclusive right to market his land. The agreement provided in pertinent part: “If I sell or dispose of the property or agree to do so during the term (whether through my own efforts or those of any other party) or if during the term [Property Systems] delivers to me the written offer of a party ready, willing, and able to acquire the property on the above terms or others acceptable to me, then I shall pay [Property Systems] a commission in the amount of 10% of the total price, payable on the scheduled closing date. After the term I will not be obligated to pay the commission to [Property Systems] unless I agree to dispose of the property within 90 days to a prospect [Property Systems] disclosed to me during the term.” The 90-day listing agreement contained an automatic 90-day renewal provision that was not cancelled by either party. The second 90-day period expired on October 10.

During the initial 90-day term, Property Systems presented Tullís with a purchaser who contracted to buy the land but ultimately cancelled. On August 22, during the renewal term, Tullís entered into a written contract to sell the land to Tom Catanese, an individual who was presented to Tullís by another broker. When Property Systems learned of the contract with Catanese, it notified Tullís that it was entitled to a commission on the sale pursuant to its exclusive listing agreement. Tullís then informed Catanese of Property Systems’ claim for a commission. He also refused to accept Catanese’s tender of the $2,500 earnest money check called for by the August 22 contract. Catanese understood that Tullís’ refusal to accept his check was based on Property Systems’ claim for a commission.

Tullís testified at trial that the Property Systems’ agent he dealt with assured him that the listing agreement was for 90 days only and he thus did not believe he owed a commission on the Catanese contract since it occurred outside the 90-day period. He acknowledged that the listing agreement did contain a 90-day renewal provision and that he did not read the agreement before signing it.

Tullís further testified that the written contract with Catanese was voided and that he and Catanese simply had a verbal or “gentlemen’s agreement” to work something out with the property. Catanese testified that he did not believe he had a binding contract to purchase the property and that he knew he was at risk in performing feasibility studies on the property and seeking to rezone it. Nevertheless, he believed he and Tullís would go through with the deal in one form or another. Catanese made all the arrangements necessary to facilitate the purchase, he obtained the rezoning in his own name as “Purchaser,” and he had feasibility studies conducted. He admitted on cross-examination that he was able to close on the property under the August 22 contract.

Catanese testified that he could not close, in his words, “by myself’ but had to obtain additional funding from his sisters, which he did the day before the closing. He testified that it was in his best interest to purchase the property rather than develop it in partnership with Tullís, which was suggested by Tullís, because it enabled him to be in complete control of the property. He stated “Well, thank God, I did come up with the money and I was able to close, which was in my best interest to ... to be in complete control.” He admitted that he closed under a corporate name, Banker’s Choice, Inc.

The closing took place on November 6 with Tullís selling the property to Banker’s Choice, Inc., and Catanese signing the closing documents on its behalf as its President. Although the closing took place one day later than called for in the August 22 contract, the remainder of the sale was in accordance with its precise terms.

At trial, Tullís essentially defended on the ground he was fraudulently induced to enter into what turned out to be a 180-day exclusive listing agreement. The trial court found that the listing agreement was valid and had renewed for an additional 90 days; that Tullís and Catanese entered into a contract to sell the property during the term of the listing agreement but never closed; that after the listing agreement expired, Tullís sold the property to a separate entity, Banker’s Choice, Inc.; and that Catanese executed the closing documents only in his representative capacity as agent for the corporation. The court further noted that Property Systems did not contend the contract between Tullís and Banker’s Choice was made during the term of the listing agreement or that it was owed any commission on the sale of the property to Banker’s Choice. Judgment was entered for Tullís.

Property Systems contends that the evidence conclusively showed that Tullís agreed to sell the property to Catanese during its exclusive listing agreement and that Tullís did in fact sell the property as agreed.

“The finding[s] of fact by the trial court in non-jury cases will not be set aside on appeal unless they are wholly unsupported by the evidence or are clearly erroneous. [Cit.]” Davis v. Hosp. Auth. of Fulton County, 167 Ga. App. 304, 305 (306 SE2d 306) (1983).

The trial court erroneously found that the property was ultimately sold to someone other than Catanese such that no commission was owed. The fact that Catanese signed the closing documents only in his representative capacity as President of Banker’s Choice, Inc., does not void the commission. While there was no specific evidence presented that Catanese was the sole owner of Banker’s Choice, Inc., there was undisputed evidence that Catanese exercised control over its title purchase of Tullís’ property.

The entire line of questioning to Catanese at trial was phrased in terms of Catanese being the purchaser of the property from Tullís, and no one, including Tullís, ever contended at trial that Catanese was not in fact the purchaser of the property. Banker’s Choice never entered into the picture as the grantee of title until Catanese so designated it for the closing.

Finally, Banker’s Choice was referred to during the trial as Catanese’s company and no one attempted to correct this reference. The property was sold under the precise terms of the August 22 contract other than that the earnest money deposit was waived and the closing took place one day late. There is no contention or evidence that the sale to Banker’s Choice occurred under any other contract than that entered into between Tullís and Catanese on August 22 or their gentlemen’s agreement, both being within the listing period.

Because the evidence showed that Tullís agreed to sell the property to Catanese during the term of the exclusive listing agreement' and that Catanese controlled the actual purchase of the property and designated the grantee, the trial court’s judgment for Tullís was based on an erroneous finding of fact and is reversed. See Decatur Co. v. Bowen, 203 Ga. App. 84, 87 (1, 2) (416 SE2d 304) (1992).

Judgment reversed.

Andrews and Johnson, JJ., concur.

Decided May 10, 1994

Reconsideration denied May 27, 1994

Cofer, Beauchamp & Butler, Bryant K. Smith, for appellant.

Chandler & Britt, Richard B. Chandler, Jr., Gregory D. Jay, for appellee.

Anne E. Meroney, amicus curiae.


text:
    A94A0242.
    HARVEY et al. v. KIDNEY CENTER OF CENTRAL GEORGIA, INC. et al.
    (444 SE2d 590)
   Beasley, Presiding Judge.

Plaintiffs Harvey sued defendants for medical negligence in a dialysis procedure. Collectively, defendants challenged the legal sufficiency of the affidavit, submitted pursuant to OCGA § 9-11-9.1, as to its form, timeliness, and substance. The trial court granted defendants’ motions to dismiss the complaint for non-compliance with the statute. It did not specify the nature of the deficiency. A consideration of the factors of form and timeliness resolves the issue.

The complaint, which was filed on April 29, 1993, alleged that it was filed within ten days of the expiration of the limitation period and that plaintiffs were availing themselves of the forty-five day grace period in OCGA § 9-11-9.1 (b) in which to file a proper expert affidavit. The period ended on June 14. There was no motion or hearing to extend the time for good cause shown, as permitted by the statute.

On June 8, plaintiffs’ attorney received by mail a signed writing from a registered nurse located in another city which was to serve as the statutory affidavit, but it lacked an executed jurat. On June 30, plaintiffs’ counsel realized the lack of notarization as well as the lack of filing. That day he instructed his secretary to “notarize” the nurse’s signature, even though the nurse was not present and neither the attorney nor the secretary/notary had witnessed the signing, and to mail it for filing. The document was filed with the court on July 1.

The Harveys contend that OCGA § 9-11-9.1 (e) entitled them to amend their complaint, pursuant to OCGA 9-11-15 (a), to add the affidavit because they had it “available” during the 45-day statutory grace period. Their reliance on Reid v. Brazil, 193 Ga. App. 1 (387 SE2d 1) (1989), for the proposition that a plaintiff can avail himself of amendment as provided in subsection (e) after utilizing the grace period of subsection (b), does not aid them. Even if a plaintiff can properly do so, the Harveys did not have the requisite affidavit available because the document was not a valid affidavit.

Decided May 10, 1994

Reconsideration denied May 27, 1994

H. Michael Harvey, Christopher J. McFadden, for appellants.

Chambless, Higdon & Carson, Joseph H. Chambless, Emmitte H. Griggs, Jon C. Wolfe, Martin, Snow, Grant & Napier, John C. Edwards, Lisa M. Edwards, for appellees.

“ ‘A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit.’ (Emphasis supplied.) Phoenix Air Conditioning Co. v. Al-Carol, 129 Ga. App. 386, 387 (199 SE2d 556) (1973). . . . ‘ “[I]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with” other evidence. [Cit.] To make a valid affidavit the affiant “must swear to it, and the fact of his swearing must be certified by a proper officer.” [Cit.] “In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” [Cit.]’ [Cit.]” D’Zesati v. Poole, 174 Ga. App. 142, 143 (329 SE2d 280) (1985).

OCGA § 9-11-9.1 requires a plaintiff to file with the complaint for professional negligence a legally valid affidavit. See Hill-Everett v. Jones, 197 Ga. App. 872, 873 (1) (399 SE2d 739) (1990). In St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989), it was determined that the failure to attach a supporting affidavit to the complaint in a professional malpractice action was an amendable defect under Rule 15 (a) of our Civil Practice Act, but the legal validity of the document as an affidavit was not in question. Moreover, there was “no doubt that the Neases had obtained the affidavit before filing suit” and that “[t]hey simply neglected to file it with their complaint.” Nease at 154 (1) (b).

As noted in Nease, “[u]nder the statute, failure to obtain the affidavit might be a fatal defect.” Id. at 155 (1). This is justified because “a defendant can be harmed by a plaintiff’s failure to follow the procedure set forth in OCGA § 9-11-9.1 (b).” Brake v. Mintz, 193 Ga. App. 662, 666 (388 SE2d 715) (1989). Here, the plaintiffs failed to obtain and file a proper affidavit on time.

The trial court did not err in dismissing the complaint for noncompliance with OCGA § 9-11-9.1.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       The suit also contains counts of negligent hiring and loss of consortium, but these causes are dependent on survival of the medical negligence claim.


author: Andrews, Judge.

text:
    A94A0296, A94A0459.
    HORACE MANN INSURANCE COMPANY v. DRURY et al.; and vice versa.
    (445 SE2d 272)
   Andrews, Judge.

In Case No. A94A0296, Horace Mann Insurance Company (Mann) appeals from the grant of summary judgment to Drury and the denial of Mann’s motion for summary judgment in Mann’s declaratory judgment action on the issue of coverage under a homeowner’s policy. The trial court determined there was coverage because two exclusions did not apply. In A94A0459, cross-appellant Drury appeals from the grant of Mann’s motion to dismiss Drury’s cross-claim against Sam O’Steen alleging negligence.

Case No. A94A0296

1. The undisputed evidence was that, on August 12, 1991, Drury was a passenger in a car owned by the O’Steen family and insured by Georgia Farm Bureau. The car was being driven by Ben O’Steen, with Sam O’Steen in the front passenger seat and Drury in the rear seat, seated near the center of the car. On the rear floorboard and seat near Drury were two packages of “jumping jack” firecrackers. Each package contained over 500 firecrackers. The front passenger window next to Sam O’Steen was open and the right rear window near Drury was down about two inches.

Sam O’Steen lit one of the firecrackers and threw it out his window. The lighted firecracker reentered the car through Drury’s window and caused all the firecrackers to explode, severely burning Drury.

In the Exclusions section of the homeowner’s policy applicable “only to personal liability,” subsection 2 provides that “[t]his coverage does not apply to liability . . . g. for any act or acts committed by or at the direction of any insured which constitutes a violation of any criminal law or statute.” (Emphasis supplied.) -

Under OCGA § 25-10-2, it “shall be unlawful for any person . . . to use or explode or cause to be exploded, or to possess, ... , or transport any fireworks. . . .” OCGA § 25-10-8 provides that any person violating the chapter “shall be guilty of a misdemeanor.”

Drury argued below, based primarily upon dictionary definitions and foreign authority, that the term “criminal law or statute” is ambiguous because not specifically defined in the policy and should be construed as most lay persons would understand it, i.e., to mean only felonies of a serious nature, like robbery and murder.

“ * “Contracts of insurance, like other contracts(,) are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. (Cit.)” (Cits.) Dictionaries supply “the plain, ordinary and popular sense.” ’ [Cit.]” Brown v. Peninsular Fire Ins. Co., 171 Ga. App. 507, 508 (320 SE2d 208) (1984), quoted in Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376 (441 SE2d 788) (1994).

Webster’s Third Int’l Dictionary (1976 ed.), defines “crime” as “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law of a sovereign state to the injury of the public welfare and that makes the offender liable to punishment by that law in a proceeding brought against him by the state by indictment, information, complaint, or similar criminal procedure: an offense against public law (as a misdemeanor, felony, or act of treason) providing a penalty against the offender but not including a petty violation of municipal regulation.”

Georgia law has historically recognized this understanding of “crime” as not generally including violations of municipal ordinances and administrative regulations, but including all other violations of penal statutes, including misdemeanors. OCGA § 16-2-1; see Turner v. State, 233 Ga. 538 (212 SE2d 370) (1975).

“ ‘When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties. [Cit.]’ Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (1) (379 SE2d 188) (1989).” Martin v. Cotton States Mut. Ins. Co., 210 Ga. App. 32, 33 (435 SE2d 258) (1993). Here, the exclusion in this homeowner’s policy of coverage of acts of an insured which constitute a violation “of any criminal law or statute” can only reasonably be read to exclude injuries caused by illegal possession of firecrackers. See Stinson v. Allstate Ins. Co., 212 Ga. App. 179 (441 SE2d 453) (exclusion of coverage of injuries “which may reasonably be expected to result from the intentional or criminal acts of an insured person” found unambiguous and to be judged by the “reasonable man” objective standard); Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385 (414 SE2d 521) (1991).

“Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage. [Cit.]” Burnette, supra.

2. We also conclude that this exclusion is not in violation of the public policy of this state, as argued by Drury below.

“ ‘ “The public policy of this state is created by our Constitution, laws and judicial decisions.” [Cit.]’ Brock v. Guaranty Trust Life Ins. Co., 175 Ga. App. 275, 277 (2) (333 SE2d 158) (1985). We find no established public policy impediment, by way of Constitution or statute or case law, to an insurer applying the exclusion in issue here. . . . Unlike the automobile insurance policy at issue in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), cited by [appellee Drury], the parameters of the instant policy are not prescribed by compulsory motor vehicle insurance statutes.” Burnette, supra at 486 (2). Here, the policy involved is a homeowner’s policy not mandated by law. Compare Jefferson Pilot, supra at 389 (2) with Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614 (440 SE2d 242) (1994).

3. In light of our holding, supra, we need not consider the applicability of the “use of motor vehicle” exclusion.

Case No. A94A0459

In this case, Drury appeals the trial court’s granting of the motion by Mann to dismiss Drury’s negligence cross-claim against Mann’s insured, Sam O’Steen. The insured O’Steens took the position below and here that they “stand neutral” in the litigation.

4. Pursuant to OCGA § 9-11-12 (a), no answer is required to be filed to a cross-claim and it automatically stands denied. Therefore, even though the O’Steens stand neutral, the cross-claim by Drury against them is legally denied. Drury opposed the motion to dismiss his cross-claim.

Pretermitting the validity of Mann’s legal argument premised on Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 337 (6) (291 SE2d 410) (1982), we note a critical factual difference between that case and the present one. There, the defendant in cross-claim was the party making the motion to dismiss for failure to state a claim. Here, Mann, which is not a party to the underlying tort suit, was the one making the motion to dismiss.

Therefore, we conclude that Mann had no standing regarding the issues raised in the cross-claim and no basis upon which to have it dismissed. See Mgmt. Compensation Group /Southeast v. United Security &c., 194 Ga. App. 99, 103 (3) (389 SE2d 525) (1989).

Judgments reversed in Case Nos. A94A0296 and A94A0459.

Beasley, P. J., and Johnson, J., concur.

Decided May 12, 1994

Reconsideration denied May 27, 1994

Buzzell & Pinkston, R. William Buzzell II, Loretta L. Pinkston, for appellant.

Pursley, Howell, Lowery & Meeks, R. Harold Meeks, Jr., Preston & Preston, Robert H. Preston, Martin, Snow, Grant & Napier, Robert R. Gunn II, for appellees.

       Drury’s claim against Georgia Farm Bureau was settled and plays no part in our consideration of the claim against the homeowner’s policy.


text:
    A94A0384.
    BANK OF SPALDING COUNTY v. POUND et al.
    (444 SE2d 375)
   Andrews, Judge.

The Bank of Spalding County (Bank) appeals from the trial court’s ruling that a set-off by the Bank against a checking account of Whitworth and Wright, Inc. was improper.

Viewed in favor of the trial court’s factual findings, the evidence showed that Pound had established an insurance agency about 20 years ago. In July 1988, this agency was sold to Whitworth and Wright by transferring the assets of Pound, Ltd. to a new corporation, Whitworth & Wright, Inc. (W & W). Pound took a small downpayment and two notes signed on July 1,1988. The notes were secured by the “furniture, fixtures, equipment, accounts receivable, book of business and company contracts, together with all replacements and accessions thereto. . . .”

W & W maintained three checking accounts at the Bank, including # 400-00-630. In addition, W & W established a $100,000 line of credit with the Bank, which was renewed on February 26, 1993, maturing on June 15, 1993. This note was personally guaranteed by Wright and Whitworth.

W & W stayed current with payments due Pound under the notes and security agreement until March 3, 1993 when Whitworth called Pound and told him they could make no more payments. Litigation ensued and a settlement was reached.

As part of the settlement, a Transfer of Title to Assets in Lieu of Foreclosure was executed by W & W. It stated that, pursuant to the power and authority granted in the 1988 Security Agreement, W & W “does hereby convey and transfer to [Pound] . . . any and all rights, titles and interests it may have in and to the following described property, to wit: Any and all assets of [W & W] including but not limited to any and all furniture, fixtures, equipment, accounts receivable, books of business and company contracts, together with all replacements and accessions thereto, which are cumulatively referred to in the Security Agreement “as the Collateral.” A copy of this transfer was delivered by Pound to the Bank at 4:41 p.m. on June 10,1993.

W & W and Pound entered into a stipulation of record below that, pursuant to the settlement agreement and the transfer, “any and all funds in [the Bank’s] account numbers: 400-00-631 . . . are the property of and are owned by . . . Pound, who is entitled to immediate possession and control thereof.”

Pound took over control of W & W’s assets, established a new insurance agency, “Pound, Inc.,” and continued to do business, although using new bank accounts at another bank.

Pound had been the insurance agent for Spalding County for years, and this was part of the business purchased by W & W. On June 3, 1993, the county forwarded to W & W its check ($289,546) for insurance premiums due. That check was deposited into account # 400-00-631 on June 4. Prior to the deposit of that check, the bookkeeper for W & W testified that, due to checks which she had already written but not distributed, W & W had a negative cash flow of -$107,238.89.

After receipt of the transfer, the Bank executed a set-off of $102,041.67 against account # 400-00-630. Notice of the set-off was sent to W & W by letter dated June 11, 1993 and the set-off posted on the W & W bank statement on June 14, 1993.

There was not enough money remaining in the accounts to pay the Spalding County insurers.

The Bank then filed this interpleader action against W & W and Pound regarding the money left in the three bank accounts after the set-off. Pound then filed a counterclaim seeking a declaratory judgment that the set-off was improper and that he, as agent for the insurers of Spalding County, was entitled to the funds.

1. In its second enumeration, the Bank contends that the court’s consideration of Pound’s counterclaim for declaratory judgment was inappropriate because there was no “justiciable controversy.”

“The inclusion of subsection [OCGA § 9-4-2] (b) makes the Georgia Declaratory Judgment Act ‘much broader in scope and more comprehensive in its jurisdiction of justiciable controversies’ than the declaratory judgment acts of many other states. [Cit.]” Pangle v. Gossett, 261 Ga. 307, 308 (1) (404 SE2d 561) (1991).

Here, it cannot be denied that Pound claims an interest in the money set-off by the Bank which is adverse to that of the Bank. Id. Therefore, the court correctly considered Pound’s counterclaim for declaratory judgment. Famble v. State Farm Ins. Co., 204 Ga. App. 332, 335 (2) (419 SE2d 143) (1992); see Harrison v. Speidel, 244 Ga. 643, 644, n. 1 (261 SE2d 577) (1979).

Decided May 12, 1994

Reconsideration denied May 27, 1994

Smalley & Cogburn, Robert H. Smalley, Jr., for appellant.

Hendrix & Smith, Newton M. Galloway, Gambrell & Stolz, Nedom A. Haley, Meadows & Associates, Warren R. Power, for appellees.

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Brynda S. Rodriguez, amici curiae.

2. The Bank’s first enumeration is that the court erred in declaring the set-off improper because the Bank’s right of set-off was superior to Pound’s rights under the transfer of assets.

The Bank relies primarily upon Guerry v. Perryman, 6 Ga. 119, 123 (1849) for its contention that Pound, as assignee of W & W’s rights in the bank accounts, took that assignment “legally subject to all the equities of the original debtor,” including the Bank’s right of set-off. That case, however, is factually distinguishable from this. There, the court found that there was no proof in the record that Perryman’s assignees ever gave notice to Guerry, the maker of the notes, that they were the assignees thereof. Here, it is not disputed that, at the time the set-off was executed by the Bank, it was clearly aware of the assignment by its depositor W & W to Pound. See Bank of Oglethorpe v. Brooks, 33 Ga. App. 84, 85 (3) (125 SE 600) (1924).

OCGA § 33-23-35 (b) provides that “[a]ll funds representing premiums received ... by any agent . . . shall be accounted for in the licensee’s [insurance agent’s] fiduciary capacity, . . . , and shall be promptly accounted for and paid to the insurer. . . .” Under this section, the check of Spalding County which was deposited into the W & W account was subject to this section and represented “trust funds” in the possession of the agent on behalf of the insured. See Cotton States Mut. Ins. Co. v. C & S Nat. Bank, 168 Ga. App. 83, 87 (2) (308 SE2d 199) (1983). Compare Smeltzer v. Bank of Fitzgerald, 192 Ga. App. 747, 748 (2) (386 SE2d 406) (1989).

While the Bank is correct that it may apply the amount of the account of one of its depositors to a matured debt owed by that depositor to the bank, Nat. City Bank v. Busbin, 175 Ga. App. 103, 105 (3) (332 SE2d 678) (1985), at the time the set-off here was effected, the indebtedness under the note was not that of Pound, to whom the assets, including cash on deposit, had been assigned, but that of W & W. Further, the note, by its terms, did not “mature” until June 15 and the set-off occurred prior to that date while the Bank was aware of the assignment and the nature of the funds in the account.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       This account was the only one of the three accounts containing a balance large enough to cover the amount due under the note.


author: Birdsong, Presiding Judge.

text:
    A94A0584.
    RYLES v. FIRST OGLETHORPE COMPANY et al.
    (444 SE2d 578)
   Birdsong, Presiding Judge.

Appellant Tim Ryles, Commissioner of Insurance for the State of Georgia, appeals the final order and judgment by default entered by the superior court.

Certain appellees are seeking certificates of authority from appellant to operate Self-Insured Workers’ Compensation Funds in this state (see generally OCGA § 34-9-150 et seq.); one appellee is the administrator of the proposed funds. The Commissioner alleged that certain of the appellees began conducting business as a Self-Insured Group Workers’ Compensation Fund before submitting applications for the requisite certificates of authority. However, appellees/plaintiffs averred in their complaint that they submitted applications in December 1992, and January 1993, before conducting business and they were not notified until late February and early March 1993 that their respective applications were deficient. In March and April 1993, the Commissioner issued a preliminary order, as amended, of refusal of certificate of authority and to cease and desist. An administrative hearing was scheduled for May 5, 1993; however, on April 5, 1993, appellees filed a civil action in superior court in essence alleging that they did not act improperly and challenging the legality of the issued order and seeking a temporary restraining order and temporary and permanent injunctive relief. Personal service of appellees’ sworn complaint was obtained on April 12, 1993; on April 13, 1993, appellees filed a first amendment to the complaint and personal service thereof occurred on April 19, 1993. On April 14, 1993, appellant filed in open court a response to motion for temporary restraining order, and a TRO hearing was held. By nunc pro tunc order as of April 16, 1993, the superior court denied appellees’ motion for temporary restraining order in essence finding they had failed to exhaust their administrative remedies. After the superior court issued its written order denying the TRO motion, counsel for appellant failed to file an answer to appellees’ complaint. On June 8, 1993, approximately 50 days after the date of service of the amended complaint, appellees filed an ex parte petition for default judgment with the superior court; the motion was granted and final order and judgment by default was filed in open court on June 11, 1993. Upon receiving notice of default judgment, appellant, on or about June 14, 1993, filed a motion to set aside default judgment and to reopen default; following a hearing on June 30, 1993, the superior court set aside this default judgment based on appellees’ failure to comply with the notice provisions of OCGA § 9-10-2. On July 21, 1993, the Commissioner issued a 13-page final administrative order denying appellees’ applications. This order provides in part: “It is hereby ordered, that plaintiffs be granted judgment for the relief sought in their complaint, and first amended complaint, as follows: (1) The denial by the Commissioner of Insurance of certificates of authority for [appellees] to do business as Self-Insurance Workers’ Compensation Funds was arbitrary and capricious and without any substantial legal justification; said funds having been created in compliance with the laws of the state of Georgia. (2) The cease and desist order issued by the Commissioner [March 10, 1993] as amended [April 12, 1993] is hereby set aside and the Commissioner ... is hereafter permanently enjoined from issuing or causing to issue any cease and desist order against the [appellees] herein in contravention of the laws of the state of Georgia.” Meanwhile OCGA § 9-10-2 notice was given and, on July 23, 1993, the superior court denied appellant’s motion to open default and entered a second final order and judgment by default. On November 24, 1993, appellant filed his appeal with the Supreme Court of Georgia, perceiving this to be an equity case within that court’s jurisdiction; on December 2, 1993, the Supreme Court issued a terse order transferring the case to this court. Held:

1. “On appeal the test to determine whether the trial court erred in opening default is not whether this court would have granted or denied the motion had it been ruling thereon at the trial level. OCGA § 9-11-55 (b) allows prejudgment default to be opened on one of three grounds if four conditions are met. The question of whether to open a default on one of the three grounds rests within the discretion of the trial judge. The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55 (b), are: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed. Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable.” (Citations, punctuation and emphasis omitted.) Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 48 (2) (424 SE2d 338). Nevertheless, the facts in each case are different and the court must look at each case in the light of the facts peculiar thereto. Id. In determining whether to open or to decline to open default, a trial judge “is always required to exercise a legal discretion, and in order to do that, some facts must be proven before him which warrant the exercise of legal discretion.” (Emphasis omitted.) Johnson v. Durrence, 136 Ga. App. 439, 440 (221 SE2d 652).

We have examined the cases cited by both appellant and appellees and find none of them to be directly in point and perforce controlling. The circumstances of this case show, inter alia, that, although appellant negligently failed to answer the complaint timely (appellant’s counsel conceded during default motion hearing that “we just forgot to file the answer. ... I don’t have any more comfortable excuse than that”), it did not totally ignore process; rather, it made an initial appearance by filing a response to appellees’ motion for temporary restraining order. Appellees failed to file motion for entry of default judgment until it filed its ex parte motion, June 11, 1993, approximately 50 days after service of the first amendment to its complaint. On June 14, 1993, having received notice of the motion, appellant immediately filed a motion to set aside default judgment and to open default. At this time, appellant offered to plead instanter, announced readiness to proceed with trial on the merits, filed an answer allegedly setting forth a meritorious defense, tendered payment of costs, and made a showing under oath as to the statutory basis for its request to open default. As to the claim of a proper case to open default (due to the interest of the public in the State’s regulation of Workers’ Compensation Group Self-Insurance Funds), the record contains certain speculative testimony as to the degree of financial instability posed in this particular case and some evidence, albeit relatively slight, as to appellees’ financial soundness and substantial compliance with the provisions of OCGA § 34-9-150. The circumstances of this case do not present a situation where the trial court is required either to grant or decline to grant the motion to open default under penalty of case reversal for having made the wrong choice. Compare Mars, Inc. v. Moore, 207 Ga. App. 912 (429 SE2d 299) (trial court abused discretion in denying motion to open default) with Johnson v. Durrence, supra (trial court abused discretion in opening default). Rather, there exists some evidence in this case which would support a ruling of the trial judge either to open or to decline to open the default. Whatever ruling the trial court made as to the issue before us, there would have been no abuse of judicial discretion. On appeal an appellant must show harmful error. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). “Under the existing circumstances, the record will not support a finding of abuse of discretion by the trial court.” Rogers v. Coronet Ins. Co., supra at 49. Appellant’s first and second enumerations of error are without merit.

Decided May 2, 1994

Reconsideration denied May 27, 1994

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, William W. Calhoun, Assistant Attorney General, for appellant.

2. The essence of appellant’s third and fourth enumerations is that the trial court erred by entering findings of fact in its final order and judgment by default, upon which it ultimately based its grant of permanent injunction, which exceeded the scope of the averments in appellee/plaintiff’s complaint; and that the relief granted in the final order and judgment by default exceeded the scope of appellant’s requested relief in its complaint.

At the outset we find that the setting aside of the cease and desist order issued by the Commissioner was necessary and inextricably linked to the grant of permanent injunction “from issuing or causing to issue any cease and desist order against the plaintiffs herein in contravention of the laws of the State of Georgia.” We further find that the findings of fact with which appellant takes issue likewise were linked to that grant of injunction. As to these issues, “the transfer of the appeal to this court by the Supreme Court is tantamount to a ruling eliminating and resolving the equitable and injunctive issues which lie only within the jurisdiction of that court to determine.” Swicegood v. Heardmont Nursing Home, 183 Ga. App. 319, 320 (359 SE2d 3). Thus by virtue of said transfer, these issues have been resolved against appellant.

Moreover, reviewing the complaint to protect our judgment herein (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983), and construing it liberally and reasonably to achieve substantial justice consistent with the statutory requisites of the CPA (see OCGA § 9-11-8 (f)), we independently conclude that the trial court’s findings of fact did not exceed the scope of the averments contained therein either expressly or by necessary implication; further, the relief granted did not exceed the scope of the prayer for relief in the complaint, which included an express averment “for such other and further relief as [the trial court] deems just and proper under the circumstances.” For each of the above reasons, appellant’s third and fourth enumerations are without merit.

Appellant’s contentions in support of its enumerations of error are without merit; we decline to speculate in this appeal as to the scope of the injunction issued by the trial court.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellees.


text:
    A94A0887.
    THE STATE v. BLACK.
    (444 SE2d 368)
   Beasley, Presiding Judge.

The State appeals the trial court’s grant of defendant Black’s motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b). See OCGA § 5-7-1; State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980). Black’s demand for trial was not timely.

On November 29,1992, Black was issued two uniform traffic citations, one for driving under the influence in violation of OCGA § 40-6-391, and the other for “improper driving on roadway” in violation of OCGA § 40-6-48. The citations were stamped with the date January 15, 1993, which the State maintains evidences the date of filing with the court (the stamp consists merely of the date with no indication of the court). There is no evidence of filing on some other date. On March 10, through counsel, Black waived arraignment and filed several motions. Black’s case was originally set for trial in the State Court of Fulton County on May 13 but thereafter the trial and the motions’ hearing were reset to July 7, then to July 14, and eventually to September 29.

On May 21, Black filed her demand for speedy trial. Accusations based on the citations were filed on July 1. The trial court has six two-month terms of court beginning on the first Mondays in January, March, May, July, September, and November. OCGA § 15-7-40, Ga. L. 1983, p. 4501, § 1; see Smith v. State, 207 Ga. App. 762, 763 (429 SE2d 149) (1993). Juries were impaneled in both the May and July terms. The case was called for trial on September 29, and on that day Black was granted discharge and acquittal.

“Any person against whom ... an accusation is filed with the clerk . . . may enter a demand for trial at the court term at which the . . . accusation is filed or at the next succeeding regular court term thereafter, or, by special permission of the court, he may at any subsequent court term thereafter demand a trial.” (Emphasis supplied.) OCGA § 17-7-170 (a).

“As provided in OCGA § 40-13-1, ‘a uniform traffic citation . . . shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged. . . .’” Poppell v. State, 209 Ga. App. 91, 92 (432 SE2d 573) (1993). Assuming the citations were filed with the court on January 15, the demand was filed neither during the term of court in which the citations were filed (January-February) nor during the next succeeding regular term (March-April); it was not filed until the May-June term of court. Black did not obtain, special permission of the court to file her demand out of time.

The formal accusations later filed were superfluous in regard to tolling the time for demand. Smith, supra. Even if the citations were not filed in the court on January 15, so that the time for demand began with the filing of the formal accusations on July 1, Black’s demand would still not be effective because it would then be premature. “ Tt is well settled in Georgia law that the protection conferred by (OCGA § 17-7-170) attaches with the formal indictment or accusation. (Cit.)’ [Cit.] Thus, ‘ “a demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. [Cit.]” [Cit.]’ [Cit.] There is no provision in Georgia law whereby a prematurely filed speedy trial demand can be resuscitated by a later returned accusation (or indictment) whether they are filed in the same term or not.” State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987).

Black contends that her demand was timely filed in the term of court following her arraignment. She focuses on the general proposition in State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986), “that an accusation embodied in an existing uniform traffic citation is ‘found’ within the meaning of OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case.” Id. at 752. She urges that the notice of arraignment meant the court had exercised its jurisdiction over the case and that the accusation had thus been “found.” Spence, however, was decided under former OCGA § 17-7-170 (a), which in 1987 was amended to read “the court term at which the indictment or accusation is filed” rather than “found.”

Black’s further assertions that the uniform traffic citations were never filed with the court and/or that they were filed without notice to her in an attempt to defeat her right to a speedy trial lacks any factual support. Her own actions support the contrary. She waived arraignment on the charges on March 10 and at that time filed numerous motions in response to the charges.

Black is not entitled to discharge and acquittal.

Decided May 10, 1994

Reconsideration denied May 27, 1994

Paul L. Howard, Jr., Solicitor, Denise A. Hinds, Deborah W. Espy, Assistant Solicitors, for appellant.

Spruell & Dubuc, Brian M. Dubuc, for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       Following the grant of Black’s motion for discharge and acquittal, the State moved for an extension of time in which to file an appeal. In a response filed in opposition to the motion for extension, Black alternatively requested that the court “issue an order, nunc pro tunc, allowing her demand for speedy trial to be filed outside the time set forth in OCGA § 17-7-170 in accordance with OCGA § 17-7-170 (a) as of March 10, 1993, which was within the next succeeding term following the term in which the State originally filed the citation.” The State filed a timely notice of appeal and no action was taken on Black’s late request.


text:
    A94A1064.
    RENDEN, INC. v. LIBERTY REAL ESTATE LIMITED PARTNERSHIP III et al.
    (444 SE2d 814)
   Birdsong, Presiding Judge.

This is an appeal from a grant of summary judgment. Appellant/ plaintiff Renden, Inc. (Renden) brought suit for tortious interference with a business relationship against appellee/defendants Liberty Real Estate Limited Partnership III et al. (Liberty). Liberty currently owns the East Lake Shopping Center. Originally, a lease agreement was entered between Cobb Properties, Ltd., as landlord, and Colonial Stores, Inc., as tenant, for lease of certain premises located in the East Lake Shopping Center. This lease has been amended several times with Liberty ultimately becoming the landlord and Grand Union Company d/b/a Big Star becoming the tenant. Big Star quit conducting business on the leased premises and entered negotiations with Renden to sublease its interests. Renden’s proposed business concept was to open a family-type entertainment center in the leased space. Renden contends that, although Liberty had leased a portion of the shopping center to a predecessor of Big Star with a lease clause which in effect granted Big Star the right to transfer and assign its lease or to sublet the premises or any part thereof without permission of the landlord, Liberty thereafter declared Renden a prohibited tenant and threatened to close (“go dark”) and to take other action, thereby causing Big Star to refuse to execute a sublease with Renden. Subsequently, Liberty and Grand Union executed a mutual release and settlement agreement; after termination of the lease by mutual consent of the parties, Liberty relet the space to a new anchor tenant deemed suitable for the purpose underlying the shopping center development plan. The trial court granted Liberty’s motion for summary judgment; appellee/defendants’ counterclaim for attorney fees remains pending. Held:

1. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474). A movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Id. at 491. Further, hearsay evidence has no probative value in a summary judgment proceeding, except when part of the res gestae. Southern Business Machines of Savannah v. Norwest Financial &c., 194 Ga. App. 253, 256 (2) (390 SE2d 402).

2. Examination of appellant’s complaint, under the Civil Practice Act standards of Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468), reveals that a cause of action has been adequately averred of tortious interference with business relations. Tortious interference with business relations is a distinct and separate tort from that of tortious interference with contractual relations, although some of the elements of the two torts are similar. Compare Integrated Micro Systems v. NEC Home Electronics, 174 Ga. App. 197 (329 SE2d 554). Proof of a valid and enforceable contract is not required as an element of a cause of action for intentional tortious interference with business relations. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 146 (2) (430 SE2d 368); Integrated Micro Systems, supra at 200 (3). Appellee’s contention that appellant must establish that a contract existed as the basis for the averred interference is without merit. To recover under a theory of tortious interference with business relations, a plaintiff must show defendant: (1) acted improperly and without privilege, (2) acted purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused plaintiff financial injury. Integrated Micro Systems, supra at 200 (3). Malice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse. Arford v. Blalock, 199 Ga. App. 434, 441 (13) (405 SE2d 698); Forehand v. Perlis Realty Co., 198 Ga. App. 165, 166 (400 SE2d 644).

A cause of action for tortious interference with business relations encompasses interference with a prospective business relationship as well as existing ones, and liability results not only from disruption of the relationship but also from elimination of the injured party’s ability to perform. But to establish a cause of action for interference with prospective business relations, plaintiff must demonstrate that absent the interference, those relations were reasonably likely to develop in fact. Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 89 (4) (354 SE2d 852). The trial court did not err in granting summary judgment to appellees for each of the following reasons:

(a) Liberty carried its burden, under Lau’s Corp., supra, by showing that the evidence failed to create a triable issue as to the element of malice with intent to injure. Liberty, as landlord, had a legal right to compete for the rental space vacated by Big Star when it elected to “go dark” and cease business operations on the premises. A senior official of Liberty gave direct testimony, by way of deposition, as to the corporate state of mind and motive of Liberty in making its decision to compete for the space; the decision was purely an economic decision, there were no emotions involved at all, and the official bore no personal animosity against the partners of Renden. Further a counsel of Renden, by way of deposition, conceded that there exists valid business concerns for a landlord as to whom its tenants will be, that an anchor tenant has “gone dark,” and that an anchor tenant generates general traffic during the business hours when most of the other tenants are in operation. At this point in the proceedings, appellant Renden was required to go forward and point to specific evidence giving rise to a triable issue as to the element of malice with intent to injure. Lau’s Corp., supra. “In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts.” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47). After discounting all inadmissible hearsay evidence, appellant at best relies upon a modicum of circumstantial evidence. However, in passing upon a summary judgment motion, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Rowell v. McCue, 188 Ga. App. 528, 531 (373 SE2d 243); accord American Honda &c. Co. v. Williams & Assoc., 208 Ga. App. 636, 642 (2) (431 SE2d 437). Renden failed to carry its burden of going forward under Lau’s Corp., supra, as to the issue of malice with intent to injure. Compare Forehand, supra at 166.

(b) Another essential element of tortious interference with business relations is that the alleged tortfeasor “induced a third party or parties not to enter into or continue a business relationship with the plaintiff.” Integrated Micro Systems, supra at 200. The business relationship here at issue is that of lessor/lessee/sublessee. The leasing agreement between Liberty and Grand Union d/b/a Big Star created the legal right of sublease relied upon by Renden to support its claim of entitlement to sublease. Thus, the business relationship at issue between Renden and Grand Union was inextricably a part of the predominant leasing relationship between the landlord, Liberty, and its tenant, Big Star. To sustain a claim for intentional interference with business relations, the tortfeasor must be an “intermeddler” acting improperly and without privilege. See Driggers v. Continental Grain Co., 210 Ga. App. 293, 295 (2) (435 SE2d 722). The tortfeasor must be a “stranger” to the business relationship at issue; a party, under appropriate circumstances, can be a non-signer of a particular contract and yet not be a stranger to the contract itself or to the business relationship giving rise thereto and underpinning it. See Lake Tight-squeeze v. Chrysler First Financial &c., 210 Ga. App. 178, 181 (4) (435 SE2d 486); Jefferson-Pilot &c. Co. v. Phoenix City Broadcasting &c., 205 Ga. App. 57, 61 (1) (421 SE2d 295). Liberty was not a stranger to the business relationship at issue, but rather, as lessor, was an essential entity in the prospective lessor/lessee/sublessee relationship. Likewise for purposes of establishing a claim of tortious interference with business relations, Renden cannot be considered a stranger to the basic lessor/lessee relationship between Liberty and Big Star; Renden’s claim of right to sublease per force depends upon the existence of a valid lessor/lessee relationship between Liberty and Big Star and the terms of the lease contract giving rise to that particular business relationship. Liberty could not as a matter of law induce Big Star, in any third-party capacity, not to enter into or continue a sublease business relationship with Renden; none of the parties was a stranger to the lessor /lessee/sublessee relationship at issue. Whatever may have been the proper tort to aver in this case, if any, it was not that of tortious interference.

Decided May 9, 1994

Reconsideration denied May 27, 1994

Carr & Kessler, James C. Carr, Jr., for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Donna C. Sloan, for appellees.

(c) A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746); see Precise v. City of Rossville, supra at 211 (3).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A92A1694, A92A1697.
    DEAVOURS et al. v. HOG MOUNTAIN CREATIONS, INC. et al.; and vice versa.
    (445 SE2d 579)
    Decided May 27, 1994.

      Glenville Haldi, for appellants.

      Thompson, O’Brien, Kemp & Nasuit, J. Patrick O’Brien, William M. Coolidge III, Donna N. Kemp, for appellees.
   Smith, Judge.

In Betallic, Inc. v. Deavours, 263 Ga. 796 (439 SE2d 643) (1994), the Supreme Court affirmed in part and reversed in part the judgment rendered by this court in Deavours v. Hog Mt. Creations, 207 Ga. App. 557 (428 SE2d 388) (1993), and directed that we take such further action as may be necessary to give effect to the Supreme Court’s opinion.

In Deavours, supra, the trial court granted an award of attorney fees and expenses of litigation to appellee-defendants based on their initial counterclaims for such an award pursuant to OCGA § 9-15-14. Construing OCGA § 9-15-14, we held that a claim for attorney fees and expenses of litigation for abusive litigation under OCGA § 9-15-14 must be made by motion within 45 days after the case is concluded. Since the motion made by appellee in this case was untimely, we reversed the trial court’s award of attorney fees to appellee. In Betallic, the Supreme Court agreed with our construction of OCGA § 9-15-14, but disagreed with that portion of our opinion quoting In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991), stating that a claim for litigation costs and attorney fees under OCGA § 9-15-14 was available only to a “prevailing party.”

Accordingly, that portion of our opinion in Deavours, supra, as well as in M. A. K., supra, is disapproved. The judgment of the Supreme Court is made the judgment of this court.

Judgment reversed in Case No. A92A1694. Appeal dismissed in Case No. A92A1697.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur.