text:
    A93A2417.
    GILBERT v. THE STATE.
    (441 SE2d 785)
   Pope, Chief Judge.

Defendant Joseph F. Gilbert, a/k/a Joey Gilbert, was tried before a jury and found guilty of possessing methamphetamine with intent to distribute in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury’s verdict.

1. Gilbert moved to suppress the drugs found on his person, contending that his warrantless arrest was without probable cause. The denial of this motion, Gilbert’s fourth enumeration, will be considered first.

Only the arresting officer testified at the hearing on defendant’s motion and his testimony would authorize the following facts: A female confidential informant, whose previous information had led to successful drug prosecutions, told police that defendant and possibly his brother Kevin were dealing cocaine out of their house on Lynn Street in Griffin, Georgia. A warrant authorizing the search of defendant’s home and person was issued by a magistrate. Moments before the execution of this warrant, the confidential informant telephoned defendant at his home and spoke with him. She then told police that defendant was home and that he was then in possession of drugs. As police vehicles approached defendant’s residence, a white Mercedes-Benz was seen backing out of the driveway. When the officers recognized defendant as the driver of the Mercedes, they blocked the path of the car in the street. Defendant was removed from his vehicle and a pat-down search of his person revealed a plastic bag of white powder in his pants.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the accused had committed or was committing an offense. [Cits.]” Callaway v. State, 257 Ga. 12 (2) (354 SE2d 118) (1987). Based upon the contemporaneous trustworthy tip from a known and reliable informant that defendant was then in possession of cocaine, the police had probable cause to stop his automobile and lawfully arrest him for that possession. McKenzie v. State, 208 Ga. App. 683 (1) (431 SE2d 715) (1993). It follows that the search of his person yielding the substance subsequently identified as methamphetamine was incidental to that lawful arrest and that the trial court correctly denied defendant’s motion to suppress. Powell v. State, 170 Ga. App. 185 (1) (316 SE2d 779) (1984).

2. The trial court refused to give a requested jury instruction on the defense of entrapment, concluding that there was no evidence to support this charge. This ruling is enumerated as error.

There are three distinct elements to the entrapment defense of OCGA § 16-3-25: (1) the idea for the commission of the crime must originate with the State agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984). Defendant took the stand and admitted to using amphetamines while working in construction. He testified that he agreed to deliver a small amount to a woman named Cathy Cobb only after she had importuned him fifteen times in three days to obtain amphetamines for her. Cathy Cobb was a former acquaintance from high school whom defendant had not seen in a number of years. There was evidence before the jury that the police used but one female confidential informant in this investigation and that she had spoken with defendant moments before he was arrested. The question for determination is whether this evidence is sufficient to authorize defendant’s requested charge on entrapment as an affirmative defense.

These circumstances authorize, but do not demand, the inference that Cathy Cobb was the female confidential informant who telephoned defendant just before he was arrested asking if he had the drugs in his possession. This is sufficient to make her the agent of the State for purposes of establishing a prima facie case of entrapment. Leonardi v. State, 154 Ga. App. 402 (1) (268 SE2d 380) (1980). Defendant’s testimony that he agreed to give Cathy Cobb four grams of amphetamines at no profit to himself and that he would not have agreed to transport or distribute anything except to stop her insistent calling at his home makes out a prima facie case of entrapment. See Emanuel v. State, 260 Ga. 425 (396 SE2d 225) (1990). In light of this evidence, the trial court erred in refusing to give appropriate instructions on entrapment, defendant’s sole defense. Tolbert v. State, 138 Ga. App. 724 (1) (227 SE2d 416) (1976).

Decided February 22, 1994

Reconsideration denied March 8, 1994

Wallace & Moss, Howard P. Wallace, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Tammy M. Griner, Daniel A. Hiatt, Assistant District Attorneys, for appellee.

3. As noted above, the linchpin to defendant’s entrapment defense is the permissible inference that the State’s confidential informant was the same person who called defendant fifteen times in three days trying to obtain amphetamines. However, the evidence does not demand the conclusion that the woman who phoned defendant was the State’s agent, and therefore, the trial court did not err in denying Gilbert’s motion for a directed verdict of acquittal. See State v. Royal, 247 Ga. 309 (1) (275 SE2d 646) (1981); Hattaway v. State, 185 Ga. App. 607, 609 (365 SE2d 480) (1988). Compare Emanuel v. State, 260 Ga. at 425.

4. Defendant also argues the trial court erroneously refused to employ compulsory process to obtain the presence of Cathy Cobb, then in custody at Hardwick Correctional Institute. Any question of the timeliness of defendant’s demand for the presence of a witness in the custody of the State is unlikely to recur at retrial. However, the mere fact that a defendant may not have moved for the disclosure of an informant’s identity under the authority of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) scarcely amounts to a waiver of the constitutional right to insist on the presence and testimony of a known and identified witness who is in the custody of the State. Roberts v. State of Ga., 72 Ga. 673 (1) (1884); 1983 Ga. Const., Art. I, Sec. I, Par. XIV.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A0295.
    LEWIS v. THE STATE.
    (441 SE2d 851)
   Johnson, Judge.

John L. Lewis was tried and convicted of a single count of child molestation involving his stepdaughter, and he appeals.

1. Lewis contends that the trial court erred in denying his motion for new trial. The motion, which asserted general grounds, raises an issue as to the sufficiency of the evidence to authorize his conviction. “On appeal from a finding of guilty, evidence must be viewed in the light most favorable to the verdict, and the presumption of innocence no longer avails.” (Citations and punctuation omitted.) Dunlap v. State, 202 Ga. App. 493, 494 (414 SE2d 728) (1992). Viewed in that light, the evidence shows that Lewis’ wife asked him to bathe his two stepdaughters while she took her son to exchange a pair of boots he received as a birthday gift. After the four-year-old girl had her bath, Lewis asked her to help him remove his clothes. The girl testified that he asked her to “squeeze his weenie” and that “yucky white stuff, like vomit” came out. She recounted the events to her mother, a child psychologist, and a caseworker from the Department of Family & Children Services, all of whom, as well as the child herself, testified at trial. Lewis testified that he was masturbating in his bathroom when she walked in on him and spontaneously touched his penis. “The ‘any evidence’ test is the proper standard to use in reviewing the denial of a motion for a new trial on the general grounds.” (Citations and punctuation omitted.) Dunlap, supra at 494. We find that there was ample evidence to support the conviction and that the trial court did not err in denying the motion for a new trial.

2. Lewis also complains that the trial court erred in refusing to allow an expert witness to testify regarding the results of tests administered to Lewis and render an opinion as to whether Lewis fit the child abuser profile. Such testimony is not admissible in Georgia. See Smith v. State, 206 Ga. App. 557, 559 (2) (426 SE2d 23) (1992); Jennette v. State, 197 Ga. App. 580, 581 (3) (398 SE2d 734) (1990). Lewis complains of the inherent unfairness of allowing expert testimony concerning whether a child exhibits signs of the child abuse accommodation syndrome while disallowing evidence of the child abuser profile. His argument that the field was not level is specious, however, because no evidence was proffered or admitted regarding the child abuse accommodation syndrome in this case. Lewis testified in his own defense and the jury was able to evaluate his credibility and believability. “From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the appellant’s capability of performing the acts he was accused of. These determinations did not involve ‘unique and mysterious areas of human response’ necessitating expert testimony.” Jennette, supra at 582-583 (3). This enumeration is without merit.

3. Lewis argues that the trial court erred in failing to grant his motion for a directed verdict because the indictment read that Lewis acted “with intent to arouse and satisfy the sexual desires of said child and said accused.” He argues that the State presented no evidence that he intended to arouse or satisfy the child. “When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. In view of the conjunctive form of the indictment in this case, it was not incumbent upon the State to prove that [Lewis] both [aroused and satisfied the child and himself].” (Citations and punctuation omitted.) Gordon v. State, 199 Ga. App. 704, 705 (1) (406 SE2d 110) (1991). The trial court did not err in denying the motion for a directed verdict.

4. The first trial in this case ended in a mistrial as the jury was unable to reach a verdict. In order to comply with a speedy trial demand filed in the case, it was tried again less than two weeks later. Lewis complains that he was denied a fair trial because one of the State’s witnesses changed her testimony at the second trial. Specifically he complains that in the first trial the witness indicated that the child was undressed, and at the second trial said she was dressed. Our review of the transcript indicates that during his cross-examination of the witness, Lewis’ attorney alluded to previous testimony, which he felt may have been inconsistent, and the witness explained her testimony. After the witness had been excused and outside the presence of the jury, the attorney asked the court for a transcript of that witness’ testimony from the previous trial, so that he could review it. The court informed him that the transcript had not yet been prepared, and the attorney requested that transcripts from both trials be prepared so that both could be sent to this court in the event the case was appealed.

Pretermitting whether there were inconsistencies in the testimony, which would be an issue for resolution by the jury in any event, no objection or ruling by the trial court was made which is now presented for our review. “[I]ssues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.” (Citations and punctuation omitted.) Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989).

5. Lewis requested a charge from Staggers v. State, 120 Ga. App. 875 (172 SE2d 462) (1969). The requested charge reads: “A general plan to use the child to gratify the Defendant’s lust or passions or sexual desires is an element in the crime of child molestation.” He asserts that the trial court erred in refusing to give the charge. Staggers was a case involving the admissibility of similar transactions evidence in a child molestation case. There is no evidence in this case, nor would it have been in Lewis’ best interest, to suggest that he had committed previous offenses of this nature. The trial court fully charged the jury regarding the elements of the offense of child molestation, as well as giving the pattern charge on the meaning of intent. “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Citations and punctuation omitted.) Bess v. State, 207 Ga. App. 295, 296 (3) (427 SE2d 813) (1993). The trial court did not err in refusing to give Lewis’ charge as submitted.

Decided February 22, 1994

Reconsideration denied March 8, 1994

Macklyn A. Smith, Sr., for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assistant District Attorney, for appellee.

6. Lewis contends that the trial court erred in allowing the court reporter to reread certain portions of the trial testimony to the jury after deliberations had begun. “It has been permissible for more than 100 years to permit the jury at its instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” Walker v. State, 170 Ga. App. 82, 84 (2) (316 SE2d 544) (1984). “The rule in this state is that the trial judge, in his discretion, may permit the jury at their request to rehear in the defendant’s presence the requested testimony after beginning deliberation.” (Citations and punctuation omitted.) Pontoon v. State, 177 Ga. App. 868, 869 (1) (341 SE2d 505) (1986). Lewis offers us no authority in support of his position and we do not find that the trial court abused its discretion in reading the portions of the testimony requested by the jury.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1664.
    BELL v. THE STATE.
    (444 SE2d 167)
   Birdsong, Presiding Judge.

In Bell v. State, 263 Ga. 776 (439 SE2d 480) (1994), the Supreme Court reversed the judgment of this court in Bell v. State, 208 Ga. App. 201 (430 SE2d 124). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the judgment of the trial court is reversed and the case remanded to the trial court.

Judgment reversed and case remanded.

Beasley, P. J., and Andrews, J., concur.

Decided March 8, 1994.

Anna Blitz, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A93A1835, A93A1836.
    FULTON PAPER COMPANY, INC. v. REEVES (two cases).
    (441 SE2d 881)
   Smith, Judge.

In this action on account, the trial court denied appellant Fulton Paper Company’s motion for summary judgment and granted appellee Bruce D. Reeves’ cross motion. Fulton Paper Company appeals.

Case No. A93A1836

1. Fulton Paper Company filed its motion for summary judgment on September 18, 1992. Reeves responded by cross motion on October 19, 1992, which was served upon Fulton Paper Company “by depositing same in the United States Mail with sufficient postage thereon, and properly addressed to” Reeves’s counsel. The trial court entered summary judgment in favor of Reeves on November 20, 1992. Fulton Paper Company served its reply brief on November 23, 1992, and filed it with the court below on November 25, 1992. On December 9, 1992, Fulton Paper Company filed a motion for reconsideration and requested expedited treatment, claiming that the court’s judgment was entered prematurely and that its reply brief was timely served. A hearing was held on December 16, 1992, and the trial court agreed to reconsider based on the premature entry of the first order. After hearing the matter a second time, the trial court requested that Reeves’s attorney prepare a proposed order setting aside the order of November 20, 1992, and again granting summary judgment to Reeves for the reasons stated from the bench. Counsel for Reeves confirmed that he would have the order ready for the judge’s signature “today or tomorrow.” Fulton Paper Company filed its notice of appeal from the November 20, 1992 order on December 21, 1992 and costs were paid. This became Case No. A93A1835 in this court.

On December 31, 1992, the state court entered its written order setting aside its previous summary judgment order, reopening the case to consider Fulton Paper Company’s additional arguments, and again entering summary judgment in favor of Reeves and against Fulton Paper Company. Fulton Paper Company filed its notice of appeal from the December 31 order on January 8, 1993. This became Case No. A93A1836 in this court, and the substantive issues in it are the same as those in Case No. A93A1835.

OCGA § 5-6-46 provides that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant.” Since supersedeas was effective under OCGA § 5-6-46 prior to December 31, 1992, the court below lacked jurisdiction to enter the order purporting to vacate the prior order of November 20, 1992. See generally Anaya v. Brooks Auto Parts, 208 Ga. App. 491 (430 SE2d 825) (1993); Philips Broadcast Equip. Corp. v. Production 70’s, 133 Ga. App. 765, 766 (1) (213 SE2d 35) (1975). Since it presents nothing for review, Case No. A93A1836 is therefore dismissed.

Since Fulton Paper Company does not enumerate as error the premature entry of summary judgment on November 20, 1992, we do not address the issue here. See Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118, 120 (2) (433 SE2d 304) (1993). We note, however, that the issues presented in the reply brief were considered by the trial court on motion for reconsideration, and the transcript of the reconsideration hearing unambiguously shows that the court was not persuaded by those additional arguments.

Case No. A93A1835

2. Proceeding to the merits, the facts are not in dispute. Reeves is president of May Fresh Services, Inc., a Georgia corporation. May Fresh was administratively dissolved pursuant to OCGA §§ 14-2-1420 and 14-2-1421 on January 9, 1992, and as a consequence, it continued to exist as a corporate entity but was not authorized to “carry on any business except that necessary to wind up and liquidate its business and affairs.” OCGA § 14-2-1421 (c); The Gas Pump v. Gen. Cinema Beverages &c., 263 Ga. 583 (436 SE2d 207) (1993). Nevertheless, Reeves continued to do business as usual on behalf of May Fresh. From May 6 through July 26, 1992, May Fresh purchased $26,892.53 worth of wholesale paper goods on its account with Fulton Paper Company. It is undisputed that these purchases by May Fresh were inconsistent with the winding up of May Fresh’s affairs.

On July 20, 1992, Fulton Paper Company brought suit against “Bruce D. Reeves d/b/a May Fresh Services, Inc.,” for payment of the obligations incurred during that period. Reeves answered, conceding liability on behalf of May Fresh, which was not made a party to this lawsuit, but denying individual liability. On August 4, 1992, May Fresh applied for reinstatement of its status prior to dissolution pursuant to OCGA § 14-2-1422. A certificate of reinstatement was issued on August 6, 1992. Cross motions for summary judgment were filed. The trial court found that Reeves was not personally liable to Fulton Paper Company as a result of May Fresh’s administrative dissolution, and this appeal followed. We affirm.

The trial court found that OCGA § 14-2-1422 (c) mandated that May Fresh be treated as an existing, bona fide corporation for purposes of the parties’ cross motions for summary judgment. That Code section provides that “[w]hen the reinstatement [of a corporation administratively dissolved under OCGA § 14-2-1421] is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.”

We reach the same conclusion without need to address the question of reinstatement. We instead base our conclusion on the administrative dissolution provision itself, which provides in pertinent part that “[a] corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under Code Section 14-2-1405.” (Emphasis supplied.) OCGA § 14-2-1421 (c). A plain reading of this Code section reveals that even after “dissolution” May Fresh continued to exist as a corporate entity and that it was likewise authorized to carry on business, albeit for very limited purposes. This is true regardless of whether May Fresh was ultimately reinstated under OCGA § 14-2-1422. Personal liability therefore may not be based on the traditional theory that Reeves was acting for a nonexistent principal. See OCGA § 10-6-89; Don Swann Sales Corp. v. Echols, 160 Ga. App. 539 (287 SE2d 577) (1981). Compare Goodwyne v. Moore, 170 Ga. App. 305 (316 SE2d 601) (1984).

It does not appear, based upon our reading of the relevant Code sections and comments, that there exists any basis for imposing liability on Reeves for May Fresh’s ultra vires activities. We note that “[t]he powers of a corporation under the Code exist independently of whether a corporation has a broad or narrow purpose clause.” Official Comment, Model Act, § 3.02. By analogy, such powers as are outlined in OCGA § 14-2-302 also exist independently of the purpose for continued existence stated in OCGA § 14-2-1421 (c). May Fresh had the power, though no legally authorized purpose, to purchase supplies from Fulton Paper Company in furtherance of its normal course of business. Fulton Paper Company cannot maintain an action against Reeves personally for the debt on the May Fresh account based solely on the ground that the acts of May Fresh in question were ultra vires. See generally OCGA § 14-2-304.

At all times Fulton Paper Company dealt with May Fresh as a corporate entity and expected that it could look only to May Fresh for payment on the open account bearing May Fresh’s name. No fraud by Reeves has been demonstrated or alleged. Fulton Paper Company strongly argues that reinstatement should not affect its right to recover from Reeves individually, but fails to establish persuasively the existence of that right in the first instance. For a discussion of proper grounds for piercing the corporate veil, see generally Amason v. Whitehead, 186 Ga. App. 320 (367 SE2d 107) (1988).

Decided March 8, 1994.

Marshall H. Lichtenstein, for appellant.

Kris K. Skaar, for appellee.

May Fresh continued to exist as an entity with the power to contract at the time the debts in question were incurred by it, and no other legitimate basis for imposing liability on Reeves has been proposed. The trial court therefore did not err in granting summary judgment to Reeves. Since we find May Fresh’s reinstatement to be immaterial to our conclúsion, and since a summary judgment right for any reason must be affirmed, we do not reach the issue specifically addressed in Fulton Paper Company’s enumeration of error. Barnes v. Government Employees Ins. Co., 142 Ga. App. 377, 379 (1) (236 SE2d 9) (1977).

Judgment affirmed in Case No. A93A1835.

Cooper, J., concurs. Beasley, P. J., concurs in the judgment only. Appeal dismissed in Case No. A93A1836. Beasley, P. J., and Cooper, J., concur.

       See OCGA § 9-11-6 (e). Fulton Paper Company asserts that since it had 33 days, rather that 30, to respond to Reeves’s cross motion, and since the 33rd day fell on a weekend, its final day to properly serve Reeves with its reply was Monday, November 23,1992 (30 days plus three days plus Sunday and Monday). See OCGA §§ 9-11-6 (a); 1-3-1. While it is true that Uniform State Court Rules must give way to the Civil Practice Act whenever a conflict exists, Fulton Paper Company does not disclose its justification under the CPA for not also filing its response with the state court by November 23, 1992. State Court Rule 6.2 provides that “each party opposing a motion shall serve and file a response” not later than 30 days after service of the motion. However, this issue is not presented for review.

       The source of OCGA § 14-2-1422 is § 14.22 of the 1984 Revised Model Business Corporation Act (3d ed.). See comments to OCGA §§ 14-2-101 and 14-2-1422.

       The Comment to OCGA § 14-2-1405 contrasts (voluntary) “dissolution proceedings,” as that term is used in OCGA §§ 14-2-1404—14-2-1406, and common law dissolution. We find the same contrast between “administrative dissolution” and common law dissolution. Neither voluntary dissolution proceedings under OCGA §§ 14-2-1401—14-2-1409 nor involuntary administrative dissolution under OCGA §§ 14-2-1420—14-2-1423 has “any of the characteristics of common law dissolution, which treated the corporate dissolution as analogous to the death of a natural person and abated lawsuits, vested equitable title to corporate property in the shareholders, imposed the fiduciary duty of trustees on directors who had custody of corporate assets, and revoked the authority of the registered agent.” Comment to OCGA § 14-2-1405. When evaluating administrative dissolution statutes that vary widely from state to state, it cannot safely be assumed that the term “dissolution” has any strict meaning independent of the jurisdiction and precise context in which that term is applied. Compare, e.g., Official Comment to Model Act § 14.05 and cases digested in West’s Words & Phrases, “Dissolution.”

       Any corporation that persists in exceeding or abusing “the authority conferred on it by law” may be judicially dissolved in a proceeding brought by the Attorney General in the superior court. OCGA §§ 14-2-1430 (1) (B); 14-2-304 (b) (3). It would therefore appear that if the State finds the continued operation of corporations like May Fresh after administrative dissolution to be a matter of public concern, it is not without means to address the problem in a manner far more thorough and effective than the laissez-faire procedure employed for administrative dissolution in the first instance. See OCGA § 14-2-1433. The Official Comment to Model Act § 14.20 explains the rationale for nonjudicial administrative dissolution: “The experience in most states has been that administrative dissolution, or the threat thereof, is an effective enforcement mechanism for a variety of statutory obligations. Judicial dissolution is inappropriate for many of these violations because of its cost and the diversion of limited legal resources, particularly since most violations reflect the abandonment of the corporation by its owners. The advantages of administrative dissolution are compelling: it not only reduces the number of records maintained by the secretary of state, but also avoids further wasteful attempts to compel compliance by the abandoned corporations and returns the corporate name promptly to the status of available names.” Moreover, the Georgia Supreme Court has determined that if local corporations like May Fresh are not reinstated within two years after administrative dissolution, they cease to exist for any purpose. See The Gas Pump v. Gen. Cinema Beverages, supra.

       Fulton Paper Company argues that the reasoning of Poritzky v. Wachtel, 27 NYS2d 316 (1941), a case which at first blush appears similar to the present case, should be followed. However, Poritzky does not address the theory upon which liability is based, but instead discusses only what effect reinstatement should have on that liability. It appears that the defendant in that case was acting on behalf of a principal that simply did not legally exist upon its dissolution. Cf. OCGA § 10-6-89. No similar basis for imposing liability on Reeves is present in this case.


author: Cooper, Judge. Smith, Judge,

text:
    A93A2002.
    ENTERPRISE FINANCIAL CORPORATION v. ROSS WHITE ENTERPRISES, INC.
    (441 SE2d 805)
   Cooper, Judge.

In this suit to recover under a guaranty, defendant Enterprise Financial Corporation (Enterprise) appeals from the grant of summary judgment to plaintiff Ross White Enterprises d/b/a National Computer Distributors (National). Enterprise also appeals from the denial of its own summary judgment motion.

Enterprise loaned money to BYOC, Ltd., a company engaged in the sale of computers. National sold computer equipment to BYOC on an open account. On October 23, 1991, Enterprise as lender to BYOC executed a Letter of Guaranty which guaranteed BYOC’s obligation to pay National for the purchased equipment. The guaranty stated in pertinent part as follows: “This Letter of Guaranty is in effect through January 31, 1992 or unless sooner terminated by [Enterprise] with thirty (30) days written notice to [National], during which time [National] can exercise their rights under this Guaranty.” The guaranty further provided that any request for payment must be accompanied by a written statement certifying that BYOC had defaulted on its payment obligation and that National had given BYOC ten days notice of its intent to seek payment from Enterprise. On February 27, 1992, National submitted to Enterprise a claim for $19,214.16 for equipment that had been shipped to BYOC prior to January 31, 1992, but had not been paid for by BYOC. When Enterprise refused to pay because the claim was submitted after the guaranty had expired, National filed suit. The trial court granted National’s motion for summary judgment and denied Enterprise’s motion. The court concluded that the expiration term was ambiguous and, applying the applicable rules of contract construction, determined that the guaranty included all shipments made before January 31 and that National was not required to demand payment under the guaranty prior to that date.

1. In five enumerations of error, Enterprise attacks the trial court’s reasons for granting summary judgment to National. It essentially claims the trial court erred in finding the expiration term was ambiguous and in extending Enterprise’s liability beyond the strict terms of the guaranty.

“It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” (Citations and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 168 (2) (419 SE2d 69) (1992).

“[W]here the contract is unambiguous and subject to only one construction, the liability of any surety [or guarantor] (whether compensated or not) is not to be extended beyond the terms of the contract by implication or interpretation.” Houston Gen. Ins. Co. v. Brock Constr. Co., 241 Ga. 460, 464 (2) (246 SE2d 316) (1978); see OCGA § 10-7-1. On the other hand, if there is any ambiguity in the contract of guaranty, it “is to be construed most strongly against the maker. [Cit.]” Escambia Chem. Corp. v. Rocker, 124 Ga. App. 434, 441 (184 SE2d 31) (1971).

The thrust of Enterprise’s argument is that the language concerning expiration of the guaranty is capable of only one reasonable interpretation: that National had to demand payment under the guaranty prior to its expiration on January 31, 1992. We disagree. Although the trial court concluded that the language concerning the date of expiration was ambiguous, we find the expiration provision was not ambiguous and that the only reasonable interpretation of that provision is that the guaranty covered all shipments made to BYOC prior to its expiration on January 31, 1992, without regard to whether National made demand for payment under the guaranty prior to that date. The guaranty expressly provided that it “was in effect through January 31, 1992”; thus, any goods shipped to BYOC during that time period for which payment was not made by BYOC would be covered. Enterprise’s assertion that not only did the goods have to be delivered to BYOC prior to January 31 but that demand for payment under the guaranty also had to be made before that date would be patently unreasonable and would defeat the underlying purpose of the guaranty. See Avanti Group, Ltd. v. Robert Half of Atlanta, 198 Ga. App. 366 (b) (401 SE2d 576) (1991). Because of the condition precedent that National had to give BYOC ten days notice of its intention to seek payment under the guaranty, under Enterprise’s interpretation of the expiration provision, National would have been unable to give such notice on any goods shipped to BYOC after January 21. Thus, in order to accept Enterprise’s interpretation of the expiration provision, we would have to interpret the guaranty as expiring on January 21 rather than January 31 in order for National to comply with the ten-day notice requirement. We find the guaranty is not capable of such an interpretation in light of the clear and unambiguous language that it expired on January 31.

Enterprise contends that the language “during which time [National] can exercise their rights” means National “must have made demand” before the expiration date. We find this contention to be without merit. In construing contracts, “if the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense.” (Citations and punctuation omitted.) Bergan v. Time Ins. Co., 196 Ga. App. 78, 80 (395 SE2d 361) (1990). Contrary to Enterprise’s assertion, the word “can” ordinarily means may, not must. (See Random House Dictionary of the English Language (2d ed. 1987).) We thus read this language to mean National could sell computer equipment to BYOC under faith the guaranty was in existence up through the expiration date.

Moreover, assuming arguendo that the expiration provision was ambiguous, we would be required, as did the trial court, to construe the provision against Enterprise as the drafter of the agreement and the party undertaking the obligation. Lewis v. Uselton, 202 Ga. App. 875 (3) (416 SE2d 94) (1992); see also Escambia Chem. Corp., supra at 441. Construing the provision against Enterprise, the same interpretation as reached above would apply.

Decided March 8, 1994.

Nelson, Mullins, Riley & Scarborough, B. Shane Clanton, Kenneth L. Millwood, for appellant.

Dailey, Mattox, Chambliss & Bradley, Michael A. Dailey, Ross Gelfand, for appellee.

For the foregoing reasons, we find the trial court properly granted summary judgment to National and denied summary judgment to Enterprise.

2. In light of our holding in Division 1, we need not address Enterprise’s remaining enumerations of error.

Judgment affirmed.

Beasley, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree that the trial court did not err in granting summary judgment to National, but I cannot agree that the expiration provision in the guaranty was unambiguous. If the January 31, 1992 expiration date refers to the date by which a sale of equipment must be made to be subject to the guaranty, rather than the time within which a claim can be made, then the time for making a claim itself would be of indefinite duration. The use of the word “can” in the expiration provision is also ambiguous. Although the word is often used interchangeably with “may,” it also is interpreted as “to be enabled by law” or “to have a right to.” See Black’s Law Dictionary, p. 206 (6th ed. 1990). Even if the word “can” is used in an indefinite sense, it may refer not to a time limitation, but to the expectation or hope that no claim under the guaranty would be necessary.

The trial court correctly found this language to be ambiguous. However, “[t]he construction of a contract is a question of law for the court, and ‘even ambiguous contracts are to be construed by the court unless an ambiguity remains after application of applicable rules of construction.’ [Cit.]” McGee v. Southern Gen. Ins. Co., 194 Ga. App. 783, 784 (391 SE2d 669) (1990). The trial court applied the appropriate rules of contract construction to the expiration provision, construing it strictly against the drafter to effectuate its intent. I therefore concur in the affirmance of the trial court’s grant of summary judgment to National.

       Although Enterprise claims there is no evidence that it drafted the guaranty, we find such a contention to be without merit. The letter of guaranty is drafted on Enterprise’s letterhead and is addressed to National.


author: Cooper, Judge.

text:
    A93A2386.
    WARD v. PEMBROKE STATE BANK.
    (441 SE2d 691)
   Cooper, Judge.

Plaintiff/appellee Pembroke State Bank brought this action against defendant/appellant Jim Ward, Jr., to collect on a promissory note secured by a deed to secure debt. The trial court granted summary judgment to plaintiff and defendant appeals.

In March 1988, defendant executed a promissory note in favor of plaintiff in the amount of $12,000. The note was secured by a deed to secure debt covering a 42-acre tract of land in Bulloch County. The purpose of the note was indicated on the note by the following notations: “Consumer” and “Purchase Land.” The security deed contained an “open-end” or dragnet clause providing that it would also secure any additional loans made by plaintiff to defendant. In November 1988, defendant executed a second promissory note to plaintiff in the amount of $11,003. This note specified that it was secured by the same deed to secure debt covering the Bulloch County tract and a 1987 Dodge pickup truck. The purpose of this note was indicated by the notation “Consumer.”

When defendant defaulted on the first note, plaintiff exercised its power of sale in the security deed and sold the property to itself at foreclosure for $12,000, the amount of the first note. Plaintiff did not obtain confirmation of the sale. Defendant subsequently defaulted on the second note and plaintiff accelerated payment of all unpaid monthly installments. Plaintiff eventually filed the instant suit to collect on the second note. Defendant moved for summary judgment on the ground the instant action was a suit for a deficiency judgment and was barred by OCGA § 44-14-161 due to plaintiff’s failure to obtain confirmation of the sale. The trial court denied the motion, finding that the two notes were independent of one another. Plaintiff then moved for summary judgment which was granted by the trial court.

Defendant argues the trial court erred in granting summary judgment to plaintiff because this case is controlled by C. K. C., Inc. v. Free, 196 Ga. App. 280 (2) (395 SE2d 666) (1990), in which we held that the creditor’s action to recover on one note was a deficiency judgment which was barred by the creditor’s failure to obtain confirmation of the foreclosure sale under another note where both notes were related and secured by the same security deed. However, the trial court found the facts of C. K. C., Inc., distinguishable from this case and, instead, relied on this court’s decisions in Clements v. Fleet Fi nance, 206 Ga. App. 736 (426 SE2d 910) (1992), and Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747 (426 SE2d 645) (1992), wherein we held that the creditor’s failure to obtain confirmation of the foreclosure sale under a prior note did not bar it from suing on a subsequent note where there were two separate debts, evidenced by two separate notes, and secured by two separate security deeds. We agree with the defendant that the facts of this case are more analogous to those of C. K. C., Inc. and find that it is controlling in this case.

We first note that pursuant to OCGA § 44-14-161 (a), when a creditor sells real estate pursuant to the foreclosure powers contained in the security deed, confirmation of the sale is required in order to obtain a deficiency judgment if the sale “does not bring the amount of the debt secured by the deed. . . .” (Emphasis supplied.) Although the two notes herein may evidence two different debts, both notes were secured by the same deed to secure debt on the same piece of property; hence, plaintiff appears to be seeking a deficiency judgment on the debt secured by the deed inasmuch as the one deed secured both debts. See Clements, supra at 739 (Carley, P. J., concurring specially). In fact, under the “open-end” clause, which provided that the property conveyed secured any subsequent debts between the parties, the two debts effectively merged into one another and became one debt for the purposes of foreclosure. See id.; see also United States v. Yates, 774 FSupp. 1368 (M.D. Ga. 1991).

Moreover, as noted above, the facts of this case are analogous to those of C. K. C., Inc. In that case, two purchase money promissory notes which were executed at the same time were secured by the same deed to secure debt on the property purchased. Upon the debtor’s default under both notes, the creditor purchased the property at foreclosure under the larger note, but did not obtain confirmation and brought suit to recover under the smaller note. In holding that the suit on the smaller note was a deficiency judgment, we specifically stated that “both notes are clearly secured by the same deed and the same property.” Id. at 282. Thus, contrary to the trial court’s holding, our decision in C. K. C., Inc. did not rest solely on the fact that the two notes represented one debt, but in large part on the fact that they were secured by the same deed on the same property. See id. at 282-283. Here, as in C. K. C., Inc., “[t]he two debts, secured by the same property, held by the same creditor ... are owed by the same debtor and are inextricably intertwined. They are not independent of each other, and a foreclosure of one affects the other. If the whole of the property is exhausted in foreclosing the first there is still a secured debt for which the holder desired to obtain a deficiency judgment.” (Citation and punctuation omitted.) Id. at 283. The foreclosure in this case under the deed securing both the first and second notes embraced both notes. “When the instrument sued upon is embraced by the previous foreclosure, it is a deficiency judgment.” Redman Indus. v. Tower Properties, 517 FSupp. 144, 152 (N.D. Ga. 1981); see also Yates, supra at 1374.

Furthermore, both Clements and Devin are distinguishable from this case. In both those cases, we held that the creditor was not seeking a deficiency as to the debt secured by the deed foreclosed upon because “there [were] two separate debts, evidenced by two separate notes and secured by two separate security deeds.” (Emphasis supplied.) Clements, supra at 738; Devin, supra at 748. We also pointed out that the two notes were not initially made to the same creditor but were subsequently assigned to the same creditor. Furthermore, the rationale of Clements and Devin appears to be based on the general principle that where there are separate debts arising from separate contractual obligations, the failure to confirm the foreclosure arising from one of the obligations does not bar an action on the separate obligation, even if the obligations are related. See, e.g., Vaughn & Co., Ltd. v. Saul, 143 Ga. App. 74 (237 SE2d 622) (1977); Baker v. NEI Corp., Ga., 144 Ga. App. 165 (241 SE2d 4) (1977); Murray v. Hasty, 132 Ga. App. 125 (207 SE2d 602) (1974). However, unlike the present case, the common thread in the cases that stand for this proposition is that the notes involved were either secured by separate deeds to different properties or were not secured at all. See Vaughn, supra; Baker, supra; Murray, supra.

We therefore find that the instant action is one seeking a deficiency which is barred by the creditor’s failure to obtain confirmation of the sale. To hold otherwise, would permit the creditor to make successive loans on the security of the same property, foreclose on the first note without obtaining confirmation, and then hold the debtor liable for a deficiency (the balance due on the second note), the security for which has been rendered valueless by the creditor’s own act. We believe this would allow the creditor to avoid, without substantial justification, the very purpose of the confirmation statute; that being to protect debtors from deficiency judgments when their property is sold at foreclosure sale for less than its market value. See Commercial Exch. Bank v. Johnson, 197 Ga. App. 529 (1) (398 SE2d 817) (1990). Accordingly, the trial court erred in granting summary judgment to plaintiff and denying summary judgment to defendant. We note, however, that plaintiff is not barred from foreclosing on the 1987 Dodge truck also given as security on the second note. See Salter v. Bank of Commerce, 189 Ga. 328, 332 (6 SE2d 290) (1939); Yates, supra at 1374.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.

Decided March 8, 1994.

Edenfield, Stone & Cox, Susan W. Cox, E. Lee Davis, Jr., for appellant.

George A. Waters, for appellee.

       Although the security deed is not contained in the record, defendant states that the security deed contained an “open-end” clause and plaintiff has not disputed that statement. Accordingly, we may accept this statement as being prima facie true. See Court of Appeals Rule 15 (b) (1).


text:
    A93A2409.
    WILSON v. THE STATE.
    (441 SE2d 808)
   Smith, Judge.

Deborah Lynn Wilson was indicted by a Clayton County grand jury on two counts of financial transaction card theft, OCGA § 16-9-31, and five counts of forgery in the first degree, OCGA § 16-9-1. She was convicted on all counts, her motion for new trial was denied, and she appeals.

1. Wilson enumerates as error the general grounds on the denial of her motions for directed verdict of acquittal and for new trial. Viewed in the light most favorable to the verdict, the evidence showed that a Citibank Visa card was issued to Julie Ann Drake, and a Citibank Mastercard was issued to Leslie Ferris, née Defore. Drake, Defore, and Wilson worked as cashiers at a restaurant. Wilson worked at the same time and in the same area with Drake on July 15, 1991, and with Defore on July 16, 1991. Wilson was stationed in the area where their pocketbooks were kept, an area inaccessible to the public. Both Drake and Defore testified that their credit cards were in their possession shortly before they went to work and that they discovered the cards missing shortly thereafter. Both Drake and Defore testified that they did not authorize Wilson to take or use their cards.

Wilson was identified by a salesperson at Sandy’s Jewelry as the individual who used Drake’s credit card on July 15, 1991 to purchase jewelry on layaway. The same salesperson also identified Wilson as the individual who used Defore’s credit card on July 16, 1991, telling the salesperson it belonged to her sister. The salesperson testified that she recognized Wilson as a regular customer but did not remember her name at the time of the purchases. She identified the charge slips signed by Wilson on both occasions. Wilson denied having taken or used the credit cards. A rational trier of fact could reasonably have concluded that Wilson was guilty of the offenses charged beyond a reasonable doubt. Alexander v. State, 186 Ga. App. 787, 788 (1) (368 SE2d 550) (1988); Goswick v. State, 201 Ga. App. 799 (412 SE2d 293) (1991) (financial transaction card fraud, OCGA § 16-9-33).

2. Wilson also enumerates as error the trial court’s instruction to the jury in the language of OCGA § 16-9-31 (d). She contends that the reference in that Code section to a “prima facie case” impermissibly shifted the burden of proof. Assuming without deciding that the trial court erred in charging in the language of the Code section, we find no basis for reversal in this enumeration. The trial court thoroughly instructed the jury on the burden of proof and specified that it must be met as to each element of the crime charged. The trial court also charged on presumption of innocence, intent, and circumstantial evidence. Considering the charge given as a whole, “ ‘[i]t is clear to us beyond a reasonable doubt that any error in (the charge) did not contribute to the verdict of guilty and thus was harmless. (Cits.)’ [Cit.]” Bartlett v. State, 196 Ga. App. 174, 176 (3) (396 SE2d 31) (1990).

Decided March 8, 1994.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

3. Wilson also contends that the trial court erred in charging the jury regarding the date and time in the indictment. “In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations. The date here was not alleged as ‘material’ so as to require its proof with specificity.” (Citations and punctuation omitted.) Moore v. State, 207 Ga. App. 892, 894 (1) (429 SE2d 335) (1993). Moreover, the State offered in evidence, and the salesperson identified, credit card receipts showing the date and time of the transactions in question, as alleged in the indictment. This enumeration of error has no merit.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2597.
    STATE FARM FIRE & CASUALTY COMPANY v. MOSS.
    (441 SE2d 809)
   Smith, Judge.

Appellee Steve Russell Moss brought suit against his father-in-law, appellee Thomas Bradley, for injuries sustained when Bradley shot Moss in the forearm. Bradley was living with his mother at the time of the incident. Bradley eventually notified appellant, State Farm Fire & Casualty Company (“State Farm”), of the incident and the suit, seeking “coverage and/or defense” under his mother’s homeowner’s policy. State Farm then brought this declaratory judgment action against Moss and Bradley on the issue of coverage related to the incident. State Farm filed a motion for summary judgment, which was denied, and its motion for reconsideration was likewise denied. We granted State Farm’s application for interlocutory review from the latter ruling, and this appeal followed. The notice of appeal references both the order denying summary judgment and the denial of State Farm’s motion for reconsideration, but we need consider only the former judgment in resolving this interlocutory appeal. See generally Aetna Cas. &c. Co. v. Cantrell, 197 Ga. App. 672 (1) (399 SE2d 237) (1990).

“The party moving for summary judgment has the burden of establishing the non-existence of any genuine issue of fact, and all doubts must be resolved in favor of the non-moving party. [Cit.]” Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259 (411 SE2d 87) (1991). The policy in question excludes coverage for “bodily injury or property damage . . . which is either expected or intended by an insured” or “to any person or property which is the result of willful and malicious acts of an insured.” It is undisputed that if Bradley intended to shoot Moss, then the exclusion in question applies, meaning there is no coverage under the homeowner’s policy issued by State Farm.

In support of its motion for summary judgment, State Farm offered a guilty plea entered by Bradley on a charge of aggravated assault relating to the incident. This is in addition to testimony from appellee Moss and his former wife (Bradley’s daughter) to the effect that the shooting was intentional — the result of a dare by Moss challenging his father-in-law to “go ahead” and “pull [his] big, bad gun out.” The charge to which Bradley pled guilty accused him of accomplishing the assault by actually shooting Moss “with a Smith and Wesson .357 Magnum Caliber pistol.”

“ ‘(A) guilty plea is an admission against interest and prima facie evidence of the facts admitted. . . .’ [Cits.]” Hasty v. Spruill, 207 Ga. App. 485, 486 (428 SE2d 420) (1993). The evidence presented by State Farm establishes a prima facie case for a declaratory judgment in its favor based on the “willful and malicious act” evidenced by the uncontroverted testimony as well as by the guilty plea entered by Bradley. “ ‘Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. [Cits.]’ [Cit.]” Northside Building Supply Co., supra.

Bradley responded to State Farm’s motion by filing an affidavit stating “[t]hat on or about June 5, 1988 I was in the presence of Steve Russell Moss and while I was holding my pistol it accidently [sic] discharged striking said Steve Russell Moss,” and that he “did not intend for the pistol to discharge” and “did not intend to injure Steve Russell Moss.” Bradley also made similar statements on deposition, testifying to the effect that no assault whatsoever occurred on the date in question and that the shooting was an accident and the product of mere “horseplaying.”

Decided March 8, 1994.

Swift, Currie, McGhee & Hiers, Eric D. Miller, Stephen L. Cotter, for appellant.

Parker & Terry, J. Steven Parker, Conrad & Abernathy, H. Steve Abernathy, for appellee.

“In each case, whether on motion for summary judgment or at trial, it must be^decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. . . . There are situations in which an honest mistake has been made in the first statement; the proper approach is to intentionally contradict the first statement by way of explanation. . . . [E]ven where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cits.] On the other hand, a careless and untruthful witness may have simply forgotten what was said in the first statement, and tailored his second statement to meet the needs of the occasion without regard to the truth. He may have no intent to contradict the first statement, but surely the law will construe this contradiction against him.” (Emphasis supplied.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

Bradley has utterly failed to explain the contradiction between his prior admission against interest in the form of a guilty plea for aggravated assault and his subsequent deposition and affidavit stating that the shooting in question was merely an accident resulting from mere “horseplaying.” Indeed, no mention whatsoever is made of the guilty plea in the appellees’ brief on appeal, despite the fact that Bradley is represented by the same counsel who represented him in the plea proceeding. Under the circumstances, the contradiction must be resolved against Bradley as a matter of law, and as a result the appellees have failed to overcome State Farm’s prima facie case. Prophecy Corp., supra. The trial court therefore erred in denying State Farm’s motion for summary judgment.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0468.
    ANDERSON v. THE STATE.
    (441 SE2d 268)
   McMurray, Presiding Judge.

Defendant was on probation for selling cocaine. The State sought the revocation of defendant’s probation on the ground that he had been found in possession of cocaine with intent to distribute. The trial court revoked defendant’s probation and he filed an application for a discretionary appeal. We granted defendant’s application and this appeal followed. In his sole enumeration of error, defendant asserts the evidence was insufficient to support the revocation of his probation. Held:

The following evidence was adduced upon the revocation of probation hearing: The police executed a “no-knock” search warrant at a house leased by Lucille Anderson, defendant’s mother. Pursuant to their search, the police found a quantity of crack cocaine in a film box. They also found approximately $1,600 or $1,700. The box and the money were discovered on or near defendant’s mother’s bed. Defendant’s mother, defendant’s brother, defendant, and another individual were in close proximity when the police entered the house. Defendant, his brother, and the other individual were standing; defendant’s mother was sitting in a chair (she was very obese and found it difficult to move about). Defendant, his mother and his brother had all been convicted previously of drug violations. Defendant’s brother ran out of the house; defendant and the other individual remained standing where they were. Defendant did not live in the house; he lived elsewhere with his girl friend. He told the police that he was working on the day of the raid. Nevertheless, he was arrested and searched; nothing was found on his person. The investigating officer testified that he never saw defendant at the house during the period of time it was under surveillance.

There was “slight” evidence that defendant committed the alleged violation; but there was not a “preponderance” of evidence. See OCGA § 42-8-34.1 (a). See generally State v. Jones, 196 Ga. App. 896, 897 (397 SE2d 209). Boiling the evidence down, we find a previously convicted drug violator in his mother’s house when the police executed a search warrant, nothing more. Defendant’s mother was a previously convicted drug violator too; the cocaine and money were in defendant’s mother’s possession; nothing was found on defendant’s person. During the period of time in which the house was under surveillance, defendant had not been seen entering or leaving the house. In our view, this evidence did not establish by a preponderance of the evidence that defendant violated his probation by possessing cocaine with intent to distribute. See Parker v. State, 155 Ga. App. 617 (271 SE2d 871) (mere presence in and of itself will not justify a conviction).

Decided March 8, 1994.

W. Donald Kelly, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A93A1986.
    TALLEY v. MATHIS et al.
    (441 SE2d 854)
   Andrews, Judge.

Talley appeals the trial court’s order granting appellees’ motions to dismiss.

Talley filed his complaint on December 18, 1992, against Weyman and Ellen Mathis, Janet Wilson, and Denise Smith. The complaint alleged that in November or December 1991, Talley and Mathis, both residents of Floyd County, Georgia, entered into a contract whereby they would play the lotteries in Kentucky and Florida and equally divide any proceeds from winning.

Pursuant to this agreement, in February 1992, Mathis told Talley that it was time to purchase additional lottery tickets for the Kentucky lottery. Talley gave Mathis more money and Mathis told Talley that he would call his daughter, appellee Janet Wilson, who lived in Kentucky, and have her buy the tickets. On March 14, 1992, Talley left Rome, Georgia, to take a vacation. Also on March 14, 1992, the State of Kentucky Lottery Corporation held a lottery drawing and a ticket which had been purchased by Janet Wilson won the $6,000,000 lottery jackpot. When Talley returned to Rome on March 20, 1992, Mathis told him that a ticket purchased by Janet Wilson had won, but that the ticket was owned by Janet Wilson, her sister, appellee Denise Smith, and their mother, appellee Ellen Mathis.

Talley filed a multi-count complaint, which included claims of fraud, tortious interference with contract and conversion. Defendants filed motions to dismiss, which the superior court granted, and Talley appeals.

1. In his first enumeration of error, Talley claims that the trial court erred in dismissing the complaint, since at the time of the agreement in this case, Georgia public policy was not against a lottery. Talley argues that as of February 1992, when he paid the additional money, public policy was in favor of lotteries. Citing Strickland v. Gulf Life Ins. Co., 240 Ga. 723, 729 (242 SE2d 148) (1978), Talley contends that Governor Miller’s victory in the November 1990 election evidenced public support of a lottery.

This argument is without merit. Both at the inception of the subject agreement and in February 1992, all lotteries and the sale of lottery tickets were prohibited and violators were subject to prosecution. Ga. Const. 1983, Art. I, Sec. II, Par. VIII. Furthermore, during this time agreements or contracts concerning the purchase of lottery tickets were also illegal. See OCGA § 13-8-3; Bloodworth v. Gay, 213 Ga. 51 (96 SE2d 602) (1957); Boyd v. Piggly Wiggly Southern, 115 Ga. App. 628 (155 SE2d 630) (1967); Kelly v. Banda, 116 Ga. App. 421 (157 SE2d 782) (1967); Thompson v. Ledbetter, 74 Ga. App. 427 (39 SE2d 720) (1946); Gulf Collateral v. Morgan, 415 FSupp. 319 (S.D. Ga. 1976); OCGA § 16-12-22. See also Sparkman v. State, 209 Ga. App. 763 (434 SE2d 564) (1993).

The constitutional amendment which revised this paragraph was approved by a majority of the qualified voters voting at the general election on November 3, 1992. The new provision contained a general prohibition against lotteries, but specifically allowed for the operation and regulation of lotteries by or on behalf of the state.

Despite the 1992 constitutional change, we do not accept Talley’s argument that Georgia public policy regarding the lotteries had changed as of February 1992. There was no specific provision for retroactivity of the enactment and we conclude that it was prospective only. Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992). Moreover, although unnecessary to the resolution of this case since the amendment was not effective as of February 1992, we are inclined to disagree with Talley’s argument that the amendment had a broader impact than that of specifically allowing a Georgia lottery.

Talley points to various newspaper articles which he claims support his argument. See Dept. of Transp. v. Brooks, 254 Ga. 303, 312, n. 9 (1) (328 SE2d 705) (1985). Despite these materials, we find that the constitution, case law, and statutes sufficiently evidence the public policy against lotteries as of February 1992. See generally Porubiansky v. Emory Univ., 156 Ga. App. 602, 604 (275 SE2d 163) (1980). Accordingly, there was no error in the trial court’s dismissal of the complaint, since the courts of this State will not lend their aid to helping Talley recover his alleged winnings. Dennis v. Weaver, 103 Ga. App. 824 (121 SE2d 190) (1961).

2. Secondly, Talley argues that although the agreement was made in Georgia, it was related to a gambling contract in Kentucky and was not itself a gambling contract. Citing Martin v. Citizens Bank of Marshallville, 177 Ga. 871 (171 SE 711) (1933), Talley claims that he is seeking only to enforce his contract with Mathis. He argues that a gambling contract is one in which one party is certain to lose, and that he and Mathis were not gambling against each other.

Again, we disagree with Talley. The contract here was premised on gambling. The forwarding of money to bet on a lottery is defined under Georgia law as prohibited commercial gambling. See OCGA § 16-12-22 (a) (2), (6). As such, the contract was void. See generally OCGA § 13-8-3; Kelly, supra; Bloodworth, supra; Gulf Collateral, supra.

3. Finally, citing Castilleja v. Camero, 414 SW2d 424 (Tex. 1967) and Kaszuba v. Zientara, 506 NE2d 1 (Ind. 1987), Talley argues that there is no Georgia policy against betting in Kentucky and that the alleged conversion and fraud at issue here is a greater evil than lotteries. He argues that previous Georgia cases do not apply since they do not involve other states’ legal lotteries and that the disposition of similar cases in other jurisdictions indicates that dismissal here was improper.

We disagree. Though the cases from other jurisdictions may be distinguishable in light of our proscriptive statute, we recognize that cases from other jurisdictions have reached differing results. See State v. Fiola, 576 A2d 338 (N.J. Super. 1990); compare Pearsall v. Alexander, 572 A2d 113 (D.C. App. 1990). For an overview of this area see “Enforceability of Contract to Share Winnings from Legal Lottery Ticket,” 90 American Law Reports 4th 784 (1993).

Similarly, citing Long v. Adams, 175 Ga. App. 538 (333 SE2d 852) (1985), Talley argues that even if the parties’ agreement was violative of the Georgia Criminal Code, he should be allowed to recover under a fraud and conversion theory. Appellees respond that the factual distinctions in the instant case warrant a different result. Appellees argue that because the dispute here was based upon contract principles, because the agreement was made in Georgia and because the subject matter of the contract was illegal, the agreement is unenforceable.

We agree with appellees. In Long, the plaintiff filed a tort action alleging the negligent and intentional infliction of harm. The analysis in Long rested on basic tort principles. Unlike Long, this action is based on contract principles; although Talley asserts fraud and conversion claims, the entire case is premised upon the agreement between the parties. OCGA § 51-10-1 provides: “[t]he owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.” See generally Grant v. Newsome, 201 Ga. App. 710 (411 SE2d 796) (1991). By asserting that the instant action is one for conversion, Talley begs the underlying contractual question. In like manner, we find Talley’s reliance on Commercial Credit Plan v. Parker, 152 Ga. App. 409 (263 SE2d 220) (1979), also misplaced.

Decided February 22, 1994

Reconsideration denied March 9, 1994

Jones, Byington, Durham & Payne, Frank H. Jones, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, Shaw, Maddox, Graham, Monk & Boling, C. Wade Monk II, Smith, Price & Wright, S. David Smith, Jr., for appellees.

In cases involving contract principles, “[t]he rule of OCGA § 13-8-1 has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality or immorality is only collateral or remotely connected to the contract.” (Citations and punctuation omitted.) Liles v. Still, 176 Ga. App. 65, 66 (335 SE2d 168) (1985). “Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. . . . But if the promise be entirely disconnected with the illegal act, and is founded on a new consideration, it is not affected by the act.” (Citations and punctuation omitted.) Liles, supra at 66. The very essence of the agreement here was to do that which was prohibited by Georgia law and accordingly, the trial court’s order was proper. See generally Samples v. Monroe, 183 Ga. App. 187 (358 SE2d 273) (1987).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A2066.
    SHAHEEN & COMPANY v. NATIONSBANK OF GEORGIA.
    (441 SE2d 769)
   Birdsong, Presiding Judge.

Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (4), Shaheen & Company appeals the denial of its traverse to NationsBank’s answer to a garnishment.

In January 1992, Shaheen obtained a judgment against R. J. Fasteners, Inc. (“Fasteners”) and Ronald Jacobson, individually, d/b/a Nova Products & Design, in the amount of $17,500. Jacobson is an employee of Fasteners. Subsequently, Shaheen filed garnishments on accounts Fasteners and Jacobson had with NationsBank. After Fasteners filed a petition for Chapter 11 Bankruptcy, Shaheen dismissed the garnishments against those accounts. Jacobson, however, has not sought bankruptcy protection.

Then, Shaheen filed a garnishment against Jacobson’s wages with Fasteners as garnishee. As Fasteners did not answer this garnishment, Shaheen obtained a default judgment against Fasteners under OCGA § 18-4-90 which Fasteners has not challenged under OCGA § 18-4-91. Subsequently, Shaheen filed a garnishment on Fasteners’ bank account with NationsBank as garnishee based upon this default judgment against Fasteners.

NationsBank answered this garnishment asserting that the automatic stay in bankruptcy (11 USC § 362 (a)) applied to this judgment because the judgment was based upon a pre-bankruptcy debt. Shaheen filed a traverse to this answer, and after a hearing, the trial court denied the traverse. This discretionary appeal followed. Held:

As this garnishment attempted to collect funds owed by Jacobson that were in Fasteners’ possession, it was not an action against Fasteners which would come within the protection of 11 USC § 362 (a). Shaheen’s garnishment of Fasteners’ checking account was based upon Jacobson’s debt and not Fasteners’ pre-bankruptcy debt. When the default judgment was obtained against Fasteners, it was converted to Fasteners’ post-bankruptcy debt by Fasteners’ post-bankruptcy failure to respond to the garnishment of Jacobson’s wages. As the automatic stay provisions protect only the debtor, property of the debtor, or property of the estate (Credit Alliance Corp. v. Williams, 851 F2d 119, 121-122 (4th Cir.)) and as Jacobson was not entitled to the protection of the automatic stay in bankruptcy merely because of his relationship with Fasteners who was a bankruptcy debtor (Maritime Elec. Co. v. United Jersey Bank, 959 F2d 1194, 1205 (3d Cir.)), Jacobson’s wages in Fasteners’ possession were not protected from garnishment by 11 USC § 362 (a). Further, nothing authorized Fasteners, as the garnishee, to ignore a garnishment of Jacobson’s wages. See OCGA § 18-4-62.

Therefore, as Fasteners did not file an answer to the garnishment, the trial court was authorized to enter a default judgment against Fasteners for the full amount claimed due on the judgment against Jacobson’s wages. OCGA § 18-4-90. Consequently, this default judgment against Fasteners, which was based upon the garnishment of Jacobson’s wages, as a matter of fact, was a new debt that was incurred after the filing of Fasteners’ bankruptcy petition. Thus, the automatic stay in 11 USC § 362 (a) provided no protection.

As the garnishment was plainly upon Jacobson’s wages in Fasteners’ possession, we find no support for NationsBank’s contentions that Shaheen failed to raise the arguments it relies upon on appeal in the trial court.

Accordingly, Shaheen’s post-bankruptcy default judgment against Fasteners was not based upon Fasteners’ pre-petition debt. Therefore, the judgment of the lower court must be reversed.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Decided February 8, 1994

Reconsideration denied March 9, 1994

Frederick J. Hanna, Elizabeth C. Whealler, for appellant.

Alston & Bird, Bradley L. Cooper, for appellee.


author: Pope, Chief Judge.

text:
    A93A2260.
    MATHIS et al. v. HEGWOOD.
    (441 SE2d 766)
    Decided February 4, 1994
    Reconsideration denied March 9, 1994.

      Charles G. Wright, Jr., for appellants.

      Albert C. Palmour, Jr., for appellee.
   Pope, Chief Judge.

On May 7, 1984, a final judgment on remittitur was entered in the Superior Court of Walker County. This judgment decreed that plaintiff Hegwood was the owner in fee simple of certain real property and ordered the clerk to issue a writ of possession to be executed by the sheriff and his deputies. The writ was issued but was never executed. Then, on March 17, 1993, plaintiff brought this action to revive a dormant judgment. See OCGA § 9-12-60 et seq. The trial court ordered that the 1984 judgment be revived, and defendants’ motion for reconsideration was denied.

On appeal, defendants challenge the trial court’s order on several procedural grounds. Pretermitting consideration of these enumerated errors, we conclude that the order reviving the dormant judgment must be reversed because there was no dormant judgment to revive: OCGA § 9-12-60 applies only to judgments or decrees ordering the payment of a sum of money. See Brown v. Parks, 190 Ga. 540 (2) (9 SE2d 897) (1940).

Judgment reversed.

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


text:
    A93A2443, A93A2444.
    EVANS v. WILLIS et al.; and vice versa.
    (441 SE2d 770)
   Birdsong, Presiding Judge.

This is the second appearance of this case before the court. See Evans v. Willis, 203 Ga. App. 699 (418 SE2d 73).

L. D. Willis and Marilyn Willis sued William L. Evans d/b/a Deluxe Cleaners to recover damages for the conversion of Marilyn Willis’ wedding dress which was left at Deluxe Cleaners in 1964. As the Willises believed the dress was being stored at the cleaners, they did not demand possession of the dress until 1984. When L. D. Willis did so, Evans told him the dress had been given to a charitable organization. According to L. D. Willis, Evans denied any responsibility for the problem and ultimately told him to see Evans’ lawyer if he was dissatisfied. Moreover, even though Evans sometime later found the dress, he did not tell the Willises that the dress was recovered. When the dress was located, a ticket was attached to the dress showing a charge of $17.50 for cleaning and a notice that the cleaners would be responsible only for 30 days. Further, although the Willises asserted that the dress was left for storage, Evans claimed that he was only to clean the dress. Evans was never paid for the storage of the dress. Since the dress was not returned to them before the wedding, the Willises had to buy another dress for their daughter’s wedding, and they asserted that they suffered emotional distress because of Evans’ actions and because their daughter was not married in the dress. The Willises also sought damages for intentional infliction of emotional distress, punitive damages, and litigation expenses under OCGA § 13-6-11.

Ultimately, the jury returned a verdict awarding Marilyn Willis $3,000 in actual damages for conversion of the dress, $3,250 punitive damages, $4,000 for emotional distress, and $4,888.75 for attorney fees. The jury also awarded L. D. Willis $3,000 for punitive damages, $2,000 for emotional distress, and $3,000 for attorney fees. The jury found against Evans on his counterclaim against the Willises.

At the conclusion of the Willises’ case, and at the close of the evidence, Evans, in effect, moved for a directed verdict on L. D. Willis’ individual claims, on the claim for punitive damages, on the claim for emotional distress, and on the claim for attorney fees, and he contends the trial court erred by denying these motions. Evans also contends the trial court erred by amending the judgment to award prejudgment interest after the notice of appeal was filed, contends the trial court erred by allowing the verdict to stand since the damages exceeded the proof, and contends the trial court erred by allowing damages under both OCGA §§ 51-12-5 and 51-12-6. Evans further contends the trial court erred by denying his motion to dismiss the complaint based upon the running of the statute of limitation. Held:

Case No. A93A2443

1. Evans contends the trial court erred by denying his motion to dismiss the Willises’ claims for punitive damages, intentional infliction of emotional distress, and litigation expenses under OCGA § 13-6-11. Review of the record shows that these claims are based upon Evans’ statement that the dress was given to a charitable organization and that when L. D. Willis protested, Evans told him to contact his attorney.

Although expressed as a motion to dismiss, Evans’ motions were in effect motions for a directed verdict on these claims; accordingly, we must measure the trial court’s decision by standards appropriate to a motion for directed verdict. “In determining whether the trial court erred by denying appellants’ motion[ ] for a directed verdict . . . this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Considered in this manner it is apparent that the evidence in this case was insufficient to support claims for intentional infliction of emotional distress, for punitive damages, and for expenses of litigation under OCGA § 13-6-11.

(a) Since the Willises’ claim did not involve injury to the person or pecuniary loss resulting from an injury to the person, recovery would be allowed only if Evans’ conduct was malicious, wilful, or wanton. Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146); Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776). Thus, to prevail on their claim for intentional infliction of emotional distress, the Willises must establish that Evans’ conduct was wilful or wanton and intentionally directed to harm them, that his actions were such as would naturally humiliate, embarrass, frighten, or outrage the Willises, and the conduct caused mental suffering or wounded feelings or emotional upset or distress. Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (381 SE2d 303). As the evidence shows that Evans’ loss or misplacement of the dress after it had been left at his establishment for many years was not intentional and was not directed toward the Willises, the evidence fails to establish these necessary elements of the case. Moreover, Evans’ conduct in this case fails to reach the level of conduct required in this state to support such a claim. See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703 (409 SE2d 835); Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222 (369 SE2d 541). Further, since Marilyn Willis was not present when her husband confronted Evans about the dress, she cannot recover since his conduct was not directed toward her. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826). Accordingly, the trial court erred by submitting the claim for emotional distress to the jury.

(b) In the same manner, Evans’ conduct was insufficient to support a claim for punitive damages. Since this cause of action arose before July 1, 1987, OCGA § 51-12-5 applies. Carter v. Myers, 204 Ga. App. 498 (419 SE2d 747). “ ‘To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.’ ” (Citation omitted.) Bowen v. Waters, 170 Ga. App. 65, 67 (316 SE2d 497). Mere negligence, even gross negligence, will not support an award of punitive damages. Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (366 SE2d 147). Further, evidence that Evans was indifferent or unsympathetic to the Willises’ loss of the dress is not sufficient to establish the malice necessary to support an award of punitive damages. Community Fed. &c. Assn. v. Foster Developers, 179 Ga. App. 861 (348 SE2d 326).

While the imposition of punitive damages is ordinarily a jury issue, the controlling criteria is whether there is any evidence authorizing such an award. Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (389 SE2d 355). Accordingly, since there is no evidence that the loss of the wedding dress was anything other than the result of Evans’ negligence, the trial court erred by denying Evans’ motion for a directed verdict on punitive damages.

(c) In the same manner, the Willises’ claims under OCGA § 13-6-11 must also fail. Given the posture of the claims against Evans, the evidence does not support an award of attorney fees. The claim arose from the negligent loss of the dress after it had been left in his possession for many years, and there was an issue whether the dress was left for cleaning and storage or merely cleaning. Accordingly, there is no evidence of bad faith in the inception of the loss (see Brannon Enterprises v. Deaton, 159 Ga. App. 685 (285 SE2d 58)), and mere refusal to pay a disputed claim is not sufficient to award attorney fees on grounds of either stubborn litigiousness or causing unnecessary trouble and expense. Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (373 SE2d 758).

Therefore, the trial court erred in denying Evans’ motions for directed verdict for the reasons stated above.

2. Evans also asserts that the claims were barred by the statute of limitation. Review of the record shows, however, that this issue was never presented to the trial court for resolution; consequently, Evans waived this issue. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 347 (173 SE2d 723).

3. Evans also alleges the trial court erred by adding pre-judgment interest because the filing of the notice of appeal deprived the trial court of jurisdiction to amend the judgment. Pretermitting the merits of this assertion, in view of our disposition in Division 1, supra, the award of pre-judgment interest was not authorized since the authorized verdict did not exceed the pretrial demand. OCGA § 51-12-14 (a).

Decided February 8, 1994

Reconsideration denied March 9, 1994

Edward J. Magner, Jr., for appellant.

Walter C. Herin, Jr., for appellees.

4. The trial court erred by denying his motion to dismiss L. D. Willis as a party. Because of our disposition in Division 1, supra, and the trial court’s dismissal of L. D. Willis’ conversion claim, this enumeration is moot.

5. Evans contends the award of $3,000 to Marilyn Willis was not authorized by the evidence. The evidence showed that this dress was unique in that it was her wedding dress and the evidence further showed that the dress cost $300 in 1964 and a replacement dress in 1984 would cost $3,000—$4,000. “On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282). Since the verdict was within the range of damages established by the evidence, there was no error.

Case No. A93A2444

6. The Willises’ cross-appeal contends that the trial court erred by dismissing L. D. Willis’ claim for conversion of the dress. The trial court found that as L. D. Willis and Marilyn Willis were both asserting a claim based on conversion of the dress, only Marilyn Willis should be allowed to maintain the claim since she had the superior right as owner of the dress. Although L. D. Willis correctly asserts that one who has a right to possession may bring a conversion action, here the trial court did not err by dismissing his claims since his wife in this case had the superior right to claim the dress.

Judgment affirmed in part and reversed in part in Case No. A93A2443. Judgment affirmed in Case No. A93A2444.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1822.
    JACKSON et al. v. STATE OF GEORGIA.
    (441 SE2d 811)
   Pope, Chief Judge.

This appeal arises out of a civil forfeiture action brought by the State seeking forfeiture, pursuant to OCGA § 16-13-49, of $10,000 in United States currency and a 1985 Chevrolet Corvette.

The claimants/appellants argue the trial court erred by granting the State a continuance. OCGA § 16-13 49 (o) (5) provides that “[i]f an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause. . . .” (Emphasis supplied.) The record in this case shows that the complaint was filed on November 4, 1992 and an answer and interrogatories were filed on December 18, 1992. On January 19, 1993, 60 days following service of the complaint, the State filed a motion for continuance requesting a continuance until the State’s motion to disqualify claimants’ attorney, also filed on that day, and the State’s motion to dismiss the claimants’ discovery requests were “resolved.” The certificate of service showed that the motion for continuance was hand delivered to the claimants’ attorney on January 18, 1993, which was a State holiday.

On January 19, 1993, the same day the motions by the State were filed, the attorneys for the parties and the trial judge met in chambers. According to the stipulation of the parties, during that meeting claimants’ new counsel informed the court that claimants’ former counsel (who was the subject of the State’s disqualification motion) had withdrawn, that she had made an entry of appearance that day, and that she had also withdrawn claimants’ discovery requests. At that time the State requested the court to have a hearing on the forfeiture complaint or to grant a continuance, since it was the sixtieth day following the filing of the complaint. The claimants’ attorney objected to going forward with the hearing, urging as her reason the State’s failure to give notice of a hearing.

She also objected to the State’s request for a continuance, and noted that a hearing had never been set from which a continuance could be granted. Upon further inquiry claimants’ attorney stated that because she had no notice of the hearing, she did not know if she would be able to contact her clients so they could be present. The court informed counsel for claimants that if she would not agree to have a hearing at that time, he would grant the State’s request for a continuance. The claimants’ attorney did not acquiesce and the court granted the State’s request for a continuance.

On February 18, 1993, claimants filed a motion to dismiss based, inter alia, on the failure to have a hearing within 60 days as required by OCGA § 16-13-49 (o) (5). Following a hearing, the trial court denied claimants’ motion and entered an order finding “good cause” for the granting of the first continuance. On March 29, 1993, a hearing was held on the State’s condemnation complaint, at which time claimants again objected to the granting of the continuance, and the court again overruled claimants’ objection.

We agree with claimants that the trial court erred in granting the State’s motion for continuance. “OCGA § 16-13-49 (o) (5) provides that a hearing ‘must’ be held within 60 days of service after the complaint unless a continuance is granted for ‘good cause.’ ” Henderson v. State of Ga., 205 Ga. App. 542 (422 SE2d 666) (1992). In Henderson, this court held “that the legislature used the word ‘must’ in OCGA § 16-13-49 (o) (5) to mandate a speedy resolution of in rem condemnation cases.” Id. Our Supreme Court recently affirmed our holding in Henderson that the word “must” as used in OCGA § 16-13-49 is mandatory rather than directory. State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993).

The State did not invoke a hearing in this case until the sixtieth day following service of the complaint, after it became apparent that the grounds urged in its motion for continuance, which was also filed on the sixtieth day, had been rendered moot. Pretermitting whether the State’s dilatory actions in filing the motions would effect the finding of good cause (the record shows that the basis of disqualification of claimants’ former counsel was known to the State well before the motion for disqualification was filed), by the time the in-chambers hearing on the State’s motion for continuance was held, the only “cause” for granting a continuance to the State was the claimants’ refusal to go forward with a hearing about which they had no prior notice. A continuance granted under these circumstances is not for “good cause.” The real basis for the continuance was the State’s failure to invoke a hearing within 60 days. Because of the State’s inaction, the claimants were given a choice of agreeing to a continuance or participating in a hearing of which they had no notice. “The courts of Georgia have made it . . . clear that due process requires notice and hearing.” Blocker v. Blackburn, 228 Ga. 285, 288 (185 SE2d 56) (1971). “It is [also] well established that in proceedings under statutory authority, whereby a person may be deprived of property, the statute must be strictly pursued and compliance with all statutory prerequisites must be shown.” Wrege v. Cobb County, 186 Ga. App. 512, 513 (367 SE2d 817) (1988).

The State in this case failed to comply with the statutory time requirements applicable to the hearing on the forfeiture complaint. We do not think the fact that the legislature provided for the granting of a continuance means that the State can simply use that mechanism to avoid the time constraints otherwise mandated by statute. That was the effect of the continuance granted in this case. It follows that the trial court abused its discretion in granting the continuance under the facts of this case, and that the denial of the claimants’ motion to dismiss the State’s complaint must be reversed. Accord Alford v. State, 208 Ga. App. 595, 598 (4) (431 SE2d 393) (1993).

Decided March 9, 1994.

Judy E. Shurling, for appellants.

George C. Turner, Jr., District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       The State’s motion to dismiss the discovery requests does not appear in the record.


text:
    A93A2282.
    LEATHERWOOD v. THE STATE.
    (441 SE2d 813)
   Pope, Chief Judge.

Defendant James Bradford Leatherwood, age 18, appeals his convictions for underage possession of alcohol, reckless conduct, and three counts of misdemeanor assault.

1. Defendant filed a timely written motion to suppress evidence and exclude certain custodial statements. He enumerates as error the alleged failure of the trial court to hold “a full and complete evidentiary hearing” on this motion.

(a) The State contends that the merits of this motion to suppress have already been determined adversely to defendant after a hearing held with respect to an earlier indictment arising out of the same events. In this regard, both defendant and the State have attempted to supplement the record as transmitted to this court by the clerk of the court below by appending attachments to their respective briefs. This procedure is not an authorized method to supplement the record. See OCGA § 5-6-41 (g), (i). “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. [Cit.] Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs. [Cit.]” Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

(b) At the commencement of trial, defendant announced “Ready, . . . subject to our motion.” The record demonstrates that the trial court subsequently conducted a Jackson-Denno hearing on the voluntariness of defendant’s custodial statements. While there is reference in colloquy to a previous ruling on a motion to suppress made under an earlier indictment, the record does not reflect that defendant ever insisted upon an evidentiary hearing on this motion to suppress, and that the trial court denied defendant’s request. Rather, the record shows only that the trial court adopted the previous ruling of another judge as its own. The tangible items subject to the written motion — vodka and beer discovered in defendant’s truck — were admitted over various objections but none going to the lawfulness of the seizure of these items from defendant’s vehicle after he fled in his truck from the scene of a search conducted under a warrant. Defendant invoked no ruling on the record by the trial court as to his right to an evidentiary hearing on his motion and proffered no evidence or argument. His silence amounts to acquiescence such that this issue has been waived. State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751) (1991).

2. Defendant moved to exclude from evidence an incriminating statement he made while in custody, claiming that he had not been properly cautioned of his rights. After a Jackson-Denno hearing, the trial court determined that this custodial statement was voluntary and admissible. This evidentiary ruling is enumerated as error.

Defendant did not testify at the voluntariness hearing. After his arrest, defendant was taken first to the hospital and then to the jail. The arresting officer gave defendant Miranda warnings while they were in transit but did not question him. Several hours later, when defendant was being booked, he asked the booking officer if he would go to prison, stating that he had almost killed some policemen trying to get away. This officer replied that it was up to the courts, whereupon defendant stated to her that he was sorry and wished that he had not tried to run from the police. Defendant urges that because he was not given a second Miranda warning this statement is inadmissible. However, it is axiomatic that Miranda warnings are required only in the context of custodial interrogation. Moon v. State, 208 Ga. App. 540, 541 (1) (a) (431 SE2d 128) (1993). The testimony adduced below authorized the trial court’s conclusion that defendant’s “statement ‘was spontaneous and not in response to any interrogation or prodding by ([the booking] officer).’ [Cits.]” Hallman v. State, 263 Ga. 72, 73 (1) (428 SE2d 344) (1993). The determination of the trial court is supported by evidence, is not clearly erroneous, and will not be disturbed on appeal. Wilson v. State, 211 Ga. App. 457 (1) (439 SE2d 685) (1993).

3. Defendant enumerates as error three instances where the trial court permitted the State to introduce impeachment testimony. Defendant’s objection that a rebuttal witness must testify during the State’s case-in-chief or be excluded by operation of OCGA § 17-7-110 is patently without merit. “There is no requirement that the State call more witnesses than it needs to present its case.” (Citations and punctuation omitted.) Fitzgerald v. State, 193 Ga. App. 76 (3) (386 SE2d 914) (1989). The exclusion of testimony from a witness whose name has not been provided to the defense by the State pursuant to OCGA § 17-7-110 does not apply to rebuttal witnesses. Bentley v. State, 210 Ga. App. 862, 864 (2) (b) (438 SE2d 110) (1993). Defendant’s reliance upon Allison v. State, 256 Ga. 851, 853 (8) (353 SE2d 805) (1987) is misplaced, for the impeachment evidence here was proper rebuttal of matters testified to and not improperly withheld expert opinion evidence. Objections to impeachment evidence on the basis of hearsay also are without merit. Hearsay is admissible to impeach a witness by showing that a prior contradictory statement has been made. Gee v. State, 210 Ga. App. 60, 61 (2) (435 SE2d 275) (1993). We find no error in the trial court’s admission of the complained-of evidence under the circumstances presented in this case.

4. Defendant’s fourth enumeration of error asserts that the “State’s failure to obtain [defendant’s] consent prior to the nolle prosequi of the First Indictment after jeopardy had attached to the case violated OCGA § 17-8-3 and thus any retrial on those counts is barred by double jeopardy. This would constitute error.”

This enumeration fails “to specify any error alleged to have been committed by the trial court. See OCGA § 5-6-51 (4).” Robinson v. State, 210 Ga. App. 278, 279 (2) (435 SE2d 718) (1993). Moreover, the entry of nolle prosequi without the consent of the accused to an indictment under which no jeopardy had attached would not be a good ground for an arrest of judgment on the basis of double jeopardy as to convictions already obtained under a different indictment alleging identical offenses. “In a criminal proceeding the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and filed a plea. [Cits.] Where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried. Whenever he has been acquitted or convicted upon any one of them, he can plead such acquittal or conviction in bar of a [subsequent] prosecution of any of the others.” Irwin v. State, 117 Ga. 706 (45 SE 48) (1903). The procedural double jeopardy protection of OCGA § 16-1-7 (b) does not authorize a reversal of any of defendant’s convictions. Geckles v. State, 177 Ga. App. 70, 71 (1) (a) (338 SE2d 473) (1985). Accord Teal v. State, 203 Ga. App. 440, 442 (2) (417 SE2d 666) (1992). Compare Rhyne v. State, 209 Ga. App. 548 (3) (434 SE2d 76) (1993) (accused may not be charged with additional crimes via second indictment after jury is unable to reach a verdict with respect to the original charge).

5. Over defense objections as to foundation, chain of custody, and proof of ownership, the trial court admitted into evidence the two twelve-packs of beer and the bottle of vodka taken from defendant’s truck after his arrest. This evidentiary ruling is enumerated as error. However, the grounds urged below have not been enumerated or argued on appeal and are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). The ground urged on appeal, namely the alleged procedural error in failing to accord defendant an evidentiary hearing on his written motion to suppress, is not the same as that urged below and may not be considered for the first time on appeal as á basis for excluding the items seized from defendant’s truck. White v. State, 203 Ga. App. 889, 890 (1) (418 SE2d 149) (1992). This enumeration presents nothing for review.

Decided March 9, 1994.

Allman & Peters, James P. Peters, for appellant.

George C. Turner, Jr., District Attorney, James E. Barker, Jeff L. Ballew, Assistant District Attorneys, for appellee.

6. An exception to a jury instruction on underage possession of alcohol in violation of OCGA § 3-3-23 has been considered and found to be without merit.

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.