author: JOHNSON, Presiding Judge.

text:
    A02A0627.
    M. WAYNE ROBINSON BUILDER-DEVELOPER, INC. et al. v. CITY OF ROME.
    (564 SE2d 526)
   JOHNSON, Presiding Judge.

This case concerns a challenge to the validity of Rome’s Historic Preservation Zoning Ordinance and the amendment to that ordinance which added the street upon which the appellants own property. Because we find that the trial court properly granted the City of Rome’s motion for summary judgment and properly issued a permanent injunction preventing the demolition of the homes without a Certificate of Appropriateness, we affirm the trial court’s order.

The City of Rome first adopted its Historic District Zoning Ordinance on June 4, 1979. Rome, therefore, is exempted from complying with the state Historic Preservation Act, the statute establishing state-wide procedures and criteria for local governments to follow in enacting and administering such ordinances. Following a public hearing on May 20, 1996, the Rome City Commission unanimously voted to adopt a revised Historic District Zoning Ordinance. This revised ordinance was entitled the Historic Preservation Zoning Ordinance, and it adopted many of the same provisions as the state Historic Preservation Act.

Two months later, on July 22, 1996, the appellants purchased three homes on Avenue A in Rome. On February 27, 1998, the Rome Historic Preservation Commission mailed notices to property owners and occupants on a portion of Avenue A, including the appellants’ property, indicating that the area was proposed to be designated as an historic district. The notice stated that

The Historic Preservation Commission will meet to discuss and make recommendations on this request on Wednesday, March 18, 1998 at 12:30 PM, in the Sam King Room, 601 Broad Street, Rome, Georgia. This meeting is open for public input. The City Commissioners of Rome will conduct a Public Hearing on Monday, April 20, 1998, at 8:00 PM in the City Commission Meeting Room, Top Floor, 601 Broad Street, Rome, Georgia, to act on the recommendations of the Planning Commission. These meetings are open to the public and all documents are available for public review.

Since the May 20, 1996 Historic Preservation Zoning Ordinance did not provide for the Planning Commission to review and make recommendations on these matters, there was no such review by the Planning Commission. Instead, the review was done by the Historic Preservation Commission.

On March 4, 5, and 6, 1998, a notice was published in the local newspaper containing the required information as to both the March 18, 1998 hearing before the Historic Preservation Commission and the April 20, 1998 hearing before the Rome City Commission. On March 18, 1998, the Historic Preservation Commission conducted a public hearing on the proposed designation and made its review and recommendation to the Rome City Commission. The Rome City Commission, during its regular meeting on April 6, 1998, did a first read- . ing of the proposed amendment designating the Avenue A area as an historic district.

On April 15, 1998, the appellants obtained permits to demolish their three houses to build offices. Five days later, on April 20, 1998, the Rome City Commission conducted a public hearing during its regularly scheduled meeting and adopted the Historic Preservation Zoning Ordinance amendment designating the Avenue A property as an historic district.

In a letter dated November 10, 1998, the City explained that the demolition permits had expired because the work was not commenced within six months of the date of issuance and informed the appellants that a Certificate of Appropriateness would be required under the Historic Preservation Zoning Ordinance before demolition could take place. Section 23-253 of the Rome City Code provided for an appeal of this decision, but no such appeal was filed by the appellants. Subsequently, the appellants applied for Certificates of Appropriateness, but their applications were denied. Section 23-181 (p) of the Historic Preservation Zoning Ordinance provided for an appeal of this decision, but, once again, no such appeal was filed by the appellants.

On September 18, 2000, the appellants demolished one house. The City issued a citation for that demolition and filed this lawsuit seeking a permanent injunction against further demolition. Cross-motions for summary judgment were filed. The trial court granted the City’s motion for summary judgment and issued a permanent injunction preventing the demolition of the homes without a Certificate of Appropriateness. The appellants then filed this appeal.

1. On appeal, the appellants contend that the 1996 amendment to the Historic Preservation Zoning Ordinance and the later amendment adding Avenue A are both void for failure to follow the amendment procedures detailed in Rome’s general zoning ordinance. Specifically, they contend neither amendment was reviewed by the Planning Commission, as is required in the general zoning ordinance of the city.

It is undisputed that Rome’s Historic District Zoning Ordinance, adopted on June 4, 1979, contained no procedures to follow regarding the adoption of amendments. Rome’s general zoning ordinance, Code Section 23-276, provides that amendments to an ordinance shall not become effective unless they “shall have been proposed by or shall first have been submitted to the planning commission for review and recommendation.” Because Section 23-276 refers to amendments to “[t]his chapter,” and because the chapter included the 1979 Historic District Zoning Ordinance, the appellants contend that the failure of the Planning Commission to review and recommend amendments to the Historic District Zoning Ordinance invalidates both the 1996 amendment and the amendment adding Avenue A as an historic district. We disagree.

Following a public hearing on May 20,1996, the Rome City Commission unanimously voted to adopt a revised Historic District Zoning Ordinance. This revised ordinance was entitled the Historic Preservation Zoning Ordinance, and it adopted many of the same provisions as the recently enacted state Historic Preservation Act. While Rome’s Planning Commission did not review or recommend this revision, the trial court found that the 1996 Historic Preservation Zoning Ordinance supersedes any contrary provisions in the general zoning provisions. We agree. “Where there is a conflict between legislative acts, the later in time will control as it is presumed to be the last expression of legislative will.” In addition, OCGA § 36-30-3 (a) provides that “[o]ne council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” The Rome City Commission acted within its authority to adopt the 1996 Historic Preservation Zoning Ordinance, revising the 1979 Historic District Zoning Ordinance, without a review or recommendation by the Planning Commission.

As for the Avenue A amendment, the City was not required to have the Planning Commission review or recommend this amendment. The 1996 Historic Preservation Zoning Ordinance contains its own procedures for amending the ordinance and for designating an historic district. Code Section 23-179 (a) created the Historic Preservation Review Board as “a part of the planning and development functions of the City of Rome.” Powers given to that Board include the “power to propose historic districts ... to the City Commission for designation.” The 1996 Historic Preservation Zoning Ordinance does not refer to a Planning Commission, just as the general zoning ordinance does not refer to the Historic Preservation Review Board. Moreover, the 1996 Historic Preservation Zoning Ordinance provides in Section 23-185, “All ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed.”

2. The appellants next argue that even if the 1996 Historic Preservation Zoning Ordinance is valid, the Avenue A amendment is void because the City failed to comply with the notice provisions with regard to the April 20, 1998 hearing before the Rome City Commission. We find no error.

The Historic Preservation Zoning Ordinance provides the following regarding notice and hearing:

The Review Board and the City of Rome shall hold a public hearing on any proposed ordinance amendment for the designation of any historic district as a Local Historic District. . . . Notice of the hearing shall be published in at least three consecutive issues of the principal local newspaper and written notice of the hearing shall be mailed by the Board to all owners and occupants of the proposed Local Historic Property or the individual properties located within the proposed Local Historic District. All such notices shall be published or mailed not less than ten nor more than twenty days prior to the date set for the public hearing.

The record shows that notices were mailed on February 27, 1998, 19 days prior to the March 18, 1998 hearing before the Rome Historic Preservation Commission. The notice was published in the local newspaper on March 4, 5, and 6, 1998, within twenty days and more than ten days prior to the March 18, 1998 hearing. Therefore, the City complied with the notice requirements contained in the 1996 Historic Preservation Zoning Ordinance regarding the March 18, 1998 public hearing before the Historic Preservation Commission.

As for the April 20, 1998 hearing before the City Commission, both the mailed and published notices provided the date, time, and place of the subsequent hearing before the Rome City Commission. While the notice of this hearing would not strictly meet the requirements of the ordinance, the appellants received adequate notice of the initial public hearing before the Historic Preservation Commission.

3. The appellants further assert that the Avenue A amendment is void because the amendment fails to specifically designate the property to be added to the historic district by giving the names of the property owners. Code Section 23-180 (d) (2) lists required components of an ordinance amendment for designation. Under this section, the ordinance amendment shall “[s]et forth the name(s) of the owner(s) of the individual properties within the proposed Local Historic District or of the proposed Local Historic Property.” The record shows that the Historic Preservation Commission had a list of the names of the property owners of Avenue A and a copy of the tax assessors’ map showing tax parcel numbers from which those names could be derived from public records. Based on this information, the Historic Preservation Commission mailed a notice of the proposed action and hearings thereon to the property owners, including the appellants. However, a list of those names was not included in the ordinance as finally adopted by the Rome City Commission on April 20, 1998. Contrary to the appellants’ claims, we find this oversight immaterial.

The clear purpose of the code section is to assure notice to property owners. Here, it is undisputed that the appellants received notice of the hearings held on the historic district designation. And, clearly, the appellants have not been harmed by the failure to include their names in the amendment. As the Supreme Court has previously held, “a statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.” In the present case, no substantial rights depend on the amendment listing the property owners’ names, no injury can result from ignoring this directive, and the purpose of the Historic Preservation Zoning Ordinance can be accomplished in a manner other than that prescribed, with the same results. Thus, the requirement that property owners’ names be listed in the amendment is merely directory and is not a flaw sufficient to invalidate the ordinance. Based on our holdings in Divisions 1-3, the trial court correctly granted summary judgment to the City of Rome. Therefore, the appellants’ claim that they are not barred by laches, waiver, or any similar doctrine is hereby deemed moot.

Decided April 17,2002

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, William F. Sparks, for appellants.

David G. Archer, for appellee.

Judgment affirmed.

Blackburn, C. J, and Miller, J., concur.

       The appellants are the owners and demolition contractors of three houses along Avenue A in Rome.

       OCGA § 44-10-20.

       OCGA § 44-10-23 (exempting cities and counties that had adopted such ordinances prior to March 31, 1980).

       Code Section 23-276.

       (Citation omitted.) Patrick v. Head, 262 Ga. 654, 655 (3) (424 SE2d 615) (1993).

       Code Sections 23-179 (c) (2); 23-180 (a) (2).

       Code Section 23-180 (d) (3).

       (Citation and punctuation omitted.) Barton v. Atkinson, 228 Ga. 733, 739 (1) (187 SE2d 835) (1972).

       Id.


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A02A0644.
    WRIGHT v. THE STATE.
    (564 SE2d 522)
   MlKELL, Judge.

Dexter Renaldo Wright appeals his conviction of felony theft by shoplifting, contending that the accusation was defective and that the evidence was insufficient. For the reasons set forth below, we affirm.

1. When reviewing a criminal conviction, we view the evidence in the light most favorable to the verdict and do not weigh the evidence nor judge the witnesses’ credibility. The question is whether under the evidence presented a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

So viewed, the evidence shows that on April 1, 2000, a Kroger store employee observed Wright placing meats into grocery bags as he was standing in the beer aisle. The employee saw Wright place the bags, along with boxes of crab legs, into a grocery cart. A drug store clerk watched Wright proceed past the cash registers toward the exit with the groceries. The clerk accosted Wright and asked him to produce a receipt for the items, but Wright could not do so. The clerk informed him that he could not leave with the groceries, but Wright stated that he was leaving the store.

By this time, one of the store’s managers arrived to assist the clerk. The manager testified that he also asked Wright for a receipt. Wright stated that he thought he had one in his pocket. While searching his pockets, Wright continued to push the cart outside the store. The manager was able to engage Wright in conversation until the police arrived.

Wright testified in his own behalf. He claimed that he stood in the checkout line until he realized he did not have enough money to pay for the groceries. According to Wright, he asked an employee to watch his buggy while he went to his car to get more money. However, the drug store clerk testified that Wright never offered to obtain money from his car.

Wright argues that his conviction should be reversed because the state failed to prove beyond a reasonable doubt that the value of the items taken totaled more than $300. We disagree. The manager testified that Wright’s cart contained groceries with a total value of between $450 and $460, including four boxes of crab legs valued at $59.95 each; a case of beer priced at $18.49; an assortment of meats consisting of chicken, ox tails, pork ribs, and boneless pork chops; and a ten-pound bag of potatoes. Contrary to Wright’s argument, the state was not required to itemize the retail value of each stolen item. The store manager, who was familiar with the items taken, was competent to testify as to the value of those items. Finally, we note that the value of the stolen items “is relevant only for the purpose of distinguishing between a misdemeanor and a felony, and where any evidence of value can be shown, a conviction for shoplifting can be upheld.” It follows that the evidence was sufficient for any rational trier of fact to conclude beyond a reasonable doubt that Wright was guilty of felony shoplifting.

2. Similarly, Wright contends that the accusation was void because it failed to assign a value to each stolen item. We disagree. At the outset, we note that by failing to file a demurrer or a motion in arrest of judgment in the trial court, Wright has not preserved this issue for appellate review. We have also held that where, as here, a defendant fails to attack the sufficiency of the accusation until after his conviction, his complaint will not be considered on appeal unless the alleged defects render the accusation absolutely void. In this case, the accusation tracks the appropriate statutory language and states the nature of the items taken. It contains no defects such as would render it void. Accordingly, this enumeration is meritless.

Decided April 17, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Davis v. State, 244 Ga. App. 708, 709 (1) (536 SE2d 596) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Felony shoplifting is the theft of items with a value of more than $300. OCGA § 16-8-14 (b) (1).

        Green v. State, 177 Ga. App. 179, 180 (2) (338 SE2d 761) (1985).

        Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118) (1997).

        Brown v. State, 160 Ga. App. 285, 286 (287 SE2d 278) (1981).

        Parks v. State, 246 Ga. App. 888, 889 (1) (543 SE2d 39) (2000).

        England v. State, 232 Ga. App. 842, 844 (2) (502 SE2d 770) (1998); Duggan v. State, 225 Ga. App. 291, 297 (8) (483 SE2d 373) (1997); Dunbar v. State, 209 Ga. App. 97, 98 (432 SE2d 829) (1993); Ivie v. State, 151 Ga. App. 496, 497 (2) (260 SE2d 543) (1979).

       OCGA § 16-8-14 (a), (b) (1).

        Dunbar, supra.


author: Mikell, Judge.

text:
    A02A0691.
    SOLIS v. THE STATE.
    (564 SE2d 506)
   Mikell, Judge.

Jayson Sheraton Solis was indicted on two counts of violating Georgia’s Controlled Substances Act. Count 1 charged him with the unlawful possession of gamma hydroxybutyric acid (also known as “GHB”), and Count 2 charged that he unlawfully possessed amphetamine. Count 2 was nolle prossed. Solis had a jury trial on Count 1 and was convicted. On appeal, Solis challenges the sufficiency of the evidence. We affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Solis] no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001). Further, “[w]e do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Dixon v. State, 252 Ga. App. 385 (556 SE2d 480) (2001).

So viewed, the evidence shows that Deputy Perry Joiner, the Director of the Clayton County Sheriff’s Department Work Release Program, noticed the smell of alcohol emanating from one of his inmates on June 28, 1998, between 7:00 and 8:00 p.m. The inmate tested positive for alcohol, became lethargic, and was transported to the hospital. When Deputy Joiner returned to the program, he asked the inmates to follow him for questioning and noticed that inmate John Tweedell was not able to get up. Deputy Joiner called for assistance and had Tweedell transported to the hospital as well. Deputy Joiner noticed that Solis, also an inmate in the work release program, did not appear normal, so the deputy sent Solis to the emergency medical technicians who had been called to the scene. Solis refused treatment, but Deputy Joiner placed Solis in the jail infirmary for observation, since several of the other inmates had fainted and stopped breathing.

Deputy Joiner testified that each inmate in the work release center has a locker. The only people with access to each inmate’s locker is that inmate and the work release staff. Deputy Joiner recalled that he used a key to search Solis’s locker later that evening and found a plastic bottle, the contents of which he poured into an evidence bottle. Deputy Joiner then contacted the Clayton County Narcotics Unit, and Officer Robert Bridgman responded to his call.

At about 2:30 a.m., Deputy Joiner and Officer Bridgman met with Solis. Officer Bridgman testified that he gave Solis his Miranda warning and that Solis did not appear to be under the influence of any intoxicant. After waiving his rights, Solis told them that the substance was GHB and that the bottle belonged to him, but he denied bringing the GHB into the facility. Sylvia Guice of the Georgia Bureau of Investigation testified that she tested the liquid and that it was positive for GHB.

Tweedell testified that when he first saw Solis that evening at Solis’s locker, he asked: “have you got the stuff,” and Solis replied, “Oh yeah, you know, I got it, be quiet, be cool.” By “stuff,” Tweedell meant GHB. Also, Tweedell recalled that Solis told him that GHB “puts you in a sleep and it makes your muscles grow when you go to sleep.” Tweedell testified that Solis took the bottle that contained the GHB out of his locker and poured some into the cap of the bottle, which Tweedell drank. Tweedell sold the GHB to other inmates for $5 a shot. Tweedell testified that he did not remember what happened to the money because he was “tore up” from drinking the GHB.

Solis testified that he did not possess GHB or give GHB to Tweedell. Instead, he recalled that another inmate told him that Tweedell was selling GHB for $5 a shot. Solis testified that he did not drink any of the GHB and that he warned the other inmates of the dangers associated with it. Solis explained that he knew about the drug because when he was a personal trainer, body builders used it to promote growth. Solis admitted that he gave Tweedell a bottle from his locker to mix the GHB. Solis testified that later that evening, he unlocked his locker pursuant to Deputy Joiner’s request. Deputy Joiner told Solis to leave as the deputy prepared to go through all of the lockers.

Decided April 17, 2002.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

As stated earlier, we do not weigh the evidence or determine witness credibility. Newton v. State, 251 Ga. App. 198,199 (1) (552 SE2d 896) (2001). Instead, “[t]he jury determines the credibility of witnesses, so the truthfulness of those witnesses, including that of [Solis], was for the jury to decide.” (Citations omitted.) Rucker v. State, 272 Ga. 750, 752 (2) (534 SE2d 71) (2000). Solis admits that the bottle in which the GHB was found was his bottle. Though Deputy Joiner testified that he used his key to open Solis’s locker, and Solis testified that he unlocked his locker for Deputy Joiner, there is no dispute that the locker was locked before Deputy Joiner searched it. Further, there was no evidence offered that any other inmate had access to the locker before Deputy Joiner found the GHB. Accordingly, we find the evidence sufficient to support Solis’s conviction of possession of GHB.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: Barnes, Judge.

text:
    A02A1034.
    HILL et al. v. BUTTRAM.
    (564 SE2d 531)
   Barnes, Judge.

Irene Hill and Houston Stone Mobbs brought a declaratory judgment action against Kent Buttram in a boundary dispute. On September 11, 2001, the trial court entered judgment in favor of But-tram on a jury’s verdict, expressly reserving ruling on Buttram’s motion for an award of OCGA § 9-15-14 attorney fees. After the trial court denied Buttram’s request for attorney fees on October 17, 2001, Hill and Mobbs filed a notice of appeal on November 15, 2001.

The order Hill and Mobbs appealed from is not the October 17, 2001 order denying attorney fees, as stated in their notice of appeal. Rather, the final judgment in this case is the one based on the jury verdict, issued on September 11, 2001, and their enumerations of error address matters that occurred during the trial. Therefore, their notice of appeal, filed 65 days after the September 11, 2001 judgment, is untimely.

Decided April 17, 2002.

Thomas M. Rego, for appellants.

Gammon & Anderson, Joseph N. Anderson, for appellee.

The order denying attorney fees is not the final judgment in the case, as demonstrated by OCGA § 9-15-14 (e). The Code section provides that a motion for attorney fees must be filed within 45 days of “final disposition of the action.” The phrase “final disposition” in OCGA § 9-15-14 (e) is synonymous with the phrase “final judgment” found in OCGA § 5-6-34 (a) (1), “that is to say, where the case is no longer pending in the court below.” (Punctuation omitted.) Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d 482) (1994); Marshall v. Ricmar, Inc., 215 Ga. App. 470 (451 SE2d 515) (1994). See Nairon v. Land, 242 Ga. App. 259, 260-261 (1) (529 SE2d 390) (2000) (“[b]ecause the filing of a motion for attorney fees does not challenge the finality of the judgment on the merits or toll the time for filing a notice of appeal,” it also does not extend or suspend the termination date of the underlying civil procedure on which the abusive litigation suit rests).

A proper and timely filed notice of appeal is an absolute requirement to confer jurisdiction upon this Court. Brown v. Webb, 224 Ga. App. 856 (482 SE2d 382) (1997). Because Hill and Mobbs failed to file their notice of appeal within 30 days of the final disposition of the case, this appeal is hereby dismissed. OCGA § 5-6-48 (b) (1).

Appeal dismissed.

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


text:
    A02A0125.
    PAGE et al. v. BRADDY et al.
    (564 SE2d 538)
   Mikell, Judge.

Jeff and Margaret Page sued Drexel Braddy for trespass and conversion, claiming that he cut and sold timber growing on their land. Braddy filed a third-party complaint against Timber South Enterprises, Inc. and its principal Ricky Godowns. The third-party defendants failed to file an answer, although Godowns appeared at the bench trial. The trial court found that Braddy was responsible for removing some timber from the Pages’ property, but that there was insufficient evidence to assess damages. The Pages appeal, claiming the trial court erred in failing to award them damages for the cut timber, attorney fees, and survey costs and in incorrectly depicting the property boundary line in its final order. For reasons which follow, we affirm.

The Pages and Braddy are neighboring landowners. The Pages’ property is located north of the Braddy property. The northern boundary of the Braddy land is generally coexistent with the course of County Road 54, which runs east to west toward County Highway 165. County Road 54 takes a sharp turn in a northwesterly direction shortly before intersecting the highway, while the property line continues in an east to west direction. The southwestern portion of the Pages’ property located south of the county road but north of the Braddy property forms a 1.76-acre triangular area that is central to this dispute. Within this triangular area is a fence line that Braddy mistakenly thought was the property boundary. Braddy had used the land inside the fence openly and without interruption from the time his family purchased the property in 1974.

On June 10, 1997, Braddy contracted to sell timber to Timber South for a guaranteed sales price of $108,000, the amount actually paid, with provisions for additional payments depending upon the amount of timber sold. Godowns, the principal of Timber South, met with Braddy to coordinate the cutting. Braddy told Godowns to cut trees inside the fence line located on what he believed to be his property, but which was actually in the southwestern part of the Pages’ land. Godowns took timber from inside the fence, as instructed by Braddy, but he also cut beyond the fence out to the county road. Godowns testified that the wood taken from the Pages’ tract of land was sold to Timber South on behalf of Braddy, and credited to Braddy, and that Braddy was paid for it as part of the timber sales contract.

A forester and “timber cruiser” examined the stumpage in the 1.76-acre triangle where the Pages’ trees had been cut. He testified that the value of the trees taken from the Pages’ land was $2,655.06, an amount confirmed by Godowns as the value of the timber at the time it was cut. The forester did not take into account the fence line within the triangular area when he counted the stumpage, and so he was able to testify only to the value of all the timber taken from the Pages’ property, and he could not prorate the total value of the timber taken between the area inside the fence line and the area between the fence line and the county road.

The trial court found that Braddy was responsible for the timber cut on the Pages’ property within the fence line because that timber was cut on his instructions, but that Braddy was not a trespasser and did not convert the trees cut on the Pages’ property outside the fence line, which were cut by Godowns without the approval or instruction of Braddy. The trial court refused to assess damages because it had no basis for assigning a value to the timber taken within the fence line. Having found no damages payable by Braddy, the trial court also refused to assess damages against third-party defendant Godowns.

The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. “[T]he plain legal error standard of review applies [ ] where the appellate court determines that the issue was of law, not fact.” The trier of fact must be able to calculate the amount of the loss from the evidence and “will not be placed in a position where an allowance of the loss is based on guesswork.” The corresponding principle is that “the ability to estimate damages to a reasonable certainty is all that is required and mere difficulty in fixing the exact amount will not be an obstacle to the award.”

An action for conversion may lie for the cutting and removal of trees. “The tort of conversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” “Any distinct act of dominion wrongfully asserted over one’s property in denial of his right or inconsistent with it, is a conversion.” “It is immaterial that such dominion was exercised in good faith, for [w]hoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith.”

As a general rule, a landowner who has sold timber will not be liable for trespasses by the grantee onto an adjacent landowner’s property in taking timber not within the terms of the sale. But the seller is not protected from liability if he assisted in taking timber belonging to another landowner, “especially where he points out the exact trees cut; even though the seller, due to a surveyor’s mistake, believed himself to be the owner of the land.” The trial court correctly applied both principles. To the extent that Braddy instructed Godowns to take trees within the fence line, but which were actually located on the Pages’ property, he assisted in the taking of that timber and shared responsibility for it, and he was liable for the trespass and conversion even though it was an innocent trespass. But the record also supports the trial court’s finding that Braddy had no connection with Godowns’ decision to cut the trees beyond the fence line up to the county road, and Braddy could not be held responsible for Godowns’ actions in this respect. Godowns was not Braddy’s agent, and Godowns acted independently and without authority, assistance, or direction from Braddy in taking the additional trees. While evidence showed the total value of the Pages’ timber taken by Godowns and sold to Timber South, Braddy was liable only for some indeterminate portion of this amount. “While some portion of the claimed sum may have been properly recoverable . . . such portion is not determinable from the lump sum evidence presented.”

Referring us to CRS Sirrine v. Dravo Corp., the Pages argue that, when presented with a loss caused by multiple parties, a plaintiff would be faced with an almost impossible standard if it had to prove which aspects of the overall loss were “specifically and solely the result of the other party’s conduct.” CRS Sirrine is ultimately unhelpful to the Pages. For one thing, in CRS Sirrine we affirmed the trial court’s assessment of damages against the defendant based on an apportionment of the total damages. Here, the Pages have consistently asked for a recovery equal to the value of all the timber removed from their property. For another, the evidence is not sufficient to apportion damages, as it was in CRS Sirrine: “Thus, if a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award.” Here, there was no appropriate way to apportion damages to Braddy.

We note that Braddy was the sole defendant in the Pages’ action for trespass and conversion. Godowns was present only as a third-party defendant. The trial court was not presented with a claim in equity for unjust enrichment. Constrained by the parties, the evidence, and the claims before it, and rather than make a baseless guess as to the value of the timber taken from inside the fence line, the trial court correctly refused to assess damages.

Decided April 18, 2002.

Hall & Kirkland, Joseph M. Hall, for appellants.

Ricky Godowns, pro se.

Jones, Hilburn & Claxton, Eric L. Jones, Lance G. Jones, for appellees.

Although the law does presume some damage from the invasion of a property right, the Pages made no request for an award of nominal damages in their complaint or during the trial, and so the trial court did not err in failing to award nominal damages. Nor, in view of the damages award and the record, did the trial court err in failing to award attorney fees or surveyor’s costs.

The Pages also claim that the trial court’s order incorrectly states the location of the property line between their land and Braddy’s land, and that the correct description was contained in the Smith survey. The trial court’s description of the property boundary was taken from the testimony of surveyor Larry Jones and his plat. The Jones plat is just a depiction of the dividing line between the Braddy and Page property, but it is similar to the applicable portion of the Smith survey. The Jones plat was admitted after Jones testified that he was comfortable with his survey when he did it. The trial court was entitled to adopt the Jones plat for purposes of its ruling. When the trial court is acting as the trier of fact, “we will not disturb a trial court’s findings ... if there is any evidence to support them.”

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544 (382 SE2d 388) (1989).

        Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

        Roland v. Byrd, 163 Ga. App. 408, 410 (294 SE2d 626) (1982).

       (Citations and punctuation omitted.) McCannon v. McCannon, 231 Ga. App. 601 (1) (499 SE2d 684) (1998).

        See Laslie v. Gragg Lumber Co., 184 Ga. 794, 802 (2) (193 SE 763) (1937).

       (Citation omitted.) Parker v. Kennon, 242 Ga. App. 627, 630 (2) (530 SE2d 527) (2000).

       (Citation and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987).

       (Citations and punctuation omitted.) Id.

       127 ALR 1018; see Hutto v. Kremer, 222 Miss. 374 (76 S2d 204) (1954); Williams v. Cape Fear Lumber Co., 172 N.C. 299 (90 SE 254) (1916); York v. Hogg, 171 Ky. 599 (188 SW 663) (1916).

       (Citations and punctuation omitted.) Hutto v. Kremer, supra, 222 Miss, at 382.

       OCGA § 51-12-50 (2) provides that “where plaintiff recovers for timber cut and carried away, the measure of damage: ... (2) Where defendant is an unintentional or innocent trespasser or an innocent purchaser from such trespasser, is the value at the time of conversion less the value he or his vender added to the property.”

       See York v. Hogg, supra, 171 Ky. at 604 (where trespass onto plaintiff’s land committed by purchaser of defendant’s timber, defendant “cannot be held liable in an action of trespass for torts not committed by him”).

        Gen. Warranty Corp. Ins. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 437 (4) (356 SE2d 83) (1987).

       219 Ga. App. 301, 303 (1) (464 SE2d 897) (1995).

       Id.

       (Emphasis supplied.) Id.

       An apportionment based on acreage would have no logical relationship to damages, especially because some areas were clear-cut and others were not.

       See Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951).

       See Solon Automated Svcs. v. Pines Assoc., 156 Ga. App. 893 (328 SE2d 736) (1980).

       (Footnote omitted.) Smith v. Direct Media Corp., 247 Ga. App. 771, 772 (544 SE2d 762) (2001).


author: Andrews, Presiding Judge.

text:
    A02A0736.
    ST. JEAN v. THE STATE.
    (564 SE2d 534)
   Andrews, Presiding Judge.

Fedelin St. Jean appeals from the judgment entered after a jury found him guilty of trafficking in cocaine and possession of a firearm during the commission of a felony. St. Jean argues that the trial court erred in refusing to give a requested charge on the defense of entrapment. For the following reasons we conclude there was no error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. A drug task force investigator testified that this case arose when a confidential informant told him that St. Jean was selling cocaine. The investigator told the informant to arrange a meeting with St. Jean to buy a kilogram of cocaine. Before going to the meeting the investigator fitted the informant with a body bug, followed the informant to the place where the “buy” was to take place, and set up surveillance across the street. After the informant was shown the cocaine, she gave a prearranged signal, and the officers arrested St. Jean and a companion. The substance confiscated at the time of arrest was later determined to be 2.2 pounds of cocaine.

St. Jean testified in his own defense. He said that after he and the confidential informant became friends, she began calling him and talking about getting some cocaine. St. Jean said that whenever she mentioned the cocaine he would tell her, “I don’t do that.” But, because he was interested in pursuing a relationship with the confidential informant, he told her that he had a friend and he would talk to him and call her back. St. Jean said he told a friend of his about the woman and the friend said he wanted to meet her. St. Jean admitted to setting up the meeting between his friend and the confidential informant, but claimed that he did not know that his friend had brought the cocaine with him to the meeting.

Although he denied that he had committed the crimes charged, St. Jean nevertheless requested a jury charge on the defense of entrapment. The trial court pointed out that St. Jean’s testimony was that he was merely present when the buy took place and that he did not know his friend was going to sell cocaine to the confidential informant at the meeting. In refusing to give the requested charge, the court stated that a defendant must first admit he committed the offense before raising the defense of entrapment.

OCGA § 16-3-25 provides:

A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. Gregoroff v. State, 248 Ga. 667, 669-670 (285 SE2d 537) (1982). “The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission.” Id. at 670. But, “if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.” (Punctuation omitted.) Harold v. State, 185 Ga. App. 481, 482 (364 SE2d 615) (1988). See Gregoroff, supra at 672.

Here, St. Jean presented evidence of entrapment that arguably was not inconsistent with his denial of the commission of the crime; therefore, we must look to the evidence presented by the State to determine whether appellant was entitled to a charge on entrapment. Edmondson v. State, 201 Ga. App. 566, 567 (411 SE2d 879) (1991).

First, we note that in Georgia, the entrapment defense consists of three distinct elements: (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, 71-72 (316 SE2d 452) (1984). A review of the evidence in this case shows that the State did not introduce evidence sufficient to warrant a jury charge on this issue. Although the idea for the crime did originate with the State agent, there was no evidence presented by the State of the other two elements: undue persuasion, incitement, or deceit; or that St. Jean was not predisposed to commit the crime.

Decided April 18, 2002.

Clark & Towne, Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

Accordingly, because the State presented no evidence from which the jury could make a reasonable inference of entrapment, the trial court did not err in refusing to give the requested charge.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       St. Jean originally filed this appeal in the Supreme Court of Georgia because of a constitutional challenge to OCGA § 16-13-31 (f) (1) and (2). The Supreme Court held that a constitutional attack on a criminal statute cannot be raised for the first time in a motion for new trial or motion in arrest of judgment and transferred the case to this Court.


text:
    A02A0849.
    GENERAL MOTORS CORPORATION v. HAMMOCK.
    (564 SE2d 536)
   Andrews, Presiding Judge.

We consider Keith Hammock’s motion to dismiss the appeal of General Motors Corporation from a discovery order which General Motors contends is directly appealable pursuant to the collateral order doctrine. Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982) (direct appeal of denial of plea of double jeopardy); Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982) (direct appeal of cancellation of lis pendens notice).

Hammock filed the underlying wrongful death action against General Motors and other defendants, alleging product liability and other causes of action arising from a claimed defect in the design/ manufacture of the 1995 Geo Prism automobile.

Discovery ensued, and the trial court, after in camera inspection of 12 boxes of evidence which General Motors contended was privileged, ordered the production by General Motors of numerous documents, including the June 29, 1973 Ivey Memo, entitled “Value Analysis of Auto Fuel Fed Fire Related Fatalities.” General Motors then filed its notice of appeal in the trial court, which Hammock seeks to dismiss.

As acknowledged by General Motors, Johnson & Johnson v. Kaufman, 226 Ga. App. 77 (485 SE2d 525) (1997), a six-to-four full court decision, is a major impediment to its argument that this discovery dispute is directly appealable. In that case, a majority of this Court adopted the United States Supreme Court’s rationale in finding discovery disputes not subject to the collateral order doctrine. As stated in Johnson & Johnson, “ ‘in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. (Cit.)’ Firestone Tire &c. Co. v. Risjord, 449 U. S. 368, 377 (101 SC 669, 66 LE2d 571) (1981).” Id. at 82.

General Motors further argues that, based on In re Paul, 270 Ga. 680 (513 SE2d 219) (1999), because the work product rule protects the attorney as well as the client, this matter should be considered directly appealable because it involves a nonparty, the attorney. In re Paul, however, involved a reporter issued a subpoena by a grand jury seeking unpublished notes about an interview with an accused murderer. Both the State and the accused wanted to ask the reporter questions and, at the trial court’s direction, submitted written interrogatories in the criminal proceeding. In response, Paul asserted the reporter’s privilege, OCGA § 24-9-30. The trial court ordered Paul to answer interrogatories of both parties. In this context, the Supreme Court concluded that

[b]ecause of the collateral nature of the reporter’s privilege issue in most cases, we conclude that reporters who are not parties in the underlying action should not have to wait until the case is concluded before appealing an order that requires them to disclose information. The disclosure order typically is a final decision concerning the news reporter. In this case, for example, the order rejecting the privilege claim and compelling Paul to answer the interrogatories is a final order concerning him as a non-party, unlike the usual discovery order. Moreover, the issue of whether a reporter should be compelled to reveal information is separate from the principal issue in a criminal trial of whether the accused is guilty of the crime charged in the indictment. Furthermore, the public interest in a free press would be irreparably harmed if review of the order compelling disclosure had to await a jury verdict in the murder case. Either the reporter would have already revealed the information or been imprisoned for failing to obey the disclosure order. Therefore, we hold that non-parties engaged in news gathering may file a direct appeal of an order denying them the statutory reporter’s privilege under the collateral order exception to the final judgment rule.

(Emphasis supplied.) In re Paul, supra at 683.

Here, the order sought to be appealed is directed to a party, directly related to the merits of the pending litigation, and there is no countervailing public interest as with the reporter’s privilege. We find General Motors’ argument unpersuasive.

Decided April 18, 2002

Adams, Barfield, Dunaway & Hankinson, David B. Dunaway, for appellant.

Richard H. Bishoff, Alonzo J. Bentley, Jr., for appellee.

Therefore, this Court is without jurisdiction to consider this appeal, and it is dismissed.

Appeal dismissed.

Phipps and Mikéll, JJ., concur.

       General Motors’ request for a certificate of immediate review was denied.

       See Richardson-Merrell, Inc. v. Koller, 472 U. S. 424 (105 SC 2757, 86 LE2d 340) (1985) (order disqualifying counsel is not subject to the collateral order doctrine).


author: Phipps, Judge.

text:
    A02A1056.
    A02A1057.
    A02A1058.
    A02A1059.
    A02A1060.
    A02A1061.
    McCANTS v. THE STATE. BRYANT v. THE STATE. GIBBS et al. v. THE STATE. MITCHELL v. THE STATE. FULLER v. THE STATE. COOK et al. v. THE STATE.
    (564 SE2d 532)
   Phipps, Judge.

Uniform Traffic Citations filed in the State Court of Troup County charged numerous persons with the misdemeanor offense of drag racing. Each went to trial pro se and was convicted, sentenced to 12 months probation, and fined $750. In addition, each person’s driver’s license was suspended for 12 months. Eight drivers appeal their convictions in the above-styled cases.

They contend that their convictions should be reversed because the State has not shown that they knowingly and intelligently Waived their right to counsel before deciding to proceed pro se. They also contend the trial court lacked jurisdiction over their cases by operation of the Traffic Violations Bureau Act (TVBA). Finding merit in the former contention but not the latter, we vacate and remand for further proceedings.

The record in each case consists of nothing more than the uniform traffic citation which served as the accusation for each prosecution, a copy of each defendant’s conviction and sentence, and a stipulation of facts signed by the prosecuting attorney at the behest of an attorney hired to represent the drivers on appeal.

1. The State argues that the drivers’ waiver of counsel claim cannot be considered because there is neither a transcript of the proceedings nor any substitute.

In Copeland v. State, we acknowledged that the absence of a transcript generally results in an appellant’s inability to show error through the record and is therefore fatal to his contentions. But we recognized that an exception to this general rule has developed based on Jones v. Wharton, Jones holds that “in any case where an accused is placed on trial and faces imprisonment, a constitutional guarantee of right of counsel attaches, the waiver of which may not be presumed from a silent record.” Therefore, where a defendant with a constitutional right to counsel proceeds pro se, the State must show that he was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver of counsel. In Middleton v. State, we recently recognized the heavy burden placed on the State in this regard. The State may carry this burden by showing a valid waiver through either a trial transcript or other extrinsic evidence.

Here, the State has made no showing of a valid waiver. Consequently, we must vacate these convictions and sentences and remand these cases for an evidentiary hearing to determine if each person properly waived his right to counsel. “If the trial court so determines, the conviction[s] and sentence[s] may be reinstated and be subject to appeal, if desired; if the court determines otherwise, [the drivers] will be entitled to a new trial.”

2. The drivers base their jurisdictional claim on a statement in the parties’ stipulation of facts to the effect that these cases were tried “in the Traffic Violations Bureau of the State Court of Troup County.”

Through the TVBA, the General Assembly has authorized state courts having jurisdiction over the violation of traffic laws or ordinances to establish traffic violations bureaus. These bureaus generally have jurisdiction over minor traffic offenses. They thus lack jurisdiction over offenses for which a driver’s license may be suspended. Because a conviction of the misdemeanor offense with which defendants were charged, i.e., drag racing, automatically results in a 12-month suspension of one’s driver’s license, the Traffic Violations Bureau of the State Court of Troup County could not have been given jurisdiction in these cases.

Decided April 18, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellants.

L. Jack Kirby, Solicitor-General, Julian A. Mack, Assistant Solicitor-General, for appellee.

In fact, the parties’ stipulation is the only indication in the record that the traffic violations bureau was involved in these cases. A traffic violations bureau is nothing more than an administrative arm of the court established for the purpose of receiving cash bonds posted by persons charged with traffic offenses under the bureau’s jurisdiction. It is undisputed that the drivers were tried, convicted, and sentenced in court by a judge sitting by designation for the judge of the State Court of Troup County. That court had jurisdiction.

Cases such as McDaniel v. Oliver allow a party to disavow a stipulation of fact if the stipulation was entered into as a result of fraud, duress, or mistake. The prosecuting attorney who signed the stipulation in these cases also represents the State on appeal, and he has stated in his appellate brief that he agreed to the stipulation under a mistaken belief as to its meaning. We find the mistake excusable and allow the disavowal.

Judgments vacated and cases remanded.

Andrews, P. J, and Mikell, J., concur.

       OCGA § 40-13-50 et seq.

       See OCGA § 5-6-41 (g), (i).

       224 Ga. App. 402 (480 SE2d 623) (1997).

       253 Ga. 82 (316 SE2d 749) (1984).

        Copeland, supra, citing Jones, supra at 84.

        Hightower v. State, 252 Ga. App. 811 (557 SE2d 434) (2001).

       254 Ga. App. 648 (1) (563 SE2d 543) (2002).

        Dunn v. State, 234 Ga. App. 623, 625 (3) (507 SE2d 170) (1998).

        Copeland, supra at 403.

       Id.

       OCGA § 40-13-50.

       See OCGA § 40-13-53.

       OCGA § 40-13-53 (b) (1).

       OCGA § 40-6-186 (c).

       172 Ga. App. 109,110 (322 SE2d 1) (1984).


text:
    A02A0011.
    ROSE v. THE STATE.
    (564 SE2d 548)
   Phipps, Judge.

A jury convicted Mary Lee Rose of aggravated assault and possession of a weapon during the commission of a crime. She appeals from the denial of her motion for new trial. Her sole claim of error is that the evidence was insufficient to support her conviction. Because we find that the evidence was sufficient, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.

Viewed in this light, the testimony at trial showed that in the early morning hours of September 9, 2000, Ricky Shelton, Rose’s boyfriend, was stabbed while he slept. He was not able to identify the person who stabbed him. On the evening of September 8, 2000, Shelton, Rose and a neighbor, Jeffrey McCormack, had been celebrating Shelton’s birthday at the home he shared with Rose. McCormack resided in a camper parked in the couple’s backyard which was supplied with electricity from their home. The threesome drank rum, and Shelton testified that he and Rose took the prescription drug Xanax as well. During the evening, Shelton and McCormack argued, purportedly about the amount of rum McCormack had consumed. Shelton told McCormack to leave and to remove the camper from his backyard. He also disconnected the power cord providing electricity to McCormack’s trailer. Shelton testified that he and McCormack had argued on other occasions and that he had told McCormack to leave on other occasions, but had never followed through and made him leave.

Shelton testified that he had gone to bed and was startled awake in the early morning hours by an attacker. When he awoke, Rose was in the bed beside him, and “I was trying to fight somebody with hands and I was shoving [Rose] backward telling her to get up and go call somebody, somebody was hurting me, goes all the way across the bed, it quits and everything just stopped.” He left Rose in the bedroom and went into the living room, and no one was there.

Realizing that he was badly hurt, Shelton then drove to a neighbor’s home for help. He testified that he remembered seeing Rose walking around but that she “wasn’t moving as fast as I was wanting her to.” Shelton told his neighbor that he believed Rose also was hurt. He later told police that when he was leaving he heard Rose scream.

Soon after police arrived, McCormack and Rose were seen walking toward the residence. Rose approached a car driven by a detective and asked what was going on. When two other officers appeared on foot, she ran to one of them and said that McCormack had killed Shelton. She told the officer that McCormack had attacked Shelton and then forced her by knifepoint into the woods where he made her lie on the ground. She reported that McCormack had eventually released her when she convinced him that she would help him.

McCormack denied knowing anything about the stabbing. He testified that Rose came to his trailer and asked him to take a walk with her. He stated that Rose had said that she and Shelton had fought and that Shelton had pulled a knife on her, but she had gotten the knife away from him. McCormack observed a knife in Rose’s hand and testified that during their walk she stuck the knife into the ground several times. He said that Rose later asked him to carry the knife because she did not have any pockets and also instructed him to get rid of it when they were walking back to the house she shared with Shelton. Subsequently, the knife was recovered from a roadside gravel bed approximately 200 yards from the residence. McCormack and Rose were detained and taken to the sheriff’s department for further questioning. Later, Rose was arrested and charged.

Rose contends that the circumstantial evidence relied upon to convict her was insufficient. She argues that there was “equally damning” circumstantial evidence against McCormack.

“ [I] t is not necessary for circumstantial evidence to exclude every conceivable hypothesis of a defendant’s innocence in order to authorize a conviction; only reasonable hypotheses must be excluded.” Further, questions regarding the reasonableness of hypotheses about the commission of a crime are for the jury to decide, and when the jury has found that the circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of guilt, we will not disturb the jury’s finding. Resolution of conflicts in the testimony of the witnesses, including state’s witnesses, was for the jury.

Evidence presented at trial revealed that there was blood on the t-shirt Rose was wearing, but no blood was found on McCormack’s clothing. The police also noted that while Rose said that McCormack forced her to lie on the ground, there was little mud on Rose’s clothes and her clothes were dry, although it was very wet and muddy that night. Further, although Shelton testified that he did not believe Rose was capable of the act she was charged with, he admitted that she had stabbed him on at least two other occasions.

In light of this evidence and based on our review of the entire record, we find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Rose was guilty of the offenses with which she was charged.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided April 19, 2002.

Albert L. Watson III, for appellant.

Herbert E. Franklin, Jr., District Attorney, Mary M. Simms, Assistant District Attorney, for appellee.

        Bethel v. State, 232 Ga. App. 82, 83 (1) (500 SE2d 595) (1998).

        Jaber v. State, 243 Ga. App. 562, 563 (533 SE2d 767) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Barela v. State, 271 Ga. 169, 171-172 (517 SE2d 321) (1999).

        Davis v. State, 244 Ga. App. 670, 671 (536 SE2d 563) (2000).

       See, e.g., Peek v. State, 247 Ga. App. 364, 365 (1) (542 SE2d 517) (2000).


text:
    A02A0083.
    ROBINSON v. THE STATE.
    (564 SE2d 543)
   Phipps, Judge.

Robert Robinson was convicted by a jury of two counts of armed robbery. On appeal, he challenges the sufficiency of the evidence to support one count. Having determined that the evidence sufficiently supports the verdict, we affirm.

Robinson no longer enjoys a presumption of innocence. We review the evidence presented at trial in the light most favorable to the verdict, without weighing it or assessing the credibility of witnesses, to determine whether the evidence was legally sufficient under the standard of Jackson v. Virginia.

We set forth in detail the facts relevant to this case in Toney v. State which affirmed the conviction of Robinson’s co-defendant, Cleveland Toney. Here, we summarize those facts and include others relevant only to Robinson’s appeal.

Rosie Hodge and Bruce Wingate were robbed by Robinson and Toney while they stood talking in the parking lot of a restaurant. The men approached them from a wooded trail adjoining the back of the parking lot. They put dark bandannas over their faces and, at gunpoint, demanded money and jewelry from Hodge and Wingate. Hodge, seeing the gun pointed at them, reached into her purse to get her wallet, but instead got her cosmetic bag, threw it on the ground, and ran for help. Wingate turned over jewelry and money to the men.

In challenging the sufficiency of the evidence to convict him of the armed robbery of Hodge, Robinson argues that the armed robbery was not completed because Hodge threw her cosmetic bag at. him to distract him, and he did not touch the cosmetic bag or demand it. He asserts that there was clearly no intent to deprive Hodge of her cosmetic bag, and that at most all that can be shown is either aggravated assault or criminal attempt to commit armed robbery by taking her money.

Decided April 19, 2002.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

The indictment charged that Robinson, with the intent to commit theft, took property, specifically a cosmetic case, from Hodge’s person by use of an offensive weapon. All that is required is the intent to commit a theft, which was evinced here when Robinson and Toney demanded jewelry and money. In Lemattey v. State we found that even though the robber was unable to complete the intended theft of the car, the theft of the car keys at gunpoint was a completed armed robbery. That he intended to steal the car did not negate the fact that he completed an armed robbery when he took the keys. That Robinson got loot other than what he demanded does not acquit him of armed robbery of Hodge.

Here, the jury was authorized to find that Robinson deprived Hodge of her cosmetic bag, with the intent to commit theft. And while Robinson also argues that he did not touch the cosmetic bag, a robber is not required to touch the property to have exercised sufficient dominion or control over it to have robbed the victim of it.

Accordingly we find that the evidence was sufficient to authorize the jury to find beyond a reasonable doubt that Robinson committed the offense of armed robbery.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       253 Ga. App. 231 (558 SE2d 780) (2002).

       OCGA § 16-8-41 (a).

       234 Ga. App. 889 (508 SE2d 215) (1998).

       See id.

       See State v. Watson, 239 Ga. App. 482 (2) (520 SE2d 911) (1999).


text:
    A02A0178.
    DORSCH v. THE STATE.
    (564 SE2d 547)
   Phipps, Judge.

Dennis Dorsch appeals his conviction for DUI, challenging the legality of the traffic stop. Because the record reveals that the stop was permissible, we affirm.

Decided April 19, 2002.

Gregory W. Holt, Jerome Lee, for appellant.

Alan R. Tawse, Jr., Solicitor-General, Arthur J. Creque, Assistant Solicitor-General, for appellee.

The officer who stopped Dorsch testified at trial that at about 11:50 p.m. on September 18, 1998, the car that Dorsch was driving caught his attention when it “made a very abrupt lane change.” For about a mile, the officer paced Dorsch’s car, i.e., compared Dorsch’s speed to his own. During that time, the officer observed Dorsch exceed the speed limit and stopped him.

An officer may make a brief investigatory stop if such stop is “justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” A stop of a vehicle is authorized if the officer observed a traffic offense. Because the officer saw Dorsch violate a traffic law, the resulting traffic stop was permissible.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Patel v. State, 240 Ga. App. 178, 179 (522 SE2d 760) (1999) (pacing is an established method of determining vehicle speed); Staley v. State, 224 Ga. App. 806 (1) (482 SE2d 459) (1997); Turner v. State, 236 Ga. App. 592, 594 (1) (512 SE2d 699) (1999).

        Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001); see Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       See Cotton v. State, 237 Ga. App. 18 (513 SE2d 763) (1999); Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997); Freeland v. State, 223 Ga. App. 326, 327 (1) (477 SE2d 633) (1996).

        Cotton, supra; Brantley, supra; Freeland, supra.


text:
    A02A0681.
    IMERMAN v. LONDON.
    (564 SE2d 544)
   Phipps, Judge.

The payees of a promissory note brought suit against the guarantor of the note. In an agreement referred to as a “global settlement agreement,” the parties settled the suit and others. The question for decision is whether the global settlement agreement is entire or sev-erable. The superior court concluded that it is severable. We disagree and reverse.

A Georgia limited partnership made a promissory note payable to Bob London and others (London) in the principal sum of $469,982. Jonathan Imerman guaranteed payment of the note but ignored a demand by London to begin making payments on it after default by the maker. As a result, London filed a complaint against Imerman for the accelerated balance due on the note and other damages.

After the parties agreed to the global settlement, the settlement agreement was incorporated into a consent order. The consent order required Imerman to pay $394,981.96 to plaintiffs through both lump sum and installment payments due on various dates, and to release funds garnished in other actions, or to suffer entry of a consent judgment for the balance due. “[I]n consideration of and simultaneous with the execution of this consent order,” the parties also agreed to dismiss with prejudice all claims and counterclaims in four other civil actions (including those in which funds were garnished). Under one provision of the consent order, the parties “agreed to execution of mutual releases which include an agreement by each party not to disparage any other party with respect to this case and all others referenced herein.”

London filed a motion asking the court below to enforce the consent order by entering a consent judgment, based on Imerman’s failure to make payments required by the consent order. Imerman argued that he was authorized to withhold payment of monies due under the consent order because London refused to comply with the provision of the order requiring the execution of mutual releases. The court rejected this argument, ruling: “Under the terms of the consent order, the defendant is entitled to a release from the plaintiff. However, the defendant’s obligation to make payments under the consent order is not conditioned upon the defendant’s receipt of that release. Thus, the plaintiff’s failure to give the defendant a release is irrelevant to the issue of the defendant’s default and failure to cure.” Imer-man appeals.

“Pursuant to OCGA § 13-1-8 (a), a contract may be either entire or severable.”

[A] contract is entire when, by its terms, nature, and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and is severable, when, in its nature and purpose, it is susceptible of divisions and appointment,, and has two or more parts in respect to matters or things contemplated and embraced by the contract which are not necessarily dependent upon each other.

Decided April 19, 2002.

Douglas J. Davis, for appellant.

Mullman-Roberts, Roy S. Mullman, for appellee.

In other words, the contract is severable when it “contains promises to do several things based upon multiple considerations.”

By their nature, global settlement agreements would tend to be entire rather than severable. If that were not the case, then presumably the parties would have settled each lawsuit individually. In this case, Imerman agreed to pay money for satisfaction of a promissory note on which he was sued as guarantor, to release garnished funds, and to execute mutual releases relating to this action and others. In consideration, London agreed to dismiss claims or counterclaims asserted against Imerman in the other actions and to execute the mutual releases. Because London’s agreement to execute the mutual releases provided part of the consideration for Imerman’s agreement to pay money, the trial court erred in ruling that the agreement is severable.

The trial court erred in granting London’s motion for enforcement of the consent order on the ground of contract severability. London’s motion for dismissal of this appeal as frivolous is denied.

Judgment reversed.

Andrews, P. J., and Mikell, J, concur.

       (Punctuation omitted.) Bulloch South, Inc. v. Gosai, 250 Ga. App. 170, 174-175 (1) (b) (550 SE2d 750) (2001).

       (Footnotes omitted.) 17A AmJur2d, Contracts, § 417, pp. 442-443 (1991).

       (Citation and punctuation omitted.) Bulloch South, supra at 175.


text:
    A02A1242.
    SMITH v. THE STATE.
    (564 SE2d 546)
   Phipps, Judge.

Bryon Smith was charged with two counts of aggravated assault, one upon Farris Kallo and the other upon Farris’s brother Ismat Kallo. Smith was convicted only of the aggravated assault upon Ismat Kallo. In this appeal by Smith following the denial of his motion for new trial, he challenges the sufficiency of the evidence and his trial counsel’s effectiveness. Finding no ground for reversal, we affirm.

Both Kallo brothers testified that Smith made an unprovoked attack upon them with a tire iron. Smith, on the other hand, claimed that he was merely acting in self-defense after being assaulted by the Kallos. The evidence showed that, as a result of a blow struck by Smith with the tire iron, Ismat Kallo sustained a head injury necessitating medical treatment and resulting in work absences. We have not been cited to any evidence showing that either Farris Kallo or Smith was injured.

Decided April 19, 2002.

Elliott A. Shoenthal, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

1. Smith’s challenge to the sufficiency of the evidence is without merit. Under cases too numerous to mention, it is for the jury to resolve conflicts in the testimony of witnesses in the context of the totality of the evidence; the appellate court construes the evidence in a light most favorable to the verdict. Adjudged by these principles, the evidence in this case clearly authorized the jury to find Smith guilty of aggravated assault beyond a reasonable doubt.

2. Smith also charges his trial lawyer with ineffective assistance in failing to consult with him adequately before trial. “In order for appellant to prevail on this claim, he must carry his burden of showing both that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. [Cits.]” Because Smith has made no showing whatsoever that his attorney’s performance was deficient or prejudicial, it does not appear that the trial court erred in rejecting his claim of ineffective assistance of counsel.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       (Emphasis supplied.) Vasser v. State, 273 Ga. 747, 749 (3) (545 SE2d 906) (2001).


text:
    A02A0002.
    HANNE v. MISSISSIPPI MANAGEMENT, INC.
    (564 SE2d 557)
   Andrews, Presiding Judge.

After Robert Hanne was terminated from his employment with Mississippi Management, Inc. (MMI) after five months, he sued claiming MMI breached an agreement to employ him for a term of two years. Hanne appeals from the trial court’s order granting MMI’s motion for summary judgment and holding there was no agreement for a definite term of employment and that Hanne’s employment was terminable at the will of either party. We find no error and affirm.

Hanne’s contention is based on a letter agreement between the parties which set out various terms of his employment. One term deals with the possible award of a bonus to Hanne. “After employment here for two years, on April 20, 2000, you will receive a $4,000 bonus for staying with us. If you leave for any reason before that time, whether it is your choice or not, you will not be eligible to receive this bonus.” Elsewhere the agreement states that MMI will pay Hanne’s moving expenses, but that Hanne would be required to reimburse MMI a prorated amount of the paid expenses if he did not remain employed for at least two years.

Decided April 22, 2002.

Patrick C. Kaufman, for appellant.

James A. Bishop, Jr., for appellee.

This agreement is based on your working at least two years at [MMI]. If, for example, you leave on your own accord after 6 months and your total moving expenses were $4,000, you will owe us a prorated amount of $3,000. Your signature below authorizes us to deduct any amounts owed to us from your paycheck should you leave of your own accord before two years.

Contrary to Hanne’s contention, none of these references in the agreement to a period of two years establishes a two-year term of employment. Rather, they unambiguously refer to eligibility for a bonus and responsibility for payment of certain expenses.

Construction of the unambiguous provisions of the agreement was a matter of law for the trial court. OCGA § 13-2-1. The trial court did not err in concluding that the agreement did not provide for a two-year term or any other definite term of employment. Burton v. John Thurmond Constr. Co., 201 Ga. App. 10, 11 (410 SE2d 137) (1991). “An employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” Id. at 10. The trial court correctly granted summary judgment in favor of MMI.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0606.
    LEGACY HILLS RESIDENTIAL ASSOCIATION, INC. v. COLONIAL BANK.
    (564 SE2d 550)
   Andrews, Presiding Judge.

Legacy Hills Residential Association, Inc. (the Association) appeals from the trial court’s order granting Colonial Bank’s motion to allow it to open default pursuant to OCGA § 9-11-55 (b). We find no abuse of discretion and affirm.

In January 1997 the Bank financed the purchase of real property by Heritage Creek Development Corporation (the Developer) and took a recorded deed to secure debt from the Developer over the property. The Developer subdivided the property into lots and in September 1997 recorded protective covenants creating the Association and imposing certain assessments and fees on owners of the lots. After the Bank foreclosed on the lots in June 2000, the Association claimed the Bank, as owner of the lots, owed assessments and fees imposed on the lots and sued the Bank to collect these sums or to foreclose on liens filed by the Association. The Bank was automatically in default by failing to timely answer the Association’s complaint within 30 days of service, and it failed to open default as a matter of right within 45 days of service. OCGA § 9-11-55 (a). On the forty-seventh day after service, the Bank moved to open default pursuant to OCGA § 9-11-55 (b). The trial court granted the motion on the ground that a “proper case” had been made for the default to be opened. After the Bank answered and discovery was completed, the trial court granted the Bank’s motion for summary judgment. This appeal followed.

The Association’s sole claim on appeal is that the trial court erred by allowing the Bank to open default under OCGA § 9-11-55 (b).

OCGA § 9-11-55 (b) allows a prejudgment default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.

(Citations and punctuation omitted.) Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389) (1989). The “proper case” ground under which the default was opened in this case has been construed to confer discretion on the trial court broader than that conferred on the other two grounds “as if reaching out to take in every conceivable case where injustice might result if the default were not opened. . . .” Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562, 563 (434 SE2d 124) (1993). The Association concedes the Bank satisfied three of the four conditions for opening default, but contends this was not a “proper case” for opening default because the Bank failed to set up a “meritorious defense.”

A defendant meets the requirement of establishing a meritorious defense “by showing that if relief from default is granted, the outcome of the suit may be different from the result if the default stands.” Exxon Corp. v. Thomason, 269 Ga. 761 (504 SE2d 676) (1998). This test, which does not require a showing that the defendant will completely defeat the plaintiffs claim, is consistent with the strong public policy of deciding cases on their merits. Id. Applying this test, we conclude the Bank established a meritorious defense — on which the trial court granted summary judgment to the Bank — by showing that the Bank acquired legal title to the subject property by a recorded deed to secure debt which had priority over the subsequently recorded protective covenants imposing the disputed assessments and fees. Springmont Homeowners Assn. v. Barber, 221 Ga. App. 713-714 (472 SE2d 695) (1996).

Decided April 22, 2002.

Wayne B. Kendall, for appellant.

Gray & Gilliland, Charles A. Ratz, for appellee.

Generally, default should be opened where the defendant acts with reasonable promptness and alleges a meritorious defense. Ford v. St. Francis Hosp., 227 Ga. App. 823, 826 (490 SE2d 415) (1997). Under the present facts, the trial court did not abuse its discretion in determining that the Bank complied with the statutory requirements of OCGA § 9-11-55 (b) and that a “proper case” was made for the default to be opened. Id.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0642.
    MAGSALIN v. CHACE.
    (564 SE2d 554)
   Phipps, Judge.

Acquilina Magsalin and Consuelo Chace were involved in an automobile collision on May 14, 1996. On May 11, 1998, Magsalin sued Chace for injuries sustained in the collision. Magsalin dismissed the complaint without prejudice on October 17, 2000, and refiled it on March 30, 2001. Chace was served with the second action on May 26, 2001, and filed a motion to dismiss based on lack of personal jurisdiction, insufficiency of process and insufficiency of service of process. The trial court granted Chace’s motion, finding that Mag-salin had failed to satisfy her burden of proving that she had exercised due diligence in perfecting service on Chace in the second action. We agree and affirm.

On March 30, 2001, Magsalin’s attorney informed Chace’s attorney that he would be filing the renewal action, that he would send him a copy of the complaint and that he wanted Chace to acknowledge service. Chace’s attorney responded that he would discuss the matter with his client when he received a copy of the complaint. Mag-salin’s attorney claims that he sent Chace’s attorney a copy of the complaint on April 2, 2001, but Chace’s attorney denied ever receiving a copy from Magsalin’s attorney. Magsalin’s attorney also claims that he called Chace’s attorney several times between April 20 and May 1, 2001, but that his calls were never returned. Chace’s attorney denied receiving any calls or messages from Magsalin’s attorney during that period and stated that he always promptly returns all telephone calls from attorneys. During the week of May 7, Magsalin’s attorney was informed by a secretary in the office of Chace’s attorney that Chace would not acknowledge service of the complaint. Mag-salin’s attorney then forwarded the papers to the sheriff’s office for service. Chace was served with the renewal action at the same address listed in the original action.

1. Magsalin claims that the trial court erred by dismissing her complaint for lack of diligence in perfecting service. She argues that the trial court used an improper method for determining if service was made as quickly as possible and that her attorney had not acted unreasonably in relying on representations from Chace’s attorney that he would ask his client to acknowledge service.

OCGA § 9-2-61 (a) provides that a plaintiff may refile an action she previously dismissed within the original applicable statute of limitation or within six months after the dismissal, whichever is later.

A renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Diligence in perfecting service ... in a [renewal] action . . . must be measured from the time of filing the renewed suit. [Because] service of the renewal action in this case was not perfected within the six-month renewal period, [Magsalin] would, have the burden of showing that [s]he acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.

The trial court found that Magsalin’s failure to perfect service on Chace until 56 days after filing her renewal action constituted a failure to exercise due diligence. Magsalin argues that the trial court should have begun with the end of the six-month renewal period and counted the number of days from that date until service was perfected to determine if she had exercised due diligence. Magsalin cites no authority for her position, which directly contradicts prior decisions from the Supreme Court of Georgia and this court. The trial court correctly determined that diligence in perfecting service should be measured from the time of filing the renewal action.

Decided April 22, 2002.

James S. Grimes, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Josh B. Wages, for appellee.

Magsalin argues that the court should not measure diligence solely by a mechanical counting of days, but should consider all of the relevant facts. She contends that the trial court failed to consider the fact that her attorney reasonably waited for a response from Chace’s counsel regarding whether his client would acknowledge service. But the trial court did consider that fact and determined that it did not excuse Magsalin’s failure to attempt service on Chace.

Absent abuse, we will not disturb a trial court’s determination of whether a plaintiff has failed to exercise diligence in perfecting service after the statute of limitation has run. Here, it is undisputed that Chace’s attorney never told Magsalin’s attorney that he or his client would acknowledge service. Given the fact that the statute of limitation had expired, it was not reasonable for Magsalin to wait more than a month to determine if Chace might agree to acknowledge service. We hold that the trial court did not abuse its discretion by granting Chace’s motion because the evidence does not demand a finding of due diligence.

2. Magsalin argues that the trial court erred because Chace has shown no prejudice by the delay in service. But in this situation, the burden is on Magsalin to show that she acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible. As set forth in Division 1, she has failed to meet that burden.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       (Citation omitted.) Heard v. Hart, 241 Ga. App. 441, 442 (526 SE2d 908) (1999).

       See Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994); Heard, supra.

        Scott v. Taylor, 234 Ga. App. 543, 544 (507 SE2d 798) (1998).

       Id.; see also Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977) (although excuses were offered, we cannot hold that plaintiff was diligent as a matter of law).

        Heard, supra.


text:
    A02A0659.
    GONZALES et al. v. THE STATE.
    (564 SE2d 552)
   Phipps, Judge.

After a stipulated bench trial, Jose Gonzales and Maria Hernandez were convicted of possession of marijuana with intent to distribute and sentenced to ten years on probation. On appeal, they challenge the trial court’s denial of their motion to suppress evidence seized during a traffic stop. Based on our review of a videotape of the encounter, we conclude that the officer illegally exceeded the scope of a valid traffic stop. Thus, we reverse.

On January 22, 2001, Hernandez, accompanied by Gonzales, was driving south on 1-75 in Houston County. Sheriff’s Deputy Chad Payne stopped Hernandez because her Georgia license plate was partially obscured, in violation of OCGA § 40-2-41. Payne asked Hernandez for her driver’s license and proof of insurance and then asked Gonzales for identification. He also asked Hernandez and Gonzales numerous questions unrelated to the traffic stop. While the dispatcher was checking Hernandez’s license and determining if Gonzales had any outstanding warrants, Payne called another officer to the scene for assistance. After Payne determined that Hernandez had a valid license, he issued her a warning for her license plate violation. Payne returned the licenses and insurance card to Hernandez while they were standing at the rear of Hernandez’s vehicle.

As Hernandez turned to walk away, Payne said, “Let me ask you a question before you go. I’m certainly not accusing you of anything but a lot of times we run into people that transport contraband in their vehicles.” Payne explained that by using the word “contraband,” he meant “guns, drugs, weapons, large amounts of U. S. currency, dead bodies.” He then asked Hernandez if he could search her vehicle. Her response, if any, was inaudible on the videotape. He asked her two more times before she apparently said “no” in response to his question, “do you mind if I search your vehicle?” When Payne searched the vehicle, he found several thousand dollars in U. S. currency and a plastic bag containing marijuana. He then arrested Hernandez and Gonzales.

Hernandez and Gonzales moved to suppress the marijuana as the product of an illegal search. The trial court orally denied the motion during trial, but made no specific findings of fact.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. The reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment and must not disturb the trial court’s ruling if there is any evidence to support it.

Hernandez and Gonzales claim that they were improperly detained after the conclusion of the initial traffic stop. The evidence indisputably shows that when Payne returned Hernandez’s license and insurance card, the initial traffic stop based on the obscured license plate had concluded.

Once a routine traffic stop has ended, an officer must have either valid consent or reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle. Payne testified that his reasonable suspicion was based solely on the fact that Hernandez and Gonzales seemed extremely nervous. But nervousness alone is not sufficient to establish reasonable suspicion to detain and investigate for illicit drug activity.

The State argues that reasonable suspicion was not required because the additional questioning was consensual. An encounter with the police is considered consensual and not subject to the reasonable suspicion requirement if “ ‘a reasonable person would feel free to disregard the police and go about his business. . . .’ ” Here, immediately after the initial traffic stop had concluded and as Hernandez turned to walk away, Payne detained her so that he could ask her a question. Hernandez had no way of knowing if Payne wanted to ask additional questions related to the traffic stop or if, given Payne’s propensity for asking unrelated questions, she had an obligation to listen to questions unrelated to the traffic stop. Under the circumstances, we find that a reasonable person would not have felt free to disregard the police and go about her business. Thus, at the point Payne asked Hernandez about potential contraband in her vehicle, he went beyond the permissible scope of the investigation.

The trial court erred by concluding that the continued detention was authorized. Because Hernandez’s consent to search her vehicle was the product of this illegal detention, it was not valid and the evidence obtained as a result of the illegal search of Hernandez’s vehicle should have been suppressed. Accordingly, we reverse the trial court’s denial of the motion to suppress.

Decided April 22, 2002.

Michael J. Moore, Matthew R. Hall, for appellants.

Kelly R. Burke, District Attorney, Amy E. Smith, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

       See Nelson v. State, 247 Ga. App. 455 (544 SE2d 189) (2001) (violation of OCGA § 40-2-41 constitutes valid basis for initiating traffic stop).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Id.

        Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

        Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999); Simmons, supra; Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992).

        State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001) (citing Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991)).

       See Sims, supra at 279-280; Smith v. State, 216 Ga. App. 453, 455 (2) (454 SE2d 635) (1995).

       See Smith, supra.

       See id.

       See State v. Gibbons, 248 Ga. App. 859, 864 (2) (547 SE2d 679) (2001).

       See Smith, supra.


text:
    A00A2083.
    MARTIN et al. v. SARAH RHODES, LLC et al.
    Decided April 23, 2002.

      B. Samuel Engram, Jr., for appellants.

      Moore, Clarke, DuVall & Rodgers, James H. Moore III, Edgar W. Duskin, Jr., for appellees.
    (564 SE2d 559)
   Andrews, Presiding Judge.

In Sloan v. Sarah Rhodes, LLC, 274 Ga. 879 (560 SE2d 653) (2002), the Supreme Court reversed our decision in Martin v. Sarah Rhodes, LLC, 248 Ga. App. 654 (548 SE2d 365) (2001). In accordance to the mandate of the Supreme Court, the former judgment of this Court in the case is vacated, and the decision of the trial court is reversed. Direction.is given to the trial court to proceed consistent with the opinion of the Supreme Court of Georgia.

Judgment reversed and case remanded with direction.

Ruffin and Ellington, JJ., concur.


author: Smith, Presiding Judge.

text:
    A02A0030.
    HURLEY v. BROWN et al.
    (564 SE2d 558)
   Smith, Presiding Judge.

We granted James C. Hurley’s application for interlocutory appeal from the trial court’s order denying his motion for summary judgment in the action filed against him by Tyrone and Stephanie Brown. The Browns brought suit against Hurley and his son Brian for personal injury and loss of consortium after the car driven by Stephanie Brown collided with a car driven by Brian and owned by Hurley. The Browns sought to establish Hurley’s liability under the family purpose doctrine. We conclude, however, that they failed to come forward with any evidence to rebut Hurley’s affidavit in which he showed that the family purpose doctrine did not apply. Summary judgment therefore was appropriate, and we reverse.

Four prerequisites exist for establishing a claim under the family purpose doctrine:

(1) the defendant must own or have an interest in or control over the automobile; (2) the defendant must have made the automobile available for family use; (3) the driver must be a member of the defendant’s immediate household; and (4) the vehicle must have been driven with the permission or acquiescence of the defendant.

(Footnote omitted.) Ingraham v. Marr, 246 Ga. App. 445, 446 (540 SE2d 652) (2000). Hurley moved for summary judgment on the ground that the family purpose doctrine did not apply and that no other ground for holding him liable had been shown. He submitted an affidavit in which he stated that although the car was titled in his name, Brian paid all the expenses for its operation and maintenance; that Brian was not on any errand or mission for him at the time of the accident; and that Brian did not reside in his household at the time of the accident. Hurley’s affidavit therefore pierced an essential element of the Browns’ complaint.

The Browns opposed the motion but presented no evidence in opposition to it. They simply relied on their brief, in which they stated that Hurley’s statement that Brian was not a member of his immediate household required further probing by the finder of fact. They repeat this assertion on appeal, citing Simmons v. Hill, 242 Ga. App. 22 (528 SE2d 557) (2000), in support of their contention that “[t]he courts in this state have inquired about the length of time the family member has been living at another residence, whether or not the family member has been paying rent at that household, whether there are frequent visits to the parent’s home and whether the family member kept belongings at the parent’s home.” While it is true that these factors may be considered, this court in Simmons stated emphatically that we have never held “that two people may be members of the same household under the family purpose doctrine even if they do not live together.” Id. at 25. And to establish that a child is a member of his parents’ immediate household, it is necessary to present evidence that the child lived at the same residence with them at the time of the accident. Id. We have never extended family purpose liability to children living apart from their parents. Id. at 25, 26. Simmons, therefore, does not support the Browns’ contentions.

Decided April 23, 2002.

William A. Turner, Jr., for appellant.

Copeland & Haugabrook, Roy W. Copeland, Karla L. Walker, for appellees.

Although Hurley would not bear the burden of proof at trial, on summary judgment he had the burden of pointing out by reference to affidavits or other evidence an absence of evidence to support the Browns’ case. He discharged this burden by pointing to his affidavit. Once Hurley came forward with evidence that Brian was living apart from him at the time of the accident, the Browns were not entitled to rest on their pleadings. It became the Browns’ burden to come forward with specific evidence negating the assertions in Hurley’s affidavit and creating a question of fact as to this issue. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This they did not do, and the trial court should have granted Hurley’s motion for summary judgment.

Judgment reversed.

Eldridge and Ellington, JJ., concur.