author: Deen, Presiding Judge.

text:
    A89A1273.
    CRAIG v. THE STATE.
    (384 SE2d 240)
   Deen, Presiding Judge.

Keith Gana Craig entered a non-negotiated guilty plea to three counts of violation of the Georgia Controlled Substances Act while maintaining his innocence pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). He was represented by counsel.

Prior to the court’s acceptance of the plea, it posed a series of questions to Craig pertaining to his understanding of the entry of such a plea and inquired as to the State’s evidence in the case. The plea hearing transcript shows that he understood his rights and the nature and consequences of entering such a plea. The court found that the guilty plea to the three offenses was freely and voluntarily entered, and that a factual basis existed for the entry of the plea. After the plea was accepted, the defendant presented several witnesses in mitigation of punishment and counsel made an argument on his behalf. The court sentenced him to five years’ confinement followed by five years on probation. Counsel requested that appellant be permitted to withdraw his plea, and the motion was denied. A second motion to withdraw the plea was filed and denied following a hearing. This appeal follows. Held:

It is always within the sound legal discretion of the trial court when ruling on a motion to withdraw a guilty plea after sentence has been pronounced. Goss v. State, 161 Ga. App. 539 (288 SE2d 253) (1982). The exercise of this discretion is, however, controlled by constitutional principles set forth in Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The State is required to prove that the defendant’s guilty plea was voluntarily entered after a knowing waiver of his constitutional rights, i.e., the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Goss v. State, supra.

An examination of the sentencing transcript reveals no error. When the court inquired as to the State’s evidence and an alibi defense was revealed, the court inquired as to whether Craig was aware of the defense. He responded that he was and that he still wanted to plead guilty rather than go to trial. His attorney also indicated that he had discussed several possible defenses with the appellant. Craig informed the court that no person had coerced him into entering a guilty plea and that he fully understood the nature of the charges against him.

Appellant contends that a guilty plea is not considered voluntary unless the elements of the crime are explained to him on the record and that he did not know what “intent” meant. The transcript, however, shows that appellant understood intent was an essential element that the State was required to prove beyond a reasonable doubt. It is not necessary for the trial court to inform the accused personally of the elements of the crime to which he is pleading; “ ‘(i)t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.’ [Cit.]” Clark v. State, 186 Ga. App. 106, 107 (366 SE2d 361) (1988). We find no merit in this assertion.

Appellant next argues that he should be permitted to withdraw his plea because counsel informed him that a deal had been struck whereby he would receive a probated sentence or, at worst, ninety days to serve in addition to probation. The attorney who represented him at the sentencing hearing was not called as a witness.

The transcript indicates that appellant indicated that he had not been promised anything in exchange for his plea. “A person cannot avoid the legal consequences of his acts even if based on good faith reliance on the advice of counsel.” Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986). Thus, appellant’s testimony as to what his counsel informed him about the anticipated sentence in exchange for his guilty plea would have no bearing on the court’s decision to deny his motion to withdraw his guilty plea.

Decided July 5, 1989.

Alan C. Manheim, for appellant.

Thomas J. Charron, District Attorney, Thomas Weathers, Debra H. Bernes, Assistant District Attorneys, for áppellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1291.
    HOOD v. THE STATE.
    (384 SE2d 242)
   McMurray, Presiding Judge.

Defendant Hood appeals his conviction of the offenses of unauthorized possession of a weapon by an inmate (OCGA § 42-5-63) and terroristic threats. Held:

1. Defendant’s first enumeration of error raises the sufficiency of the evidence. The State’s evidence shows that on July 24, 1988, defendant Hood was an inmate at the Lee County Correctional Institution. Defendant was one of three inmates confined in individual holding cells used to control problem inmates. These three inmates had been creating a disturbance, throwing items ranging from clothing to human excrement into the hallway outside their cells and flooding the area by causing the commodes in the cells to overflow. When the warden and correctional officers entered the area to curtail the disturbance they found defendant holding a toothbrush, the handle of which had been sharpened into a point. When defendant realized that the warden and correctional officers were going to enter his cell he began to rake the toothbrush on a metal mesh to remove the sharpened end from it. When the warden demanded that defendant surrender the weapon, defendant threatened the life of the warden and his family. The warden withdrew and later returned to subdue defendant through the use of mace. Defendant had stated to the warden, “I know where your . . . family lives, I will be there when I get out. . . I’ll take care of you and your family . . . I’ll put your eyes out, cut your throat . . . ,” and defendant also advanced on the warden with his improvised weapon each time the warden would start to enter the cell. Defendant was eventually disarmed by correctional officers.

Reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of unauthorized possession of a weapon by an inmate and terroristic threats. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Massengale v. State, 189 Ga. App. 877, 879 (1) (377 SE2d 882).

Decided July 5, 1989.

Mark G. Pitts, for appellant.

John R. Parks, District Attorney, Barbara A. Beer aft, Assistant District Attorney, for appellee.

2. In his second enumeration of error, defendant “points out that OCGA § 5-5-21 authorizes a trial court to grant a new trial where the verdict may be against the weight of the evidence. ‘This, however, must be addressed to the trial judge . . . The law gives to him alone the authority to grant a new trial for such a reason. This court has no such power.’ Josey v. State, 197 Ga. 82, 93 (28 SE2d 290) (1943).” Wright v. State, 173 Ga. App. 408 (326 SE2d 584).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1316.
    HALL v. THE STATE.
    (384 SE2d 428)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine, possession of marijuana with intent to distribute, and violation of the Dangerous Drug Act. He appeals from the denial of his motion for new trial. Held:

1. Defendant contends that the evidence presented at trial was insufficient to support the guilty verdict of trafficking in cocaine because the provisions of OCGA § 16-13-31 which were in effect at that time required that actual possession be shown; and since he was not found in actual possession of any controlled substances at the time of his arrest, the jury was erroneously instructed on actual possession. We do not agree. Defendant was chased by a detective to the vicinity of an abandoned house where he was seen throwing something under the front porch by another police officer and a mailman. A bag was immediately retrieved from that location containing marijuana, rolling papers and a bottle of cocaine. Furthermore, in view of defense counsel’s statement immediately after the court’s charge was given that he had no objections to it, such statement “ ‘constitutes a waiver of that portion of the charge to which objection is now belatedly, made. [Cit.]’ [Cit.]” Crosby v. State, 188 Ga. App. 191, 194 (6) (372 SE2d 471) (1988). Accord Robinson v. State, 176 Ga. App. 18 (335 SE2d 303) (1985).

2. Defendant complains that the trial court also erred in failing to charge on equal access. However, there was no evidence that anyone else had access to the place where the drugs were found, and defendant neither requested such a charge nor objected to the trial court’s failure to so instruct the jury. Consequently, this enumeration of error is likewise without merit. Crosby v. State, 188 Ga. App. 191, supra; Robinson v. State, 176 Ga. App. 18, supra.

Decided July 5, 1989.

Roy W. Copeland, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, M. Catherine Harris, Assistant District Attorneys, for appellee.

3. The trial court sentenced defendant to a three-year prison term for violation of the Dangerous Drug Act (OCGA § 16-13-70 et seq.), which is a misdemeanor under OCGA § 16-13-79. However, the court subsequently entered an amendment to this order sentencing defendant to twelve months in accordance with the statute. Therefore, defendant was not entitled to reversal on this ground, because even though the original sentence was a nullity, a legal sentence may be imposed. King v. State, 103 Ga. App. 272, 276 (3) (119 SE2d 77) (1961). See also Stevanus v. State, 185 Ga. App. 7, 10 (4) (363 SE2d 322) (1987).

4. Count two of the indictment charged defendant with violation of the Georgia Controlled Substances Act by possession of marijuana with intent to distribute. During the charge to the jury the trial judge read this Count and then stated: “In this connection, I charge you that cocaine is a controlled substance within the meaning of that Act.” Defendant contends that this slip of the tongue constituted a fatal error for failure to properly instruct the jury regarding possession of marijuana. “The general rule is that, ‘A mere verbal inaccuracy in a charge, which results from a palpable “slip of the tongue,” and clearly could not have misled or confused the jury,’ is not reversible error. [Cit.]” Gober v. State, 247 Ga. 652, 655 (278 SE2d 386) (1981). It seems highly unlikely that the jury did not recognize that both marijuana and cocaine are controlled substances, so that no reversible error occurred. In any event, defendant’s express approval of the charge as given bars his subsequent objection. Crosby v. State, 188 Ga. App. 191, supra; Robinson v. State, 176 Ga. App. 18, supra. We find no basis for reversal.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A89A0172.
    RODDENBERY FARMS, INC. v. LEVERICH
    (384 SE2d 243)
   Pope, Judge.

The issue presented on appeal is whether the trial court erred in failing to grant appellant’s motions for directed verdict and judgment notwithstanding the verdict. Appellant’s motions were predicated on its belief that appellee failed to prove damages. Appellee brought this action contending damage to his property from water diverted onto his land by appellant. Appellant argues that the case was tried on the theory of trespass pursuant to a pre-trial stipulation and that appel-lee was thus compelled to prove the diminution in value of the property from the fair market value before the trespass and the fair market value after the trespass. See Allgood Rd. &c. Church v. Smith, 173 Ga. App. 28 (2) (325 SE2d 392) (1984). Appellee argues that the case was one of continuing nuisance. In support of this, he points to a previous appeal in this case in which the Supreme Court reversed summary judgment in favor of appellant. Leverich v. Roddenbery Farms, 257 Ga. 731 (363 SE2d 543) (1988). In that case, the Supreme Court held that Leverich’s action was one for continuing nuisance and thus governed by the four-year statute of limitation contained in OCGA § 9-3-30. In a case of continuing nuisance, the plaintiff need not prove diminution in fair market value; rather “he may recover any special damages whether the injury is of a temporary or a permanent nature. [Cits.] Unlawful interference with the right of the owner to enjoy possession of his property may be an element of damages. [Cit.] The measure of damages for ‘discomfort, loss of peace of mind, unhappiness and annoyance’ of the plaintiff caused by the maintenance of a nuisance is for the enlightened conscience of the jury. [Cit.]” City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980). Held:

The pre-trial stipulation was entered by the parties and signed by the court in April 1988. The Supreme Court decision in this case was rendered in January 1988. Although Paragraph 3 of the pre-trial stipulation addresses plaintiff/appellee’s allegation of trespass, it does not purport to replace or supersede the pleadings in the case or to preclude a recovery on any other allegation asserted in the pleadings, nor does the order of the trial court accepting the stipulation do so. Nor does it purport to alter the Supreme Court’s holding. As we read Paragraph 3, its thrust is to have the plaintiff elect to sue for both past and future damages as set out in Cox v. Cambridge &c. Houses, Inc., 239 Ga. 127, 129 (236 SE2d 73) (1977). In its charge, the trial court referred to the “recast complaint” and sent the pleadings out with the jury. Appellant made no objection to this. We find that the issue of continuing nuisance was not precluded by the pre-trial stipulation and that the evidence supports the award of damages.

Decided July 6, 1989.

Langstaff & Plowden, Robert B. Langstaff, for appellant.

Ronnie J. Lane, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0632.
    LOFTON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (384 SE2d 245)
   Pope, Judge.

The issue presented in this appeal is whether the trial court properly held that appellant Lofton is not entitled to “stack” medical payment coverages in separate State Farm Mutual Automobile Insurance Company (State Farm) policies issued to the family of Eric Smith.

Craig Lofton was seriously injured in an accident while riding in a 1979 Chevrolet Monza driven by Eric Smith. At the time of the accident, Eric Smith lived with his parents, Mr. and Mrs. Thomas F. Smith, and his brother, Dwayne Smith. The Smith family held four separate State Farm policies: Thomas Smith held separate policies covering the Monza, a 1982 Chevrolet pick-up, and a 1979 Datsun. Dwayne Smith held a policy covering a 1979 Buick Regal. Each of the policies contained medical payment coverage of $5,000. State Farm paid Lofton $5,000 in medical payment coverage under the policy of insurance for the Monza. Held:

State Farm acknowledges that Georgia law allows an insured to “stack” medical payment coverages provided by his own separate policies to the extent of the insured’s medical expense. See State Farm &c. Ins. Co. v. Johnson, 126 Ga. App. 45 (190 SE2d 113) (1972) and Provau v. State Farm &c. Ins. Co., 772 F2d 817, 820-821 (11th Cir.1985). These cases are the basis for Lofton’s argument for “stacking” in this case. However, State Farm argues that Lofton does not qualify as an insured in the remaining Smith policies and thus is not entitled to additional benefits.

“An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Cit. and punctuation omitted.) Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 354 (358 SE2d 874) (1987). Each of the policies at issue in this case provides medical expense coverage for the first person named in the declarations, his or her spouse and their relatives. The policy also provides as follows: “We will pay medical expenses for bodily injury sustained by . . . any other person while occupying ... a vehicle covered under the liability coverage . . . .” The liability portion of the policy provides as follows: “We will . . . pay damages which an insured becomes legally liable to pay because of . . . bodily injury to others . . . caused by accident resulting from the ownership, maintenance or use of your car . . . .” The policy defines “your car” as “the car or vehicle described on the declarations page.” In the context of liability coverage, “insured” is defined as the policyholder, his or her spouse and relatives or someone using the vehicle with the consent of the policyholder and his or her spouse.

Decided July 6, 1989.

Darroch & Obenshain, Elizabeth A. Obenshain, Jay L. Drew, for appellant.

Harper & Cooper, J. Blair Craig II, Thomas D. Harper, for ap-pellee.

From the language of the policy, we conclude that there is no liability coverage for this accident in any of the policies issued to the Smiths other than for the Monza. By the terms of each of the policies, liability coverage exists only for the vehicle listed on the declarations page of each policy. Because no liability coverage for the accident exists under the additional policies, it follows that medical expense coverage also does not exist since it is dependent on the existence of liability coverage and thus “stacking” is not permitted by the terms of these policies.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Benham, Judge.

text:
    A89A0692.
    PEAVY v. McINVALE et al.
    (384 SE2d 246)
   Benham, Judge.

This is an appeal from the grant of summary judgment to appel-lees Sam Mclnvale and Forum Insurance Company (Forum), which was the liability insurance carrier for Trailer Transit, Inc., with whom Mclnvale and appellant Peavy had contracted separately (through Trailer Transit’s agent, Modular Transport, Inc.) to “trip lease” their tractors. While driving his tractor pursuant to the trip lease, Peavy was injured in an accident involving Mclnvale and a third party. Peavy filed a personal injury action against Mclnvale, Forum Insurance Company, and the third party. Appellees moved for summary judgment, the issue being whether, under the trip leases, Peavy and Mclnvale, the owners/drivers of the tractors they had leased, were employees of or independent contractors for Trailer Transit. In a detailed and well-reasoned order, the trial court concluded that Peavy and Mclnvale were both statutory employees of Trailer Transit, and, as such, the Georgia Workers’ Compensation Act barred appellant from pursuing his personal injury action against Mclnvale and Trailer Transit. See OCGA § 34-9-11; Farmer v. Ryder Truck Lines, 245 Ga. 734 (266 SE2d 922) (1980); Garrett v. Superior Trucking Co., 162 Ga. App. 558 (290 SE2d 528) (1982). Appellant claims error, but we affirm the trial court’s decision.

1. Appellant argues that the contract provision which states that “[t]he parties intend to create by this Agreement the relationship of Carrier and Independent Contractor and not an Employer-Employee relationship. Neither Contractor nor its employees are to be considered employees of Carrier at any time under any circumstances or for any purpose . . .” and the provision that appellant would determine the means and methods of all transportation services show that the relationship was not that of an employee and an employer. Garrett, supra, contained contract provisions similar to those upon which appellant relies, but, nevertheless, this court found that under applicable federal law relating to interstate motor carriers, those carriers “are deemed to be responsible for the acts of drivers operating any trucks under the name of the common carrier, and therefore the drivers are employees of the carrier.” Id. at 559. Appellant would have us take the position that because Trailer Transit had no workers’ compensation coverage, appellant should be allowed to sue him in tort for the injuries he suffered. We cannot take such a position. It is well established that “the statutory immunity from suit includes the statutory employer regardless whether that statutory employer had actually paid the workers’ compensation benefits.” Modlin v. Swift Textiles, 180 Ga. App. 726 (2) (350 SE2d 273) (1986). Although appellant cannot pursue his tort claim, he is free to pursue his remedies under the Workers’ Compensation Act. “The employer is bound for workers’ compensation regardless of whether or not he carried insurance coverage.” Hartford Ins. Group v. Voyles, 149 Ga. App. 517, 520 (254 SE2d 867) (1979). See American Centennial Ins. Co. v. Flowery Branch Nursing Center, 258 Ga. 222, 224 (367 SE2d 788) (1988); Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981).

2. Before appellant had sued appellees for his personal injuries, Mclnvale had filed an insurance claim against Peavy and Forum for the injuries he suffered in the same accident. Forum reached a settlement agreement with Mclnvale on his claim. Appellant argues that appellees are estopped from asserting that he and Mclnvale are co-employees because in order to effect the settlement agreement, Forum and Mclnvale must have taken the position that Peavy was an independent contractor. The trial court rejected that argument, concluding that estoppel requires that appellant have relied to his detriment on the agreement, and that appellant showed no reliance on the agreement nor did he have control over the negotiations that led to it. Appellant admits in his brief that he was not an “immediate party” to the settlement, and there is no evidence of record showing that appellant acted to his detriment or to appellees’ benefit based on the theory that he was an independent contractor. The trial court acted correctly in rejecting appellant’s estoppel contention. See OCGA § 24-4-24 (b) (8); Morgan v. Maddox, 216 Ga. 816 (120 SE2d 183) (1961).

Decided July 6, 1989.

Roberts, Roberts & Ingram, Lawrence W. Roberts, for appellant.

Darroch & Obenshain, Robert M. Darroch, Mark A. Barber, Wright & Wright, George P. Wright, Perry, Walters & Lippett, C. Richard Langley, for appellees.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A1109.
    MABES v. THE STATE.
    (385 SE2d 322)
   Deen, Presiding Judge.

This appeal was docketed on February 27, 1989. Mabes’ brief and enumeration of errors were due on March 20, 1989. No brief or enumeration of errors was timely filed, and on March 27, 1989, counsel sought an extension of time. He was granted an extension until 4:30 p.m., March 31, 1989. Nothing was filed on that date. On April 3, 1989, he made a written request to permit late filing of his brief and enumeration of errors. This motion is denied. The docketing notice sent to appellant included an order stating that if briefs and an enumeration of errors were not filed when due, the appeal would be subject to dismissal. Appellant was granted one extension after his brief and enumeration of errors were seven days overdue. He will not be granted another.

We will, however, examine the record and transcript for error under the rule set forth in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), which declines to dismiss the appeal for failure to comply with the rules and order of this court. Held:

We have reviewed the record submitted on appeal and find no error.

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs specially.

Decided July 6, 1989.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Benham, Judge,

concurring specially.

Being unable to agree with the treatment of this appeal by the majority, but agreeing that appellant’s conviction should be affirmed, I must file a special concurrence.

The majority opinion correctly states that appellant’s brief was due on March 20, 1989, but none was filed, and that on March 27, 1989, appellant’s attorney requested an extension of time to file a brief, stating that he had unexpectedly been on trial for several weeks. The majority opinion is also technically correct that an extension was granted, but it fails to mention that at approximately 12:00 p.m. on March 31, 1989, this court first notified appellant’s attorney’s office in Dalton, Georgia, over 100 miles away, that he had been granted an extension until 4:30 p.m. that same day. The message was communicated to counsel in court at 2:00 p.m. An extension of time of 2-Vz hours to prepare and file an appellate brief and enumeration of errors is no extension at all. Therefore, I must respectfully disagree with the majority opinion which states that “[a]ppellant was granted one extension after his brief and enumeration of errors were seven days overdue. He will not be granted another.” Because appellant did file a brief on the next business day, April 3, 1989, it is my considered opinion that this court should give full and complete consideration to appellant’s brief and his sole enumeration of error, which challenges the sufficiency of the evidence to support a conviction for burglary.

The record shows that appellant and another were arrested while in possession of items stolen from the house which was the site of the burglary. Testimony of the persons authorized to care for the house established the dates of the burglaries, and testimony of members of the household in which appellant was staying established appellant’s involvement in the burglaries. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of two counts of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Myles v. State, 186 Ga. App. 817 (2) (368 SE2d 574) (1988). This court should say so.


author: Birdsong, Judge.

text:
    A89A1364.
    ABIODUN v. CITIZENS & SOUTHERN NATIONAL BANK.
    (384 SE2d 248)
   Birdsong, Judge.

Sunday Abiodun appeals the grant of summary judgment to the C & S National Bank (C & S ) in his suit for malicious prosecution of a criminal action based on a number of forged checks which were negotiated in 1983.

The stolen checks were made out to Sunday Abiodun and were negotiated by a person bearing Abiodun’s driver’s license and a Clark College identification card. The first check was negotiated only a block from Abiodun’s place of work and only ten minutes after he got off work. Abiodun was identified by a maintenance man who saw Abi-odun driving away from an office on the night of the theft of some of the checks, but later the maintenance man professed himself to be unsure of this identification. The identification cards were appropriated by a bank teller on the last occasion at which the attempt was made to cash one of these checks, and Abiodun asserts that with only “slight diligence,” the appellee’s employer could have looked at the tag of the departing vehicle and that appellee could have thus determined that it belonged to Calvin A. Little, who later confessed to the forgeries.

Appellant’s position, to which he says attaches every benefit on the appellee’s motion for summary judgment, is that at every step of the appellee’s investigation, appellee C & S could, with only slight diligence (see Wilson v. Wheeler’s, Inc., 190 Ga. App. 250 (378 SE2d 498)), have discovered all the evidence which he now says exonerates him, and thus there would have been no probable cause and no warrant or indictment.

Appellant contends a slight investigation would have revealed that his wallet was reported stolen in November 1983; and that no investigation was made of the known forger Calvin A. Little until after a warrant was issued for appellant, and that appellant’s work records would have shown conclusively that he was working on the dates of the cashing of forged checks. Appellant contends all the facts then known to the investigator required further inquiry, and where a reasonable man would investigate further before pursuing the prosecution, he may be liable for failure to do so, according to Wilson v. Wheeler’s, Inc., supra. Held:

The trial court did not err in granting summary judgment to ap-pellee C & S. The “known forger” Calvin A. Little did not admit his guilt of these forgery offenses until 1985. In the meantime, appellant’s prosecution was reasonably based on his identification by the maintenance man who testified he saw him drive away in a blue car from the location of the stolen checks, by the fact that one of the checks was presented by a person in a blue car, by the positive identification by three of the six tellers who cashed the checks, by the use of appellant’s driver’s license and college ID to cash checks made out to him, and by the fact that one was cashed one block from his place of work and ten minutes after he got off from work, and by the fact that all of the checks were passed within a reasonably short distance of his job-site. It appears, furthermore, that nothing has yet come to light which conclusively negates appellant’s involvement in the theft of checks and the forgeries.

Thus, despite appellant’s assertion in brief that even though the first stolen check was passed one block away and ten minutes after his work, “any slight diligence on the part of appellee’s agent . . . would have revealed all the facts in this matter” (emphasis supplied), he presents nothing below or here to persuade us how “all the facts” would conclusively have exonerated him, or even what such “facts” might have been. It is clear the appellee proceeded against the appellant in the criminal matter with sufficient diligence and probable cause; “all the facts” then pointed to the involvement of appellant. The appellee asserts that the investigator still does not believe Calvin A. Little’s admission of guilt makes appellant less of a suspect in involvement. Indeed, Calvin A. Little’s known method of forgery included the use of other persons to pass checks he forged, and some witnesses testified Little was not the person who passed the checks. If any of the checks was presented during the hours which appellant was at work, the investigator was unable to verify that fact, though he did attempt such verification. It has not been conclusively established or conceded by the appellee that appellant was in fact not involved in the forgeries.

Even giving appellant the benefit of every doubt on appellee’s motion for summary judgment, the consideration of all the facts and factors leaves no issue of material fact to present to a jury that the prosecution was not based on probable cause (see OCGA § 51-7-40), for the only inference that can be drawn from “all the facts” is that appellant was then and (in the investigator’s expressed opinion still is) under a suspicion for involvement in the crimes, although he is not under prosecution. We are compelled to say this in affirming the grant of summary judgment to the appellee, for it appears from this record that lack of additional direct evidence is a primary reason he ultimately was not prosecuted. The investigator proceeded with probable cause and upon a reasonable belief. OCGA § 51-7-43; West v. Baumgartner, 228 Ga. 671 (187 SE2d 665). The case of Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359) authorizes summary judgment to the appellee in a case such as this.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.

Decided July 6, 1989.

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

Fortson & White, Bruce H. Beerman, Michael D. St. Amand, for appellee.


text:
    A89A0243.
    TARGET PROPERTIES, INC. v. GILBERT.
    (384 SE2d 188)
   Benham, Judge.

Appellant Target Properties, Inc. (Target) entered into a contract to purchase property from appellee Warren Gilbert. Target paid $10,000 earnest money to the broker, Metro Brokers, Inc. (Metro). In a special stipulation to the contract, Gilbert granted Target “the right to terminate the contract for any reason whatsoever on or before 5:00 p.m. [on a certain day] by delivering written notice for such termination to [Gilbert].” Upon the timely exercise of the right of termination, $9,900 of Target’s earnest money would be returned; if Target did not terminate and failed to consummate the sale, the earnest money was to go to Gilbert as full and liquidated damages.

On May 18, 1987, Target sent a written notice of termination by certified mail to Gilbert. Gilbert, claiming the notice was not timely, demanded the earnest money of Metro. Target, claiming it had properly avoided the contract, sought a refund of the earnest money from Metro. Metro’s complaint for interpleader was granted by the trial court, the $10,000 was paid into the registry of the court, and Metro was discharged from all liability to Gilbert and Target Properties for the $10,000, and dismissed from the lawsuit. A bench trial between Target and Gilbert resulted in the entry of judgment for Gilbert, from which judgment Target now appeals.

At the center of the controversy is the date on which Target’s right to terminate expired. Target’s copy of the contract reflected a change of the critical date from April 20, 1987 to May 19, 1987, while Gilbert’s copy showed a change from April 20, 1987 to May 17, 1987. The discrepancy is crucial since Target’s notice of termination was sent by certified mail on May 18, 1987. The trial court, sitting as factfinder, found that the parties entered into a contract that provided for the right to terminate on or before 5:00 p.m., May 17, 1987. Concluding that the notice of termination was not timely delivered, the trial court found that Gilbert was contractually entitled to the earnest money as damages for the breach of the contract.

1. Contending that there was no “meeting of the minds,” appellant takes issue with the trial court’s conclusion that a valid contract existed.

“ ‘When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. [Cit.] On appeal this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. [Cit.]’ ” Gemini Constr. Co. v. Childs, 182 Ga. App. 207, 208 (355 SE2d 81) (1987). On appeal, we must construe the evidence with every inference and presumption in favor of upholding the verdict. Ackerman/Adair Realty Co. v. Coppedge, 155 Ga. App. 903 (3) (273 SE2d 645) (1980).

Gilbert testified that the contract he received back from Target’s agent had the special stipulation date changed to May 17 and the initials of Target’s president acknowledging the change. While there was evidence that Target’s president had initialed a date change to May 11 and that Gilbert had agreed to extend the right of termination a week beyond May 11, “an appellate court is without jurisdiction or authority to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. [Cit.]” Barry v. J. C. Penney Co., 159 Ga. App. 587, 589 (284 SE2d 91) (1981).

2. Appellant next contends that the trial court erred in concluding that the notice mailed by Target on May 18 and received by Gilbert on May 20 was not delivered pursuant to the contract. The special stipulation to the contract granted Target “the right to terminate the contract for any reason whatsoever on or before 5:00 P.M. May 17, 1987, by delivering written notice for such termination to [Gilbert].” The contract to which the special stipulation was attached provided that “[a]ll notices hereunder shall be made in writing and shall be hand delivered or mailed, registered or certified U. S. Mail, ... to the parties hereto at their respective addresses set forth below. . . . Any notice required or permitted to be given hereunder on or before a specified date shall be deemed to have been duly and timely given if hand delivered before 5:00 p.m. on such day or, when given by mail as aforesaid, if postmarked before midnight of such day.” The address given for Gilbert was a Decatur post office box.

Target’s president testified that May 17 fell on a Sunday in 1987; that he was unable to hand deliver notice of termination to Gilbert on that date because Gilbert had given only a post office box as an address; and that he did not know how to deliver notice to Gilbert on a Sunday. He decided to send the notice of termination via certified mail on Monday, May 18.

Relying on the provisions of its contract with Gilbert and the Supreme Court’s decision in Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973), Target maintains its notice was timely given. In Brooks at 502, the Supreme Court held that “if the time for exercise of rights or performance or tender of performance of an act under a contract falls on a holiday or Sunday, as a general rule it may be legally performed on the following day” when the act is one that cannot be performed on a Sunday. Since Target could not use either contractually acceptable method of giving notice on Sunday, May 17, under Brooks, Target could give timely notice on the next business day, Monday, May 18, using a method prescribed by the contract.

Decided May 22, 1989

Rehearing denied July 7, 1989

William T. Cox, Jr., for appellant.

Robert P. Wilson, W. John Wilson, for appellee.

Since, under the terms of the contract and the holding in Brooks, Target had until May 18 to send notice via certified mail of its exercise of its right to terminate the contract, and Target did so in timely fashion, the trial court erred in concluding that notice of termination was not delivered pursuant to the contract.

Gilbert asserts that the timing of appellant’s sending of notice is irrelevant because Target had, in effect, an option contract, the exercise of which is effective upon receipt of the notice. See TST, Ltd. v. Houston, 256 Ga. 679 (353 SE2d 26) (1987); Anthony v. Ausburn, 254 Ga. 472 (330 SE2d 724) (1985); Musgrove v. Long, 248 Ga. 902 (287 SE2d 23) (1982). Even/if we equate Target’s right to terminate the contract with the exercise of an option to purchase, we do not find the cited cases applicable. The contractual provisions in those cases provided only that notice be given by the grantee of the option. In the case at bar, the contract specified the means by which the notice was to be given. Since Gilbert had contractually agreed that Target could exercise its right to terminate by sending notice via certified mail and that the date sent would be the operative date, he will not now be heard to assert that the date of receipt is the critical date.

3. Gilbert’s request for the assessment of damages against appellant pursuant to OCGA § 5-6-6 is denied.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0290.
    LARSON v. LARSON et al.
    (384 SE2d 193)
   Benham, Judge.

The trial court awarded permanent custody of a minor child to appellees, the child’s paternal grandparents, thereby stripping appellant, the child’s natural mother, of custody. We granted appellant’s application for discretionary appeal. OCGA § 5-6-35 (a) (2).

Decided June 8, 1989

Rehearing denied July 7, 1989.

Fleming, Blanchard & Bonner, Bradley J. Patten, for appellam

The 18-month-old child was in appellant’s custody pursuant to a judgment and decree of divorce entered in September 1987. Contending in January 1988 that “a substantial change in circumstances [had] occurred” since the entry of the judgment of divorce, thereby necessitating a change in custody, appellees filed their petition for custody. The child’s father, appellees’ son, a quadriplegic living with his parents and unable to pay child support, consented to the entry of an order granting permanent custody of his child to his parents. After conducting two hearings, the trial court concluded that “[a] substantial change in circumstances [had] occurred since the entry of the Final Judgment and Decree of Divorce,” leaving him no alternative but to order the change of custody.

“[W]here a third party [i.e., a non-parent] sues the custodial parent to obtain custody of a child and to terminate the parent’s custodial rights in the child, . . . the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit or otherwise not entitled to custody under [OCGA §§ 19-7-1 and 19-7-4].” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). “In a contest between a parent and a third party over the custody of a child a parent may lose the right to custody only if one of the conditions specified in [OCGA §§ 19-7-1 and 19-7-4] is found to exist, or, in exceptional cases, if the parent is found to be unfit. [Cit.]” Bozeman v. Williams, 248 Ga. 606, 607 (285 SE2d 9) (1981). (Emphasis supplied.) The occurrence of a “substanj tial change in circumstances” since the entry of a divorce decree ancl award of custody is not one of the conditions specified in eitheij OCGA § 19-7-1 or § 19-7-4. Instead, that legal standard is reservecl for those cases in which one natural parent seeks custody of a chilcl from the other natural parent. Blackburn v. Blackburn, 168 Ga. Appl 66 (1) (308 SE2d 193) (1983). That is not the situation in the cast before us, wherein grandparents seek custody from a natural parent Inasmuch as the trial court applied the incorrect legal standard in th< case at bar, we must reverse the judgment. Johnson v. Hubert, 175 Ga. App. 169 (1) (333 SE2d 21) (1985).

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.

Jolles & S'laby, Richard A. Slaby, for appellees.


text:
    A89A0403.
    OGLESBY v. THE STATE.
    (384 SE2d 192)
   Benham, Judge.

Appellant was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. OCGA §§ 16-13-31; 16-11-106 (b). In his sole enumeration on appeal, appellant contends the trial court should have granted his motion for a directed verdict of acquittal because the State allegedly failed to prove appellant had actual possession of the cocaine.

The undercover agent involved in the transaction testified that he met with a middleman, showed him $8,000 cash, and stated his desire to purchase seven ounces of cocaine. The go-between left to talk with his supplier, a man he called “Darryl,” and later spoke again with the undercover agent, saying that his source agreed to distribute seven ounces of cocaine at 9:20 p.m. that night at a grocery store on Klondike Road. He also described the vehicle which the source would be driving. The undercover agent arrived at the appointed place át the appointed time; talked briefly with the middleman who pointed out the source’s vehicle; and drove to that vehicle, which was backed into a parking space against the side of the grocery store. The agent parked his car so that his passenger door faced the source’s passenger door. A brown bag, the contents of which were later discovered to weigh 193 grams and contain at least 44.9 grams of pure cocaine, was passed to the undercover agent. Carrying the bag, the agent left his car and, pursuant to a prearranged signal, surveillance officers arrested the middleman and appellant, the occupant of the vehicle described to be that of the middleman’s source.

Appellant was charged with being “knowingly in actual possession of more than 28 grams of a mixture containing cocaine.” We note that the General Assembly has since removed actual possession as an essential element of the crime. Ga. L. 1988, p. 420, Sec. 2. “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Appellant’s motion for directed verdict centered on the fact that no one testified to seeing appellant in possession of the brown bag that contained the cocaine involved. Appellant is entitled to a directed verdict of acquittal if “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ . . . .” OCGA § 17-9-1 (a). The undercover agent and one of the arresting officers testified that appellant made a post-arrest statement that the cocaine involved in the busted transaction had been fronted to him by another person. Appellant also admitted that he was to have made $1,000 in the deal gone awry. The undercover agent explained that “fronted” was a street term meaning that appellant’s supplier had given appellant the cocaine without then receiving payment for it. Since the jury could infer from appellant’s statement that he did have actual possession of the contraband, the trial court correctly denied appellant’s motion for a directed verdict of acquittal.

Decided May 23, 1989

Rehearing denied July 7, 1989

Joseph J. Saia, for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

Judgment affirmed.

Been, P. J., and Birdsong, J., concur.


text:
    A89A0457.
    HARTLEY v. THE STATE.
    (384 SE2d 204)
   Benham, Judge.

This appeal is from appellant’s conviction of burglary. He complains of the State’s use of evidence of a previous burglary for which he was tried and acquitted, and of prosecutorial misconduct. Wei agree that the introduction of evidence concerning the burglary of which appellant was acquitted was error, and reverse.

1. At the trial of the burglary of which appellant was acquitted, he did not deny his presence at the burglary, but swore that he was not aware that a burglary was going to happen until the others entered the burgled premises. It was thus his state of mind or intent which was litigated and resolved in his favor at that trial. The stated reason for offering evidence of that burglary at the trial of this case was to show appellant’s “motive, plan, scheme, bent of mind,” etc. Those are the equivalent of intent, exactly the issue resolved in appellant’s favor in the first trial. The trial court erred, therefore, in permitting evidence of the burglary of which appellant was acquitted. Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989).

2. Appellant’s second enumeration of error concerns the tria court’s denial of appellant’s motion to dismiss on the ground oil prosecutorial misconduct. The motion was based on the conduct ol the assistant district attorney who handled the trial of this case ancl of the case in which appellant was acquitted. Specifically, appellanl complains that the assistant district attorney, after appellant’s acl quittal, subpoenaed appellant to testify at the trial of a co-defendant; that during his examination of appellant, the assistant district attorney questioned appellant not only about the burglary for which he had been acquitted, but about the burglary involved in this appeal, even though the burglary involved in this appeal occurred in a different county; and that appellant was not cautioned by the assistant district attorney or by the trial court about his rights against self-incrimination. While we share appellant’s concern about the propriety of such conduct, we agree both with the assistant district attorney’s statement in colloquy with the trial court that the question of whether he breached what he termed his “prosecutorial ethics” is for another body to determine, and with the State’s argument in its brief that appellant should have sought suppression of the fruits of the questioning rather than dismissal of this action. Since the conviction must be reversed for the error in admitting evidence concerning the burglary of which appellant was acquitted, appellant will have an adequate opportunity to seek that relief upon retrial, and we need make no ruling in that regard.

Decided June 21, 1989

Rehearing denied July 7, 1989.

John E. Sawhill III, William F. Sparks, for appellant.

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

Judgment reversed.

Been, P. J., and Birdsong, J., concur.


text:
    A89A0548.
    PATTERSON v. FULTON-DeKALB HOSPITAL AUTHORITY.
    (384 SE2d 205)
   Benham, Judge.

Appellant brought a medical malpractice case against appellee for injuries he claimed resulted from the negligence of appellee’s agents after appellant was brought to Grady Hospital suffering from injuries received from a collision with an automobile. This appeal is from the grant of summary judgment to appellee on the ground of charitable immunity. See Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (353 SE2d 515) (1987). We affirm.

Appellant makes no issue of appellee’s status as a charitable institution, but contends that he comes within the “paying patient” exception to the doctrine of charitable immunity as set out in Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918). The Supreme Court held in that case that a negligence action against a hospital operated by a charitable institution may be brought by one who (1) enters the hospital under an agreement to pay for services, (2) is able to pay for services, and (3) does pay for services. It also held that recovery is limited to the extent of income derived from patients who paid for their services, but the important question in this case is whether appellant comes within the definition of a paying patient.

Decided June 21, 1989

Rehearing denied July 7, 1989

Carr & Kessler, James C. Carr, Jr., Earnie R. Breeding, Lee J| Dunn, for appellant.

Alston & Bird, Robert P. Riordan, Robert D. McCallum, Jr., fo| appellee. |

Evidence produced by appellee established that appellant was admitted without any agreement to pay, that appellant is unable to pay the more than $12,000 in expenses incurred during his stay in appellee’s facility, and that appellant personally has made no payments at all. To counter that evidence, appellant has shown that payments of more than $3,000 have been made on his behalf. However, the record shows that those payments were the proceeds of insurance policies, one covering appellant as a resident in the insured’s household, and the other covering the car which struck appellant. It appears, therefore, that although approximately one-third of the expenses incurred by appellant have been paid, he did not contribute to that payment either as payor, as the holder of an insurance policy, or as one who is the specific intended beneficiary of insurance such asi workers’ compensation. When that is considered along with the facts that appellant was admitted without any agreement to pay for the services to be rendered and that he does not have assets sufficient to pay for the services, we agree with the trial court that the evidence^ demands the conclusion that appellant is not a paying patient so as to bring his case within the exception stated in Morton. It follows thatj the trial court was correct in granting appellee’s motion for summarji judgment on the basis of the doctrine of charitable immunity.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0610.
    A89A0673.
    A89A0674.
    A89A0675.
    PROO v. THE STATE. LANDERS v. THE STATE. KELLEY v. THE STATE. McCULLOUGH v. THE STATE.
    (384 SE2d 197)
   Benham, Judge.

Appellants were all convicted of DUI. Their appeals have been consolidated because they all rely exclusively on the same defense and there are no other issues involved in these appeals.

The essence of the position taken by appellants is that the legislature, in the 1988 amendment to OCGA § 40-6-391, repealed the prohibition against driving under the influence of alcohol. We do not find the legislature’s language susceptible of the interpretation appellants have placed on it, but even assuming it to be ambiguous in meaning, application of the rules of statutory construction mandates an interpretation at odds with appellants’ reading of the statute.

Prior to the 1988 amendment, the statute read as follows: “(a) A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol; (2) Under the influence of any drug to a degree which renders him incapable of driving safely; (3) Under the combined influence of alcohol and any drug to a degree which renders him incapable of driving safely; or (4) There is 0.12 percent or more by weight of alcohol in his blood, (b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section.”

After the amendment (Ga. L. 1988, p. 1893, § 2), the statute read as follows: “(a) A person shall not drive or be in actual physical control of a moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive; (2) Under the influence of any drug to the extent that it is less safe for the person to drive; (3) Under the combined influence of alcohol and any drug to the extent that it is less safe for the person to drive; or (4) The person’s alcohol concentration is 0.12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended, (b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.”

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). We find that one rule of construction sufficient to resolve the issue before us in these cases. In the preamble to the act by which the statute was amended, the General Assembly stated that its purpose was “to provide the extent to which a person must be under the influence of alcohol or drugs while operating a motor vehicle in order to be in violation of the law; to provide for an exception.” Ga. L. 1988, p. 1893. Comparing the old statute to the new, it is apparent that the legislature’s intent was to make uniform the standards for different types of intoxication, i.e., to apply the “less safe” standard to both alcohol and drug intoxication. At the same time, the legislature clearly intended to make an exception for those persons whose intoxication is due to the ingestion of some legally possessed drug other than alcohol. That intent is reflected in the language of subsection (b). While subsection (b) may have been made perfectly clear by specifying that it applies to persons charged with violating subsection (a) (2) (“Under the influ-1 ence of any drug . . . ”) or (a) (3) (“Under the combined influence of alcohol and any drug . . . ”), and not to persons charged with violating subsection (a) (1) (“Under the influence of alcohol. . . ”), we find it clear enough as written to permit us to discern the legislature’s intent.

“ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated! by the legislature.’ [Cits.]” Barton v. Atkinson, 228 Ga. 733, 739 (187 SE2d 835) (1972). To adopt appellants’ proposed construction of the! statute would result in the absurd consequence of repealing the statu-S tory prohibition against driving under the influence of alcohol in thei same act in which the legislature established the extent of such influ-1 ence necessary to make driving illegal. As was pointed out in the exlj cellent amicus curiae brief filed by the Attorney General on behalf om the Georgia Department of Public Safety, if the legislature had choi sen to make drunk driving legal, it would not have gone to the troublJI of revising the language of subsection (a) (1) while simultaneously rendering it void. H

In sum, the intent of the legislature in amending OCGA § 40-6B 391 was clearly not the repeal of criminal sanctions for driving undeB the influence of alcohol. Appellants’ defense based thereon was propH erly rejected by the trial court. fl

Although appellants have contended in one enumeration of erroH that the statute, as amended, is unconstitutional, that argument, as tfl each case, either was not raised in the trial court or was waived bH stipulations that the only issue on appeal would be that of statutorH construction. §9

Judgments affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided June 20, 1989

Rehearing denied July 7, 1989.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellant (case no. A89A0610).

Virgil L. Brown & Associates, Virgil L. Brown, for appellants (case nos. A89A0673, A89A0674, A89A0675).

John T. Newton, Jr., Solicitor, for appellee.


text:
    A89A0621.
    STROUD et al. v. McSWAIN et al.
    (384 SE2d 206)
   Benham, Judge.

Appellee Barbara McSwain is the legal guardian of the person of an orphaned child, H. A. M. Appellants are the child’s aunts and uncles and maternal grandmother. They objected when Mrs. McSwain and her husband filed a petition to adopt H. A. M. Concluding that adoption was in the child’s best interest and that appellants had failed to show a legally sufficient reason why the adoption should not be granted, the trial court granted the adoption. Appellants bring this appeal.

1. Appellants contend the adoption should not have been permitted because Mrs. McSwain, the guardian of the child’s person, had not “voluntarily and in writing surrendered all [her] rights to the child to a third person(s) for the purpose of enabling that person(s) to adopt the child. . . .” OCGA § 19-8-3 (a) (3). The trial court held in its order that a surrender of guardianship was not necessary since the petitioner for adoption was the legal guardian of the child’s person. The court further ruled that the issue had been waived and abandoned since it had not been raised prior to trial. The trial court’s conclusion concerning waiver and abandonment is supported by the record. The issue not having been timely raised in the trial court, we will not now entertain it. See Jackson v. Paces Ferry Dodge, 183 Ga. App. 502 (1) (359 SE2d 412) (1987).

2. Appellants contend the grant of the adoption to the child’s legal guardian was unnecessary to achieve ány legally recognized benefit and destroyed the testamentary intent of the child’s deceased father and maternal grandparents. Neither the achievement of a legally recognized benefit nor the achievement of testamentary intent is the standard applied to the grant of an adoption. Rather, the trial court must, as it did here, determine whether the petitioners are capable of assuming responsibility for the child, whether the child is suitable for adoption, and whether adoption is in the best interest of the child. OCGA § 19-8-13 (b). As for the legally recognized benefits brought about by adoption, see OCGA § 19-8-4 (a). As for the child’s ability to receive the inheritance left her by her father or by others through either of her parents, see OCGA § 19-8-14 (b).

Decided June 21, 1989

Rehearing denied July 7, 1989

Walters, Davis, Smith, Meeks & Pittman, W. Edward Meeks, Jr., 0. Wayne Ellerbee, Floyd B. Moon, for appellants.

Roger J. Dodd, for appellees.

Judgment affirmed.

Deen, P. J., and Birdsong, J., .concur.


text:
    A89A0683.
    TIPPINS et al. v. WINN-DIXIE ATLANTA, INC.
    (384 SE2d 199)
   Benham, Judge.

Appellants, Brenda J. Tippins, and her husband, Edward J. Tip-pins, filed a tort action against appellee, Winn-Dixie Atlanta, Inc., for injuries resulting from a fall by Brenda Tippins while a customer at appellee’s business. Pursuant to Fulton County Superior Court Local Rule No. 1000, the parties were required to submit to arbitration, which resulted in a ruling adverse to appellants. Appellants, who had originally demanded a jury trial, were required under the Fulton County Superior Court Local Rules to appeal the adverse ruling of the arbitration board if they desired to pursue a jury trial; otherwise, the arbitration, upon motion, would become the order of the court. The appeal for a jury trial arrived in the clerk’s office one day late. Despite appellants’ motion to extend the time allotted to appeal, the trial court entered judgment for appellee, and this appeal followed.

1. Appellants contend the trial court abused its discretion in not extending the time for filing the appeal from the arbitration award. Appellants moved the trial court to extend the time within which to file their demand for jury trial, stating that the demand was one day late because of inclement weather in Atlanta. The record shows that the Fulton County courthouse was open on the last day for filing, January 11, 1988, the very day on which appellants’ demand for a jury trial was postmarked.

“The burden is upon the party taking an appeal to file within the required 30-day period. The burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice oi appeal with the clerk within the appropriate time frame. [Cit.] ” Moncrief v. Tara Apts., 162 Ga. App. 695 (293 SE2d 352) (1982). Therefore, we find no abuse of discretion by the trial court in not extending] the time to file the jury demand. I

Decided June 20, 1989

Rehearing denied July 7, 1989

Jerry B. Hatcher, for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Elizabeth H. Geoghegan, for appellee.

2. Appellants contend that Fulton County Superior Court Local Rule No. 1000, which provides for the manner of appealing an arbitration award, denies them their constitutional right to a jury trial. Local Rule No. 1000 provides as follows: “Failure or refusal to file within thirty (30) days a demand for trial by all parties shall constitute a waiver of trial by jury or non-jury and be deemed a consent to the arbitration award; after the expiration of such thirty (30) days without the filing of a demand, any party may move for the entry of a consent judgment and dismissal with prejudice based upon the arbitration award.”

Appellants premise their claim of unconstitutionality on Art. I, Sec. I, Par. XI, of the 1983 Georgia Constitution and OCGA § 9-11-38. Both of these provisions guarantee the right to a jury trial. In support of their claim of unconstitutionality, appellants cite Raintree Farms v. Stripping Center, 166 Ga. App. 848 (305 SE2d 660) (1983). While the right to a jury trial is guaranteed, this right is subject to certain limitations. “The right of trial by jury ‘may be made dependent upon a timely demand or other conditions, which, though onerous, do not “totally prostrate the right or render it wholly unavailable.” ’ [Cit.]” Fleming v. State, 139 Ga. App. 849 (229 SE2d 800) (1976). Appellants in the case sub judice were given a reasonable opportunity to demand a jury trial by simply filing a demand within the 30-day period following the arbitration decision. Failing to do so, they waived their right to a jury trial. Hence, this enumeration is without merit.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A1103.
    WESTMORELAND v. THE STATE.
    (384 SE2d 249)
   Birdsong, Judge.

Appellant Ronald Westmoreland filed a notice of appeal pro se “from the judgement [sic] of conviction and sentence entered herein on August 8 [sic], 1988. The offense for which defendant was convicted is theft by taking and the sentence imposed is ... 6 years.” Examining this record in toto, we are satisfied that appellant filed a timely notice of appeal from the judgment of conviction and sentence, pertaining to Criminal Action No. A-95808, Theft by Taking (two counts), to which sentence was entered on August 18, 1988, and which was filed in open court on August 23, 1988. Accordingly, we are satisfied that the August “8” date contained in the notice of appeal is due solely to typographical error.

Appellant initially pled guilty and was convicted in June of 1986 on Indictments A-80808 and A-82851, pertaining to one count of theft by taking of $99,588.25 and one count of passing felony bad checks, respectively. Appellant retained and was represented by Attorney “F.” In April 1987, a probation revocation hearing was held regarding the probated sentence received as to Indictment A-80808, and certain adjustments were made as to the terms of restitution. Appellant again was represented by Attorney “F.” In April of 1988, a second probation revocation hearing was held, resulting in the revocation of six of the eight remaining years of appellant’s probated sentence to confinement. It appears that appellant was again represented by Attorney “F,” and that no request was made to report this second revocation hearing.

Appellant subsequently was indicted for two counts of theft by taking, under Indictment A-95808. On August 2, 1988, he pled guilty to the two-count indictment. On August 18, 1988, appellant was given a six-year concurrent sentence as to each count. Appellant was represented by Attorney “T,” an appointed counsel, at this proceeding.

Appellant filed a notice of appeal and an amended notice of appeal pro se, on June 10, 1988 and June 27, 1988, respectively, attempting to directly appeal the order of the trial court revoking probation in the case involving Indictment A-80808. Appellant did not file a notice of appeal for direct appeal of the conviction and sentence of either Indictment A-80808 or A-82851. This court dismissed this appeal, A89A0429, but remanded the case to the trial court to hold an indigency hearing and, if authorized, to appoint counsel for the defendant to conduct his appeal. The trial court further was directed to allow the defendant a reasonable time thereafter to file an out-of-time application for discretionary appeal if this be defendant’s desire after competent advice. The indigency hearing was conducted on February 10, 1989, and Attorney “T” was reappointed as appellant’s counsel at appellant’s request. During the indigency hearing, it was indicated that Attorney “T” initially was led to believe that appellant was only seeking a modification of his sentence.

Since Attorney “T’s” reappointment as appellant’s counsel, nc new or amended notices of appeal have been filed with this court Further, no out-of-time petition for discretionary appeal of the ordeiH revoking appellant’s probation has been filed. Held: I

1. Appellant’s enumeration of errors, labeled as enumerations 4 and B, respectively, are as follows: “A. Appellant. . . did not receive effective assistance of counsel”; and, “B. Appellant. . . did not enter his Guilty Plea intelligently, knowingly, voluntarily and freely.” Each of these enumerations has two sub-parts. While these enumerations on cursory observation appear to pertain to Appeal No. A89A1102 and Indictment A-95808, examination of the record and the brief filed in appellant’s behalf by Attorney “T” establishes that these two enumerations pertain only to the conviction and post-trial activities in Indictments A-80808 and A-82851. No direct appeal of the case involving these latter two indictments currently is pending before this court.

OCGA § 5-6-37 pertinently provides that “[u]nless otherwise provided by law, an appeal may be taken to the . . . Court of Appeals by filing ... a notice of appeal. The notice shall set forth the title and docket number of the case ... a concise statement of the judgment ... or order entitling the appellant to take an appeal . . . .” (Emphasis supplied.) “ ‘The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’ ” Hester v. State, 242 Ga. 173, 175 (249 SE2d 547); Brown v. State, 184 Ga. App. 677 (362 SE2d 471). As appellant’s notice of appeal as to the conviction and sentence flowing from Indictment A-95808 is the only notice of appeal currently pending before this court, we find this court lacks jurisdiction to consider the enumerations of error which are raised solely concerning the case involving Indictments A-80808 and A-82851. Cf., Willis v. State, 186 Ga. App. 197 (366 SE2d 778); Brown, supra.

This case is distinguishable from Conway v. State, 183 Ga. App. 573 (359 SE2d 438), as we do not today deny appellant his right of first appeal. Rather, we dismiss his first two enumerations of error without prejudice, and dispose of his third enumeration of error on the merits, as this latter enumeration pertains to the case involving Indictment A-95808 for which notice of appeal has been duly filed.

We expressly decline to consider whether any appellate court in futuro will grant review of any subsequent out-of-time direct appeal or application for discretionary appeal, which appellant may submit.

2. Appellant asserts that he did not have a fair investigation into the restitution hearing on the “August 18, 1988 case,” which is the case subject to this direct appeal. Specifically, appellant asserts there were no specific written findings by the court in ordering restitution as required by OCGA §§ 17-14-8 through 17-14-10, and that the probation officer failed to conduct a fair investigation causing appellant to be ordered to pay more than the amount of the victims’ damages. OCGA § 17-14-9.

a. OCGA §§ 17-14-8 through 17-14-10 “contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709). The record reveals the trial court has not entered specific written findings as required by these statutes; accordingly, the case normally would “ ‘be remanded to the trial court to reconsider the matter consistent with the statutes and the case law.’ ” Owens v. State, 187 Ga. App. 262, 263 (369 SE2d 919); Taylor v. State, 182 Ga. App. 494 (4) (356 SE2d 216); Williams v. State, 180 Ga. App. 854, 856 (3) (b) (350 SE2d 837). However, for reasons discussed hereinafter such procedure is not required in this case.

b. Appellant has also asserted that because of the probation officer’s failure to conduct a fair investigation, appellant has been ordered to pay more than the amount of the victim’s damages in contravention of OCGA § 17-14-9.

“ ‘The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.’ OCGA § 17-14-9. ‘ “Damages” means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .’ OCGA § 17-14-2 (2).” (Emphasis supplied.) Lovell v. State, 189 Ga. App. 311, 313 (375 SE2d 658); see also OCGA § 42-8-35. It is noted that in this case, appellant not only requested the restitution hearing, but also expressly requested that damages sustained by victims involved in three other potential cases (cases in which indictment had not yet been returned) also be considered during the restitution hearing. The prosecution concurred in the appellant’s request and the trial court directed the probation officer to make a determination as to the amount of restitution due. The probation officer, pursuant to that directive, conducted an inquiry into the matter which at least included consideration of receipts provided by the prosecution and conferring with the victims. Thereafter, the probation officer reported on the record the amount found to be due and owing five victims, which included the two victims named in Indictment A-95808. Before the report was rendered, the State expressly stated on the record that “[d]efense has also talked with us about [the restitution amount], and is now in accord with our figure.” (Emphasis supplied.) The appellant did not protest this proffer, nor was any objection raised after the trial court directed on the record that a condition of probation was that appellant make restitution in the amount of $11,000.

Pretermitting the question whether specific written findings should now be required and whether the determination of a restitution amount which included damages in amounts which and to victims who were not named in the indictment was error, is the principle of induced error. Induced error is impermissible. Edwards v. State, 235 Ga. 603, 604 (221 SE2d 28). “ ‘A party cannot claim error . . . where he himself committed or invited the error. . . LeTwigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631). Accordingly, we find no prejudice to appellant by the procedure of including the damages sustained by victims of other offenses not tried in the amount of restitution ordered to be paid. Moreover, we note in certain situations such a procedure can be in an appellant’s best interests, for example, where thereafter the State elects not to seek indictment and prosecute for offenses involving such collateral victims.

Decided July 7, 1989.

Ronald Westmoreland, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

Further, following the announcement by the probation officer of the amount of restitution found due and owing and following the trial court’s announcement of the $11,000 restitution amount, appellant at no time contested that amount on the record. “ ‘ “[A] defendant who does not agree to the amount of restitution ordered by the trial court is normally required to contest the issue at the time the condition is imposed.” ’ ” (Emphasis supplied.) Williams, supra at 856. Thus, normally, appellant’s failure to object when the restitution amount was first announced would preclude him from contesting the issue on appeal. For both of these reasons, we find appellant is not in a position to contest on appeal the amount of restitution ordered. As appellant cannot legitimately contest the amount of damages awarded in this case, it would not be in the best interests of judicial economy to return this case for the purpose of having formal written findings confirming the amount of award entered. The statutory purpose of the hearing and the entering of specific written findings is to allow the court to determine whether it will order restitution and, if so, in what amount. Cannon, supra at 756. Appellant, in this case, acquiesced at trial with the on-the-record statement of the State asserting that appellant was “now in accord with” the State’s asserted restitution figures. The effect of this acquiescence deprives appellant of his right to complain on appeal of the amount of restitution ordered. See Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536); see also Easterwood v. State, 259 Ga. App. 164 (2) (377 SE2d 857).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0202.
    BALLEW et al. v. KIKER.
    (384 SE2d 211)
   Birdsong, Judge.

This appeal arises from a dispute over the property line between land owned by the parties. In essence, Ballew contends that the north-south line between his property and Kiker’s property started from a large rock, which according to Ballew and his witnesses, was the historical corner marker for the property line. Kiker, however, contends that the corner marker described in his deed, and identified by Ballew at an earlier time when there was no dispute, was an official U. S. Forestry Service corner marker. Each party had surveyors mark out the property line and each surveyor arrived at a different property line depending upon the starting point. When the parties could not agree to the property line, Kiker brought the action below seeking to resolve the dispute and recover damages for what he contended was Ballew’s trespass on his property.

At trial both sides presented surveyors and other witnesses in support of their contentions. Ballew also sought to introduce into evidence deeds and surveys of other properties in the area, but not involving the disputed property line. The trial judge on objection by Kiker excluded the surveys, deeds and testimony concerning them as he found that they were not relevant to the issues in the case. Further, the trial court found that the offered documents and testimony were not reliable as evidence of property lines because the surveys were not based upon property lines run from proper corner posts.

After instruction by the trial court, the jury found that the property line proposed by Kiker was the proper property line, that Ballew had trespassed, but Kiker was entitled to no damages therefor, and that Ballew had acquired through adverse possession certain parts of the disputed land. Ballew now appeals contending that the verdict and judgment based thereon was contrary to the law and evidence, that the trial court erred by excluding the matters offered in regard to the other deeds and surveys. Held:

1. We have examined the record on appeal and find contrary to the assertion in the first enumeration of error that there is sufficient evidence supporting the verdict and judgment. Brown v. Nutter, 125 Ga. App. 449 (188 SE2d 133). Accordingly, the first enumeration of error is without merit.

2. Enumerations of error 2-8 all concern evidence the trial court excluded on relevancy grounds. Appellant’s brief does not argue how the potential evidence was relevant nor cite authorities supporting that argument. Instead, the brief asserts grounds for admissibility of I the evidence generally. For example, regarding enumerations of error I 5, 6, 7, and 8, the brief argues that an expert witness must be allowed H to testify and introduce documents concerning the facts and findings H used in reaching his expert opinion. Regardless of the validity of that contention in general and whether the matters at issue fell within that category, the potential evidence was excluded because the trial judge found that the particular materials in question were not relevant to the issues in the case. Moreover, the trial judge specifically found that the matters which the appellant wanted to bring before the jury, in addition to not being relevant, were not reliable for the purpose the materials were to be offered. For example, some of the documents were only prepared at the direction of the property owners, and property lines were not established from proper corner markers. In another instance, appellant wanted to show the location of a fence, but the testimony showed that no one had ever contended that the fence marked the property line in dispute.

Decided June 22, 1989

Rehearing denied July 10, 1989.

Roger E. Bradley, for appellants.

Robert K. Ballew, for appellee.

It is well settled that admissible evidence must relate to questions in the case and that irrelevant matters should be excluded. MacNerland v. Johnson, 137 Ga. App. 541, 542 (224 SE2d 431). Further, such issues are for the court (Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588)), and unless the trial court has abused his discretion, this court will not interfere. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). Considering the documents and testimony at issue in the appellant’s enumeration of error, it is obvious that the trial court did not abuse its discretion in excluding these matters. Enumerations of error 2-8 are therefore also without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0596.
    ALONSO v. THE STATE.
    (384 SE2d 191)
   Pope, Judge.

Defendant was convicted of two counts of child molestation and arson in the first degree. On appeal his sole enumeration of error concerns the denial of his motion for mistrial made in response to testimony by a caseworker for the Department of Family and Children Services that the mother of the victim told the caseworker “that she had been attacked herself, forcibly injected with cocaine by the [defendant].” The trial court found that the testimony was unresponsive to the question propounded, that the State by its question did not elicit the testimony complained of, and denied the motion for mistrial and offered (repeatedly) to instruct the jury to disregard the answer. Defense counsel indicated that he believed curative instructions would exacerbate the harm caused by the testimony. The State instructed the witness not to testify about abusive acts allegedly committed by the defendant against the mother and the witness indicated he misunderstood the question.

Decided May 22, 1989

Rehearing denied July 10, 1989.

Jerry C. Gray, for appellant.

Although we agree with the defendant that the complained of testimony of the witness was inadmissible, it does not necessarily follow that the trial court erred in denying the motion for mistrial. “In Sabel v. State, 250 Ga. 640 (5), 644 (300 SE2d 663) (1983), overruled on other grounds in Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), the Supreme Court enumerated certain circumstances to be considered in determining whether the possible prejudice resulting from improper testimony can be cured so as to avoid the necessity of granting a mistrial. These include ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ Sabel v. State, supra at 644.” Wilson v. State, 188 Ga. App. 779, 781 (374 SE2d 325) (1988).

At the outset we note that we agree with the trial court’s finding that the State did not elicit the inadmissible testimony and that the response given by the witness was unresponsive to the question asked. Nor does it appear that the witness intentionally sought to testify concerning inadmissible matters. The witness stated that it was the first time he had testified in a case of this type and that he misunderstood the question asked. Moreover, the mother testified, without objection, that she was abused by the defendant, and there was other testimony, to which no objection was made, concerning the generally abusive environment created by the defendant. The trial court repeatedly offered to instruct the jury to disregard the testimony, but defense counsel indicated he thought those instructions would do more harm than good. Under the facts here, we find the trial court did not abuse its discretion in denying defendant’s motion for mistrial. Lonchar v. State, 258 Ga. 447 (4) (369 SE2d 749) (1988); Wilson, supra; see also Bloodworth v. State, 173 Ga. App. 688 (1) (327 SE2d 756) (1985).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Timothy G. Madison, District Attorney, for appellee.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A0609.
    J & S PROPERTIES, INC. v. STERLING et al.
    (384 SE2d 194)
   Birdsong, Judge.

In this real estate commission dispute, the trial court, by summary judgment, released the appellees Sterling and Witcher from liability, upon the showing of appellant J & S Properties, Inc.’s “general release” of three other defendants.

The appellees’ release was ordered by operation of law, under OCGA § 13-4-80, which provides: “A release may result by operation of law. When a creditor releases another who is bound jointly with or primarily to a debtor ... a release results by operation of law.”

The appellees Sterling and Witcher filed their motion for summary judgment following J & S Properties’ voluntary dismissal of the three others from the lawsuit, and contended they were released by operation of law alone, and not because J & S Properties intended to release them, nor because J & S Properties recovered full satisfaction.

The appellees each owned one-third of the property sold, while the three others owned one-ninth each. The eight percent commission on the sale amounted to $42,000, but the owners disputed it because the purchaser was assertedly a “strawman” for or closely connected to, a party expressly excluded by the commission agreement. The sellers, including appellees, offered $23,000 in settlement of the dispute, by then in litigation. J & S Properties rejected this offer.

Thereafter, the appellees learned that appellant had entered into a “General Release” with the other three sellers, upon paying J & S Properties $11,666.67, or exactly one-third of the $35,000 which J & S Properties had requested as settlement. The release provided that appellant “does hereby acquit, remise, release and forever discharge [Hulse, Guined and Bucea] from any and all claims, demands, rights and causes of action related to the sale of the property. . . . [J & S Properties Inc. dismisses the described civil action] with prejudice as against the above named individual defendants. . . . This agreement constitutes an accord and satisfaction of any and all claims of J & S Properties, Inc. against the parties released herein. . . . [This sum, $11,666.67] is accepted voluntary [sic] for the purpose of making a full compromise, settlement and adjustment of all claims, demands, causes of action against [Hulse, Guined, and Bucea]. . . .”

The General Release does not mention or refer to any dispute causes of action against the appellees Sterling and Witcher in any way.

On appeal, J & S Properties contends the statute relied upon below, OCGA § 13-4-80, is inapplicable to this case “because: (1) no creditor/debtor relationship has been established between appellant and appellees; (2) the Release was never intended to apply to appel-lees; and (3) the Release was not a full settlement but only an [apportionment] of damages based upon apportionment of ownership [of the property].” This apportionment allegedly contemplated the exclusion of the appellees from this release; the appellees Witcher and Sterling each owned one-third interest in the property, while the others owned one-third. The release amount was $11,666.67, or exactly one-third of a $35,000 settlement request made by J & S Properties to the owners. Thus, J & S Properties contend the release must be examined in pari materia with other documents and evidence, to discover the intention of the parties. See, cited Menendez v. Perishable Distrib., 254 Ga. 300 (329 SE2d 149). Held:

The trial court did not err in the grant of summary judgment releasing the appellees by operation of law. The terms of OCGA § 13-4-80 are quite clear.

Obviously, J & S Properties cannot argue the statute does not apply because no creditor-debtor relationship has been established, inasmuch as its assertion to the contrary is the entire basis upon which J & S Properties seeks any money at all, by lawsuit and this appeal, from the appellees. As for the arguments that the “General Release” was not intended to release the appellees, and that the release was not a full settlement but was clearly a one-third apportionment of damages, the appellant relies upon Georgia R. Bank &c. Co. v. Griffith, 176 Ga. App. 198 (335 SE2d 417), to argue that the parties’ intention controls in determining whether a document is a covenant not to sue or a release, wherein we pointed out (p. 199-200) that “ ‘[w]here the right to sue has been reserved and the plaintiff has not received full satisfaction, the agreement will be construed to be a covenant not to sue because of the manifest intent of the parties’ ” (Weems v. Freeman, 234 Ga. 575, 576 (216 SE2d 774)).

In the case cited by the appellant, Menendez, supra, p. 302 with regard to the question of a full release, it was held that “contemporaneous documents” are to be considered in pari materia with a form release “so that the intentions of the parties may be ascertained and allowed to control.” Georgia Hwy. Express v. United Parcel Svc., 164 Ga. App. 674, 675 (297 SE2d 497). This is still the law, but in Griffith, a total release was not found because the defendants did not receive full satisfaction “of-their judgment” (emphasis supplied) as a result of their agreement with one party, and the release document expressly retained the right to pursue a recovery against other parties. Clearly that document was a “covenant not to sue” (enforce judgment) which did not release the joint obligor.

This case is different on its face, and provides no reason or basis to ignore the terms of § 13-4-80. There is no basis in “contemporaneous documents” or any other evidence from which to infer that J & S Properties did not receive full satisfaction of any indebtedness. There is only a heavily contested lawsuit on a disputed debt. We cannot assume J & S Properties was entitled to recover or enforce any further indebtedness beyond what was paid to it by the other three sellers in “general release.” (Indeed, J & S Properties, ironically, on appeal in its effort to avoid § 13-4-80, argues there is no debtor-creditor relationship between it and the appellees.)

The fact that the amount received from the others ($11,666.67) is exactly one-third of $35,000, which is the amount J & S Properties sought in settlement of its disputed claim, does not prove an apportionment of actual debt. All it proves is the payment of one-third of an amount sought in settlement of a claim. Even if on motion for summary judgment it is construed to prove an “apportionment” of liability, it was so only in the mind of J & S Properties, for in the appellees’ esteem it not only was not deserved but disputed. In fact, liability on the sellers’ part may not exist at all, notwithstanding the payment of three of them of $11,666.67 for the General Release.

It cannot be concluded from these facts, including the fact that the sellers had once offered to pay $23,000 in settlement, that this release was not in full settlement of all liability or indebtedness following the presumption underlying § 13-4-80. The General Release states only that it releases any and all claims against the three named individuals who paid appellant $11,666.67. It makes no mention at all of the appellees, and neither expresses nor implies any intention whatever to pursue any further claim against the appellees. As to them, and any claim against them, the document is utterly silent.

Construing the evidence in favor of J & S Properties, as respondent in motion for summary judgment, we yet find no genuine issue of material fact has been raised so as to avoid the appellee’s entitlement to release by operation of law under § 13-4-80. Searching for a contrary intention, based “on the terms of the instrument” (Griffith, supra, p. 199; Mercantile Nat. Bank v. Founders Life &c. Co., 236 Ga. 71, 73 (222 SE2d 368)) and other evidence, we find none, expressed or implied, that defeats the release by operation of law. We would think, in any case, that in view of the very existence and the strictness of the code section, any such contrary intention must be made pretty clear, as it was in the Griffith case.

Judgment affirmed.

Deen, P. J., and Benham, J., concur and also concur specially.

Benham, Judge,

concurring specially.

Although I concur fully with the majority opinion, I am compelled to write separately to comment on the contrast between the effect of releasing one of several contractually liable joint obligors and that of releasing one of several joint tortfeasors. In Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987), the Supreme Court traced the common law origin of the rule that release of one joint tortfeasor releases all, then held that the rule would no longer be followed in Georgia. The essential difference between Posey and the present case is that Posey dealt with a common law rule, susceptible to alteration by the courts, while we are dealing with a statutory rule, susceptible to alteration only by the General Assembly. If the legislature were to repeal OCGA § 13-4-80, the anomalous treatment of different classes of defendants (the contractually obligated versus those liable in tort) would be eliminated. Justice would be the beneficiary of that change.

Decided June 19, 1989

Rehearing denied July 10, 1989

Ronald J. Doeve, James E. Tramel III, for appellant.

Zoe M. Hicks, for appellees.

I am authorized to state that Presiding Judge Deen joins in this opinion.


author: Carley, Chief Judge.

text:
    A89A0727, A89A0728, A89A0729, A89A0730.
    KWIK BOND v. STATE OF GEORGIA (four cases).
    (384 SE2d 207)
   Carley, Chief Judge.

In each of these four cases, appellant-surety executed a bond on behalf of a criminal defendant. The bonds gave notice of the specific dates and times that appellant’s principals would be arraigned but also required that they appear for arraignment from day-to-day and from term-to-term thereafter. Appellant’s principals did not appear for their originally scheduled arraignments. The trial court reset the arraignments for several months later. Notice of the rescheduled arraignment dates was received by appellant but its principals again failed to appear. After conducting a hearing as to bond forfeiture, the trial court entered final judgments against appellant. It is from those judgments that appellant brings these appeals. Because the facts and the legal issues are identical, the four cases have been consolidated for disposition in this single opinion.

Appellant enumerates the judgments as erroneous because they are contrary to law. Appellant urges that the State, having failed to proceed upon the principals’ initial failures to appear, may not now seek and obtain bond forfeitures. “In today’s criminal practice, involving, among other things, . . . continuances ... , it would be unrealistic to limit the bond to a single, specified date and not to require that the bond be continued in effect” beyond the initial arraignment date. State v. Slaughter, 246 Ga. 174, 178 (3) (269 SE2d 446) (1980). This is especially true where, as here, the bond assures the appearance of a principal “from day to day and from term to term.” See Roberts v. Gordon, 86 Ga. 386 (12 SE 648) (1890). Moreover, appellant has not shown any harm. “In fact, a delay longer than public policy requires aids, rather than harms, the surety who must produce or pay. The statutory leeway given the court is principally a case management provision, not a right of a party. ... No right of appellant’s was violated by the . . . delay in rendering it liable to the state.” Ace Bonding Co. v. State, 180 Ga. App. 261, 262 (1) (349 SE2d 15) (1986).

Decided June 21, 1989

Rehearing denied July 10, 1989

Robert L. Chandler, for appellant.

Lydia Jackson, Solicitor, Raymond E. George, Assistant Solicitor, for appellee.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0048.
    THE STATE v. BILAL.
    (384 SE2d 253)
   Pope, Judge.

Appellee was convicted by a jury of selling a dangerous drug in contravention of OCGA §§ 16-13-71 and 16-13-72. After trial, appellee made a motion for new trial and/or motion for directed verdict of acquittal notwithstanding the verdict. The trial court, troubled by the fact that the conviction resulted from the retail sale by a clerk of two small bottles labeled “Rush” and “Locker Room” which contained isobutyl nitrate, an isomer of the prohibited drug, butyl nitrate, granted appellee’s motion for judgment notwithstanding the verdict. This was after the trial court denied a motion for directed verdict at trial.

The State appeals, arguing that this order is null and void because the remedy of acquittal notwithstanding the verdict does not exist in criminal law. Held:

Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976); Darden v. Ravan, 232 Ga. 756 (1) (208 SE2d 846) (1974).

Decided July 10, 1989.

James L. Webb, Solicitor, Norman R. Miller, Assistant Solicitor, for appellant.

Leonald L. Franco, Raoul LeRow, for appellee.

In Wilson v. State, 215 Ga. 775 (1) (113 SE2d 607) (1960), the Supreme Court held that there is no statutory provision in our criminal law for judgment notwithstanding the verdict and declined to judicially create such a remedy and disapproved of the holding to the contrary in Crowe v. State, 98 Ga. App. 185 (3) (105 SE2d 353) (1958). The addition of the right to move for a directed verdict in a criminal case by the legislature in 1971 (Ga. L. 1971, p. 460, § 1, codified as OCGA § 17-9-1) did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case. (Compare OCGA § 9-11-50 which provides for a directed verdict in civil cases in subsection (a) and for a judgment notwithstanding the verdict in subsection (b) with OCGA § 17-9-1 which provides for a directed verdict in criminal cases but is silent regarding judgment notwithstanding the verdict. We note that OCGA § 17-9-1 was enacted in 1971, while OCGA § 9-11-50 was enacted in 1966.) We find that the trial court erred in entering judgment notwithstanding the verdict.

However, the trial judge’s order was not a complete nullity. Where a motion for judgment notwithstanding the verdict is made in the alternative with a motion for a new trial in a criminal case, as was done here, such motion is treated simply as a motion for new trial. Lamons v. State, 176 Ga. App. 290 (2) (335 SE2d 652) (1985). Therefore, we hold that the effect of the trial court’s order was to grant appellee a new trial and we remand this case to the trial court for further proceedings consistent with the grant of a new trial.

Judgment reversed in part and affirmed in part.

Banke, P. J., and Sognier, J., concur.