text:
    A99A0180.
    DONALDSON et al. v. DEPARTMENT OF TRANSPORTATION.
    (511 SE2d 210)
   Eldridge, Judge.

At 5:45 p.m. on Thursday, April 25, 1996, Mary A. Donaldson, plaintiff-appellant, was a passenger in a motor vehicle traveling north on State Highway 53 in Winder, Georgia, which vehicle was struck by another vehicle coming south on State Highway 11 at the intersection of the two roads. This was a “Y” intersection called a “branch intersection.” Highway 53 branched to the northwest, while Highway 11/211 branched to the northeast. The base had two northbound lanes for Highways 11 and 53 and one southbound lane for 11 and 53 at the intersection. Normally, there were yield markings and signs for northbound traffic on Highway 53 to yield to southbound traffic on Highway 11, which had the right-of-way. The center northbound lane for Highway 53 previously had a yield marking on the roadway before the intersection, while the northbound curb lane for Highway 11 turned to the northeast at the intersection.

On March 12, 1996, the Georgia Department of Transportation (“DOT”) began a resurfacing project on Highways 11 and 53. On April 17, 1996, when the highway contractor ceased repaving and secured for the day, there were no yield signs or control devices left in place to control the intersection. The collision at issue in this case occurred at the intersection where the resurfacing had obliterated any surface markings. Plaintiffs, Mrs. Donaldson and her husband, Jack David Donaldson, sued DOT for negligently failing to mark the intersection during construction at the intersection, proximately causing the collision. The case was tried to a jury, and on November 5, 1997, the jury returned a verdict for DOT. The plaintiffs moved for a new trial, which was denied. Plaintiffs timely appeal.

1. Plaintiffs’ first enumeration of error is that the trial court erred in failing to grant plaintiffs’ motion for directed verdict on the issue of negligence per se. We do not agree.

(a) OCGA § 32-6-50 (b) reads in pertinent part “[i]n conformity with its uniform regulations, the department [(DOT)] shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic[.]” Plaintiffs contend that this statutory provision is mandatory, creating negligence per se for DOT’s failure to maintain properly traffic control signage at this intersection during construction.

“ ‘Generally, statutes directing the mode of proceeding by public officers, designed to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow non-compliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed.’ . . . ‘When the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory.’ ” (Citations omitted.) Southern Security Co. v. American Discount Co., 55 Ga. App. 736, 740 (191 SE 258) (1937); see also Jordan v. State, 223 Ga. App. 176, 182 (2) (477 SE2d 583) (1996).

OCGA § 32-6-50 (b) was enacted by the General Assembly as part of the Uniform Act Regulating Traffic On Highways to control use of the state roads by DOT or by state-wide traffic laws. Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 568-569, §§ 31-32. Non-compliance by DOT does not exact a penalty under the statute and produces no injury to individual rights, i.e., rights of parties. The express language of the statute delegates discretionary powers to DOT to promulgate uniform regulations governing traffic control devices and to carry out its discretion to place control devices in a particular location. OCGA § 32-6-50 (a), (b). Thus, no standard of non-discretionary conduct is mandated that can be the basis for negligence per se.

(b) Plaintiffs contend that the Manual On Uniform Traffic Control Devices (“MUTCD”) establishes clear standards for negligence per se. However, the MUTCD was not tendered into evidence at trial and is not part of the record on appeal, although it was incorporated by reference as part of the repaving contract, which itself was not tendered. However, two pages of the MUTCD, § 150.01, Exhibit P-6, were admitted into evidence, but not included in the record on appeal.

Volume 10 of the Official Compilation of the Rules & Regulations of the State of Georgia, Part 2, Chapter 672 et seq., Rules of the State Department of Transportation contains no rules or regulations governing placement of traffic control devices, either permanently or temporarily, during construction or resurfacing. Neither do such DOT regulations adopt by reference the MUTCD. Unlike the regulations in Walter v. Orkin Exterm. Co., 192 Ga. App. 621, 622-623 (1) (385 SE2d 725) (1989), MUTCD has not been published by authority by the Secretary of State as State-adopted regulations and therefore, does not have the force of law.

Through the Code of Federal Regulations, the MUTCD can be established applicable standard of care under proper facts, i.e., Federal-aid highways, and this would authorize judicial notice to be taken of it upon proper request. 23 CFR Subpart F, § 655.603, pp. 251-252, reads: “Standards — (a) National MUTCD. The MUTCD approved by the Federal Highway Administrator is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). The national MUTCD is specifically approved by the FHWA for application on any highway project in which Federal highway funds participate and on projects in federally administered areas where a Federal department or agency controls the highway or supervises the traffic operations, (b) State or other Federal MUTCD. (1) Where State or other Federal agency MUTCDs or supplements are required, they shall be in substantial conformance with the national MUTCD. Changes to the national MUTCD issued by the FHWA shall be adopted by the States or other Federal agencies within 2 years of issuance. The FHWA Regional Administrator has been delegated the authority to approve State MUTCDs and supplements. . . . (d) Compliance — (1) Existing highways. Each State, in cooperation with its political subdivisions, and Federal agencies shall have a program as required by Highway Safety Program Standard Number 13, Traffic Engineering Services (23 CFR 1204.4) which shall include provisions for the systematic upgrading of substandard traffic control devices and for the installation of needed devices to achieve conformity with the MUTCD. (2) New or reconstructed highways. Federal-aid projects for the construction, reconstruction, resurfacing, restoration, or rehabilitation of streets and highways shall not be opened to the public for unrestricted use until all appropriate traffic control devices, either temporary or permanent, are installed and functioning properly. Both temporary and permanent devices shall conform to the MUTCD. (3) Construction area activities. All traffic control devices installed in construction areas using Federal-aid funds shall conform to the MUTCD. Traffic control plans for handling traffic and pedestrians in construction zones and for protection of workers shall conform to the requirements of 23 CFR part 630, subpart J, Traffic Safety in Highway and Street Work Zones.” “Material Approved for Incorporation by Reference ... — The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1 CFR Part 51 the incorporation by reference of the following publications. . . . Federal Highway Administration . . . Manual on Uniform Traffic Control Devices for Streets and Highways, FHWA.” 23 CFR pp. 497-498.

While the MUTCD was published by authorization under the Code of Federal Regulations, so that judicial notice can be taken of it, there was no evidence that this was a Federal-aid highway so that the MUTCD would be applicable and have the force of law in this case. See Walter v. Orkin Exterm. Co., supra at 622-623 (1). Had the evidence shown this to be a Federal-aid road, then the plaintiffs could have requested that the trial court take judicial notice of the MUTCD. However, as a practical matter, they would still have to tender a copy of the MUTCD to perfect the record so that it would be before the trial court and this Court, even though judicial notice could be taken of it. This is because the MUTCD is only part of the CFR by reference and available from the Federal Highway Administration. But, absent a request or prior notice to the parties, the trial court is prohibited from taking judicial notice of the MUTCD. In this case, there was no request for judicial notice to be taken of the MUTCD by any party. See Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998).

The DOT project engineer and plaintiffs’ expert witness identified the MUTCD and testified regarding the applicable standards to establish the minimum standard of ordinary care, but this testimony failed to establish such standards as mandatory regulations for purposes of negligence per se. OCGA § 32-6-50 (a) directs that “[i]nsofar as practical, with due regard to the needs of the public roads of Georgia, such uniform regulations shall conform to the recommended regulations as approved by the American Association of State Highway and Transportation Officials.” While plaintiffs’ expert testified that the MUTCD was promulgated and published by the Federal Highway Administration with the assistance of traffic engineers from across the country, he did not testify that this was approved by the American Association of State Highway & Transportation Officials so as to bring it within the statute. Thus, the MUTCD had to be proved at trial.

Proof of law or regulations, other than the Official Code of Georgia and state regulations promulgated under the Administrative Procedures Act and published by the Secretary of State as the Official Regulations of the State of Georgia, must be pled and proved -under OCGA § 9-11-43 (c), because judicial notice cannot be taken of rules, regulations, and ordinances not authorized for publication. See generally OCGA §§ 50-13-2 (1); 50-13-3; 50-13-4; 50-13-5; 50-13-7; 50-13-8; Oliver v. City of Macon, 241 Ga. 306 (245 SE2d 280) (1978); Poole v. State, 229 Ga. App. 406, 409 (2) (494 SE2d 251) (1997); Joel Properties v. Reed, 203 Ga. App. 257 (416 SE2d 570) (1992); Beall v. Dept. of Rev., 148 Ga. App. 5 (251 SE2d 4) (1978). The governmental rules, regulations, and ordinances stand in the same status as private acts, so that they must be pled and proved by evidence. Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996); Mayor &c. of Savannah v. TWA, Inc., 233 Ga. 885, 886-887 (214 SE2d 370) (1975).

OCGA § 9-11-43 (c) reads “[a] party who intends to raise an issue concerning the law of another state or of a foreign country [or governmental rule not published by state authority] shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court’s determination shall be treated as a ruling on a question of law.”

“We therefore conclude that notice of intent to rely on foreign law is required before a party can establish such law in accordance with any of the three statutory methods or place a duty on the trial court to judicially recognize foreign law as published by authority.” (Emphasis in original.) Samay v. Som, 213 Ga. App. 812, 814 (446 SE2d 230) (1994). “There exist three separate Code sections (OCGA §§ 9-11-43 (c); 24-1-4; and 24-7-24) pertaining to the methods by which foreign law [or state or local government rules] can be judicially determined. [Cit.]” Id.

Plaintiffs failed to plead in the complaint the MUTCD or any other DOT regulations to give notice to DOT, although DOT did not object on such ground. Samay v. Som, supra at 814-815 (2); Plant v. Trust Co., 164 Ga. App. 387 (297 SE2d 37) (1982); Ramseur v. American Mgmt. Assn., 155 Ga. App. 340, 341-342 (2) (270 SE2d 880) (1980); Souchak v. Close, 132 Ga. App. 248, 250-251 (1) (207 SE2d 708) (1974). Thus, such evidence would be subject to exclusion, but DOT waived any objection by failing to raise that objection timely.

Plaintiffs nonetheless failed to tender a copy of the MUTCD into evidence, even though it was evidence of a minimum standard of care. Thus, the trial court could not determine if the MUTCD created negligence per se; no stipulation as to the MUTCD was made. Beall v. Dept. of Rev., supra at 8. While portions of the MUTCD were testified to by expert witnesses sufficient to establish a minimum standard of care for ordinary negligence purposes, such testimony was insufficient for the trial court or this Court to determine that such portion of the MUTCD created negligence per se. See OCGA § 9-11-43 (c); Ramseur v. American Mgmt. Assn., supra at 340. Thus, the trial court had no evidence of the regulations upon which to base a determination that the DOT’s omission constituted negligence per se. The MUTCD must be tendered into evidence to prove the standard of care determined by the regulations and to determine if the plaintiff came within the purpose for the regulations and scope of protection of the regulations. Isom v. Schettino, 129 Ga. App. 73, 75 (1) (199 SE2d 89) (1973). The MUTCD was properly admissible as evidence of the minimum standard of care by DOT for jury determination of ordinary negligence. See Dept. of Transp. v. Brown, 267 Ga. 6, 8 (2) (471 SE2d 849) (1996); Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 567 (1) (499 SE2d 722) (1998); Dept. of Transp. v. Blair, 220 Ga. App. 342, 343 (1) (469 SE2d 446) (1996); Isom v. Schettino, supra at 75.

Absent sufficient evidence of the MUTCD, the trial court could not proceed to further determine the issues necessary to constitute such provisions as being negligence per se. “A statute [or regulation] may create a duty recognized by law requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks, the breach of which constitutes what is sometimes called ‘negligence.’ In determining whether the violation of a statute [, regulation,] or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.” (Citations and punctuation omitted.) Generali U. S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 280 (2) (b) (493 SE2d 731) (1997). Thus, the trial court did not err in denying plaintiffs’ motion for directed verdict in the absence of proof that the regulations designated the specific acts or omission of DOT negligence per se, that the collision was the harm intended to guard against, and that plaintiffs fall within the class of persons to be protected by the regulations on Federal-aid roads. See West v. Mache of Cochran, 187 Ga. App. 365, 369 (2) (370 SE2d 169) (1988).

2. Plaintiffs’ second enumeration of error is that the trial court erred in denying their motion for new trial. We do not agree.

“ ‘A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.’ Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373) (1989). ‘On appeal, this court must construe the evidence most strongly to support a verdict and judgment, and every presumption and inference must be made in favor thereof.’ In the Interest of E.P.N., 193 Ga. App. 742, 747 (2) (388 SE2d 903) (1989). Further, it is not the function of an appellate court to weigh the evidence or to judge witness credibility; the jury resolves conflict in testimony and this court will not substitute its judgment for that of the jury.” (Citations and punctuation omitted; emphasis supplied.) Peters v. Davis, 214 Ga. App. 885, 886 (1) (449 SE2d 624) (1994).

Decided January 26, 1999

Reconsideration denied February 11, 1999

Timmons, Haggard & Carney, John W. Timmons, Jr., for appellants.

Thurbert E. Baker, Attorney General, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Kim T. Stephens, for appellee.

Division 1 disposed of the issue of negligence per se. And, the jury found against the plaintiffs on the issue of whether the omissions by DOT constituted ordinary negligence. Thus, the trial court did not err in denying the motion for a new trial.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0888.
    GOSS BROTHERS TRUCKING et al. v. ASHLEY.
    (512 SE2d 319)
    Decided February 11, 1999.

      McNatt, Greene & Thompson, Hugh B. McNatt, Richard S. Thompson, for appellants.
   Ruffin, Judge.

In Ashley v. Goss Bros. Trucking, 269 Ga. 449 (499 SE2d 638) (1998), the Supreme Court reversed our decision in Goss Bros. Trucking v. Ashley, 228 Ga. App. 354, 355-357 (1) (492 SE2d 7) (1997), in which we reversed the judgment of the trial court and remanded for a new trial. Accordingly, Division 1 of our prior opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Andrews, Blackburn, Barnes, JJ, and Senior Appellate Judge Harold R. Banke concur.

Salter, Shook & Craig, Mitchell M. Shook, Susan S. Shook, for appellee.


author: Andrews, Judge.

text:
    A98A1848.
    SES INDUSTRIES, INC. et al. v. INTERTRADE PACKAGING MACHINERY CORPORATION.
    (512 SE2d 316)
   Andrews, Judge.

SES Industries, Inc., a Georgia corporation using the trade name Southeastern Steam, Inc. (Southeastern), appeals from the trial court’s dismissal of its breach of contract suit against Intertrade Packaging Machinery Corporation (Intertrade) for lack of personal jurisdiction.

On November 4, 1994, Southeastern filed its complaint seeking payment for a steam pressure reducing station manufactured by it in Ambrose, Georgia for Intertrade. On December 16, 1994, Intertrade filed its answer asserting lack of personal jurisdiction over Intertrade and a counterclaim for damages for negligent manufacture of the station. Southeastern filed numerous discovery requests, including Requests for Admissions, to which no responses were made, even though Intertrade had joined in a joint motion for extension of discovery. Southeastern’s motion for summary judgment was filed on January 15, 1997. On September 25, 1997, the affidavit of Salh Kahn, President of Intertrade, was filed, denying that Intertrade did business in Georgia, and on October 6, Intertrade’s motion to dismiss was filed. It was granted on April 2, 1998.

“ ‘ “(A) defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. (Cits.)” Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435) (1993). “If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. (Cit.) Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. (Cits.)” Id. at 540.’ Habersham Metal Products Co. v. Huntsville Fastener &c., 216 Ga. App. 646 (455 SE2d 356) (1995).” Southern Electronics Distributors v. Anderson, 232 Ga. App. 648 (1) (502 SE2d 257) (1998).

So viewed, the evidence here was that in December 1993, James Sowell III (Sowell) was the plant manager for Intertrade, an Ohio corporation, at its Cheraw, South Carolina facility. As such, Sowell oversaw daily plant operations, developed vendor contacts, coordinated parts acquisition and shipment, inspected equipment, and supervised personnel.

Sowell had full authority to contract on behalf of Intertrade and to act as its binding agent and representative. In that capacity, on December 8, 1993, he telephoned Glen Moorman, Jr. at Southeastern’s Ambrose location and asked if Southeastern would construct a steam pressure reducing station for purchase by Intertrade and use in another project.

During that conversation, Sowell requested that Moorman provide a cost estimate of such a station. Sowell further advised that time was of the essence and Intertrade needed the station as soon as possible. Moorman then prepared a rough sketch of the design discussed with Sowell and faxed it and an accompanying memo quoting a price of $4,750 to him on December 13. That same day, Sowell faxed back to Moorman in Ambrose a more detailed drawing of the station, including relevant specifications and the materials Sowell wanted used in the construction, and asking for a quotation on such a design. On December 14, Moorman faxed a quote of $10,850 to Sow-ell, in response to which Sowell faxed back that same day a revised drawing and set of specifications, on which a number of valves, strainers, regulators, and pipes were slightly reduced in size.

On December 14, Sowell and Moorman, on behalf of their respective companies, agreed that Southeastern would construct the station as specified by Sowell for Intertrade for the reduced price of $8,850. Sowell then faxed to Moorman a purchase order for the station. On December 15, Sowell and Moorman spoke by phone and discussed using three-inch instead of four-inch stop valves and that adjustment was made in Intertrade’s specifications. That day, Moor-man issued a work order and the station was built pursuant to Sow-ell and Intertrade’s specifications.

On December 20, Southeastern informed Sowell the station was complete and Sowell traveled to Ambrose to pick up the station for Intertrade on December 21. Prior to Sowell’s arrival, Southeastern conducted a successful pressure test on the station. Upon his arrival, Sowell conducted a thorough visual inspection of the completed station and determined that it complied with the specifications he had provided to Moorman.

Sowell then signed Southeastern’s completed sales order and left the Ambrose facility with the station and returned to South Carolina with it. It was then shipped to South Africa.

The affidavits of Sowell and Moorman were submitted on behalf of Southeastern in support of its motion for summary judgment. In support of Intertrade’s motion to dismiss, only Khan’s affidavit was submitted. In it, he stated that Intertrade was “a business corporation organized and existing under the laws of the State of Ohio, with its principal office and place of business located at . . . Cincinnati, Ohio. . . . IPMC has not applied for nor obtained a certificate of authority from the Secretary of State of the State of Georgia to transact business in Georgia.” Additionally, it stated that during the incidents related above, “IPMC was not engaged in manufacturing or remanufacturing projects in the State of Georgia. IPMC was not otherwise transacting business in the State of Georgia at the time suit was filed in this action. . . ,”

“We have consistently held that our Long-Arm Statute confers jurisdiction over nonresidents to the maximum extent permitted by due process. Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58 (195 SE2d 399) (1973).” First United Bank of Mississippi v. First Nat. Bank of Atlanta, 255 Ga. 505, 506 (340 SE2d 597) (1986).

“ ‘Due process requires that individuals have “fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.” (Cit.) In evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. (Cits.) These three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of “random,” “fortuitous” or “attenuated” contacts. (Cit.) The first two elements are used to determine whether defendant has established the minimum contacts necessary for the exercise of jurisdiction.’ Beasley v. Beasley, 260 Ga. 419, 421 (396 SE2d 222) (1990). See OCGA § 9-10-91.” Southern Electronics Distributors, supra at 649-650.

The cases cited below by Intertrade and relied upon by the trial court in dismissing the complaint were O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974) and Irving Commercial Corp. v. Sound Floor Coverings, 595 FSupp. 536 (N.D. Ga. 1984) (persuasive authority only). Both cases are factually distinguishable from the present situation. In O. N. Jonas Co., the only contact by the out-of-state entity was a visit to the Georgia manufacturing plant and shipment out of state of apparently standard goods by plaintiff FOB the Georgia shipping point. In Irving Commercial Corp., a Georgia factor had obtained a Georgia corporation’s (Sweetwater) account with Sound Floor as a result of Georgia carpet sold to it. The only contacts were visits by the defendant to Georgia trade fairs where many manufacturers displayed carpet, one visit to Sweetwater’s mill, and the resulting sale of carpet which was transported by Sound Floor’s trucking subsidiary which, , incidentally, had a Georgia motor carrier certificate of authority.

The present situation is factually more similar to and controlled by White House, Inc. v. Winkler, 202 Ga. App. 603 (415 SE2d 185) (1992) and the cases cited therein. There, Winkler, a California resident and officer of a California corporation, American Marketing, submitted a purchase order to White House, a Georgia T-shirt manufacturer, for a large quantity of shirts. Told that White House required personal guarantees by Winkler and his wife, Winkler agreed to provide them, but requested production begin because he had already contracted to sell the shirts. He also assured White House it would be paid. White House began production and incurred $346,000 in expenses for which it was not paid.

This Court found that, because the purchase order was initiated solely by Winkler, unsolicited by White House, and Winkler had dealt with White House previously by phone and letter, there had been purposely established those minimum contacts that were required so that requiring Winkler to appear in Georgia would not offend traditional notions of fair play and substantial justice. Also important were bilateral negotiations conducted by Winkler and White House to work out the deal.

Here, similarly, Sowell initiated contact with Southeastern and a concentrated period of negotiations occurred concerning the exact specifications of the custom-made piece of equipment being sought by Intertrade. The station was then built on an accelerated schedule to those specifications and Sowell traveled to the plant for the purpose of inspecting the station and finalizing the contract. He then signed the final sales order at the Ambrose facility.

We conclude that there was personal jurisdiction over Intertrade and the trial court’s order is reversed. Habersham Metal Products, supra; White House, supra; see also Electronic Transaction Network v. Katz, 734 FSupp. 492 (N.D. Ga. 1989).

Judgment reversed.

Beasley, P. J., and Ruffin, J., concur.

Decided February 11, 1999.

Mixon & Mixon, Warren L. Mixon, for appellants.

Salh F. Khan, pro se.

       No brief has been filed by appellee Intertrade.

       In fact, the station was to be used in the remanufacture of a bottling line at a microbrewery in South Africa. Southeastern was not aware of the location of the project and such lack of knowledge was customary in the industry, since the equipment can be manufactured without such information.

       The latter statement regarding transacting business is conclusory and adds little to the evaluation of the issue. See Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 650 (3) (497 SE2d 397) (1998).


author: Beasley, Presiding Judge.

text:
    A98A2146.
    BUMP-AIRE CORPORATION v. ROGERS.
    (512 SE2d 326)
   Beasley, Presiding Judge.

The focus is on whether defendant is the proper party, i.e., real party in interest.

Bump-Aire Corporation, a metal fabrication company, filed suit for breach of contract against Dan Rogers, who admitted the existence of the verbal contract in his answer and counterclaimed for breach of the same contract. During trial, the court sua sponte dismissed both the claim and the counterclaim. Only Bump-Aire appeals.

The testimony was that Rogers negotiated with Christopher Sullivan, president and sole shareholder of Bump-Aire, to fabricate metal handrails for a house on which Rogers was acting as general contractor. The two men discussed the job price and the deposit. Eventually, Rogers indicated he wished to proceed, and Sullivan explained that a deposit of $5,100 was required before work could begin. Two months later Rogers gave Sullivan a check for the deposit. There is no direct evidence of whose account it was drawn on. The handrails were fabricated and installed, and Bump-Aire sent an invoice to Rogers for the balance due. Testimony suggested a dispute about the scope and quality of the work, which was pictorially shown to the jury.

Rogers testified in plaintiff’s case on cross-examination that there were problems with the job, both as to the product itself and as to the manner of installation. He never denied he had contracted with Bump-Aire for the rails, but at one point he stated: “When I started this house I became an employee of BMJ Real Estate.” He explained that he was not an officer or stockholder in the company, just an employee. He did not testify that BMJ was the proper party to the contract but explained that BMJ made all payments to subcontractors on the job.

During defendant’s case presentation, the court held an unrecorded discussion with counsel in chambers and then announced it was dismissing the case on the grounds that Rogers was not the real party in interest either as defendant or plaintiff-in-counterclaim. Its ruling was reduced to a written order. Rogers had never raised this defense in his pleadings. To the contrary, he admitted the contract in his answer and counterclaim and, in response to an interrogatory, stated “Defendant contracted with plaintiff. . . .” Obviously, if he believed he was not the proper defendant, he would not have brought a counterclaim. On appeal he agrees with the trial court, which compels him to abandon his counterclaim and not seek to appeal its dismissal.

Decided February 11, 1999.

Joseph J. Felker, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, for appellee.

Bump-Aire had a right to pursue its contract claim against the party with whom it contracted. “If an agent shall fail to disclose his principal, when discovered, the person dealing with the agent may go directly upon the principal under the contract, unless the principal shall have previously accounted and settled with the agent.” The evidence described supports a finding that Bump-Aire contracted with Rogers individually, not as anyone’s agent. Even if Rogers’ employer made the down payment, this is not conclusive as to what party entered into the agreement. What the understanding of both parties was is a question of fact to be decided by a jury based on all the evidence related to the issue.

Judgment reversed.

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

       OCGA § 10-6-54.

       See, e.g., Brinkley v. Bosch Olds-Buick-GMC, 199 Ga. App. 663, 664 (405 SE2d 883) (1991).

        Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992) (question of agency for jury); Crisp Pecan Co. v. Wiggins Produce Co., 222 Ga. App. 747, 748 (2) (476 SE2d 60) (1996) (same). See Lowe’s of Savannah v. Zittrouer, 164 Ga. App. 333 (297 SE2d 102) (1982) (trial court erroneously directed verdict where it erred in concluding plaintiff sued wrong party). See also Calhoun v. Herrin, 125 Ga. App. 518 (188 SE2d 273) (1972), regarding a “You have the wrong person” defense. Neither OCGA § 9-11-17 (a) nor § 9-11-9 (a) applies.


author: Johnson, Chief Judge.

text:
    A98A2262.
    TYNER v. COMFORT REST SLEEP PRODUCTS, INC.
    (512 SE2d 321)
   Johnson, Chief Judge.

Lynda Tyner appeals from the grant of summary judgment to Comfort Rest Sleep Products, Inc. (“Comfort Rest”) in her wrongful death action brought against Comfort Rest and its employee, Khampiang Boriboune. The case arises out of a fatal collision between Boriboune’s automobile and Tyner’s husband’s vehicle. Comfort Rest moved for summary judgment, contending Boriboune was not acting within the scope of her employment at the time of the collision. The trial court granted the motion, and Tyner appeals. For reasons which follow, we affirm.

On appeal from the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

A review of the entire record, including all deposition transcripts, in the present case, reveals the following: It is undisputed that on the date of the collision Boriboune had concluded her job duties at Comfort Rest, had already clocked out for the day, and had left her employer’s premises in her personal vehicle. It is further undisputed that Boriboune performed sewing work at home for Comfort Rest on occasion, and was transporting materials to perform such work at the time of the collision. While the parties argue whether Boriboune’s actions at home rendered her an independent contractor, we need not reach this issue to resolve the case.

Tyner argues that since transporting the material was an essential task in rendering the service to Comfort Rest, Boriboune was acting within the scope of her employment at the time of the accident. We cannot agree. Even assuming that Boriboune was at all times an employee of Comfort Rest, rather than an independent contractor, we find no facts in the record that would support a finding that Boriboune was acting within the scope of her employment at the time of this collision.

“To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.” (Citations and punctuation omitted; emphasis in original.) Hargett’s Telephone Contractors v. McKeehan, 228 Ga. App. 168, 170 (491 SE2d 391) (1997). It is well-established that in the absence of special circumstances an employee acts only for her own purposes and not for those of her employer in going to and from work in an automobile. See id. at 169; Allen v. Milton Martin Enterprises, 197 Ga. App. 119, 120 (397 SE2d 586) (1990); McCutchen v. Associated Cab Co., 138 Ga. App. 848 (228 SE2d 12) (1976). Here, Boriboune was going home after work, and we can find in the record before us no special circumstances which remove this case from the general rule.

Decided February 11, 1999.

Gambrell & Stolz, Irwin W. Stolz, Jr., George M. Bobo, Seaton D. Purdom, for appellant.

Hammond, Carter & Watson, A. Cullen Hammond, Cook Law Office, O. Jackson Cook, Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

Tyner has cited, and we can locate, no case holding that an employee’s act of driving her own vehicle home from work furthers the business purposes of her employer simply because she was transporting to her home her employer’s materials upon which to perform work on her own time, in her own manner, and by her own method and means. There is no indication in the record that Boriboune was being paid by Comfort Rest at the time of the collision, nor is there evidence that Boriboune was reimbursed for any expenses related to her travel to and from work. See generally Hargett’s Telephone Contractors, supra. Standing alone, evidence that Boriboune had cloth in her personal vehicle after leaving work bound for her home is insufficient to raise a genuine issue of material fact as to whether Boriboune was acting within the scope of her employment.

At oral argument, Tyner’s counsel suggested that we should consider Boriboune’s home a “second factor/’ and analyze the case as if the employee was transporting the materials from one factory to another factory of the same employer. While this argument has a certain allure, it must fail. There is no evidence in the record to support Tyner’s assertions that Boriboune’s home is, in effect, a second factory. While Comfort Rest supplied the materials and the thread to be used, Boriboune performed the work on her own time, using her own manner, method and means. In short, she fit the classic definition of an independent contractor under these circumstances. In addition, as previously stated, there is no evidence in the record that Boriboune was being paid by Comfort Rest at the time of the accident or that she was customarily paid for her travel time from work to her home. The trial court did not err in granting summary judgment to Comfort Rest.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A2348.
    EPPINGER v. THE STATE.
    (512 SE2d 320)
    Decided February 11, 1999

      Saia, Richardson & Meinken, Joseph J. Saia, for appellant.
   Andrews, Judge.

James E. Eppinger appeals from the judgment entered on his conviction for driving with a suspended license, contending that the evidence of notice to him was insufficient. Because we find the evidence more than sufficient, we affirm.

We note that, because the recording equipment malfunctioned at trial, there is no transcript and the parties have stipulated that “the issue this court is to decide is whether the notice which was provided to [Eppinger] was sufficient to inform him that his license was suspended, as evidenced by properly admitted exhibits 1, 2, and 3.”

The exhibits were his driver’s license history report which showed that Eppinger’s license was suspended on September 12, 1996 for a June 20,1996 DUI, Uniform Traffic Citation charging DUI on June 20, 1996 and Eppinger’s plea of guilty and resulting sentence, and the Department of Public Safety Notice of Suspension and Service By Court dated September 12, 1996. Eppinger was charged with driving with a suspended license on May 30, 1997.

It is this third document which Eppinger contends was legally insufficient as notice because it states that he is notified “as provided by Georgia Law the following offense(s) will result in suspension of your driver’s license upon conviction for the following offense(s): DUI.” The argument is that, since there is nothing after this date indicating he was given separate notice of his suspension, the evidence was insufficient.

Such an argument, however, overlooks the fact that, upon conviction of OCGA § 40-6-391 (DUI), “[t]he driver’s license of any .person convicted . . . shall by operation of law be suspended.” OCGA § 40-5-63 (a). “ Tt thus appears that the legislature intended OCGA § [40-5-63 (a)] to effectuate suspension or revocation automatically upon a conviction for DUI, the notice being the trial for violation of OCGA § 40-6-391; i.e., notice “by operation of law.” ’ Hale v. State, 188 Ga. App. 524, 525 (1) (373 SE2d 250) (1988).” Payne v. State, 209 Ga. App. 780, 781 (1) (434 SE2d 543) (1993).

Additionally, Eppinger’s driver’s license history also was sufficient to show the requisite notice. Arnold v. State, 189 Ga. App. 900 (1) (377 SE2d 918) (1989).

Judgment affirmed.

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

Steven L. Harris, Solicitor, Lura Landis, Assistant Solicitor, for appellee.


author: Pope, Presiding Judge.

text:
    A98A2416.
    EURE v. CANTRELL PROPERTIES, INC. et al.
    (512 SE2d 323)
   Pope, Presiding Judge.

Appellant Joseph L. Eure appeals from the trial court’s order granting a motion to compel arbitration and stay pending arbitration filed by appellees Cantrell Properties, Inc. and Kay W. Cantrell. Although we originally granted Eure’s application for interlocutory appeal, because we have concluded that this Court lacks jurisdiction, we now dismiss the appeal.

Eure entered into a contract with Cantrell in August 1995 for the construction of a new home. The parties signed a New Construction Purchase and Sale Agreement (the Agreement), in which they acknowledged that a “voluntary ‘Binding Arbitration Procedure’ ” existed under the Georgia Arbitration Code for the resolution of any disputes “provided all parties to this Agreement concur in writing to abide by same.” Cantrell did not seek to enforce this provision, but rather moved for arbitration under the language of a limited warranty issued to Eure. Exhibit A to the parties’ Agreement reflected that Cantrell would deliver to Eure a Builder Warranty and a Home Buyer Warranty on the property, and further provided that Eure agreed that Cantrell “shall not be liable for any defects not specifically provided for in the warranty. ...”

In addition to the Agreement, Eure also signed Exhibit C to the Agreement, which stated that he had read the introduction and the limited warranty set out in a booklet entitled “Performance Standards and Supplement to the Real Estate Sale Agreement” (the Booklet) and acknowledged that the Booklet was “an integral part” of the parties’ Agreement. The introduction to the Booklet provided that if Eure made a claim for corrective action under the limited warranty and Cantrell failed to take such action, Eure “shall commence Arbitration Proceedings with Construction Arbitration Associates, Ltd. (‘CAA’) in accordance with its rules and procedures.” The introduction also reiterated that the Booklet was incorporated into the parties’ Agreement by reference.

The limited warranty itself, Appendix A to the Booklet, provided that if Cantrell failed to make any inspection or tests or failed to respond to any claim made under the warranty, Eure had 30 days “to commence arbitration proceedings with Construction Arbitration Associates, Ltd. (‘CAA’) in accordance with its procedures and rules.” The warranty further provided that if Cantrell failed to correct a defect within a three-month period or if Eure was dissatisfied with the corrective work, then within 30 days Eure “shall commence and diligently pursue arbitration proceedings with the CAA, in accordance with the rules and procedures.”

In May 1997 Eure sued Cantrell in Cobb Superior Court for breach of implied and express warranties, negligence and fraud, claiming that numerous construction defects existed in the property. In reliance upon the arbitration provisions found in the limited warranty, Cantrell moved pursuant to the Federal Arbitration Act (FAA), 9 USC §§ 1-16, to compel arbitration of these claims and to stay further proceedings pending arbitration. The trial court granted Cantrell’s motion, and this appeal followed.

In support of the motion, Cantrell asserted that the Agreement evidenced a transaction involving interstate commerce in accordance with 9 USC § 2. In opposition, Eure contended that the Agreement was controlled by the Georgia Arbitration Code. The trial court granted Cantrell’s motion under the FAA and certified the issue for immediate review. However, § 16 of the FAA provides that no interlocutory appeal may be had from an order granting a stay of any action pending arbitration or directing an arbitration to proceed under the FAA. 9 USC § 16 (b) (1) & (2). Accordingly, if the FAA applies to the parties’ Agreement, § 16 of the FAA would bar our consideration of this interlocutory appeal.

The FAA provides that a “written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 2. In determining whether a contract evidences a transaction involving commerce, federal rules of contract construction and interpretation govern. Primerica Fin. Svc. v. Wise, 217 Ga. App. 36, 37 (1) (456 SE2d 631) (1995); ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 224 (1) (338 SE2d 733) (1985).

The U. S. Supreme Court has interpreted the phrase “involving commerce” as the functional equivalent of the phrase “affecting commerce” and has found that it “signals [an] intent to exercise [Congress’ commerce] powers to the full.” Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 273-275 (III) (115 SC 834, 130 LE2d 753) (1995). Thus, the test under 9 USC § 2 is whether “the transaction in fact involve [d] interstate commerce, even if the parties did not contemplate an interstate commerce connection.” (Punctuation omitted.) Id. at 281 (IV).

In support of its argument that the Agreement involves interstate commerce, Cantrell submitted evidence that materials used in the construction of Eure’s home came from suppliers in at least fifteen states and three foreign countries. In addition, the home buyer’s warranty that Eure purchased, and under which he has asserted claims, was issued by Home Buyers Warranty Corporation, a Colorado corporation. We find that this evidence is sufficient to show a transaction involving interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. at 282 (Alabama termite treatment contract for individual’s home involved interstate commerce where treatment supplier was a franchisee of an out-of-state corporation and where termite-treating and house-repairing materials used by supplier came from outside Alabama); McKee v. Home Buyers Warranty Corp., 45 F3d 981, 984 (5th Cir. 1995) (Louisiana purchaser’s home buyer’s warranty with same Colorado corporation as in this case involved interstate commerce). See also Brockett Pointe Shopping Center v. Development Contractors, 193 Ga. App. 854, 856 (389 SE2d 374) (1989) (construction contract involved interstate commerce where out-of-state goods, services, materials and financing were supplied during execution of construction contract); McCormick-Morgan, Inc. v. Whitehead Electric Co., 179 Ga. App. 10, 12 (345 SE2d 53) (1986) (contract involved interstate commerce where one contractor and materials from out of state); ADC Constr. Co. v. McDaniel Grading Co., supra at 225 (1) (contract involved interstate commerce where contractor used out-of-state employee, sub-contractors and materials).

Decided February 11, 1999

Charles F. Peebles, Lane R. Frostbaum, for appellant.

Chorey, Taylor & Fell, Celeste McCollough, Lisa F. Harper, for appellees.

Accordingly, the FAA governs the arbitration agreement between the parties in this case. And because the FAA does not allow an appeal from an interlocutory order granting a motion to compel arbitration and stay pending arbitration, we lack jurisdiction to consider Eure’s appeal. 9 USC § 16. See also Dakota Wesleyan Univ. v. HPG Intl., 560 NW2d 921, 924 (S. D. 1997) and Long v. Industrial Dev. Bd. of Vincent, 619 S2d 1387, 1388 (Ala. 1993) (each case applying § 16 to dismiss appeal of order granting motion to compel arbitration). Cf. SuperPumper, Inc. v. Nerland Oil, 582 NW2d 647 (N. D. 1998) (bringing state appellate rules in accord with § 16); Berger Farms v. First Interstate Bank of Oregon, 939 P2d 64 (Or. App. 1997) (holding FAA controls jurisdiction over appeals under FAA where state law conflicts with § 16).

Therefore, because this appeal was improvidently granted, it is hereby dismissed.

Appeal dismissed.

Beasley, P. J., and Ruffin, J., concur.

       For the sake of brevity, we will refer to the appellees jointly as “Cantrell.” Kay Cantrell is the president of Cantrell Properties, Inc.

       9 USC § 16 (b) provides:
      “(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order —
      (1) granting a stay of any action under section 3 of this title;
      (2) directing arbitration to proceed under section 4 of this title;
      (3) compelling arbitration under section 206 of this title; or
      (4) refusing to enjoin an arbitration that is subject to this title.”

       The Practice Commentary to § 16 explains that this rule is intended to further the expeditious nature of arbitration and to limit delays caused by the appellate process where a matter is determined to be arbitrable. For the same reason, § 16 allows an appeal from an order denying a motion to stay or to compel arbitration, thus permitting any question of arbitration to be resolved before the costly litigation machinery is invoked. The Commentary states that a party who believes that his claims have been sent to arbitration improperly must wait until the award on the merits is rendered to raise the issue.

       Compare Columbus Anesthesia Group v. Kutzner, 218 Ga. App. 51 (459 SE2d 422) (1995) (where involvement of interstate commerce occurs only after contract is fully performed); Rhodes v. Inland-Rome, Inc., 195 Ga. App. 39 (392 SE2d 270) (1990) (same).


text:
    A99A0532.
    LASTINGER v. MILL & MACHINERY, INC. et al.
    (512 SE2d 327)
   Johnson, Chief Judge.

James Lastinger, Jr. was employed as a steelworker with Mill & Machinery, Inc. Lastinger was injured at work when a metal plate he was detaching from a conveyor belt broke off and caused him to fall several feet to the floor. A urine sample taken at the emergency room was positive for marijuana and cocaine, though the amount of each substance was not quantified.

Lastinger applied for workers’ compensation benefits, but his employer controverted the claim arguing that the positive drug test results raised a presumption that the accident and injury were caused by the ingestion of drugs and were, therefore, not compensable. The employer’s argument is based on OCGA § 34-9-17 (b), which provides in part that where a chemical analysis of an injured worker’s blood, breath, or urine taken within eight hours of the injury reveals the presence of any marijuana or controlled substance, there is a rebuttable presumption that the injury was due to the ingestion of drugs and therefore not compensable. Once that presumption arises, the employee then has the burden of showing by “clear, positive, and uncontradicted” evidence that the presence of drugs was not the cause of the injury. See Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979).

Decided February 11, 1999.

At the hearing, Lastinger acknowledged using drugs five days before the injury but denied being impaired by drugs on the day of his injury. A co-worker testified that Lastinger appeared normal on the day of the injury, and Lastinger’s supervisor remarked that Lastinger did not appear to be intoxicated or unsteady. The employer introduced into evidence a certified copy of Lastinger’s 1994 misdemeanor conviction for marijuana possession.

It is undisputed the presumption arose in this case. Lastinger attempted to rebut it with his own testimony denying any impairment due to drugs and with the testimony of his supervisor and coworker. The ALJ, however, found the presumption had not been rebutted and. denied the claim because Lastinger’s own testimony was impeached by the copy of the certified misdemeanor conviction for marijuana possession, which the ALJ considered a crime of moral turpitude. In upholding the ALJ’s decision, the appellate division likewise found Lastinger’s testimony was impeached by the misdemeanor marijuana conviction. The superior court affirmed the board’s award, and we granted Lastinger’s application for appeal.

In O’Neal v. Kammin, 263 Ga. 218, 219 (430 SE2d 586) (1993), the Supreme Court held that a misdemeanor conviction for possession of marijuana is not a crime of moral turpitude and thus may not be used to impeach a witness. We reject the employer’s suggestion that any improper use of the misdemeanor marijuana conviction was harmless because evidence of felony convictions for habitual violator and entering an automobile was also produced for impeachment purposes. It is clear that the sole basis for the appellate division’s finding that Lastinger’s testimony had been impeached was the misdemeanor conviction. The superior court erred in affirming that determination.

Accordingly, the superior court’s judgment must be reversed and this case remanded to the State Board of Workers’ Compensation for redetermination of whether Lastinger’s testimony was otherwise impeached without using the misdemeanor marijuana conviction, and whether the presumption arising under OCGA § 34-9-17 (b) was rebutted.

Judgment reversed and remanded.

Andrews and Ruffin, JJ., concur.

Lane & Crowe, Robert L. Crowe, for appellant.

Shivers & Associates, Edwin G. Russell, Jr., for appellees.


author: Judge Harold R. Banke.

text:
    A98A1699.
    FIRSTLINE CORPORATION v. VALDOSTA-LOWNDES COUNTY INDUSTRIAL AUTHORITY et al.
    (511 SE2d 538)
   Judge Harold R. Banke.

After Firstline Corporation (“Firstline”) unsuccessfully attempted to exercise a purported option agreement, it sued the Valdosta-Lowndes County Industrial Authority (“Authority”) for breach of contract and sought a writ of mandamus. Firstline also sued Standard Contractors, Inc. (“Standard Contractors”) alleging that it had wrongfully taken title to part of the land included in Firstline’s option.

It is undisputed that in February 1997, Firstline submitted a “Project Eligibility Questionnaire,” a formal request to purchase “approximately 20 acres” of undeveloped land from the Authority. According to the minutes of the March 18, 1997 meeting of the Authority, the members voted to give Firstline a 90-day purchase option for a 27.3 acre tract owned by the Authority priced at $10,000 per acre for 20 acres with no additional charge for 7.3 acres of wetland. Firstline did not provide any financial consideration to the Authority for this option. Nor did the Authority and Firstline execute a written agreement. The Authority ordered a survey and engaged an engineer to locate the wetlands.

Meanwhile, Standard Contractors applied to purchase ten acres from the same tract. Ken Garren, the director of the Authority, informed Standard Contractors that 10 acres were not available because Firstline had been offered an option for 20 acres leaving only 7.35 acres available for purchase. On May 1, prior to the expiration of the option period, the Authority accepted Standard Contractors’ offer to buy 7.35 acres. On May 2, Garren wrote Firstline offering to sell 20 acres at a price of $10,000 per acre for 16.67 acres with no additional charge for 3.33 acres of woodlands. The letter informed Firstline that the Authority had accepted another party’s offer to purchase the remaining 7.35 acres. Garren enclosed a copy of the plat. Garren sent another letter on May 14 which showed some confusion about the terms: “[t]his will acknowledge our recent telephone conversation in which you inquired into how it was determined which 20 acres of the approximate 27 acre tract . . . would be offered to you. At the March 1997 meeting, it was my understanding and the understanding of the Authority members present that you were being offered the upland or northernmost portion of the 27 acre tract with the southern boundary to be determined by a survey.” Disregarding the May letters, on June 6, Firstline notified the Authority that it was accepting its “offer” and was agreeing to purchase 27.35 acres at the $10,000 per 20 acres price, citing the minutes of the March 18 meeting. Donald Murphy, Firstline’s president, testified that prior to May 1, the Authority never suggested to him that the 27.35 acre tract would be subdivided or that Firstline would purchase only part of it.

Finding that there had been no “meeting of the minds” as to the basic contract terms, the trial court granted summary judgment to the Authority and dismissed Firstline’s claim against Standard Contractors. Firstline appeals both judgments. Held:

1. Firstline contends that genuine issues of material fact precluded summary judgment to the Authority on its breach of contract and specific performance claims. Firstline claims that a jury must determine whether the Authority gave it an option for 27.35 acres or for 20 acres. We disagree.

The threshold inquiry must be whether an enforceable agreement existed. An option contract for the sale of realty comes within the Statute of Frauds, and, therefore, must: (1) be in writing, (2) identify the buyer and seller, (3) describe the subject matter of the contract, and (4) name the consideration. Wiley v. Tom Howell & Assoc., 154 Ga. App. 235, 236 (267 SE2d 816) (1980). An option agreement “must be complete within itself as to the essential elements. . . .” Smith v. Huckeba, 232 Ga. App. 374, 375 (1) (501 SE2d 877) (1998). A “valid, binding, and enforceable” contract for the sale of land “must describe the land to be sold with the same degree of certainty as that required of a deed conveying realty. (Cits.)” Smith v. Wilkinson, 208 Ga. 489, 493 (2) (67 SE2d 698) (1951).

Here, the multiple documents including minutes of the March 18 meeting, questionnaire, tax maps, and letters were not sufficient to constitute a written contract of sale, since the land was not described with sufficient particularity. Carver v. City of Moultrie, 267 Ga. 460, 461-462 (479 SE2d 735) (1997), Carley, J., concurring specially (combination of correspondence and city council minutes failed to satisfy the Statute of Frauds because the subject land was not established by definite boundaries); Powell v. Adderholdt, 230 Ga. 211, 212-213 (2) (196 SE2d 420) (1973). In these circumstances, the option was unenforceable. Carver, 267 Ga. at 460.

No evidence showed that the parties agreed to be bound to exactly the same terms. “Consent of the parties being essential to a contract, until each has consented to all the terms, there is no binding contract; until consented to, each party may withdraw its bid or proposition.” OCGA § 13-3-2. In the absence of a complete and legally sufficient contract, summary judgment was appropriate. OCGA § 13-5-30 (4); Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (2) (407 SE2d 64) (1991).

Even assuming solely for the sake of argument that the Authority had offered to sell the entire 27.35 acre tract to Firstline, such offer, absent consideration, could be withdrawn prior to acceptance. R.A. C. Realty Co. v. W.O.U.F. Atlanta Realty Corp., 205 Ga. 154, 163 (52 SE2d 617) (1949); Amwest Surety Ins. Co. v. Ra-Lin & Assoc., 216 Ga. App. 526, 529-530 (1) (455 SE2d 106) (1995).

2. Firstline contests the dismissal of its action against Standard Contractors for failure to state a claim. Firstline also asserts that the trial court erred by treating Standard Contractors’ motion to dismiss as a motion for summary judgment.

Where a court considers matters outside the pleadings, a motion to dismiss becomes converted to one for summary judgment. Schulze v. DeKalb County, 230 Ga. App. 305, 306 (496 SE2d 273) (1998). Here, Firstline requested the court to treat the motion to dismiss as one for summary judgment, and Firstline sought and obtained permission to file documents for the court’s consideration. A party will not be heard to complain of a ruling which it sought or to which it acquiesced. Carreker v. Harper, 196 Ga. App. 658, 660 (2) (396 SE2d 587) (1990).

“A contract upon which specific performance is sought must be certain, definite, and clear; and so precise in its terms that neither party can reasonably misunderstand it.” Smith, 208 Ga. at 494 (2). See Tippins v. Phillips, 123 Ga. 415, 417 (51 SE 410) (1905). Because, as a matter of law, Firstline could not proceed on a claim for specific performance against the Authority, Firstline could not do so against Standard Contractors. Cummings v. Johnson, 218 Ga. 559, 561-562 (4) (129 SE2d 762) (1963); Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, 101 (1) (97 SE2d 129) (1957). See OCGA § 23-2-132. Dismissal of the claim was proper. OCGA § 9-11-12 (b) (6). See Todd v. Bivins, 215 Ga. 402 (1) (110 SE2d 768) (1959).

Decided January 25, 1999

Reconsideration denied February 12, 1999

Runes & Runes, G. G. Joseph Runes, Jr., for appellant.

Coleman, Talley, Newbern, Rurrie, Preston & Holland, Thompson Rurrie, Jr., Edward F. Preston, for appellees.

3. Standard Contractors’ motion for sanctions under Court of Appeals Rule 15 (b) for a frivolous appeal is denied. Had Firstline been able to prove the existence of an enforceable contract, its claim against Standard Contractors might not have been foreclosed. Bryant v. Booze, 55 Ga. 438, 445-446 (1) (1875).

Judgment affirmed.

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

       The Authority claimed that the minutes did not accurately reflect the option agreement. A survey showed that the only potential wetlands were contained in 3.33 acres in the northernmost section.

       The final survey disclosed that the total tract was not 27.35 acres but 26.87 acres. The Authority sold 6.87 acres to Standard Contractors at $10,000 per acre.

       “We hereby exercise the option as specified in the meeting: ‘to purchase 20 acres for $10,000 per acre for uplands acreage and the remaining 7.3 acres of wetlands would be included with the 20 acres but at no charge. . . .’ ”

       Firstline’s application was for “Land District No. 11, Land Lot 64, Tax Map 69, Block 34, Industrial Blvd. Approximately 20 acres located west of Blocks 34B, 34C, and 34D and east of Blocks 19,19B, 19C, 21 and 23.” (Emphasis supplied.)


text:
    A98A2132.
    LAY BROTHERS, INC. v. TAHAMTAN et al.
    (511 SE2d 262)
   Beasley, Presiding Judge.

Lay Brothers, Inc. sought a declaratory judgment that a lease existed between it and Connie Bennett regarding a corner lot on which Lay Brothers had built a store. After a trial in which witnesses testified to the terms of the lease, the jury found in favor of Lay Brothers, and the following judgment was entered: “A lease agreement is hereby declared in favor of the plaintiff and against the defendant for the lease of the real property located at the intersection of Highway 78 and Highway 53 in Oconee County, commonly known as the H. R. Thomas Grocery Store. Said lease shall be for fifteen (15) years for $1000.00 per month, the amount of rent to be increased every three (3) years according to the consumer price index.” This judgment was not appealed.

Bennett and a new joint owner, Amir Tahamtan, thereafter sued Lay Brothers for trespassing on adjoining property and for failing to pay the property taxes on the leased lot. Pointing to testimony from the earlier trial, the landowners argued that Lay Brothers had repeatedly conceded that under the lease only the corner lot and not the adjoining property was leased, and that it would be liable for the property taxes. Lay Brothers pled res judicata, contending that regardless of the trial testimony, the lease decreed in the judgment covered both lots and did not require it to pay the taxes.

Both sides moved for summary judgment. The court entered partial summary judgment in favor of the landowners, ruling that Lay Brothers was responsible for the taxes. All other motions were denied. Lay Brothers appealed. The question is whether the first judgment’s silence on the issue of who was to pay the property taxes bars the landowners, on grounds of res judicata, from litigating the issue now.

“The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.”

The parties do not dispute that the first judgment was rendered on the merits by a court of competent jurisdiction. Nor is there any dispute that the parties or their privies are the same. Although not a party to the first action, Tahamtan sued in the second action as a successor in interest to the property, thereby making him and Bennett privies.

The landowners intimate that the suits do not concern the same subject matter, arguing that the second action seeks only to enforce lease terms which, although not set forth in the judgment, were admitted by Lay Brothers at the trial. This argument on its face concedes the third criterion for res judicata: both actions concern the same subject matter, i.e., the lease between the parties.

Because res judicata applies, the issue is whether it operates so as to bar litigating terms of the lease not set forth in the first judgment. The answer is yes. As stated in McIver v. Jones, “[r]es judicata bars subsequent actions as to all matters put in issue or which under the rules of law might have been put in issue in the original action. OCGA § 9-12-40. The subject matter was identical in both actions. . . . [Defendant] had a full opportunity in the first action to litigate each and every claim existing between the parties which touched on that issue. It was her duty to do so. The adding of additional claims for relief which grow out of the same factual situation do[es] not amount to the adding of a new or different cause of action.”

Similarly, litigating the existence of additional terms of the same lease in a subsequent action is impermissible. The first action concerned the existence and terms of the lease and even included testimony as to the obligation to pay taxes. The parties had the opportunity and the obligation to ensure that all terms of the lease were included in the court’s judgment. If the court’s declaration of those terms was incomplete, then avenues to correct that deficiency were available in the first action. Filing a second action to supplement those terms is barred by res judicata. The constitutional mandate for the “speedy, efficient, and inexpensive resolution of disputes and prosecutions” is not served by serial, piecemeal lawsuits. Plaintiff must be alert to the scope of disagreement between the parties and present the entire matter at one time.

Capitol Funds v. Arlen Realty, though not binding, is illustrative. The landlord sued its tenant for failure to pay rent and to maintain the premises. “The testimony in the state court . . . focused on the failure to pay rent, although there were some mentions of repair problems.” The repair obligation was not pursued further. The tenant prevailed. When the landlord sued again, focusing only on the repair obligation, the court applied Georgia law and held that “the issues now raised by the landlord could have been raised at the original trial by the use of proper diligence.” Res judicata barred the action.

Decided January 29, 1999

Reconsideration denied February 12, 1999.

J. Hue Henry, Christopher L. Casey, for appellant.

Amir A. Tahamtan, pro se.

Connie L. Bennett, pro se.

The tax issue was similarly barred. The court erred in granting summary judgment to the landowners on this matter. As no other issues were appealed, we do not address them.

Judgment reversed.

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

       Bennett and Tahamtan did not cross-appeal the denial of their motion as to which lots are covered by the lease. Thus, we do not consider the “enumeration of error” on this point found in appellees’ brief. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783, 784 (1) (302 SE2d 594) (1983) (appellee may not “present enumerations of error concerning rulings adverse to it without filing a notice of cross-appeal”); see Burke County School Dist. v. Roberts, 220 Ga. App. 510, 513-514 (2) (469 SE2d 529) (1996) (“[b]ecause the [appellees] did not file a cross-appeal contesting the trial court’s ruling in regard to that policy, we have no jurisdiction to consider the issue”) (citation omitted), rev’d on other grounds, 267 Ga. 665 (482 SE2d 283) (1997); Karr v. Ryback, 186 Ga. App. 842 (4) (368 SE2d 799) (1988) (rule also applies to pro se parties).

       (Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995); see OCGA § 9-12-40.

       See Smith v. Gettinger, 3 Ga. 140, 142 (1847) (“[p]rivies are all persons who are represented by the parties and claim under them ...; the term privity denoting mutual or successive relationship to the same rights of property”); Roberts v. Porter, Davis &c., 193 Ga. App. 898, 901 (1) (389 SE2d 361) (1989) (same).

       See Fowler v. Vineyard, 261 Ga. 454, 458 (3) (b) (405 SE2d 678) (1991) (both actions arose from same accident and thus concerned the same subject matter); Doman v. Banderas, 231 Ga. App. 229, 232 (1) (499 SE2d 98) (1998) (“[a]lthough the prior action asserted breach of contract and tortious interference claims, and the present suit is a defamation action, all of the claims in both actions concerned the dispute between Doman and Banderas arising from Doman’s purchase of Banderas’ medical practice”; res judicata applied) (citations omitted). Compare Lawson v. Watkins, 261 Ga. 147, 148-149 (1) (401 SE2d 719) (1991) (debts, not title to racetrack, were subject matter of the first action; no res judicata).

       209 Ga. App. 670, 673 (434 SE2d 504) (1993).

       (Citations and punctuation omitted.) Id.

       Ga. Const, of 1983, Art. VI, Sec. IX, Par. I.

       755 F2d 1544 (11th Cir. 1985).

       Id. at 1546.

       (Punctuation omitted.) Id. at 1547, citing Gladden v. Cobb, 80 Ga. 11 (6 SE 163) (1888).

       See Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998) (“it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid”) (citations omitted; emphasis in original); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 566 (2) (458 SE2d 826) (1995) (plaintiff “had the opportunity to litigate the issue in the [first] proceeding, and his failure to do so bars him from filing a second action to relitigate”); Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315, 318 (1) (471 SE2d 262) (1996) (“[b]ecause the facts supporting the second lawsuit were also used to support the initial lawsuit,” matter barred by res judicata); CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 397 (2) (469 SE2d 466) (1996) (“CenTrust had the opportunity to pursue any claim concerning the altered deed ... in the [first] litigation!;] it simply chose not to”). Compare Glen Oak, Inc. v. Henderson, 258 Ga. 455, 459 (2) (e) (369 SE2d 736) (1988) (action for past due rent does not bar second action for rent due in future).


author: Smith, Judge.

text:
    A98A2150.
    A98A2151.
    SINGLETON v. THE STATE. McCORMICK v. THE STATE.
    (511 SE2d 541)
   Smith, Judge.

Tabitha Singleton and Christopher McCormick were convicted on charges of trafficking in methamphetamines, possession of methamphetamines with intent to distribute, and possession of methamphetamines. Their motions for new trial were denied, and they appeal, contending that the trial court erroneously denied their motions to suppress. We find no reversible error, and we affirm.

The record shows that Officer Mark Tison with the Rome Police Department received information around 4:05 a.m. on July 1, 1997 from a confidential informant. During the two-and-one-half years Tison had worked with the local drug task force, this informant had provided information leading to the issuance of three search warrants and the arrests of approximately five people for violation of the Georgia Controlled Substances Act. Tison learned from the informant that a white male named Chris and an unidentified white female, who were staying in Room 127 of a particular motel, possessed a quantity of methamphetamine and were traveling in a red and silver Mustang with a California tag. The informant provided the tag number of the car and stated that the individuals would be leaving the motel during the early morning hours of July 1 and possibly would be traveling to Virginia or Tennessee.

Tison drove to the motel and found a car matching the description provided by the informant parked “directly in front of Room 127.” Tison investigated and learned that the car was registered to a Christopher McCormick. Tison placed the motel parking lot under surveillance and observed the car leave around 7:31 a.m. He followed the car until it stopped at a gas station, where he saw a white male exit it and enter the station, while a white female exited the car and pumped gas. After these individuals re-entered the car and drove away from the gas station, Tison followed the car until it stopped in a grocery store parking lot. Tison walked to the passenger side door, where the man was exiting, identified himself, and obtained McCormick’s name and destination. After McCormick refused to give Tison consent to search the car for drugs, Tison conducted a warrantless search of the car. He found a syringe inside a purse, and in the hatchback of the car he found a spoon with some sort of residue on it and several small plastic bags. Inside the console Tison found a large quantity of a substance identified at trial as methamphetamine; one large portion of the substance was wrapped in plastic, while three remaining portions were found inside three plastic bags. McCormick and Singleton were then arrested.

About eight hours later, at Tison’s request, a canine search was conducted. Officer Richard Penson testified that the dog alerted on both doors of the car, the console area, and a purse located inside the car. Penson’s search of the purse revealed a daily planner containing a potentially incriminating entry.

1. Appellants first contend that the evidence seized after the warrantless search was inadmissible because probable cause to stop and search the vehicle did not exist. We do not agree. “Where the details of a tip are corroborated by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. [Cit.]” DuPree v. State, 232 Ga. App. 573, 574 (502 SE2d 511) (1998). Here, the confidential informant was shown to be reliable, as Tison had received information over a two-and-one-half year period from the informant culminating in arrests. See generally Britt v. State, 208 Ga. App. 157 (430 SE2d 28) (1993) (informant reliable because informant had previously supplied agent with information leading to arrests and seizure of contraband). And this detailed information, which included a prediction of appellants’ future behavior, was independently corroborated by Tison. Probable cause for the stop of McCormick’s vehicle therefore existed. See DuPree, supra.

The passage of approximately three hours from the time Tison received the informant’s tip until he effectuated the stop does not demand a conclusion that a warrant was required. The informant stated that the individuals would leave early in the morning of July 1. It was therefore reasonable, as testified to by Tison, to believe that he did not have time to leave the scene he had placed under surveillance to obtain a search warrant. Once the car began moving, obtaining a warrant would have been impractical, and exigent circumstances justifying a warrantless search were therefore created. See generally Hall v. State, 176 Ga. App. 428, 429-431 (2) (336 SE2d 291) (1985). Given the well-settled rule that a trial court’s ruling on a motion to suppress will not be disturbed if supported by any evidence, Johnson v. State, 230 Ga. App. 535, 536 (1) (496 SE2d 785) (1998), as well as the totality of the circumstances present here, we find no error in the trial court’s denial of appellants’ motion to suppress evidence of the contraband discovered as a result of the warrantless search. Moreover, the search revealing the date book was not tainted because it occurred several hours after the initial stop. “Police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. The probable cause factor that developed at the scene still obtained at the station house.” (Citation and punctuation omitted.) Richardson v. State, 232 Ga. App. 398, 402 (501 SE2d 885) (1998).

We note that Tison testified during the hearing on the motions to suppress that he believed he had probable cause to enter appellants’ motel room. His failure to do so, however, did not negate the validity of the subsequent search of the automobile. The trial judge concluded that probable cause to search the motel room did not exist and that Tison “used the better part of discretion” in waiting until appellants left the motel and assuring himself that the occupants of the car described by the informant were indeed a male and female. As noted by the trial judge, Tison “waited until he could verify as much information given by the informant as he could. In various stages of his surveillance of the car, he identified the . . . type of car that the informant [described]. He verified the tag number given to him. He did verify the motel and the motel room. He did verify, as the situation went on, that the car was leaving, while not in an extremely early morning hour, in the morning hours. He did verify that there was a white male and a white female. He did verify, by a tag check, that it . . . belonged to a Christopher McCormick.” We cannot say that the delay from the time Tison first observed McCormick’s car in the motel parking lot until the car stopped some three hours later, occasioned by Tison’s decision to obtain more evidence to support a stop of the vehicle, was unreasonable. In fact, under the circumstances of this case, our law supports Tison’s action of verifying as much information given by the informant as possible. See Hall, supra at 431 (2) (police permitted to “wait and delay search and seizure in hope of increasing the quantum of evidence which they could present to the magistrate to obtain a warrant. [Cit.]”).

2. Appellants also contend that statements made by McCormick were induced by promises of leniency and should have been suppressed.

Evidence presented during the Jackson-Denno hearing showed that after he was arrested, McCormick stated that someone must have broken into his car and placed the drugs inside. McCormick later stated, however, that “he had been fronted the drugs in Decatur, Alabama, from a Hispanic male named Mario and a white male named Howard. He had been fronted two ounces of methamphetamine and . . . was supposed to return ... to repay $2,000 for the drugs . . . and then he, would be fronted more drugs.” Although disputed by McCormick, Tison testified that he read McCormick his Miranda rights before these statements were made and that the statements were made freely and voluntarily, without coercion. Furthermore, according to Tison, McCormick never requested an attorney, did not appear to be under the influence of alcohol or drugs, and did not indicate that he wished to remain silent.

The record does show, as argued by appellants, that they were promised leniency if McCormick cooperated with authorities by taking them to the individuals who supplied the drugs. But evidence was also presented that any such promises were made after McCormick made the statements he now claims should have been suppressed. Accordingly, appellants’ claim that McCormick’s statements were induced by these promises fails. “The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous.” (Citations and punctuation omitted.) Swinney v. State, 217 Ga. App. 657, 659 (3) (458 SE2d 686) (1995). Because the trial court’s conclusion that McCormick’s statements were freely and voluntarily given is supported by the evidence, we find no error in their admission.

3. Despite appellants’ failure to argue their enumerations concerning the sufficiency of the evidence, we have reviewed the evidence and find it sufficient to authorize a rational trier of fact to convict them of the crimes charged under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 27, 1999

Reconsideration denied February 12, 1999.

James C. Wyatt, for appellant (case no. A98A2150).

Floyd H. Farless, for appellant (case no. A98A2151).

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       We also note Tison’s testimony that no other task force officers were on duty during the time he placed the motel under surveillance.


text:
    A98A2418.
    PENNEY v. THE STATE.
    (511 SE2d 275)
   Pope, Presiding Judge.

Michael Ray Penney appeals from the trial court’s order denying his motion to correct an allegedly void sentence. For the following reasons, we affirm.

On May 3, 1990, Penney was indicted for burglary. On May 17, 1990, he pled guilty and was sentenced to ten years imprisonment. On December 14, 1994, a federal court granted Penney’s petition for habeas corpus relief and ordered the case remanded for actions consistent with the federal court’s ruling. On May 20, 1996, with the assistance of retained counsel and pursuant to a negotiated plea, Penney again pled guilty to the burglary charges. Penney agreed to accept a sentence of five years on intensive probation with no credit for time served instead of pleading to the original ten years imprisonment. The trial court accepted the plea and sentenced Penney accordingly. Penney did not appeal this conviction nor did he file a motion to withdraw his guilty plea.

Shortly after he entered his guilty plea, Penney violated the terms and conditions of his probation. On March 19, 1998, the balance of Penney’s probated sentence was revoked. Penney did not seek a discretionary appeal of the order revoking his probation.

On July 8,1998, Penney filed a pro se motion for correction of his sentence. The motion was not filed within the term of court in which the sentence was entered. “A trial court is without jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered. Latham v. State, 225 Ga. App. 147 (483 SE2d 322) (1997). . . . Nevertheless, even after the expiration of the applicable term of court, the trial court has jurisdiction to resentence the defendant where the sentence imposed is void. Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991). A sentence is void if the court imposes punishment that the law does not allow.’ Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991).” Shaw v. State, 233 Ga. App. 232, 233 (504 SE2d 18) (1998).

Decided February 1, 1999

Reconsideration denied February 12, 1999.

Michael R. Penney, pro se.

John C. Pridgen, District Attorney, for appellee.

Penney argued in his motion that his sentence was illegal and void because he was not given credit for time served. The trial court denied this motion because it was abundantly clear from the record that Penney knowingly and voluntarily exchanged the time he served on his previous ten year sentence for a five year probated sentence. Credit for time served is a personal benefit Penney was authorized to waive by his decision to enter a plea and accept a negotiated sentence. See Powell v. State, 229 Ga. App. 52, 53 (2) (494 SE2d 200) (1997). We find no error.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.


text:
    A97A1543.
    BAHADORI v. NATIONAL UNION FIRE INSURANCE COMPANY et al.
    (512 SE2d 329)
    Decided February 12, 1999.
   Pope, Presiding Judge.

In Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203 (507 SE2d 467) (1998), the Supreme Court reversed the judgment of this Court rendered in Bahadori v. Sizzler #1543, 230 Ga. App. 52 (505 SE2d 23) (1997), with instructions to remand the case to the State Board of Workers’ Compensation to determine whether Bahadori’s misrepresentation regarding his unemployment in late 1992 thwarted Sizzler’s ability to conduct a reasonably diligent investigation of the claim. Accordingly, the judgment of the Supreme Court is hereby made the judgment of this Court, and the judgment of the superior court is reversed with instructions to remand the matter to the State Board for further action consistent with the Supreme Court’s decision.

Judgment reversed and remanded.

Johnson, C. J., McMurray, P. J., Beasley, P. J., Andrews, Blackburn, Smith, Ruffin, Eldridge and Barnes, JJ., concur.

Clements, Clark & Sweet, John F. Sweet, for appellant.

Hamilton, Westby, Marshall & Antonowich, Steven A. Westby, Joseph T. Brasher, for appellees.


author: Judge Harold R. Banke. Barnes, Judge,

text:
    A98A1826.
    GUILD v. THE STATE.
    (512 SE2d 343)
   Judge Harold R. Banke.

Russell Robert Guild was convicted of possession of cocaine and possession of marijuana. He enumerates six errors on appeal.

Guild’s arrest occurred after law enforcement officers discovered the contraband at issue while attempting to question an occupant of a motel room. Guild was also in the room at the time. Held:

1. Guild argues that the trial court erred in denying his motion to suppress. We disagree.

In reviewing the denial of a motion to suppress, the evidence must be construed in the light most favorable to the trial court’s decision. Cates v. State, 232 Ga. App. 262, 263 (501 SE2d 262) (1998). Unless clearly erroneous, we must accept the trial court’s rulings on disputed facts. Id.

The Fourth Amendment does not require law enforcement officers lacking the precise level of information necessary for probable cause to shrug their shoulders and allow a crime to occur or a criminal to escape. Dunbar v. State, 228 Ga. App. 104, 111 (4) (491 SE2d 166) (1997). “On the contrary, Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), recognizes that it may be the essence of good police work to adopt an intermediate response,” briefly stopping the suspicious person to investigate his identity or other relevant facts. (Punctuation omitted.) Id. Whether sufficient articulable suspicion exists must be determined from the totality of the circumstances. Harris v. State, 205 Ga. App. 813, 814 (1) (423 SE2d 723) (1992).

Here, during a single evening in an area known for drug trade, the arresting officer observed several apparent drug transactions in which men approached vehicles circling the Gateway Motel parking lot and ran into motel rooms upon noticing the patrol car. After parking his car, the officer watched Guild’s co-indictee approach a vehicle in the parking lot, lean into the car and converse with its occupants. Although the officer did not specifically see any drugs, the man’s actions, in a “known drug area,” both at the vehicle and after he observed the officer and ran, provided reasonable suspicion sufficient to authorize a Terry stop. Harris, 205 Ga. App. at 814 (1); In the Interest of J. L. G, 209 Ga. App. 565, 566 (434 SE2d 126) (1993) (in some circumstances, flight may provide sufficient evidence of consciousness of guilt to give rise to reasonable suspicion). When the effort to stop the suspect proved impossible, Terry did not prohibit the officer from following the fleeing man to the motel room. Holcomb v. State, 191 Ga. App. 379, 380-381 (1) (381 SE2d 594) (1989).

The man left the door open a crack, and the officer prevented him from closing the door as they talked. Through the five- to ten-inch gap, the officer observed in plain view a number of small rocks of cocaine on a dresser five feet from the door. Weaver v. State, 208 Ga. App. 105, 107 (430 SE2d 60) (1993) (immediately after the investigatory stop the plain view doctrine came into effect). The officer then arrested all the room’s occupants. Guild was sitting on the bed farthest from the door within ten feet of the cocaine. The officer also observed in plain view a small bag of marijuana on the other bed. Id. In these circumstances, we cannot say the trial court erred in declining to suppress the evidence.

2. Guild maintains the admission of a similar transaction was error because the incident was insufficiently similar. In the similar transaction, authorities stopped a car in which Guild was a passenger because it matched a description given by witnesses to an armed robbery. After Guild and one other man exited the back seat, officers found in plain view a bag containing eight pieces of crack cocaine.

In determining whether a prior transaction is sufficiently similar, courts must focus on the similarities of the occurrences rather than their differences, particularly when the purpose of the evidence is to establish intent, as opposed to identity or criminal signature. White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997). Such transactions need not be identical in every respect, particularly when, as here, the logical connection between the alleged crime and the similar transaction is strong. Id.; see Seabrooks, 251 Ga. at 568 (2); Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996). Here, both incidents occurred at night, in the same area, involved the same drug in amounts greater than that generally possessed for personal use and tended to show that Guild would deny all knowledge of contraband when caught in its proximity. Insofar as Guild denied that the cocaine at issue belonged to him, the prior transaction was clearly probative of his intent. Sultenfuss v. State, 185 Ga. App. 47, 49 (2) (363 SE2d 337) (1987).

3. Guild argues that the trial court erred in overruling his objection to the similar transaction testimony based on a failure to articulate the purpose for its admission. Although neither the State nor the trial court clearly stated the purpose of the similar transaction evidence during the hearing on that subject or in response to Guild’s objection just prior to its admission, the jury was clearly instructed that its purpose was to show state of mind, knowledge, and intent. In these circumstances, we fail to see how the alleged error harmed Guild. Matula v. State, 264 Ga. 673, 675 (3) (449 SE2d 850) (1994); Gardner v. State, 263 Ga. 197, 198 (3) (429 SE2d 657) (1993). Notwithstanding Guild’s contention to the contrary, the similar offense circumstantially showed that Guild was a party to the crime of joint constructive possession of cocaine. White v. State, 269 Ga. 74, 75 (2) (495 SE2d 278) (1998); Blaise v. State, 185 Ga. App. 653, 654 (1) (365 SE2d 499) (1988).

4. Guild contends that the trial court erred in admitting a scientific report which the State failed to provide him in violation of OCGA § 17-16-4. The report indicated that the contraband seized tested positive for cocaine and marijuana and was not provided to Guild until the day of trial.

“ Tf the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State.’ ” Aleman v. State, 224 Ga. App. 391, 393 (2) (480 SE2d 393) (1997). Here, Guild made no such showing. The indictment charged Guild with possession of cocaine and marijuana, the cocaine field-tested positive, the witness who performed the test was timely included on the State’s witness list and the transcript contains no evidence that the admission of the report impaired Guild’s trial strategy in any way. Compare Brady v. State, 233 Ga. App. 287, 289 (2) (503 SE2d 906) (1998). Guild has not argued that he was surprised by the positive test results, and he declined a continuance. Compare id. In these circumstances, we cannot say the trial court abused its discretion in admitting the report. McWhorter v. State, 229 Ga. App. 875, 876 (2) (495 SE2d 139) (1997). This finding, however, is not meant to condone the State’s failure to comply with the discovery statute. The report’s presence in some sort of “pending drawer” rather than in Guild’s file fails to buttress the State’s claim that it did not have the report. See Marshall v. State, 230 Ga. App. 116, 118 (2) (495 SE2d 585) (1998).

5. The evidence, viewed in the light most favorable to the verdict, was sufficient to sustain the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence showed that in a known drug area on several occasions, including once in the hours before the arrest, “several” black men met cars in the Gateway parking lot, engaged in some sort of transaction, and ran into the motel when police cruisers came into view while the cars sped away. The arrest occurred after the officer witnessed what appeared to be a drug transaction in the parking lot and followed Guild’s co-indictee to a room at the same motel. There, Guild and another man matching the description of the men seen running to the motel previously lounged in plain view of the cocaine and marijuana. While this evidence is not overwhelming, it is sufficient to create a jury question on whether Guild was guilty of joint constructive possession of the contraband, or was at least a party to the crime. See Andrews v. State, 219 Ga. App. 808, 809 (1) (466 SE2d 909) (1996); Ryans v. State, 226 Ga. App. 595, 597 (1) (487 SE2d .l30) (1997).

Decided February 12, 1999.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

6. We need not reach the remaining enumeration as it reiterates arguments addressed in Divisions 1 and 4.

Judgment affirmed.

Johnson, C. J, concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

I concur in the judgment reached by the majority in this case. I write separately, however, because Division 1 of the majority opinion does not address the reason why Guild claims the trial court should have granted his motion to suppress. Guild argues the officer violated the Fourth Amendment when he prevented Jones from closing the motel room door. Thus, according to Guild, the officer’s ability to see the crack cocaine on the dresser was based upon a Fourth Amendment violation. As a result, the plain view doctrine should not have been applied because there was no prior valid intrusion before the evidence was observed and seized.

This argument is without merit. The trial court was authorized to infer from the evidence presented during the motion to suppress hearing that the officer saw the crack cocaine on the dresser before he prevented Jones from closing the motel room door. None of the evidence showed the officer could see crack cocaine lying in plain view only because he prevented Jones from closing the door. Since we are required to construe the evidence most favorably to upholding the trial court’s order on a motion to suppress, the majority opinion reaches the correct result when it affirms the trial court’s denial of Guild’s motion to suppress.

       By not raising the issue at trial, Guild waived his argument that the failure to make the required findings for this evidence’s admission on the record required reversal. Goss v. State, 228 Ga. App. 411, 413 (2) (491 SE2d 859) (1997); Seabrooks v. State, 251 Ga. 564, 567 (1) (308 SE2d 160) (1983).

       The connection to the armed robbery was excluded.