author: Johnson, Presiding Judge.

text:
    A01A1278.
    THE STATE v. GAMBLIN.
    (553 SE2d 866)
   Johnson, Presiding Judge.

Lamar Gamblin was indicted for aggravated sexual battery and two counts of child molestation. Gamblin was arraigned on Monday, December 18, 2000. At the arraignment, Gamblin pled not guilty to the charges, and his attorney asked the court to give him until Friday, December 22, to file motions. The judge asked the prosecutor if he objected to the request, and the prosecutor said that he had no objection. The judge then verbally granted the extension to Gamblin.

On December 22, 2000, Gamblin specially demurred to the aggravated sexual battery count of the indictment and to one of the child molestation counts on the ground that each of those counts fails to set forth a specific date on which he allegedly committed the offenses. Instead of identifying particular dates, both counts charge that Gamblin committed the respective crimes between July 1, 1998, and July 31, 2000. The trial court sustained the special demurrer and struck the challenged aggravated sexual battery and child molestation counts from the indictment, thus leaving one count of child molestation pending against Gamblin.

The state appeals, claiming in its sole enumeration of error that the trial court erred in finding the two-year date range in the two indictment counts to be insufficient. The state’s claim is without merit, and we therefore affirm the trial court’s order sustaining the special demurrer and striking the two imperfect counts from the indictment.

1. An indictment is subject to a special demurrer if it is not perfect in form or if the accused is entitled to more information. Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. But we have recognized an exception to the rule that an indictment must allege a specific date where the evidence does not permit the state to identify a single date on which the offense occurred, so the indictment instead may allege that the offense occurred between two particular dates.

In the instant case, the state has failed to show that it cannot determine from the evidence the exact dates of the alleged aggravated sexual battery and child molestation offenses. At the hearing on Gamblin’s special demurrer, the prosecutor stated that the alleged offenses occurred over a period of two years, but he did not indicate whether, within that period, the exact dates of the offenses were unknown. While the state may in fact be unable to pinpoint the particular dates of the alleged crimes, we cannot speculate about such a matter. Instead, we, like the trial court, are bound by the record before us. And absent some showing by the state that its evidence does not permit it to identify the exact dates of the crimes, we must conclude that the indictment counts in question are imperfect and thus subject to special demurrer. Of course, this holding does not preclude the state from reindicting Gamblin upon the remand of this case to the trial court.

In support of its appeal, the state has cited cases such as Gentry v. State and Hutton v. State in which we approved of indictments alleging that offenses occurred between two dates rather than on a particular date. The state’s reliance on those cases is misplaced because they appeared before us in significantly different procedural postures than the instant case. In both Gentry and Hutton, the trial courts overruled defense challenges to the indictments, the cases proceeded to trial, the defendants were convicted, and the defendants appealed. Because the trials had already occurred, this court was able to review all the evidence and conclude that the defendants had not in fact been surprised or otherwise prejudiced by the lack of specificity in the indictments.

In the instant case, unlike in Gentry and Hutton, the trial court sustained Gamblin’s special demurrer to the indictment, and before a trial has been held, the state has appealed. Because we are reviewing the Gamblin indictment before any trial, we do not conduct a harmless error analysis to determine if Gamblin has actually been prejudiced by the lack of a specific date in the indictment counts. Instead, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance. Under that rule, we hold that the trial court did not err in sustaining Gamblin’s special demurrer to the indictment for failing to specifically identify the dates of the alleged aggravated sexual battery and child molestation offenses.

2. The state has attempted to expand its sole enumeration of error by further arguing in its brief that Gamblin’s special demurrer was untimely because it was filed after arraignment without a written extension from the judge. A party may not use its brief to raise issues not raised in its enumerations of error.

Decided August 17, 2001.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Dixon A. Lackey III, Assistant District Attorneys, for appellant.

Michael R. McCarthy, for appellee.

Moreover, under Uniform Superior Court Rule 31.1, all motions must be filed before arraignment unless the time for filing is extended by the judge in writing prior to trial. Here, no trial has been held. So even if the court has not yet issued its written order extending the filing time, it may still do so prior to trial.*

Most importantly, we are troubled by the fact that the state would even make this argument in its brief. At the arraignment, the trial court verbally granted Gamblin an extension of time to file motions only after the state prosecutor expressly told the judge that he had no objection to Gamblin’s request for an extension. Given the state’s express agreement with the extension, its current attempt to renege on that agreement is disingenuous. We find no error by the trial court.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        State v. Jones, 246 Ga. App. 482, 483 (540 SE2d 622) (2000).

        Lyles v. State, 215 Ga. 229, 231 (1) (109 SE2d 785) (1959); Lands v. State, 189 Ga. App. 577 (1) (376 SE2d 701) (1988).

        State v. Stamey, 211 Ga. App. 837, 838 (1) (440 SE2d 725) (1994), overruled on other grounds, State v. Forthe, 237 Ga. App. 134, 136 (514 SE2d 890) (1999).

       235 Ga. App. 328 (508 SE2d 671) (1998).

       192 Ga. App. 239 (384 SE2d 446) (1989).

        Gentry, supra at 329-330 (3); Hutton, supra at 241 (4).

        Dennard v. State, 243 Ga. App. 868, 877 (2) (534 SE2d 182) (2000); Bowen v. State, 242 Ga. App. 37, 38 (528 SE2d 553) (2000).

        Dennard, supra.

       See Stamey, supra.

        Duffey v. State, 232 Ga. App. 693 (498 SE2d 816) (1998).

       See State v. Mendoza, 190 Ga. App. 831, 832 (380 SE2d 357) (1989).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A1467.
    JONES v. THE STATE.
    (554 SE2d 238)
   Miller, Judge.

Mary Jones was convicted of aggravated assault, possession of a firearm during the commission of a crime, and obstruction of an officer. On appeal Jones contends the trial court erred in excluding a defense witness and in denying her two motions for mistrial. Finding no error, we affirm.

The evidence showed that Jones argued with her nephew over the whereabouts of some fence posts that she claimed were on her property and moved without her permission. During the argument, Jones retrieved a rifle and pointed it at her nephew, who then called police. When police arrived, Jones yelled obscenities at them and retreated into her house. One of the officers grabbed Jones before she reached the back door. Jones struggled with the officers, attempting to hit and kick them as they held her down to put her in handcuffs.

1. At the start of trial, the court requested that Jones call all witnesses that were to testify on her behalf. The State objected to the first witness called, arguing that it did not receive proper notice that the defense planned to have the witness testify. Jones’s counsel countered that although he was previously aware of this witness and her whereabouts, he had not met her until one hour before trial. The trial court found that Jones acted in bad faith in failing to comply with the notice requirement for discovery, and that this act prejudiced the State’s case. The court excluded the witness from testifying.

OCGA § 17-16-6 provides that if the defendant has failed to comply with discovery requirements,

the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

Jones argues that the court did not follow this procedure in determining that the witness should be excluded. Contrary to Jones’s assertion, the court is not required to consider any particular course of action in any particular order, but has discretion to take any listed corrective action it deems appropriate.

Jones’s counsel claimed that he discovered this witness an hour before trial, but Jones failed to notify the State at that time and even proceeded to trial without notifying the State. Counsel did not disclose that he desired to call this witness until prompted by the court to call all of Jones’s witnesses. Therefore, the court’s finding that Jones acted in bad faith is supported by the evidence.

The court was also required to make a finding of prejudice to the State. Here, the information provided was so late “as to prevent the State from adequately investigating the witness [ ], [her] testimony, and [her] criminal history.” Therefore, we hold that the trial court did not abuse its discretion in excluding this witness.

2. Jones argues that the court erred in denying her two motions for mistrial, each based on one of the State’s witnesses allegedly placing her character in issue. The denial of a motion for mistrial is a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of thé right to a fair trial, we will not interfere with that discretion.

(a) Jones moved for a mistrial when one of the State’s witnesses referenced Jones’s prior incarceration. The court denied Jones’s motion for mistrial, gave a curative instruction cautioning the jury to disregard the statement, and resumed trial after Jones renewed her motion. Jones complains that this reference improperly placed her character into evidence.

In reviewing the trial court’s decision, this court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety. The witness’s reference to Jones’s prior incarceration appears to be inadvertent. Moreover, “[w]e have previously held that curative instructions were an adequate remedy when witnesses improperly placed the defendant’s character into evidence by testifying about his prior convictions or criminal acts.” Thus, the curative instruction was an adequate remedy, and the trial court did not abuse its discretion in denying Jones’s motion for mistrial on this basis.

(b) Defense counsel asked one of the arresting officers, “The warrants you took out were for pointing a gun at another?” The officer responded, “No, sir, I took out a warrant for obstruction of a law enforcement officer, terroristic threats, pointing a gun at another, and convicted felon possession of a firearm.” Jones again moved for mistrial on the basis that the officer’s reference to the “convicted felon possession of firearm” charge improperly placed her character in issue. The trial court found that defense counsel invited the answer, and that because the officer slowly listed each charge, counsel had ample opportunity to prevent the officer from including the possession charge. The question required the officer to explain what violations formed the basis for the warrants, rather than allowing him to respond with a simple yes or no.

“Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer.” Under these circumstances we find no abuse of discretion in the denial of Jones’s motion for mistrial.*

Decided August 17, 2001.

Jack E. Boone, Jr., for appellant.

Daniel J. Craig, District Attorney, John M. Markwalter, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Under OCGA § 17-16-8 (a), the defendant’s attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial, shall provide opposing counsel with the names, locations, dates of birth, and telephone numbers of the defendant’s witnesses.

       See Sullivan v. State, 242 Ga. App. 839, 841 (4) (531 SE2d 367) (2000).

       Id.

        Gill v. State, 229 Ga. App. 462 (1) (494 SE2d 259) (1997); see Martin v. State, 240 Ga. App. 901, 902 (1) (525 SE2d 728) (1999).

        Sweeder v. State, 246 Ga. App. 557, 561 (5) (541 SE2d 414) (2000); Burns v. State, 236 Ga. App. 3, 6 (3) (510 SE2d 865) (1999).

       See Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997); Browning v. State, 236 Ga. App. 893, 894 (2) (513 SE2d 779) (1999).

       (Citation and punctuation omitted.) Burns, supra, 236 Ga. App. at 6 (3).

       See id.

       Jones was also charged with possession of a firearm by a convicted felon, but this charge was nolle prossed and therefore not before the jury.

       (Citation and punctuation omitted.) Willis v. State, 201 Ga. App. 365, 366 (3) (410 SE2d 827) (1991); see Sparks v. State, 234 Ga. App. 11, 13 (2) (505 SE2d 555) (1998).

       See Bohannon v. State, 208 Ga. App. 576, 581 (3) (d) (431 SE2d 149) (1993); Willis, supra, 201 Ga. App. at 366 (3).


author: Eldridge, Judge.

text:
    A01A1247.
    HODGE v. LOTT.
    (553 SE2d 652)
   Eldridge, Judge.

Sedrick Demon Hodge and Calvin Lanier Harrell were held to be jointly liable in damages by a jury verdict for a motor vehicle collision that occurred on August 2, 1997, injuring Jerry L. Lott. Harrell settled with the plaintiff. Hodge, the defendant, moved for a new trial on general grounds and the special grounds that the trial court abused its discretion in not removing a juror who failed to disclose her relationship with an employee of counsel for Harrell. The motion for new trial was denied. On appeal, defendant asserts that the trial court abused its discretion in several ways: in allowing a hypothetical question to plaintiff’s treating physician; in limiting cross-examination of the plaintiff regarding pain prior to the collision in a pre-existing condition, revealed during prior treatment; and in not removing a juror after a relationship to counsel for the other defendant became known. Finding no merit to defendant’s contentions, we affirm.

The plaintiff’s injuries were soft tissue and a compression fracture of his spine. Defendant sought to show either that the compression fracture pre-existed the collision or that plaintiff failed to prove that the collision caused the compression fracture.

At trial, plaintiff testified that in 1980 he had worked as a dry wall installer; that he quit work in 1980 because of a work-caused back injury; and that he had not worked since that date because of this back injury. When plaintiff was on cross-examination by Hodge’s counsel, counsel sought to question him by use of a medical record regarding a pre-collision hospital admission from March 22 through 27, 1997, in which plaintiff complained of symptoms of back pain. Plaintiff objected that such, opinions as to limited range of motion, stated in the leading question medical diagnosis and opinion not supported by evidence in the record and were not medical history admissible as a hearsay exception. The trial court sustained the objection, and defense counsel abandoned this line of inquiry.

At the end of trial, the failure of a juror to reveal on voir dire that she was the aunt of an employee of Harrell’s counsel was revealed to the trial court by defendant. The trial court had the juror voir dired to determine the relationship with the other defendant’s counsel and whether the juror could be fair and impartial to all parties despite being related to an employee of defense counsel under the facts and circumstances of the case. Having determined that the juror could be impartial and after properly instructing the juror, the trial court did not remove the juror but allowed the juror to continue to serve over objection of plaintiff’s counsel; no objection was made by the defendant.

1. Defendant contends that the trial court abused its discretion in allowing a hypothetical question put to Dr. Homback to be answered.

Defendant’s objection was made on the videotaped deposition only and was not preserved for appellate review anywhere else. In the defendant’s brief, he states his objection that the hypothetical did not provide sufficient information for the expert to respond and that the hypothetical had no foundation in regard to any personal information of the physician as having had the same feelings.

Such objection appears nowhere in either the record or the trial transcript. Defendant failed to cite to the record or transcript where this specific objection was preserved for this Court’s review of the exact wording of this objection in violation of Court of Appeals Rule 27 (c) (3) (i). Prior to trial, the trial court denied this objection without reciting the objection so that this Court would have the objection before us for review.

Either as a portion of the pretrial order submitted by the defendant, as a motion in limine, or as a stipulation at pretrial hearing made into a transcript, this objection to the deposition should have been preserved and submitted for decision in writing into the record. In the alternative, the original video deposition, unedited, should have been filed in the record on appeal. Defendant directed that the clerk omit nothing on appeal to no avail, because the objection was contained in the unfiled and unedited videotaped deposition that was not read to the jury. The edited version of the deposition, with the overruled objection deleted, was played at trial for the jury and was transcribed by the court reporter as part of the trial transcript, which was filed with the clerk. Thus, after the court ruled on the objection as a pretrial matter, the objection was edited out of the deposition presented at trial to the jury so that the objection was not preserved as a part of the transcript of the evidence. Therefore, although timely made and ruled upon by the trial court, the objection was not preserved for appellate review by this Court.

When a party makes an objection but fails to have such objection preserved upon either the record or transcript of the evidence, such objection is not preserved for review, because this Court has nothing before it to review. In the absence of either record or transcript, this Court must presume the correctness of the ruling by the trial court. Camaron v. State, 246 Ga. App. 80, 82 (1) (539 SE2d 577) (2000). “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” (Citations and punctuation omitted.) Ogles v. State, 218 Ga. App. 92 (1) (a) (460 SE2d 866) (1995); see accord Burritt v. Media Marketing Svcs., 242 Ga. App. 92, 94-95 (3) (527 SE2d 890) (2000).

2. Defendant contends that the trial court abused its discretion “in limiting the cross-examination of the plaintiff concerning complaints of pain made by the plaintiff during medical treatment prior to the automobile accident in issue.” However, defendant failed to properly preserve this exception to the trial court’s ruling.

Defense counsel asked: “And during that, you had a physical examination where you — they tested your range of motion of your back and you were having some pain with that, and you could flex your trunk only forty degrees before you had pain, and you could extend it only ten degrees. . . .” Plaintiff’s counsel objected: “I’m going to object to this. He’s reading diagnosis and opinions of physicians he has not called as witnesses. This is not his medical history.”

Defense counsel did not deny that he was reading the physician’s opinion as to the range of motion as the predicate for the question and this physician had not been called to testify or that those expert opinions as to range of motion were not in the record already as evidence from any expert. After the trial court sustained the objection, defense counsel abandoned this line of inquiry without perfecting the record by making an offer of proof as to the relevance, materiality, admissibility of such evidence, and harm shown by the exclusion; nor did defense counsel show what the anticipated answer would be. See Anderson v. Jarriel, 224 Ga. 495, 496 (3) (162 SE2d 322) (1968); Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (2) (307 SE2d 759) (1983).

Historically, the cross-examiner generally did not have to make a proffer of proof of the expected answer when the question was relevant, material, and proper, because it was unknown what the answer would be to the question. Johnston v. Still, 225 Ga. 222, 225 (5) (167 SE2d 646) (1969); see also Becker v. Donalson, 133 Ga. 864, 868-869 (4) (67 SE 92) (1910); Griffin v. Henderson, 117 Ga. 382, 383-384 (2), (3) (43 SE 712) (1903). However, such exception to the rule evolved prior to the extensive discovery allowed in civil cases under the Civil Practice Act or the Criminal Discovery Act, which made counsel aware of the answer to questions on cross-examination at trial before they were asked. Now, the cross-examiner generally knows what the response will be from having previously asked the question under oath on deposition or at least what makes the question relevant, material, and admissible.

In this case, the plaintiff and the treating physicians had been deposed. The prior medical records, both as to this injury and all prior medical history, had been discovered by the defendant, and defendant sought to use such in cross-examination. Thus, the defendant was in a position to make an offer of proof when the trial court denied the specific form of the question. The question assumed an opinion not in evidence from a physician not called as a witness and called upon plaintiff to know the pre-collision medical diagnosis of his range of motion, a medical opinion formed from objective tests. This was a blatant attempt to put before the jury a medical opinion without calling the physician who rendered the opinion.

The trial court did not curtail or preclude defendant’s general cross-examination into the subject of pain or prior existing injury, but only sustained the specific objection based upon the form and opinion content of the question, which contained unproven expert opinion and was read from a nonwitness physician’s records.

“The defense is entitled to a thorough cross-examination; however, the scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused.” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987); see also Bromley v. State, 259 Ga. 377, 382 (7) (380 SE2d 694) (1989) (proffer made through limited cross-examination outside the presence of the jury and failed to demonstrate relevance of the question). Here, the question was in an improper form and was objectionable.

Defendant had to make a proffer showing that the question and the answer were relevant, material, and admissible, but counsel did not avail himself of the opportunity to perfect the record. Thus, under the circumstances, the trial court did not abuse its discretion in excluding the question until the defendant showed that the physician’s opinion stated in the question was admissible either as hearsay or as other earlier admitted evidence. See Johnson v. State, 270 Ga. 234, 235 (2) (507 SE2d 737) (1998) (defendant failed to proffer evidence that the victim and prosecution witnesses were members of a gang); Bromley v. State, supra at 382 (7); Cofield v. State, 247 Ga. 98, 111 (6) (274 SE2d 530) (1981) (defendant failed to proffer evidence to show that the victim was homosexual as a predicate to alleging that victim was killed in a lover’s quarrel); Nichols v. State, 210 Ga. App. 134, 137-138 (5) (435 SE2d 502) (1993) (defendant tried for burglaries at an apartment complex was not allowed to ask about other subsequent burglaries, because he made no proffer showing that other subsequent burglaries were committed by someone else). The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. Timberlake v. State, 200 Ga. App. 64, 66 (2) (406 SE2d 537) (1991); see also Nichols v. State, supra at 138. Further, the defendant had already cross-examined the treating physician, Dr. Nguyen, regarding such same general area of inquiry regarding prior injuries, pain, and range of motion.

3. Defendant contends that the trial court abused its discretion in not replacing a juror who was related to an employee of the other defense counsel. We find that no such objection by defendant was made.

Defendant’s counsel brought to the trial court’s attention that a juror was the aunt of the secretary for the other defendant’s counsel after the close of evidence. While the juror was the aunt of the secretary for the other defendant’s counsel, on initial voir dire she had not volunteered such information when she revealed that she knew counsel. Plaintiff and defendant both expressed the desire to replace the juror to the trial court when they brought the situation to his attention, but defendant voiced no objection.

The trial court held a hearing outside the presence of the other jurors and inquired of the juror in question and allowed counsel to voir dire. Defendant’s counsel declined to ask any questions. The juror stated that she knew the other defense counsel but that she could be a fair and impartial juror nonetheless. The trial court gave her cautionary instructions as to her impartiality and reseated her. After such voir dire and instruction by the court, plaintiff’s counsel objected to the trial court’s failure to replace the juror, but defendant neither joined in the renewed motion nor objected on his own as to the instructions.

Absent a contemporaneous objection ruled on by the trial court, the objection is not preserved for appellate review and is waived. Sharpe v. Dept. of Transp., 267 Ga. 267, 270-271 (2) (476 SE2d 722) (1996); Ga. Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991). The record is silent as to any objection by the defendant; therefore, there exists nothing for this Court to review. Bryant v. Mayor &c. of Americus, 252 Ga. 76, 78 (4) (311 SE2d 174) (1984). “If several parties are entitled to make an objection, and it is made by any number less than all, it does not inure to the advantage of the party or parties not joining in it. Thus, where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review.” (Citations and punctuation omitted.) Heard v. State, 204 Ga. App. 757, 759 (4) (420 SE2d 639) (1992).

Decided August 8, 2001

Reconsideration denied August 20, 2001

Dillard, Bower & Crowley, Terry A. Dillard, Bryant H. Bower, Jr., Douglas W. Mitchell III, for appellant.

Helms & Helms, Jack J. Helms, Jr., for appellee.

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.


text:
    A01A1817.
    VILLANI v. EDWARDS et al.
    (554 SE2d 184)
   Eldridge, Judge.

Appellee-plaintiff Sha’Ron Edwards employed appellant Ralph J. Villani, attorney at law, to represent her in an action for damages against appellee-defendants William Arthur White and Atlanta Freightliner Truck Sales & Service, Inc. arising out of an automobile collision involving Edwards and White. White, an Atlanta Freight-liner employee, had been driving a company vehicle when the crash occurred. The record reveals that the action was thereafter filed in the State Court of Fulton County by Michael A. Cole as Edwards’ attorney of record. Atlanta Freightliner timely answered, denying the material allegations of the complaint. Following discovery, the parties attempted mediation. However, these efforts failed, and a magistrate judge presiding in the state court granted attorney Cole leave to withdraw as Edwards’ counsel. On this, attorney Villani filed notice of his substitution as Edwards’ lead counsel. Edwards, in turn, filed a letter notice in the state court indicating that she had terminated attorney Villani two days before attorney Villani filed his notice of substitution as counsel. Edwards also gave notice that she had hired a third attorney. Such attorney subsequently settled Edwards’ claim, satisfied attorney Cole’s attorney’s lien, and, on Edwards’ behalf, voluntarily dismissed the underlying complaint with prejudice. Attorney Cole was paid out of the settlement for services rendered to Edwards and his lien released. Attorney Villani appeals from the state court’s denial of his motion to reopen the case to permit him to file his attorney’s lien upon the claim that, as Edwards’ attorney of record, he had not been given notice of the settlement of the case. We conclude that attorney Villani’s lien was extinguished upon the dismissal of Edwards’ complaint and affirm.

1. The state court did not err in finding that it lacked authority to reopen Edwards’ suit as settled and voluntarily dismissed. Attorney Villani sought to assert the OCGA § 15-19-14 (b) attorney’s lien he claims by his motion to reopen the case vacating the original judgment and reviving the original action. See Smith, Bassett, Purcell &c. v. Word of God Ministries, 234 Ga. App. 263, 264 (506 SE2d 427) (1998), citing Brown v. Ga., Carolina &c. R. Co., 101 Ga. 80, 83 (28 SE 634) (1897) (In actions for money, “the lien does not attach to the cause of action but only arises upon institution of suit.”) (emphasis supplied). Compare Smith, Bassett, Purcell &c. v. Word of God Ministries, supra (law firm’s lien on recovered property under OCGA § 15-19-14 (c) not extinguished by dismissal and settlement of action brought to recover such property). However, “when for any reason the suit is finally disposed of, the lien is discharged.” Brown v. Ga., Carolina &c. R. Co., supra. Here there was settlement and voluntary dismissal of Edwards’ suit. Thus, a final disposition of the suit was made discharging, as a matter of law, any possible attorney’s lien attorney Villani might have been able to establish as to his purported representation of Edwards, whether as counsel of record or otherwise.

A voluntary dismissal under OCGA § 9-11-41 (a) is a matter of right and terminates the action. Page v. Holiday Inns, 245 Ga. 12, 13 (262 SE2d 783) [(1980)]. Further, Georgia’s Civil Practice Act apparently makes no provision for the reinstatement of an action after dismissal as distinguished from a recommencement. Davis & Shulman’s Ga. Practice & Procedure, § 13-4 (4th Ed. 1975). Matthews v. Riviera Equip., 152 Ga. App. 870 (1) (264 SE2d 318) [(1980)]. Nor does the Civil Practice Act provide authority for setting aside a dismissal based on fraud in the inducement of the dismissal. Compare OCGA § 9-11-60 (d) (2). (Any such claim must be pled in a separate action.)

(Punctuation and footnote omitted.) Collier v. Evans, 205 Ga. App. 764, 767 (4) (423 SE2d 704) (1992).

Even were the contrary true, attorney Villani points to nothing of record establishing that he had an enforceable contract for representation of Edwards. “ ‘If the parties do not create a complete and binding agreement, the courts are powerless to do it for them, or afford a remedy for a breach. [Cits.]’ ” Southeastern Underwriters v. AFLAC, Inc., 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993). Further, under Standard 31 (d) (1), Advisory Opinion 92-1 and AFLAC, Inc. v. Williams, 264 Ga. 351, 352-353 (1) (444 SE2d 314) (1994), oral contingency contracts are unenforceable as violative of public policy, and, for like reason, evidence of them in quantum meruit actions is inadmissible. Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 66 (2) (537 SE2d 670) (2000).

Decided August 1, 2001

Reconsideration denied August 20, 2001

Ralph J. Villani, pro se.

Dermer, Brown, Rogers & O’Neill, Richard W Brown, Nadler, Beskin, Scott & Hominy, Honald C. Beskin, Cole, Bryman & Clerke, Michael A. Cole, JeffS. Klein, for appellees.

Sha’Ron Edwards, pro se.

2. In light of our disposition of Division 1, we need not address attorney Villani’s remaining claims of error.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Ellington, Judge.

text:
    A01A2186.
    MOORE v. THE STATE.
    (554 SE2d 204)
   Ellington, Judge.

William D. Moore appeals from the denial of his motion to vacate an illegal sentence. Finding no error, we affirm.

An Athens-Clarke County jury convicted Moore of armed robbery, OCGA § 16-8-41. On May 6,1992, he was sentenced as a recidivist to life imprisonment without the possibility of parole, pursuant to former OCGA § 17-10-7 (b). That statute read as follows:

Any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state other than a capital felony, must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

Ga. L. 1984, p. 760, § 2. Upon a finding that the defendant is a recidivist under this provision, the mandatory sentence for an armed robbery is imprisonment for life without parole. OCGA § 16-8-41 (b) (Ga. L. 1985, p. 1036, § 1); Howard v. State, 233 Ga. App. 724-725 (1) (505 SE2d 768) (1998).

During sentencing on Moore’s armed robbery, the State presented evidence that Moore pled guilty on October 22, 1974, to murder and was sentenced to life imprisonment. On the same day that he pled guilty to murder, Moore also pled guilty to robbery by force against a separate victim and was sentenced to 20 years imprisonment. The State also showed that, in February 1992, Moore pled guilty to armed robbery and was sentenced to a 20-year term to run concurrent with his life sentence.

Moore appealed his conviction, which was affirmed by this Court. Moore v. State, 207 Ga. App. 802 (430 SE2d 115) (1993). Moore filed a habeas corpus petition in 1997, raising ineffective assistance of counsel. On December 27, 2000, Moore filed a motion to vacate, correct, or modify his sentence. The trial court denied the motion on April 27, 2001, and this appeal followed.

1. Moore contends the aforementioned murder and robbery by force should be treated as one felony, not two, for recidivist sentencing purposes. Moore argues that, because the pleas were entered on the same day and resulted from a two-day “crime spree,” the felonies were “consolidated for trial” and must be treated as one felony pursuant to OCGA § 17-10-7 (c). Under this statute, for recidivist sentencing purposes, “conviction of two or more crimes charged ... in two or more indictments or accusations consolidated for trial [ ] shall be deemed to be only one conviction.”

The trial court, however, specifically found that the murder and robbery by force had not been “consolidated for trial” just because Moore “entered guilty pleas and was sentenced on the same day and . . . the sentences ran concurrently].” We agree. The convictions at issue arose from separate crimes against different victims which occurred on different days. They were indicted separately, and a separate sentencing order was entered on each indictment. “Under these circumstances, the fact that the sentences were entered on the same day and that the sentences on the one charge ran concurrent with the other sentence does not require the conclusion that the two prior convictions had been ‘consolidated for trial’ within the meaning of OCGA § 17-10-7 (c).” (Citation and punctuation omitted.) Thompson v. State, 237 Ga. App. 466, 471 (6) (517 SE2d 339) (1999). See also Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993); Robinson v. State, 232 Ga. App. 280 (2) (501 SE2d 536) (1998). Cf. Stone v. State, 245 Ga. App. 728, 729 (538 SE2d 791) (2000) (when a single incident gives rise to multiple offenses, they should be considered as one conviction for recidivist sentencing purposes, regardless of whether the defendant went to trial or pled guilty on the charges). The record supports the trial court’s finding that, for the purpose of recidivist sentencing, the prior convictions were not consolidated for trial.

Decided August 9, 2001

Reconsideration denied August 20, 2001

William D. Moore, pro se.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

2. We have examined Moore’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       Currently OCGA § 17-10-7 (c).

       Currently OCGA § 17-10-7 (d).


text:
    A01A1476.
    TOLVER v. THE STATE.
    (554 SE2d 271)
   Johnson, Presiding Judge.

James Tolver was convicted of burglary, theft by taking, and entering an automobile. On appeal, he claims the trial court committed reversible error in charging the jury that it was “not bound to believe testimony as to facts incredible, impossible or inherently improbable.” We agree with Tolver and reverse his convictions.

Viewed in a light most favorable to the verdict, the evidence shows that at about 2:00 a.m. police received a report of strange noises at a county landfill. Upon arriving at the landfill, an officer saw a truck crash through one of the gates and come toward him. The truck was dragging a large safe attached to a chain. The officer then saw a second man, Charles Brandon, standing near a landfill building. The officer started chasing Brandon on foot and captured him as he attempted to hide beneath a car on neighboring property. Brandon was muddy, nervous, and out of breath.

Another officer responding to the call saw a car parked on the road near the landfill. As he waited near the car, a sweaty, muddy man approached on foot. The man, who was out of breath, said his name was James Tolver, that the parked car was his, and that it had broken down. Because the first officer had reported that the men he had seen at the landfill ran from the scene, the second officer placed the man who had identified himself as Tolver in the police car. The first officer saw the man seated in the patrol car and recognized him as the man he saw driving the truck. When the officers walked back to the office building to continue their investigation, the man escaped from the patrol car. They arrested Tolver about six weeks later during a traffic stop.

The landfill’s director testified that he was called to the landfill immediately after the incident occurred and noticed that the office had been broken into, the safe had been damaged and moved from inside the office to the parking lot, several vehicles had been damaged, and a radio was missing. The radio was found in the car which had been parked outside the landfill.

At their joint trial, both Brandon and Tolver denied being at the landfill that night. Brandon testified that he was hiding on the neighboring property because he had been visiting a woman in a nearby trailer and he thought the woman’s husband was coming home. Tolver testified that he was not at the landfill that night, though he gave no specific alibi. One of the officers, however, identified Tolver as the man he saw driving the truck at the landfill. Both men were convicted of burglary, theft by taking, and entering an automobile.

Brandon appealed first, urging that the trial court erred in including in its charge the instruction that “juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable.” In reversing Brandon’s convictions, we held that the statement was a correct statement of the law, but that it was inappropriate to give in Brandon’s case. The complained-of principle, we stated, should be used only in extraordinary cases, and only where a witness’ statement runs “contrary to natural law and the universal experience of mankind.” It was not appropriate in a case such as Brandon’s, where the defendant testified that he was present near the scene only because he was hiding from a jealous husband. The charge, we held, can mislead jurors into believing that there was incredible, impossible, or inherently improbable testimony, or that they were authorized to find that there was such testimony. This type of charge tends to discredit a witness’ testimony in the eyes of the jurors.

In this case, as in Brandon, there was nothing about Tolver’s story — that he was not at the landfill when the crimes occurred — that “ran contrary to the ‘great physical laws of the universe.’” Although Tolver’s testimony may have been improbable in light of the state’s evidence that he was indeed the man who drove the truck and fled the scene that night, it was not incredible, inherently improbable, or impossible.

Decided August 20, 2001.

Peter D. Johnson, for appellant.

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

The state concedes that the trial court erred in giving the charge, but argues that the error was harmless because of the overwhelming evidence of Tolver’s guilt. We disagree. Tolver’s testimony that he was not present at the scene was his sole defense at trial. The erroneous charge discredited his testimony, so the error was not harmless. Just as the error committed at the joint trial was harmful to his co-defendant, Brandon, it was also harmful to Tolver. The case is remanded for a new trial.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

        Brandon v. State, 241 Ga. App. 887, 889 (2) (528 SE2d 809) (2000).

       Id.

       Id.

       Id. at 890 (2).

       See id.

       See Stephens v. State, 245 Ga. App. 823, 826 (4) (538 SE2d 882) (2000).


text:
    A01A1977.
    In the Interest of G. J., a child.
    (554 SE2d 269)
   Eldridge, Judge.

G. J. was accused by a Department of Juvenile Justice petition of the offense of simple battery “in that on or about December 13, 2000, . . . the youth did intentionally make contact of an insulting and provoking nature to wit hit in the back with a fist, with the person of Barbara Kicklighter.” See OCGA § 16-5-23 (a). Kicklighter was a teacher at Reidsville Middle School where G. J. attended. After a bench trial, G. J. was adjudicated delinquent for such offense. He appeals contending that the state failed to prove intent and, thus, the evidence was insufficient to support the juvenile court’s ruling. We disagree.

The intention with which an act is done is peculiarly for the jury [or finder of fact]. It is often difficult to prove with direct evidence añ individual’s intent as it existed at the time of the act for which they are being prosecuted. Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6. A [finder of fact] may infer that a person acted with criminal intent after considering the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. OCGA § 24-4-6. Whether a hypothesis is reasonable is a question for the [finder of fact], and such finding will not be disturbed on appeal unless the guilty verdict is unsupportable as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (526 SE2d 361) (1999).

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.

(Citations and punctuation omitted.) In the Interest of J. M., 237 Ga. App. 298 (513 SE2d 742) (1999); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

When viewed in such light, the evidence shows that on December 13, 2000, Kicklighter was supervising the sixth and seventh grade students who were waiting in the hallway prior to the beginning of the school day. As part of her duties, she asked a group of students, of which G. J. was a part, to stop singing. Just as she finished talking to G. J.’s group, the bell rang indicating it was time for the students to go into their classrooms. Kicklighter moved to the middle of the hall, which was three yards wide, and signaled to the students to line up and wait for their teachers to admit them into the classrooms. Still standing in the middle of the hall, Kicklighter turned her back to G. J.’s group to speak to a seventh grade student on the opposite side of the hall who had not stood up. Kicklighter testified that she felt a blow to the back of her right upper shoulder and heard an accompanying thud. As soon as she felt the blow, she immediately turned and out of her peripheral vision saw a “hand — a fist” and a flash of navy blue. As she continued to turn around, she saw the arm moving backward. When she turned completely around, G. J. was standing directly across from her with his back against the wall and facing toward her. The remainder of the students were standing in a line with one of their shoulders against the wall so they could proceed into the classroom doors. G. J. was the only student nearby wearing navy blue.

When questioned by Kicklighter, G. J. denied hitting her and indicated it was another student. G. J. stated to Kicklighter that he could not describe the other student and refused to attempt to identify the student from the group of students which by this time had entered the classroom. In the school office, G. J. told the principal that he did not hit Kicklighter on purpose, but that it was an accident. At trial, G. J. contended that he was either pushed by another student or tripped and stumbled which caused him to fall against Kicklighter, hitting her with his hands in the back.

In this case, there was sufficient evidence from which a reasonable trier of fact could find beyond a reasonable doubt that G. J. intentionally made contact of an insulting and provoking nature when his hand came into contact with Kicklighter’s back. G. J. was part of a group of students that had just been rebuked by Kicklighter for singing loudly in the hall. Kicklighter, as well as several students, testified that when G. J.’s hand came into contact with Kicklighter’s back, it was in a fist as opposed to being open-handed as if he had tripped or fell and that the impact made a loud “thump” or “thud” sound. Kicklighter testified that the blow was with such force that she could feel it through several layers of clothing, i.e., a jacket, vest, turtleneck, and camisole. Kicklighter further testified that her shoulder ached all morning; that she considered going to the doctor; that when she arrived home that evening, her shoulder was still slightly red in appearance; and that she placed a heating pad on her shoulder. Several students who observed the incident testified that G. J. did not appear to be pushed or falling when he hit Kicklighter. Further, Kicklighter and B. V., another student, testified that when G. J. brought his arm back from hitting her, G. J. was standing against the wall and not toward the center of the hallway as would be expected if he had tripped or been pushed. Additionally, B. W., a fellow student, testified that G. J. asked him to “lie for him” to the principal.

While G. J. and several other students testified that G. J. was pushed or tripped, the trial court found other witnesses more credible. Whether to believe a witness and the facts to which he testified to was solely within the province of the trial judge as finder of fact.

An appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the . . . verdict will be upheld.

Decided August 20, 2001.

Earle J. Duncan III, for appellant.

J. Thomas Durden, Jr., District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.

(Citation omitted.) Robertson v. State, 245 Ga. App. 649, 651 (538 SE2d 755) (2000).

In this case, we find that the evidence was sufficient for the trial court as finder of fact to find the essential elements of the crime beyond a reasonable doubt.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Barnes, Judge.

text:
    A01A1319.
    HARRISON v. THE STATE.
    (553 SE2d 343)
   Barnes, Judge.

Quincy Harrison appeals from his armed robbery, hijacking a motor vehicle, kidnapping, and aggravated assault convictions, contending the trial court erred by (1) ruling the defendant lost the right to open and conclude closing arguments by introducing evidence in the State’s case; and (2) allowing the State to ask a witness about the defendant’s contact with the victim before trial. For reasons that follow, we affirm.

1. In his first enumeration of error, Harrison contends he was harmed by the trial court’s ruling that he lost the right to open and conclude closing arguments.

OCGA § 17-8-71 provides: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” In Smith v. State, 272 Ga. 874, 878 (3) (536 SE2d 514) (2000), the Supreme Court established the following standards to determine whether a defendant has introduced evidence during cross-examination of a state witness:

(1) If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, the defendant has effectively introduced evidence to the jury that should have been formally offered into evidence and the defendant therefore loses the right to open and close final arguments; (2) if a defendant reads only the portions of the prior written statement of a witness that are relevant to impeaching the witness, the defendant has not introduced evidence and does not lose the right to open and close; and (3) if a defendant, in impeaching a witness with a prior inconsistent statement, voluntarily introduces the statement into evidence in order to make it a part of the record, the defendant has introduced evidence and has lost the right to open and close final arguments.

This case falls within category (1) above, because the police officer was asked to read portions of the defendant’s statement that were not related to impeaching the officer’s recollection about what Harrison said about his involvement in removing stereo equipment from the victim’s car. Specifically, at Harrison’s request, the officer read portions of the statement that related to where the victim’s car was driven and instructions given to Harrison about where to drive. As a result, the trial court did not err by ruling that Harrison lost his right to open and conclude closing argument because he introduced evidence during the State’s case.

2. In his remaining enumeration of error, Harrison contends the trial court erred by allowing the State to question his accomplice, who pled guilty, about contact between Harrison and the victim before trial. The record shows the accomplice testified, without objection, that Harrison told him “go to trial, the victim ain’t coming to court. . . .” Harrison’s counsel then objected to this follow-up question on the grounds that it was highly prejudicial: “Did he indicate to you if he or any of his associates had attempted to contact or influence the —.” In a bench conference, the State provided the following basis for asking the question: “Well, Judge,... we were all surprised by the victim’s . . . somewhat reluctance to testify. He really softened his testimony. ... In fact, . . . the night before last when I spoke with the victim he told me that an associate of this defendant who I know through other avenues had communicated to him that he better not testify.” The trial court then overruled the objection and allowed the State to ask the accomplice (1) whether Harrison told him he had had contact with the victim about his testimony; and (2) whether the accomplice had contacted the victim about his testimony. The accomplice testified that Harrison did not tell him how he knew the victim would not testify and also denied any personal contact with the victim.

We find no error. “[E]vidence of an attempt to influence the testimony of a witness is always admissible.” Winn v. State, 272 Ga. 482, 484 (2) (531 SE2d 717) (2000). In this case, the State had a reasonable basis to ask the question. See id. Harrison’s argument on appeal, in essence, is that the accomplice’s negative response to the question means that it should never have been asked. This is not the proper way to analyze whether the trial court should have allowed the question in the first instance.

Decided August 1, 2001

Reconsideration denied August 21, 2001

Jarrard & Walker, Lucy K. Henry, for appellant.

Lydia J. Sartain, District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Mikell, Judge.

text:
    A01A1382.
    FLENIKEN v. THE STATE.
    (554 SE2d 280)
   Mikell, Judge.

Lewis Fleniken was charged with driving with an unlawful alcohol concentration, underage possession of alcohol, and driving the wrong way on a one-way street. During his jury trial, Fleniken moved for a mistrial after the arresting officer testified that he asked Fleniken if he would take an alco-sensor test. After a hearing outside of the jury’s presence, the trial court granted Fleniken’s motion because there was no evidence that the type of alco-sensor device utilized by the officer was approved for use in Georgia. Fleniken filed a plea in bar arguing that the state goaded him into moving for a mistrial when it intentionally elicited information concerning the field sobriety tests. Finding that the state had not goaded Fleniken into moving for a mistrial, the trial court denied his plea in bar. Fleniken appeals, and we affirm.

1. At the outset, we address Fleniken’s motion to remand. Fleniken urges this Court to remand this case so that the trial court can hear evidence from the state on whether it intended to cause a mistrial. However, based on the trial court’s order denying the plea in bar and the rule nisi order, it appears that the trial court held a hearing during which it heard evidence on the plea in bar. Accordingly, Fleniken’s motion to remand is denied.

2. We next turn to the merits of the appeal. The record shows that Officer William Rodriguez stopped Fleniken because he was driving in the wrong direction on a one-way street. While talking to Fleniken, Officer Rodriguez noticed that his eyes were “somewhat red and glassy” and detected the smell of alcohol coming from Fleniken’s breath and person. Officer Rodriguez asked Fleniken to take an alco-sensor test, and he agreed. The test was positive for the presence of alcohol in Fleniken’s system. Officer Rodriguez placed Fleniken under arrest and read him the implied consent notice. Fleniken agreed to submit to state-administered chemical testing, which showed blood alcohol concentration levels of 0.058 and 0.056.

Fleniken filed a motion to suppress the results of all field sobriety tests. The trial court denied his motion, but reserved its ruling on the admissibility of Fleniken’s alco-sensor result until the time of trial. During the state’s opening argument, the prosecutor informed the jury that Fleniken’s alco-sensor result showed that he had alcohol in his system. Fleniken did not object.

During the state’s direct examination of Officer Rodriguez, the following colloquy occurred: “Q. Once you learned that he [Fleniken] was 19, what did you do next? A. I had — at that time having smelt [sic] alcohol on his breath and person and observing what I did about his eyes, I asked if he would take a [sic] alco-sensor test.” Fleniken objected, and the jury was excused. Fleniken then moved for a mistrial, which the trial court denied. Before resuming the trial, however, the trial judge asked the prosecutor if he had evidence that would authorize the admission of the alco-sensor result in good faith. He replied that he did and offered into evidence a letter from the Georgia Bureau of Investigation that listed the breath-testing devices that were approved for use in Georgia.

The trial judge conducted a hearing to determine the admissibility of Fleniken’s alco-sensor results, during which it stated that the state’s letter was admissible. Fleniken then pointed out that there was no evidence that the alco-sensor used by the officer was one of the types that had been approved for use in Georgia, which is a prerequisite for its admissibility. Consequently, Fleniken renewed his motion for a mistrial, and the trial court granted it. Fleniken subsequently filed his plea in bar arguing that the state goaded him into moving for a mistrial, which the trial court denied.

Generally, the defendant waives any claim of double jeopardy when he moves for a mistrial. However, where the mistrial involves the question of prosecutorial misconduct and the defendant invokes the double jeopardy clause to bar a retrial, we apply the standard adopted by our Supreme Court from Oregon v. Kennedy, which provides:

The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial. What is critical is the objective of the prosecutor’s conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve.

The Oregon Court stated that this standard “merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” In this case, the trial court found, based upon the totality of the circumstances, that the state did not intend to goad Fleniken into moving for a mistrial. We agree.

“Even where a prosecutor’s conduct is sufficient to justify a grant of mistrial, the conduct nevertheless does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. . . . [T]he facts must warrant the conclusion that there was such an instigative intention.” The facts here do not warrant that conclusion. We agree with Fleniken’s statement during the trial that when the prosecutor mentioned the alco-sensor result during his opening statement, his intention was to introduce it properly into evidence. Further, since the trial court did not prohibit any reference to the alco-sensor test, we do not find that the state intentionally elicited inadmissible evidence with the intent to subvert the protections afforded Fleniken by the double jeopardy clause.

Fleniken incorrectly relies on Wilson v. State in support of his argument that his plea in bar should have been granted. In that case, during the defendant’s cross-examination, the prosecutor asked him whether he tried to negotiate a nolo contendere plea in his case. We found that the prosecutor’s error was so blatant and contrary to the most basic rules of prosecutorial procedure that the grant of a defendant’s plea in bar was warranted. Wilson does not control this case because the error causing the mistrial here was not of the magnitude of the error made by the prosecutor in Wilson.

Based on our review of the record, we find that there is evidence to support the trial court’s finding that the prosecutor did not goad the defendant into moving for a mistrial. Accordingly, we affirm.

Decided August 21, 2001.

McDonald & Cody, Douglas W. McDonald, Jr., for appellant.

Ralph W Powell, Jr., Solicitor-General, Carroll R. Chisholm, Jr., Kevin D. Gonzalez, Assistant Solicitors-General, for appellee.

Judgment affirmed.

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

       A bench conference occurred immediately after the conclusion of opening arguments, but it was not transcribed for our review. Fleniken does not enumerate as error the prosecutor’s statement.

       OCGA § 40-6-392 (a) (1) (A).

        Williams v. State, 258 Ga. 305, 311 (1) (369 SE2d 232) (1988).

       456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982).

       (Citation omitted.) Brinson v. State, 245 Ga. App. 479, 481-482 (538 SE2d 122) (2000).

        Oregon, 456 U. S. at 675.

        Spears v. State, 234 Ga. App. 498, 499 (506 SE2d 446) (1998).

       During argument on the mistrial, Fleniken’s counsel stated, “I didn’t object to it [prosecutor’s mention of the alco-sensor result] because he was going to attempt to make it admissible some other way.”

       233 Ga. App. 327, 330 (3) (503 SE2d 924) (1998).

       Id.

       Id.

       Id.


text:
    A01A1072.
    LOVELL et al. v. HARTNESS.
    (554 SE2d 283)
   Eldridge, Judge.

The Supreme Court of Georgia transferred this case because the case involves issues of law and not equity on an action for declaratory judgment of what appears to be a case involving title to land; however, the case depends upon the Declaration of Covenants to determine if a one-acre parcel (“Property”) adjacent to Duane Hartness’ residential Lot 20 and between his lot and the fourteenth hole of the golf course is either a lot or comes under “Golf Course Facilities” within the meaning of the Declaration.

On cross-motions for summary judgment, Hartness and Carlos Lovell submitted the issue of whether the Property was a residential lot or a part of the Golf Course Facilities under the Declaration of Covenants governing “The Orchard,” a golf course and residential development in Habersham County, which was filed by the developer Orchard Limited Partnership (“OLP”) on November 21, 1988. The trial court ruled that the Property came under the class of property classified as Golf Course Facilities under the Declaration. We agree and affirm.

The Property is one acre of 734.1 acres described in the Declaration of Covenants as Exhibit A; however, at the time when the Declaration was recorded, no plat showed the individual lots, Common Areas, or Golf Course Facilities which comprised the three classes of property under the Declaration subject to the covenants, restrictions, and reserved rights. However, on September 13, 1989, the final plat of Phase II of the subdivision was recorded and showed the Property as part of the Golf Course Facilities on the fourteenth hole and not platted as a residential lot; further, the Property at that time had no lot designation as did all residential lots. The Property was never assessed for association fees as were all residential lots. Several subsequent amendments to the Declaration of Covenants and Restrictions for The Orchard were filed, but none directly affected the Property.

There was no subsequent plat made of the subdivision lots, Common Areas, and Golf Course Facilities. The surveyor of The Orchard specifically left the Property out of the subdivision lots and in the Golf Course Facilities in the plat.

In May 1993, Carlos Lovell had the same surveyor plat the Property and recorded the plat as a lot for the first time in an individual plat of the Property. Virgil Lovell claimed that the Property was “inadvertently” omitted in platting and designating lots both in 1988 and 1989; Carlos Lovell alleged that the surveyor, Hubert Lovell, told Carlos Lovell and Virgil Lovell that the Property had been missed in Phase II. Carlos Lovell claimed that he knew that the Property was a lot even if not recorded on the 1988 or 1989 plats as a lot. However, Hubert Lovell testified that in “preparing the survey [in 1989 for Phase II] I advised Carlos Lovell that I was leaving the property described in this lawsuit out of the subdivision and in the Golf Course Property because it was below the dam and the large watershed above it.” Although there exists a material issue of fact as to intent and as to when actions were taken, the legal effect of the earlier conveyance under the Declaration caused covenants running with the land to attach, negating any factual dispute.

In the Declaration, OLP reserved the right to modify boundary lines, plat, and replat the Golf Course Facilities. OLP also retained the right to add additional property to The Orchard subdivision, subject to the Declaration, without the consent of the owners within the development. Under the retained powers of OLP as developer of The Orchard were the right and power to make reasonable modifications, chánges, or cancellations to any provision pertaining to the development under the Declaration. The out-parceling of property came from Common Areas property that was marked for the developer’s exclusive benefit on the recorded plats.

Plaintiff, Hartness, owns a one-half undivided interest in Lot 20, Phase II of The Orchard, which was conveyed to him on November 22, 1995, from Colin Halfwassen; on December 3, 1992, Halfwassen acquired his title by deed from OLP.

The parties agree that the Property is not Common Areas property of the subdivision. Randall W. Barfield, Jr., owner of Lot 21 adjoining the Property on the opposite side of the Property from Hartness, testified that when he purchased his lot that OLP agents represented to him that the Property was Common Areas property that would not be developed.

Carlos Lovell owned all of the land from which The Orchard was created. Initially, the Property was owned by Carlos Lovell and OLP who conveyed it to The Orchard Club, Inc. in 1992 as part of the Golf Course Facilities. The Orchard Club as a nonprofit organization was the Golf Course Facilities and did not own lots for sale. The Property was not held by OLP among the inventory of residential lots that it sold. All the Golf Course Facilities owned by The Orchard Club or its successors in title were subject to the covenants and restrictions of the Declaration.

In 1992, OLP through Carlos and Fred Lovell controlled The Orchard Club and Virgil Lovell controlled its books; together, they determined to convey the Property to Carlos Lovell. On September 13, 1993, The Orchard Club quitclaim deeded the Property to Carlos Lovell, father of Virgil Lovell, with a legal description referencing the 1993 plat prepared by Hubert Lovell.

At that time and at all times previous, VEL, Inc. was the general partner of OLP, and Virgil Lovell was the sole owner. Virgil Lovell was the initial president of The Orchard Club. Carlos Lovell conveyed the Property to OLP shortly before the sale of the Property by OLP to David McEwen. OLP sold the Property to McEwen for $60,000.

On May 21, 1998, the Golf Course Facilities were sold to Gordy Management Unlimited, Inc. with the legal description given by plat book references only. The Property was not conveyed to Gordy, nor has Gordy used or maintained the Property as a portion of the Golf Course Facilities at any time. Prior to this, the Property was maintained by The Orchard Club as part of the Golf Course Facilities, and some of it was maintained by OLP. OLP now maintains the Property exclusively.

Thus, title to the Property is in McEwen, having been conveyed such interest by OLP with prior grantors Carlos Lovell and The Orchard Club.

However, who holds title to the Property is irrelevant, because the Property is subject to the covenants running with the land created under the Declaration governing the use of the Property by any owner. OCGA § 44-5-60 (a); Smith v. Pindar Real Estate Co., 187 Ga. 229, 236 (3) (200 SE 131) (1938).

The conveyance of the Golf Course Facilities to The Orchard Club by deed created a privity of estate in it from the grantor, who created the Declaration with covenants of land use to all the land acquired by The Orchard Club; these covenants of use attached upon conveyance of the land, creating a covenant running with the land from that time forward. Johnson v. Myers, 226 Ga. 23, 25-26 (3) (172 SE2d 421) (1970).

After the filing of the Declaration, the Property was conveyed by Carlos Lovell to The Orchard Club by deed that gave as a legal description the 1989 recorded plat which in seven recorded plat sheets and list of lots described the lots, the Common Areas, and the Golf Course Facilities, which identified the uses to which such property could be put. Thus, both Carlos Lovell and OLP conveyed all the land not designated lots or land in the Common Areas reserved for the benefit of the developer, subject to the Declaration to The Orchard Club; such land consisted of all the rest of the land shown on the plats as Golf Course Facilities, including the Property. Once conveyed out of OLP and Carlos Lovell to The Orchard Club, the covenants and restrictions attached to the land, including the Property for the benefit of all other present and future landowners, because OLP reserved no rights to change the Declaration after it conveyed such land. The reservation of rights powers were powers reserved in OLP alone to exercise. The Orchard Club had no reserved powers to change, modify, or remove covenants. Therefore, The Orchard Club and its successors in title to the Property took such property subject to the covenants of use running with the land created by the Declaration and could not remove them. See Jones v. Lanier Dev. Co., 190 Ga. 887, 891 (4) (11 SE2d 11) (1940); O’Neill v. Myers, 148 Ga. App. 749, 750 (3) (252 SE2d 638) (1979). OLP, by such conveyance subject to the covenants running with the land, lost the reserved rights to change or modify any covenants or regulations regarding such Property that it had reserved within the Declaration, because the conveyance to The Orchard Club allowed the covenants to fully attach to the Property and could not be subsequently removed. See Jones v. Lanier Dev. Co., supra at 887; O’Neill v. Myers, supra at 749. As long as OLP retained the initial title to the Property, it retained the power and right to change the covenants and restrictions as to the Property. However, upon the conveyance of the Property along with the Golf Course Facilities to The Orchard Club, the burden of the covenant for use on the estate passed as to all the land as “covenants real” and ran with the land; in light of such burden on the land, it could not be changed unilaterally anymore. See generally James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545 (171 SE2d 907) (1969).

Upon reacquiring the Property, OLP had title to the property with the burden of the covenants running with the land, but without the right to change the covenants. While OLP retained the right and power to change the covenants and restrictions as to other land to which it retained ownership, it lost such powers as to land that it conveyed away, because the covenants on the Property attached on the conveyance to The Orchard Club; the covenants for use became effective on the Property with interests in all other lot owners at that time, and OLP lost the reserved power to change the covenants as to the Property upon conveying away its initial interest to The Orchard Club in such land, even though it retained property in the subdivision. See generally Armstrong v. Roberts, 254 Ga. 15, 16 (325 SE2d 769) (1985); Davis v. Miller, 212 Ga. 836, 839 (96 SE2d 498) (1957); Thompson v. Glenwood Community Club, 191 Ga. 196 (12 SE2d 623) (1940); Frazier v. Deen, 221 Ga. App. 153 (470 SE2d 914) (1996). Thus, no merger of estates occurred to do away with the covenants upon the revesting of the estate in Carlos Lovell or OLP, because the subdivision lot owners had acquired an interest prior to such reacquisition. OCGA § 44-6-2; Desai v. OK Oil, 233 Ga. App. 855, 857-858 (505 SE2d 271) (1998). Therefore, when The Orchard Club acquired the Property in the deed referencing the recorded plat as used for Golf Course Facilities under the Declaration, the Property became restricted to use as Golf Course Facilities property no matter who subsequently acquired title to it, because under the Declaration the Property now constituted Golf Course Facilities property as a covenant running with the land for the benefit of all other property owners. See Roth v. Connor, 235 Ga. App. 866, 868-869 (1) (510 SE2d 550) (1998); see also Johnson v. Myers, supra at 23; Southeast Toyota Distrib. v. Fellton, 212 Ga. App. 23, 26 (440 SE2d 708) (1994); Jones v. Lanier Dev. Co., supra at 887.

Decided August 22, 2001.

Carey, Jarrard & Walker, Theodore W. Robinson, for appellants.

Adams, Ellard & Frankum, Cadman R. Kiker, Jr., Sean A. Black, for appellee.

The covenant was a use restriction that affects subsequent owners of the Property using the land for Golf Course Facilities only. See Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 549, 551 (203 SE2d 171) (1974); O’Neill v. Myers, supra at 749.

Thus, any subsequent subdivision purchaser became vested with the right to enforce the restrictions and covenants in equity by injunction. Muldawer v. Stribling, 243 Ga. 673, 675-676 (256 SE2d 357) (1979); Smith v. Pindar Real Estate Co., supra at 229; Godfrey & Candler v. Huson, 180 Ga. 483, 484 (2) (179 SE 114) (1935). Since the Property under the Declaration and the 1988 and 1989 plats is Golf Course Facilities use property, then no residential construction may be placed upon the property. However, any nonresidential structure, facility, or use on Golf Course Facilities property may be placed on the Property, including a clubhouse. See Payne v. Borkat, 244 Ga. 615, 617 (1) (261 SE2d 393) (1979).

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.


author: Ruffin, Judge.

text:
    A01A1253.
    HOLLAND v. THE STATE.
    (554 SE2d 303)
   Ruffin, Judge.

A jury found David Holland, Jr. guilty of theft by taking. In his sole enumeration of error on appeal, Holland argues that the evidence was wholly circumstantial and did not exclude every other reasonable hypothesis except his guilt. As the evidence was sufficient to support the jury’s verdict, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Holland was employed as a truck driver for Fletcher Enterprises. On or about June 18,1998, Holland picked up a load of 25 rolls of carpet from Dunlap, Tennessee, which he was to deliver to Philco & Associates in Salem, Oregon. Rather than immediately heading toward his destination, Holland drove out of his way and stopped at Robert Massengale’s house in Dade County, Georgia. While there, Holland and Massengale unloaded one roll of carpet with an estimated value of $1,700. The two placed the carpet on a trailer, which they put in a bam on Massengale’s property and covered with a tarp.

On June 24, 1998, Holland arrived in Salem, Oregon, with the remaining 24 rolls of carpet. Aaron Carroll, who received the shipment for Philco & Associates, informed Holland about the missing roll. According to Carroll, Holland provided no explanation for it.

In the meantime, on June 23, 1998, Investigator Don Hicks of the Dade County Sheriff’s Department received an anonymous call regarding a stolen roll of carpet at the Massengale residence. Hicks drove to the residence, where he found the carpet, which had been partially unwrapped. Hicks testified that a piece of the carpet had been cut off one end of the roll. Holland was thereafter accused of theft by taking.

At the trial, Holland testified that, after picking up the truckload of carpets in Tennessee, he drove toward Chattanooga to have dinner with his wife, who was traveling with him, and his two daughters. After leaving the restaurant, he noticed that the trailer was leaning, and he suspected that the load of carpets had shifted. He called his friend, Massengale, for assistance in rearranging the rolls of carpet. Although Massengale lived down a narrow road, Holland drove to his house rather than attempting to adjust the load while on the side of the highway. According to Holland, while he and Massengale attempted to rearrange the rolls of carpet, one fell out of the trailer, and they were unable to reload it. Thus, Holland left the carpet in Massengale’s barn. During the four to five days it took to get to Oregon, both Holland and his wife attempted to get in touch with someone from Fletcher Enterprises to explain the situation, but neither was successful. Holland’s wife and Massengale also testified and corroborated Holland’s version of the events.

The jury evidently disbelieved Holland’s version, and he was convicted of theft by taking. On appeal, Holland contends that his conviction must be reversed because it was based upon circumstantial evidence, and he “provided a reasonable alternative theory to the State’s case.” We disagree.

In order to sustain a conviction based upon circumstantial evidence, the evidence must exclude every reasonable hypothesis except the guilt of the accused. The evidence does not have to remove every possibility of the accused’s innocence. Moreover, whether or not a hypothesis is reasonable is primarily a question for the jury, which heard the evidence. This is necessarily so, because “we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.”

Here, the jury clearly found Holland’s hypothesis unreasonable. Given that Holland drove out of his way to drop off the roll of carpet, failed to contact his employer to explain the situation, failed to provide any explanation for the piece of carpet that had been cut from the roll, and provided the recipient of the remaining rolls no explanation for the missing roll, the jury was authorized to reject Holland’s version of the events.

Holland’s explanation was seemingly plausible, and we recognize that his innocence remains a possibility. But the possibility of innocence is not the appropriate inquiry for appellate review. “If [Holland] is not guilty, he is an unfortunate wretch in the grip of most merciless circumstances. We are willing to take the word of the jury for his guilt, based on these circumstances, and leave the case as we find it. It is not the strongest, but strong enough.” Accordingly, we affirm.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided August 22, 2001.

John R. Emmett, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

       See Reed v. State, 244 Ga. App. 146 (534 SE2d 871) (2000).

       See Kier v. State, 247 Ga. App. 431, 434 (1) (543 SE2d 801) (2000).

       Id.

        Moore v. State, 242 Ga. App. 208, 210 (1) (529 SE2d 210) (2000).

       (Punctuation omitted.) Jones v. State, 165 Ga. App. 36, 38 (1) (299 SE2d 576) (1983).

       See Ashley v. State, 240 Ga. App. 502, 503 (1) (523 SE2d 901) (1999) (State not required to remove every possibility of innocence of crime charged).

       (Punctuation omitted.) Lopez v. State, 184 Ga. App. 31, 33 (2) (360 SE2d 722) (1987).


text:
    A01A1675.
    SHERIDAN v. CROWN CAPITAL CORPORATION.
    (554 SE2d 296)
   Eldridge, Judge.

This is an appeal from cross-motions for summary judgment in an interpleader action brought by Christopher B. Manos, Jr., P.C., escrow agent, holding $25,000 in earnest money for the purchase of property, between Paul Sheridan, seller, and Crown Capital Corporation, purchaser, because Crown refused to go through with the purchase of 2.26 acres of commercial real estate and buildings in Carrollton, Carroll County, for $1,075,000. Crown, the author of the contract, contended that it had the right to a free look at the property under the agreement; had the right “to determine if the Property is satisfactory for the Purchaser’s intended use” by inspection of the property; and had the right to terminate for failure to secure an anchor tenant, making the property development unsatisfactory. Sheridan contended that the inspection provision limited the satisfactory intended use to conditions set forth in the clause for inspection and for the commercial use of the property and did not include economical feasibility for any reason. The trial court erroneously granted summary judgment to Crown and against Sheridan. We reverse.

The property was zoned commercial, containing commercial buildings on the 2.26 acres. On August 24, 1998, the agreement prepared by Crown’s representatives was executed by Crown’s president and presented to Sheridan as an offer to purchase the property as zoned. On September 4, 1998, Sheridan accepted the offer and executed the agreement. Crown deposited $25,000 as earnest money with Christopher B. Manos, Jr. as escrow agent. Crown had 120 days from the acceptance to inspect the property and to determine if it was satisfactory to its intended use under the agreement. After the one hundred twenty-first day, Crown had to deposit an additional $75,000 in earnest money, unless it had earlier given notice of termination after inspection if the property was not satisfactory to the purchaser’s intended use.

On December 8, 1998, Crown gave notice that

[t]he undersigned represents Crown Capital Corporation, Purchaser under the above-referenced Contract. Pursuant to Section 8 (a) of the Contract, this letter shall constitute notice to Seller that Purchaser [sic] that the Property is unsuitable for the intended use, and that Purchaser hereby terminates the Contract, effective immediately.

Cub Foods, a potential anchor tenant of Crown’s, withdrew its interest; this caused the development, and not the property, to be economically unsuitable for Crown’s development, because now the development was “not economically feasible for any reason.” Thus, Crown exercised what it believed was its opportunity (free look) to tie up the property for 120 days under what it believed was its absolute discretion to terminate the agreement for any reason without any liability, but there was no inspection performed for it.

1. Sheridan contends that the trial court erred in granting summary judgment to Crown. We agree.

Ambiguity exists when a contract is uncertain of meaning, duplicitous, and indistinct; or when a word or phrase may be fairly understood in more than one way, such constitutes ambiguity. Verret v. ABB Power T & D Co., 237 Ga. App. 492, 493 (1) (515 SE2d 435) (1999). Here, the trial court construed “satisfactory to the Purchaser’s intended use” as any discretionary use by Crown; however, Sections 8 (a) and 10 (c) of the contract construed together limited such use to commercial shopping center development only. Multiple meanings for a phrase constitute ambiguity on the face of the agreement. The meaning of “satisfactory for the Purchaser’s intended use” under Section 8 (a) is ambiguous although the language, itself, is undisputed. Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987). To determine if there is any ambiguity, the trial court must look to the four corners of the instrument to determine the meaning of the agreement from the language employed. McCollum v. O’Dell, 241 Ga. App. 6, 9 (2) (525 SE2d 721) (1999). Identifying that an apparent ambiguity exists, the trial court must next seek to resolve the ambiguity through the application of the rules of construction. Id.

Therefore, the trial court as a matter of law had the duty to ascertain the intent of the parties by applying the rules of construction of contracts to determine if the ambiguity remains unresolved. OCGA §§ 13-2-1; 13-2-2; 13-2-3; Early v. Kent, 215 Ga. 49, 50 (108 SE2d 708) (1959); Farm Supply Co. &c. v. Cook, 116 Ga. App. 814, 816 (1) (159 SE2d 128) (1967). The trial court must engage in a three-step analysis: first, the court must decide if the contract language is unambiguous, and, if so, the court enforces the contract’s clear terms; second, if the contract is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity; and third, if the ambiguity remains after use of the construction rules, the meaning of the contract must be decided by a jury. Caswell v. Anderson, 241 Ga. App. 703, 705 (527 SE2d 582) (2000). Here, the trial court erred in finding no ambiguity and attempting to enforce the contract without the aid of the rules of construction; this caused the trial court to erroneously conclude that this was an unenforceable contract for lack of mutuality and the exercise of a discretionary right to terminate.

The cardinal rule of construction is to ascertain the intent of the parties, which is to formulate an enforceable agreement. Mut. Life Ins. Co. &c. v. Davis, 79 Ga. App. 336, 339 (1) (53 SE2d 571) (1949). A key element of contract construction is that the trial court must give a fair and reasonable construction to the contract that upholds the contract rather than causing it to have no binding effect, because the intent of the parties is to enter into a valid contract and not an unenforceable illusionary agreement. Kilburn v. Patrick, 241 Ga. App. 214, 217 (1) (525 SE2d 108) (1999); Bd. of Regents v. A. B. & E., Inc., supra; Smiths’Properties v. RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334) (1981). The construction of the contract should “give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” (Citations and punctuation omitted.) Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981); see also OCGA § 13-2-2 (4); Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996).

“When it is possible to do so without contravening any rule of law, the courts will construe a contract as binding on both the parties.” Good Roads Machinery Co. v. Neal & Son, 21 Ga. App. 160, hn. 3 (93 SE 1018) (1917). “[T]he law will not construe a contract so as to give [one party] the right to destroy it by a simple refusal to comply with it, unless the terms of the contract are so clear and unambiguous as to make irresistible the conclusion that no other result could possibly be reached, and that such was the intention of the parties.” (Citation omitted.) Finlay v. Ludden & Bates Southern Music House, 105 Ga. 264, 267 (31 SE 180) (1898).

Contracts are construed most strongly against the drafter, which, here, was Crown. OCGA § 13-2-2 (5); Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692) (1990); Hill v. John P. King Mfg. Co., 79 Ga. 105, 109 (4) (3 SE 445) (1887); Marjon Assoc. v. Leasing Intl., 174 Ga. App. 679, 680 (1) (331 SE2d 20) (1985). Thus, Section 8 (a) should be construed in pari materia with Section 10 (c) so that satisfactory use intended by the purchaser is defined and limited to “[u]se of premises as a commercial shopping center development” and not an unrestricted discretionary use that would permit the destruction of the contract without contractually defined justification. Further, the inspection under Section 8 (a) specifies determination of those physical conditions of the property necessary to the development for a commercial shopping center. The agreement was not an illusion, terminable on the exercise of unfettered discretion by Crown, as Crown would have us believe, but a binding contract.

Thus, the contract must be construed as a whole rather than in separate and distinct parts, giving effect to all terms; the contract should not be determined by examining isolated clauses and provisions as the trial court has done. Sage Technology v. NationsBank N.A. South, 235 Ga. App. 405, 407 (1) (509 SE2d 694) (1998). Therefore, Section 10 (c) must be construed with Section 8 (a) to disclose the intent of the parties as to the purchaser’s intended use, i.e., use as a commercial shopping center development. Brooke v. Phillips Petroleum Co., 113 Ga. App. 742, 744 (2) (149 SE2d 511) (1966); Candler Investment Co. v. Cox, 4 Ga. App. 763, 766 (1) (62 SE 479) (1908). When the four corners of the instrument are searched, the meaning of the purchaser’s intended use becomes clearly manifest as the intent of the parties from construing Section 8 (a) with Section 10 (c). See McCollum v. O’Dell, supra at 6. Thus, economic unsuitability for use intended by failure to obtain an anchor tenant was never within the manifest intent of the parties as a meaning of “use intended” when the limited scope of the purpose of the inspection under Section 8 (a) and of the development under Section 10 (c) are construed together. The purchaser did not have any discretion as to the use intended outside the commercial shopping center development, because Section 8 (a) limited satisfactory use intended to the physical conditions of the property revealed on inspection as set forth in such paragraph for the development of the property.

Where the purchaser of real estate provides earnest money but had a discretionary contingency in the sales contract, there exists no mutuality of obligation, because there is no binding promise for a promise as mutual consideration; however, earnest money constitutes consideration for the promise to sell rather than a contingent promise to buy, because it is something of value in return for the promise to sell. See Brack v. Brownlee, 246 Ga. 818, 819 (273 SE2d 390) (1980). Any consideration by the purchaser for the seller’s promise to sell satisfies the need for consideration rather than mutuality of obligation of an unconditional promise for a reciprocal unconditional promise. Koets, Inc. v. Benveniste, 169 Ga. App. 352, 353 (1) (312 SE2d 846) (1983), aff'd, 252 Ga. 520 (314 SE2d 912) (1984).

[WJhere there is no other consideration for a contract, the mutual promises must be binding on both parties, for the reason that only a binding promise is sufficient consideration for a promise of the other party. But where there is any other consideration for a contract so that each promise does not depend upon the other for consideration, mutuality of obligation is not essential. Mutuality is not required where there is consideration other than mutual promises.

(Citations, punctuation and emphasis omitted.) Brack v. Brownlee, supra at 819.

The trial court erred in granting summary judgment to Crown.

2. Sheridan contends that the trial court erred in denying his cross-motion for summary judgment. We agree.

As held in Division 1, which controls this Division as well, the physical ability to develop a commercial shopping center on the land was the satisfactory use the purchaser intended and not any discretionary use intended by the purchaser, because the contract did not give the purchaser such unrestricted discretion as to use, including economic feasibility; thus, unsatisfactory economic use was not within the expressed intent of the parties under the four corners of the agreement and cannot be implied by the trial court to revise the contract. Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). Thus, the effect of the right to inspect must be further analyzed to determine what type of condition the agreement contained.

“No precise technical words are required to create a condition subsequent.” Munford, Inc. v. C & S Nat. Bank, 151 Ga. App. 112, 113-114 (258 SE2d 766) (1979); see also Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (1) (388 SE2d 916) (1989). “The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.” OCGA § 44-6-41; Fulton County v. Collum Properties, supra; see also King Indus. Realty v. Rich, 224 Ga. App. 629, 631 (3) (481 SE2d 861) (1997); McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 821 (449 SE2d 133) (1994). “[A condition may be precedent or subsequent. . . . The breach of a condition subsequent may destroy the party’s rights under the contract or may give a right to damages to the other party, according to a true construction of the intention of the parties.” OCGA § 13-3-4. A condition subsequent to an enforceable contract is a term of the contract within the intent of the parties that the happening or nonoccurrence of an event after the contract becomes binding upon the parties, which, by pre-agreement of the parties, causes the contract to terminate without further duties and obligations on any party. Dept. of Human Resources v. Citibank, 243 Ga. App. 433, 436-437 (534 SE2d 422) (2000); Charter Investment &c. Co. v. Urban Med. Svcs., 136 Ga. App. 297, 299 (5) (220 SE2d 784) (1975).

[Wlhere a contract specifies conditions which may be accepted or refused in the discretion of one of the contracting parties (as where work must be done “to his satisfaction”), such discretionary acceptance may take the form of either a condition precedent or subsequent. If the former, no rights arise until the discretion is exercised; if the latter, the contract “is valid until the contracting party exercises his discretion to annul it, the burden then being on the opposite party to show that the discretion was not fairly exercised if he wishes to insist on enforcement.” [Clayton McLendon, Inc. v. McCarthy, 125 Ga. App. 76, 79-80 (186 SE2d 452) (1971) (Deen, J., concurring specially).]

Decided August 22, 2001

Van C. Wilks, for appellant.

Rowe, Foltz & Martin, Mitchell S. Rosen, Shawn D. Stafford, Griffin E. Howell III, for appellee.

Charter Investment &c. Co. v. Urban Med. Svcs., supra at 299 (5).

This agreement clearly provided for a condition subsequent for the termination of the contract in the event that the inspection of the property revealed that the property could not be satisfactorily physically developed for commercial shopping center use. If the physical condition of the land would not permit development as a commercial shopping center, revealed upon timely inspection and notice, then the agreement terminated automatically upon such notice by the purchaser to the seller. In the event that no inspection was made, the condition subsequent could not be invoked to terminate the contract. In this case, no inspection was ever made by the purchaser nor were any physical conditions identified that could prevent the development of a commercial shopping center by Crown had an inspection been timely conducted. Thus, the condition subsequent never occurred.

Therefore, under the express terms of the agreement, Crown’s notice of unauthorized termination and refusal to close the purchase of the property constituted an unexcused failure to perform the agreement, i.e., a default. Thus, Crown was in default under Section 19. Sheridan was entitled to recover the earnest money as reasonable liquidated damages under the agreement.

The evidence in this case is undisputed, and as a matter of law, Sheridan is entitled to the grant of summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Thus, the trial court erred in denying summary judgment.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.