text:
    A93A0416.
    MIXON v. CITY OF WARNER ROBINS et al.
    (434 SE2d 71)
   Johnson, Judge.

City of Warner Robins traffic officer Jeffrey T. Dumont was stationed at an intersection in a residential neighborhood after the police department received several citizen complaints that motorists were running a stop sign there. He observed a car run the stop sign traveling at a speed of approximately 25-30 mph. The driver was later identified as James Franklin Cornelius. Dumont activated his siren and lights and pulled in behind Cornelius, but Cornelius refused to stop. As departmental policy required in such situations, Dumont radioed dispatch and informed the operator that he was in pursuit of a suspect. After several blocks, Dumont was able to see Cornelius’ tag number and read it to the dispatcher. At that point, Dumont ceased his pursuit of Cornelius and slowed down in anticipation of an approaching intersection. Cornelius did not slow down, did not stop at the stop sign controlling the intersection, and collided with a car driven by Cindy Mixon, killing her instantly. The entire pursuit lasted less than one minute, and covered a distance of about 3,500 feet. Cornelius pled guilty to first degree vehicular homicide, fleeing from a police officer, and driving with a suspended license. Jerry C. Mixon, individually and as administrator of the estate of his late wife, sued the City of Warner Robins, Dumont, and Cornelius. Cornelius is not a party to this appeal.

The trial court granted a motion for summary judgment filed by the city and Dumont, finding that the actions of Cornelius were the sole proximate cause of the collision. Mixon appeals that ruling, as well as the trial court’s denial of a motion to compel the city to produce Dumont’s personnel records and the file of the internal investigation which the police department conducted after the collision.

1. Mixon asserts that the trial court erred in granting summary judgment to the city and Dumont by finding that Dumont’s actions were not a contributing proximate cause of the collision. The parties to this appeal have cited cases from 33 foreign jurisdictions. The trial court relied on two Georgia cases, Sammor v. Mayor &c. of Savannah, 176 Ga. App. 176 (335 SE2d 434) (1985) and Peeples v. City of Atlanta, 189 Ga. App. 888 (377 SE2d 889) (1989).

In Sammor, a police officer observed an individual speeding through an intersection. The officer pulled onto the street, “activated his emergency lights and siren, notified headquarters of the situation over his radio, and began following the vehicle.” Id. at 176. The fleeing suspect’s car collided with a third party’s car at an intersection. The collision in Sammor, as in this case, occurred a few blocks from the officer’s first observation of the speeding car. Mixon attempts to distinguish the facts of Sammor on the basis that in Sammor the offender was already speeding when the police began to pursue him. In this case the pursuit was prompted by the running of a stop sign. Mixon theorizes that Dumont’s pursuit caused Cornelius to accelerate, thus causing the collision. After failing to obey the statutory duty to stop when the officer attempted to pull him over, Cornelius failed to stop at the stop sign controlling the intersection at which the collision occurred and collided with the car driven by the decedent. The offense giving rise to the pursuit and the collision in Sammor was speeding; in this case, the pursuit and the collision were predicated on Cornelius’ refusal to stop at stop signs. Therefore, the factual distinction between the two cases is noted but of no consequence.

Sammor does not announce any general rule or provide any guiding principle to be used by trial courts in deciding the issue presented. Instead, it relies upon a finding that as a matter of law under the particular facts of that case the actions of the officer were too remote to be a contributing proximate cause of the plaintiff’s injury.

Appellant is correct in pointing out that Peeples, supra, is not fundamentally a proximate cause case. Rather, this court was asked to review sovereign immunity and related liability issues arising out of a collision in which a stolen car being chased by a City of Atlanta police officer collided with a car being driven by Millie Ann Peeples. In the analysis, however, we concluded that “Plaintiff’s decedent’s death was due to the negligence or wilful misconduct of a fleeing felon in running a red light and as a consequence thereof striking the decedent’s car.” Peeples, supra at 891.

We attach no importance to the fact that the police officer in Peeples was pursuing a fleeing felon rather than a fleeing misdemeanant, as was the case in the action below. This must be so because when a driver flees the police trying to stop him for a traffic violation it would place an impossible burden on the officer to determine in a split second whether the offense for which the offender is ultimately charged will be a misdemeanor or a felony.

We recognize that there may be instances in which the actions of a police officer, at either the point at which a decision to pursue an offender is made or in the manner in which the pursuit is maintained, could lead to a rational inference that the officer’s conduct was the proximate cause or a contributing proximate cause of an injury. Nonetheless, “Construing the evidence in favor of the appellants], and otherwise affording [him] the benefit of every doubt, the only rational inference which can be drawn from these facts is that Officer [Dumont’s] actions did not constitute a proximate cause of the collision.” Sammor, supra at 177-178.

We have reviewed the cases from foreign jurisdictions, as well as those Georgia cases relied upon by the trial court, addressing the issue of proximate cause in situations involving police pursuit in order to articulate for the first time in Georgia a general rule to guide the trial courts in their consideration of these cases. Cases of this nature involve a balancing of public policy interests, and the adoption of a general rule allows everyone to understand in advance the standards to which police officers will be held in such cases so that they may govern their conduct accordingly.

Police officers have a duty to apprehend lawbreakers and society has a strong interest in allowing the police to carry out that duty without fear of becoming insurers for the misdeeds of the lawbreakers they pursue. The general public also has a significant interest in not being subjected to unreasonable risks of injury as the police carry out their duties under circumstances which require them to pursue fleeing suspects.

At least ten jurisdictions have held that as a matter of law the police officer’s pursuit of a fleeing suspect did not constitute the proximate cause of a third party’s injuries and instead place the blame solely upon the conduct of the fleeing suspect. As we noted above, and as many of the courts of these various jurisdictions also noted, we can imagine instances where the officer’s conduct could subject the public to a greater risk than is ordinarily incident to high-speed police pursuit, and thus could be rationally found to be a contributing proximate cause of the injury to a third party. We choose not to formulate a rule that would say in every case, as a matter of law, that the pursuit by police is not a contributing proximate cause in those cases where the fleeing suspect injures a third party as some of these jurisdictions have come very close to holding. However, we also find unpersuasive and decline to follow the rule adopted in a few jurisdictions which makes the issue a jury question in every case.

We now establish a rule which we believe strikes the best balance between the conflicting public policies. We hold that when a police officer is pursuing a fleeing suspect, and the suspect injures a third party as a result of the chase, the officer’s pursuit is not the proximate cause nor is it a contributing proximate cause of those injuries unless the plaintiff can show that the conduct of the police officer, either in initiating or continuing the pursuit, was such that it posed a higher threat to public safety than is ordinarily incident to high-speed police pursuits. Such was not the case here, and the trial court did not err in entering summary judgment in favor of Officer Dumont and the City of Warner Robins.

2. In his second enumeration of error, appellant asserts that, after reviewing the two files in camera, the trial court erred in finding that the internal investigation was “material prepared by the City of Warner Robins in anticipation of litigation” and that Dumont’s personnel file did not contain any information which would lead to the discovery of evidence admissible on the trial of the case. In light of our holding in Division 1 above, we need not reach this issue, but note that absent abuse, “[an] appellate court will not interfere with the trial court’s exercise of its discretion and ‘(t)his policy is applicable to a trial judge’s exercise of the broad discretion granted to him under the discovery provisions of the Civil Practice Act.’ [Cit.]” Boykin v. Preferred Risk Ins. Co., 164 Ga. App. 485 (297 SE2d 496) (1982). See Irvin v. Macon Tel. Pub. Co., 253 Ga. 43 (316 SE2d 449) (1984); Ath ens Observer v. Anderson, 245 Ga. 63 (263 SE2d 128) (1980).

Decided June 22, 1993 —

Reconsideration denied July 13, 1993 —

Davis, Gregory & Christy, Hardy Gregory, Jr., O’Neal, Brown & Sizemore, Manley F. Brown, Carl A. Veline, Jr., for appellant.

Jones, Cork & Miller, Charles L. Ruffin, David A. Pope, Warren C. Grice, for appellees.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       In his deposition, Cornelius testified that he panicked when he saw the police car behind him because he did not have his driver’s license with him. In fact, his license had been suspended.

       See, for example, Roll v. Timberman, 94 N. J. Super. 530 (229 A2d 281) (1967); Cham

        bers v. Ideal Pure Milk Co., 245 SW2d 589 (Ky. Ct. App. 1952); Reenders v. City of Ontario, 68 Cal. App. 3d 1045, 137 Cal. Rptr. 736 (1977); State of West Virginia v. Fidelity &c. Co. of New York, 263 FSupp. 88 (S. D. W. Va. 1967); Thornton v. Shore, 233 Kan. 737 (666 P2d 655) (1983); Pletan v. Gaines, 481 NW2d 566 (Minn. App. 1992); Huddleston v. City of Charleston, 495 NE2d 82 (Ill. App. 4 Dist. 1986); Kennedy v. City of Spring City, 780 SW2d 164 (Tenn. 1989); McMillan v. Newton, 306 SE2d 470 (N. C. 1983); Oberkramer v. City of Ellisville, 706 SW2d 440 (Mo. 1986). Compare City of Miami v. Horne, 198 S2d 10 (Fla. 1967).

       See, for example, Travis v. City of Mesquite, 830 SW2d 94 (Tx. 1992); Seals v. City of Columbia, 575 S2d 1061 (Ala. 1991).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A0599.
    SYDENSTRICKER v. THE STATE.
    (433 SE2d 644)
   Blackburn, Judge.

Appellant, John Sydenstricker, appeals his conviction of burglary and aggravated sexual battery and the trial court’s denial of his motion for a new trial. On appeal, Sydenstricker presents three enumerations of error.

1. In the first enumeration of error, Sydenstricker asserts that there was insufficient evidence to support the jury’s findings of guilt, specifically the finding of criminal intent. We do not agree. The evidence revealed that on September 4, 1991, Sydenstricker was arrested and charged with criminal trespass and simple battery after he was discovered, in the middle of the night in the bedroom of a couple who lived within a mile of his house. Sydenstricker testified that he had consumed six beers and approximately eight ounces of rum between 11:00 p.m. and 2:30 a.m. Around 2:30 a.m., Sydenstricker took his dog for a walk. He testified that during this walk, he became disoriented and was unsure where he was located. He testified that his dog got away from him, and that when he caught the dog he saw a garage with the light on, and he thought he was back at home. He remembered walking toward the garage, but did not remember what else transpired until a bearded man was pointing a gun at him.

Ricky and Valerie Jennings own the house in which Sydenstricker was found. Valerie Jennings testified that she was asleep next to her husband when she was awakened by something being penetrated into her vagina. She turned to look behind her and saw Sydenstricker pull up his pants. She woke her husband who jumped on Sydenstriker while she retrieved a gun from the dresser. Ricky Jenrings then held the gun on Sydenstricker while they waited for the police, who Valerie had called. Ricky Jennings testified that during this time, Sydenstricker said, “Kill me, mister. Go ahead and kill me.” The Jennings both testified that, while waiting for the police, Sydenstricker did not apologize, show remorse, or explain his presence.

Sydenstricker’s dog was running loose in the Jennings’ house, and his shoes and dog leash were in the Jennings’ living room by a love seat. Sydenstricker had also left his flashlight on the floor in the Jennings’ bedroom. The Jennings testified that when they had retired for the night, all the doors and windows were locked. Although the investigating officers could not find any evidence of forced entry by Sydenstricker, Ricky Jennings testified that the door leading from the garage to the kitchen could be pried open without leaving any noticeable marks. The evidence further revealed that the Jennings’ house was a ranch style house while Sydenstricker’s house was a two story, split level house.

Dr. Williams, an expert in the field of clinical psychology, testified that consumption of the amount of alcohol Sydenstricker had consumed, combined with a lack of alcohol build-up in the system, would intoxicate an individual to the point where the normal cues would be obliterated. Dr. Williams explained that in such a state, one could see things like street lights, yet not be able to identify them. Dr. Williams testified that Sydenstricker could have misunderstood the cues to the Jennings’ house so that he thought he was going into his own house. Dr. Williams further testified that in his opinion, Sydenstricker suffered an alcohol blackout, which he defined as a loss of memory with maintained motor functioning. Dr. Williams explained that this condition would change a person’s will power but not their moral values per se.

The trial court charged the jury as to the law on presumption of innocence, reasonable doubt, credibility of witnesses, intent, direct and circumstantial evidence, experts, good character, misapprehension of fact, aggravated sexual battery, burglary, rape, and voluntary intoxication. The jury returned a verdict of guilty on the counts of burglary and aggravated sexual battery. We find that the evidence was sufficient to enable a rational finder of fact to find proof of Sydenstricker’s guilt beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Sydenstricker asserts that the trial court erred in failing to charge the jury that voluntary intoxication was a defense if it rose to the level necessary to negate the intent requirement for the crime involved. Sydenstricker argues that the trial court should have given such a charge, even absent a formal request, because this was Sydenstricker’s primary defense. However, we do not agree that the charge requested by Sydenstricker was applicable in this case and, therefore, it was not error for the trial court to fail to give it.

In Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988), the Georgia Supreme Court determined that “[voluntary intoxication [was] not a defense to a crime unless such intoxication [had] resulted in the alteration of brain function so as to negate intent. Even then, the brain function alteration must be more than temporary.” Id. Sydenstricker failed to offer any evidence that his ability to distinguish between right and wrong had been affected. In fact, Sydenstricker’s expert, Dr. Williams, testified that Sydenstricker’s condition would not change his moral values. Furthermore, Sydenstricker was unable to show that any alteration to his brain function was more than temporary. See Horton, supra.

“The trial court’s instruction that ‘voluntary intoxication shall not be an excuse for any criminal act’ is in accordance with the provisions of OCGA § 16-3-4 (c) and is sufficient. The trial court was not required to charge that [defendant] should be acquitted if he was intoxicated to the point where he could not form the requisite intent for the crimes of [burglary and aggravated sexual battery].” Franklin v. State, 183 Ga. App. 58, 59 (357 SE2d 879) (1987).

The trial court did charge the jury “that intent [was] an essential element of any crime and must be proved by the State beyond a reasonable doubt.” The trial court went on to charge “that a person will not be presumed to act with criminal intent but the trier of the facts . . . may find such intention or the absence thereof upon a consideration of the words, conduct, demeanor, motive and other circumstances connected with the act for which the accused is being prosecuted.” The trial court also charged the jury with respect to mistake “that a person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which if true, would have justified the act or omission.” We find that the trial court’s charges adequately addressed Sydenstricker’s primary defense.

3. In his third enumeration of error, Sydenstricker asserts that his trial counsel were ineffective. During the hearing on Sydenstricker’s motion for new trial, the trial court heard testimony and counsel’s argument with respect to Sydenstricker’s ineffectiveness claim. The trial court denied Sydenstricker’s motion. On appeal, Sydenstricker contends that his trial counsel were ineffective in that (a) they failed to make formal written requests for jury instructions on intoxication as a defense, intent, specific intent crimes, and lesser-included offenses; (b) they failed to establish Sydenstricker’s history of sleepwalking and the history of alcoholic blackouts for members of his family; (c) they failed to sufficiently develop Sydenstricker’s good character and to humanize him; (d) they demonstrated a lack of understanding for the rules of evidence, facilitating “errors” ranging from “nonsensical” objections to failing to re-introduce Sydenstricker’s custodial statements after he had testified; (e) they failed to ask for full recordation of the proceedings; and (f) they failed to object to the State’s request that the Jennings be allowed to remain in the courtroom after they testified.

“Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Penaranda v. State, 203 Ga. App. 740, 742 (417 SE2d 683) (1992).

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that [Sydenstricker] and his present counsel disagree with the decision made by trial counsel does not require a finding that [Sydenstricker’s] original representation was inadequate.” (Citations and punctuation omitted.) Id. at 743.

(a) With respect to the lack of written requests for jury instructions, the evidence reveals that the trial court considered Sydenstricker’s oral requests for jury instructions; therefore, the fact that no written requests were submitted did not prejudice Sydenstricker’s case. Additionally, the trial court did charge on intent, despite no written request for such a charge. Sydenstricker’s request for a charge on intoxication as a defense is discussed adversely to him in Division 2 of this opinion. Finally, Sydenstricker’s trial counsels’ failure to request a charge on lesser-included offenses can be considered a trial tactic. “The appellate courts of this state are reluctant to reverse a case on the ground of ineffective assistance of counsel whenever the specific complaint urged can reasonably be construed as involving defense counsel’s trial strategy.” (Citations and punctuation omitted.) Id. at 742.

(b) As demonstrated by the evidence produced during Sydenstricker’s motion for new trial, Dr. Williams did not support the possibility that Sydenstricker was sleepwalking, but that he was suffering from a “blackout.” Furthermore, Sydenstricker’s trial counsel testified during the motion for new trial that she had considered the evidence of his history of sleepwalking and determined that it might confuse the jury. Therefore, trial counsel’s failure to develop the sleepwalking theory was clearly a tactical or strategic decision.

(c) Sydenstricker next asserts that his trial counsel failed to sufficiently develop his good character. This argument is without merit. Two witnesses testified as to Sydenstricker’s good character and any further evidence could have been found to be cumulative. Furthermore, Sydenstricker is unable to show how the lack of additional character evidence prejudiced his case. See Strickland, supra.

(d) Pretermitting the validity of the seven alleged evidentiary mistakes identified in Sydenstricker’s brief, we find that they did not deprive Sydenstricker of reasonably effective assistance. See Penaranda, supra at 745.

(e) Next Sydenstricker asserts that his trial counsel erred by failing to request a full recordation of the proceedings. However, Sydenstricker has failed to show how this fact prejudiced his defense and, therefore, it is without merit. Id. at 742. See also Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (1991).

(f) Finally, Sydenstricker asserts that his trial counsel erred by failing to object to the State’s request that the Jennings be allowed to remain in the courtroom after they testified. This matter is within the sole discretion of the trial judge and an objection may not have produced a different result. Furthermore, “errors in judgment... do not constitute denial of effective assistance of counsel.” (Citations and punctuation omitted.) Peñaranda, supra at 742.

“In determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citations and punctuation omitted.) Id. at 745.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided June 24, 1993 —

Reconsideration denied July 13, 1993 —

Crumbley & Crumbley, Wade M. Crumbley, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

       The grand jury upgraded the charges and returned a two-count indictment for burglary and aggravated sexual battery.

       In his motion for new trial, Sydenstricker asserted 13 errors made by his trial counsel, which supported his ineffective assistance of counsel argument; however, pursuant to this court’s Rule 15 (c), we will address only those errors supported in Sydenstricker’s brief on appeal.


author: Johnson, Judge. Blackburn, Judge, Smith, Judge,

text:
    A93A0659.
    STICHER v. THE STATE.
    (433 SE2d 660)
   Johnson, Judge.

Rhuel Sticher appeals from his conviction of child molestation and the denial of his motion for a new trial.

1. Sticher contends that the court erred in admitting, pursuant to OCGA § 24-3-16, hearsay evidence of statements made by the 12-year-old victim about the molestation. The evidence complained of is the testimony of a school counselor, the testimony of a Department of Family & Children Services (DFCS) caseworker and two videotaped interviews of the child. Sticher’s complaint that he was denied his right to confront his accuser by such evidence is without merit because the child testified at trial and was thoroughly cross-examined. Reynolds v. State, 257 Ga. 725 (363 SE2d 249) (1988); Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987); Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); Frazier v. State, 195 Ga. App. 109, 112 (7) (393 SE2d 262) (1990). Sticher’s argument that the hearsay evidence was not reliable is without merit as a review of the trial transcript reveals sufficient indicia of reliability. Gregg v. State, 201 Ga. App. 238 (3) (411 SE2d 65) (1991). His claim that the evidence was inadmissible because it bolstered the child’s trial testimony also is not persuasive. “[OCGA § 24-3-16] actually contemplates testimony about what the child victim said and did relevant to the alleged sexual contact from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ The purpose of this procedure is to allow a defendant to exercise his right of confrontation without requiring him to be cast unfavorably before the jury for forcing the child to testify. Any ‘bolstering’ can be explored by defendant in cross-examination.” Rayburn v. State, 194 Ga. App. 676, 677 (3) (391 SE2d 780) (1990). The trial court did not err in admitting the evidence.

2. Sticher claims that the court erred in denying his motion for a new trial because the State improperly withheld a nurse’s written report of a physical examination of the victim. The report, however, was not in the State’s possession. It is undisputed that both Sticher and the State were first made aware of the report at trial during Sticher’s cross-examination of the DFCS caseworker, who had possession of the report. The caseworker then gave a copy of the report to Sticher, which he used to cross-examine the witness. Sticher admits that prior to trial he was given a copy of the State’s entire file. “Appellant made no showing that the information was in the State’s file rather than in the possession of [DFCS]. If the material was not in the State’s own file, it was not required to investigate the defendant’s case for him. [Cit.]” Frazier v. State, 195 Ga. App. 109, 112 (6) (393 SE2d 262) (1990). Because the State did not improperly withhold any information, Sticher is not entitled to a new trial on this ground.

3. Sticher argues that the court erred in refusing to admit the nurse’s report into evidence. Specifically, Sticher wanted the court to admit a portion of the report on which the nurse apparently gave her opinion that there was questionable digital penetration of the child’s vagina. “If the . . . report at issue contains the opinions or conclusions of a third party not before the [court,] those portions of the report are inadmissible hearsay until a proper foundation has been laid, i.e., the person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” (Citations and punctuation omitted.) Dept. of Human Resources v. Corbin, 202 Ga. App. 10 (413 SE2d 484) (1991). Sticher did not lay a proper foundation for the report because the nurse did not testify. The portion of the report he attempted to introduce was therefore inadmissible hearsay. The court did not err in excluding it.

Judgment affirmed.

Blackburn and Smith, JJ., concur specially.

Blackburn, Judge,

concurring specially.

I reluctantly concur with the majority opinion. Current law offers no remedy for the problem encountered by the defendant in this case, with regard to the surprise disclosure of a medical report in the possession of the DFCS caseworker who testified on behalf of the state.

Prior to the trial, the defendant’s attorney filed no Brady motion, because the district attorney had a policy of always providing criminal defendants with the entire police file without such a request. On appeal, the defendant’s attorney emphasizes that he makes no accusation that the district attorney or the police withheld the medical report in question. Indeed, the district attorney was just as surprised by the revelation during the trial as was the defendant’s attorney. However, there is only one state, and the fact remains that a branch of the state had in its possession information which could have been favorable to the defense and which undoubtedly would have been discovered if it had been in the district attorney’s possession, or if the defendant had any meaningful discovery rights from government entities other than the prosecuting official.

Where a Brady motion is filed by a criminal defendant, the state is obligated to provide the defendant with all information in its possession that is favorable to the defense. Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). That obligation imposed upon the state should be no less in this case despite the defendant’s not having filed a Brady motion, because the district attorney maintained a policy that obviated the need for making such a request. Indeed, why should the state not automatically be required to provide such information and evidence without the necessity of any request of an antiquated process requiring for such information by the defendant to the prosecutor?

In rejecting the defendant’s contention that the state failed to supply exculpatory material in violation of its obligation to do so, the majority opinion relies upon Frazier v. State, 195 Ga. App. 109, 112 (6) (393 SE2d 262) (1990), in which this court found that the appellant “made no showing that the information was in the State’s file rather than in the possession of [DFCS], If the material was not in the State’s own file, it was not required to investigate the defendant’s case for him. [Cit.]” I would suggest, however, that there is only one state and it should be expected to investigate its own agencies, reasonably involved in the particular case and not deny a defendant access to material in the state’s possession which might exculpate the defendant, and rely on a compartmentalized concept of the state in doing so. In lieu of this burden, reasonable pre-trial discovery should be made available to the defendant to facilitate a fair trial, and not one by ambush. Notice is the cornerstone of due process, and mid-trial discovery of the existence of exculpatory material is inadequate. The best way to instill confidence in the judicial system, and to minimize appeals, is to ensure that a defendant receives a fair trial to begin with. It is sad indeed that a defendant would be entitled to pretrial discovery of the subject material if he were being sued for money damages, but has no such right where only his life or liberty may be at stake.

The unsuccessful attempt by the defendant’s attorney to have the surprise medical report admitted into evidence demonstrates the Catch-22 presented by this case. On the one hand, the defendant could not adduce the testimony of the nurse who examined the child and concluded that “questionable” digital penetration had occurred, because he was unaware of the nurse’s existence due to the DFCS caseworker’s possession of that evidence, rather than the district attorney’s possession of same. On the other hand, the medical report could not be admitted into evidence, because the nurse was not before the court, thus rendering the pertinent portions of the report inadmissible hearsay. Dept. of Human Resources v. Corbin, 202 Ga. App. 10 (413 SE2d 484) (1991). In Frazier, after the disclosure of the information in the DFCS file, the defendant’s attorney was allowed to review the file and interview the DFCS witnesses. Under those circumstances, this court observed that the earlier failure to disclose the information had not hampered the defense. The same certainly cannot be said in the instant case.

The current law dismembers the state, and obligates only the district attorney to provide a criminal defendant with any exculpatory evidence, while denying the defendant any meaningful pre-trial discovery from other state agencies. The defendant is not entitled to discover documents from DFCS while the district attorney is not required to inquire of DFCS concerning documents in their hands which justice requires be given to defendant. I am constrained to concur with the majority opinion that the defendant is not entitled to a new trial because of DFCS’s possession of the information and that the trial court did not err in excluding the medical report in question, under the current state of the law.

Smith, Judge,

concurring specially.

Although I fully concur in the reasoning and the result reached in the majority opinion, the DFCS caseworker’s unexpected disclosure at trial of the nurse’s written report is troubling. There is a need for. remedial legislation in this area, because the present state of the law does offer some opportunity for mischief and abuse by prosecutors and prosecution witnesses.

In this case, however, the difficulties are far more apparent than real. The record here reveals that the defense attorney was allowed, without objection, to question the DFCS caseworker about the substance of the disputed report: “Q. Okay. And did the nurse — One, we have a report here that you furnished us today that you got from the nurse; is that right? A. Right. Q. Okay. You also received a verbal report from the nurse? A. I spoke with her over the phone. Q. Okay. And did she indicate to you that there was any indication of trauma or tearing? A. No. She — She explained that [the victim] had been using tampax for a number of months and that there was no indications of trauma or tearing. [DEFENSE ATTORNEY]: That’s all.”

Moreover, the record shows absolutely no effort by the defense to secure the attendance of the nurse at trial as a witness nor any request for additional time to do so. There clearly was an opportunity at least to make the attempt to obtain her presence, since there was an overnight recess after the existence of the report was disclosed. There was no request on either day for a longer or additional recess to deal with this issue, for assistance of the sheriff in serving a subpoena, or other relief. Instead, the defense attorney simply attempted, unsuccessfully, to introduce the report into evidence. This likely was a tactical decision by defense counsel, given that he already had testimony from the DFCS caseworker on portions of the report favorable to the defense and may have been concerned that the nurse’s testimony, as a whole, might be unfavorable.

Decided June 25, 1993 —

Reconsideration denied July 13, 1993 —

Word & Flinn, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

The need for change in the law in this area remains, but there is little basis for practical concern in the context of this case.


author: Andrews, Judge.

text:
    A93A0664.
    REMEDIATION SERVICES, INC. v. GEORGIA-PACIFIC CORPORATION.
    (433 SE2d 631)
   Andrews, Judge.

Remediation Services, Inc. sued Georgia-Pacific Corporation for amounts claimed due for dredging services seeking to recover under breach of contract or on quantum meruit. Remediation appeals from the grant of summary judgment in favor of Georgia-Pacific.

1. Georgia-Pacific moved for summary judgment on the contract claim based on the defense that it was entitled to declare the dredging contract void because it was defrauded by one of its own employees, who without the knowledge of Georgia-Pacific, represented both Remediation and Georgia-Pacific as a dual agent in the dredging contract transaction. The facts establish that Ronnie Presley was employed as an environmental engineer for Georgia-Pacific, and was regarded as the company’s expert on dredging projects like the one at issue. In that capacity, Presley determined the scope of the dredging project at issue, suggested bidders for the project, and recommended Remediation as the bidder most qualified to do the work. Remediation was eventually awarded the dredging contract in August 1990 for the sum of $827,106.43. During the course of the contract, Presley assisted in reviewing progress on the dredging, and recommended additional amounts in excess of $100,000 paid to Remediation under a provision in the contract for dredging of material added to the original contract specifications.

Remediation fell behind the contract requirements for completion of the work, and disputes developed in which Remediation contended it was unable to complete the work as scheduled for the contracted price because the original “scope of work” describing the materials to be dredged, and the work to be done upon which the bid was entered, was not accurate. Ultimately, Georgia-Pacific terminated Remediation in March 1991 with the project still uncompleted after Remediation had been paid a total of $768,850.37. Remediation filed the present action in October 1991 seeking recovery of $1,734,240 as damages for breach of contract plus expenses and attorney fees.

After the suit was filed, Georgia-Pacific discovered that since Remediation was formed in 1987, Presley has owned 50 percent of the outstanding shares of the corporation, and has been listed as its Chief Executive Officer in corporate documents filed with the Secretary of State. The trial court was authorized to conclude that affidavits filed by Remediation in opposition to summary judgment did not create an issue of fact as to Presley’s ownership of 50 percent of the stock of the corporation. In sworn responses to interrogatories, Remediation stated that Presley owns 50 percent of the outstanding stock, and that the company had solicited the return of his stock on several occasions. The subsequent affidavits admitted Presley obtained 50 percent of the outstanding shares when the corporation was formed in 1987, and that the shares remained in Presley’s possession, but denied Presley owned the stock claiming there was an agreement prior to the present contract for Presley to surrender the shares for no payment. In the absence of any reasonable explanation for this contradiction, the trial court was authorized under the contradictory testimony rule to eliminate the testimony favorable to Remediation, and conclude that Presley has owned 50 percent of the shares of Remediation since 1987. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). A question of fact remained as to whether Presley remained as an officer of Remediation during the period of the transaction at issue. Although corporate documents reflected he was an officer, other testimony showed that the remaining officers and stockholders, Robert Chaney and Bill Arant, conferred with Presley at a June 1987 meeting of the board of directors of the corporation, and Presley was removed as president and chief executive officer of the company, and replaced by Chaney.

Evidence also showed that the other two stockholders and officers of Remediation knew Presley was employed by Georgia-Pacific when Remediation entered into the contract at issue. However, affidavits filed on behalf of Remediation also stated that Presley had no involvement in the operation or management of Remediation since 1987, and had not received any compensation from Remediation, directly or indirectly since that time. Remediation further denied having any contact with Presley concerning the procurement of the contract, the specifications for the contract, the bidding procedure, or negotiations on the contract. Other evidence showed that in November 1990, Presley sent a copy of a Georgia-Pacific intra-company memo to Remediation indicating his monitoring and assessment of the dredging process and the problems incurred by Remediation. Furthermore, Remediation’s March 1991 letter to Georgia-Pacific by its acting president, Chaney, stated that Chaney was of the opinion from the start of the dredging project that Presley was overseeing or responsible for it being done. Presley denied having exerted any influence in his duties at Georgia-Pacific over the award and administration of the contract. There is no evidence that Presley had the authority to award the bid to Remediation, or enter into the dredging contract with Remediation on behalf of Georgia-Pacific.

The following principles apply to the defense raised by Georgia-Pacific to the contract claim:

“The law imposes upon every agent the obligation to exercise, for and in behalf of his principal, skill, loyalty, and absolute good faith. It is of the essence of the contract of the agent that he will use his best skill and judgment to promote the interest of his employer. This the agent can not do if he is the agent for both parties. To represent both parties as their agent is to undertake inconsistent duties. A mutual agency requires the consent of both principals to the mutuality of the agency. An agent can not use his best skill and judgment to promote the interest of his employer where he acts for two persons whose interests are essentially adverse. Such a situation places the agent under a temptation to deal unjustly with one or both of his principals. He thus commits a fraud on his principals in undertaking, without their consent or knowledge, to act as their mutual agent. . . . Where the agent of the vendor is also the agent of the purchaser, the effect of the dual agency would be to authorize the vendor to repudiate the transaction, if he acts promptly after discovery of the situation. Where an agent without the full knowledge and consent of his principal represents the adverse party in a transaction, his contracts relating thereto are voidable at the option of the principal. It follows that the purchaser could equally repudiate the transaction. ... [In the case of a contract] executed in whole or in part [such defrauded principal] may by acting promptly and before the rights of innocent parties have intervened, upon restoration of any benefit which he has received, rescind the contract and recover back the property or rights with which he has parted under it. It makes no difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith. This doctrine is based upon the ground that the double agency is a fraud upon the principal, and that by reason of such fraud he is not bound by any transaction entered into with the other party.” (Citations and punctuation omitted.) Napier v. Adams, 166 Ga. 403, 406-408 (143 SE 566) (1928); see also Smith v. Harvey-Given Co., 182 Ga. 410, 414-416 (185 SE 793) (1936); Franco v. Stein Steel &c. Co., 227 Ga. 92, 95 (179 SE2d 88) (1970); OCGA § 10-6-24 (agent may not buy or sell for himself); OCGA § 10-6-25 (agent may not make a personal profit from the agency). The same general considerations apply to prohibit an agent from buying from or selling to his principal, without the principal’s knowledge (OCGA § 10-6-24), and to prohibit an agent from making a secret profit while acting on behalf of his principal. OCGA § 10-6-25. Accordingly, dual agency per se is not prohibited, nor is a contract made through a dual agency void per se, rather the contract created is voidable by the principal, only where the dual agency is unknown to the principal. Spratlin, Harrington & Thomas, Inc. v. Hawn, 116 Ga. App. 175, 178-180 (156 SE2d 402) (1967). Where dual agency is relied on as a defense to a breach of contract claim, the defendant principal must prove the fact of such agency, and his lack of knowledge. Id. at 179.

It is undisputed that Georgia-Pacific had no knowledge of Presley’s interest in Remediation until after the contract was terminated. Accordingly, we must determine whether the facts establish as a matter of law that Presley acted in the capacity of a dual agent for Georgia-Pacific and Remediation. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. “At times and in some contexts we have tended to equate servant with agent, but the relationships are very different. At common law, and in all of the jurisdictions of this country . . . the difference in concept is fundamental and substantial. Generally the servant performs work or labor for the master, sometimes skilled and sometimes not, while the agent, within the ambit of his authority, represents his principal in some business dealing. He is vested with authority, real or ostensible, to create obligations on behalf of his principal bringing third parties into contractual relations with him. Perhaps it is oversimplification, but it has been generally said that agency relates to business transactions, while the work of a servant relates to manual service. The agent may, at times serve both as servant and agent, doing labor and exercising a given authority, but the servant rarely does. An agent thus is some person authorized to act for another arising when, expressly or impliedly, there has been a delegation with more or less discretionary power to act, to manage an affair, and to render an account.” (Citations and punctuation omitted.) Headrick v. Fordham, 154 Ga. App. 415, 416-417 (268 SE2d 753) (1980). “Essentially an agent has authority to establish contractual relations with third parties and his principal.” Lane Co. v. Taylor, 174 Ga. App. 356, 362 (330 SE2d 112) (1985).

Nevertheless, we have refused to limit application of the dual agency rule to render a contract voidable based on technical distinctions between an agent authorized to contract for the principal, and a broker who may not have authority to bind the principal, but is involved in the contract negotiations. Spratlin, supra at 182. Like an agent, a broker has a duty to act in good faith, and may not act for persons having interests adverse to his employer without the employer’s consent. Id. at 183. “A broker is simply a middleman, . . . [and under an exception to the rule prohibiting dual agencies], when he has no duty to perform but to bring the parties together, leaving them to negotiate and to come to an agreement themselves, without any aid from him. If he takes, or contracts to take, any part in the negotiations, however, he cannot be regarded as a mere middleman, no matter how slight a part it may be.” (Citations and punctuation omitted.) Id. at 183.

Remediation argues that Presley was not an agent, but merely an employee of Georgia-Pacific, and, therefore, the contract was not voidable under the dual agency rule. The relationship of employer-employee is generally that of arms-length bargaining, and not one from which the law necessarily implies the confidentiality of principal and agent. Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421) (1975). However, depending on the facts, a confidential relationship may be shown between employer and employee. Id. at 307. Under OCGA § 23-2-58, “[a]ny relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” All the law requires is the showing of a relationship in fact which justifies the reposing of confidence in one party by another. As provided by OCGA § 23-2-53: “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” “[OCGA § 23-2-53] expressly goes beyond the strict fiduciary relations of the parties and states that the obligation to communicate may arise ‘from the particular circumstances of the case.’ The same is true as to [OCGA § 23-2-58].” Cochran, supra at 307.

Thus, the facts of a particular case may demonstrate an employee has a confidential relationship with his employer with respect to a business transaction related to his employment, which places upon him obligations similar to the fiduciary obligations of an agent to his principal. An employee, even though he may have no authority to contract for his employer, may, nevertheless, occupy a position of trust and confidence with his employer. An employee who uses that position to involve himself in any part of negotiations with a third party, who he also represents without his employer’s knowledge, has placed himself in a conflicting position analogous to that of an undisclosed dual agent. See Restatement 2d, Agency, § 25. Of course, “[a]n agent [or employee] may perform mere ministerial acts, involving no discretion, for one of the parties to the contract, though he is agent for the other party. He is forbidden to act for both only when there is opportunity that the skill and judgment which he should exercise for the one may conflict with the skill and judgment he should exercise for the other.” Spratlin, supra at 182.

In this case, the facts establish as a matter of law that, in his employment for Georgia-Pacific, Presley was intimately involved in the negotiations leading to and the continuing administration of the contract with Remediation. Moreover, Presley engaged in this conduct while holding a 50 percent ownership interest in Remediation. Even though there may be a jury question as to whether Presley acted as an agent for Remediation, it is not necessary under the present facts that an agency relationship be established. Presley’s 50 percent ownership interest in Remediation, unknown to Georgia-Pacific, is sufficient to make the dredging contract voidable at the election of Georgia-Pacific. “Thus, an agent who is appointed to sell or to give advice concerning sales violates his duty if, without the principal’s knowledge, he sells to himself or purchases from the principal through the medium of a ‘straw,’ or induces his principal to sell to a corporation in which he has a large concealed interest. See the Restatement of Trusts, § 170. The agent’s failure to reveal that he has an interest in the transaction is sometimes spoken of as fraudulent. If the agent intends to take advantage of the principal, the epithet, with its implication of immorality, is justified. But, irrespective of the words used to characterize the agent’s conduct, such a transaction can be rescinded by the principal although the agent acts in good faith and without consciousness of wrong doing.” Restatement 2d, Agency, § 389, Comment a. i

Remediation further argues that summary judgment should have been denied because Georgia-Pacific was not entitled to rescind the contract for fraud without restoring or offering to restore the value of Remediation’s services under the contract, which Remediation claims is the sum of $1,734,240. Generally, where one claims he was defrauded by an undisclosed dual agent, and invokes the right to repudiate the contract, he must offer to return the other party to the status quo. Reeves v. Callaway, 140 Ga. 101, 106 (78 SE 717) (1913). Restoration by the purchaser is not an absolute rule, but requires only that the supplier be placed substantially in his original position, and that the rescinding party derive no unconscionable advantage from the rescission. Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (411 SE2d 518) (1991). “One seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible ([cit.]), or when to do so would be unreasonable.” Id. at 590. The tender rule is that neither party may retain an unfair advantage. Id. Accordingly, where rescission is sought to undo the contractual transaction, a flexible and pragmatic approach has been adopted toward the tender requirement. Brown v. Techdata Corp., 238 Ga. 622, 627 (234 SE2d 787) (1977).

No tender is required where the party seeking to rescind has received nothing of value, or where any amount received under the contract may be less than the amount due to the party seeking to rescind. Metter Banking Co. v. Millen Lumber &c. Co., 191 Ga. App. 634, 637-638 (382 SE2d 624) (1989); Corbitt v. Harris, 182 Ga. App. 81, 82-83 (354 SE2d 637) (1987) (overruled on other grounds, Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991)); Thomson v. Walper, 160 Ga. App. 542, 544 (287 SE2d 562) (1981). A review of the present transaction shows a dispute in which Georgia-Pacific claims to have paid Remediation amounts in excess of the value of the services performed, and that Georgia-Pacific is entitled to recovery. Equity does not require a tender under these circumstances.

Accordingly, the trial court properly granted summary judgment in favor of Georgia-Pacific on the breach of contract claim.

2. The trial court álso granted summary judgment to Georgia-Pacific on Remediation’s alternative quantum meruit claim. The court reasoned that if the contract was voided because Presley defrauded Georgia-Pacific as a dual agent, Remediation has unclean hands, and may not seek relief on the basis of quantum meruit.

Although “one is estopped to recover on quantum meruit where there exists an express agreement” (Willis v. Kemp, 130 Ga. App. 758, 760 (204 SE2d 486) (1974)), where the agreement has been repudiated, or is not otherwise enforceable as a valid express contract, and ceases to be the criterion under which the parties’ rights and liabilities are measured, a recovery in quantum meruit is authorized to the extent of the value of the work to the defendant, not the plaintiff’s cost of producing the result to the defendant. Brumby v. Smith & Plaster Co., 123 Ga. App. 443, 444 (181 SE2d 303) (1971); City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. 45, 46 (292 SE2d 868) (1982).

The trial court erred in granting summary judgment in favor of Georgia-Pacific on the quantum meruit claim. The voiding of a contract at the election of the principal on the basis of an undisclosed dual agency will not prevent an action in quantum meruit to recover the value, if any, of the services received by the principal. A quantum meruit recovery may be prohibited where the nature of the contract itself rendered it entirely void for being in contravention of public policy in its totality. Genins v. Geiger, 144 Ga. App. 244, 245 (240 SE2d 745) (1977); see Sapp v. Davids, 176 Ga. 265 (168 SE 62) (1933) (champerty); Standard Club v. Saphire, 97 Ga. App. 135 (102 SE2d 72) (1958) (sale of gambling devices). Such is not the case where, as here, the nature of the transaction, dredging services, was not intrinsically illegal, but the contract was voidable only at the election of the defrauded principal. See Genius, supra at 245-246. Similarly, where a contract is illegal only in part, recovery is allowed on a quantum meruit basis for the part of the services which was legal. Iteld v. Karp, 85 Ga. App. 835, 838 (70 SE2d 378) (1952). The principal is not made to suffer the consequences of the fraud, since recovery in quantum meruit is measured by the value of the work, if any, to the defendant, not by the plaintiff’s cost of producing the work.

Decided June 22, 1993 —

Reconsideration denied July 13, 1993 —

John T. Croley, Jr., for appellant.

Sumner & Hewes, William E. Sumner, David A. Webster, Andrew A. Davenport, for appellee.

Judgment affirmed in part and reversed in part.

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

       Georgia-Pacific also contended that it was not the proper defendant in this suit because Remediation had initiated the dredging contract with Nekoosa Papers, Inc., a wholly-owned subsidiary of Georgia-Pacific. In granting summary judgment, the trial court did not reach this issue, nor does this opinion.


author: Birdsong, Presiding Judge.

text:
    A93A0034.
    TRAXLER COMPANY v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, INC.
    (433 SE2d 701)
   Birdsong, Presiding Judge.

The Traxler Company appeals from the grant of summary judgment to John Hancock Mutual Life Insurance Company, Inc. in John Hancock’s action against Traxler to recover for breach of a novation and release executed between the parties to resolve a dispute arising from Traxler’s lease of office space from John Hancock. Traxler asserted, in counterclaim, that John Hancock is not entitled to recover under the novation and release because it was not effective, and because Traxler was constructively evicted from the premises.

The record shows that after Traxler began a three-and-one-half year lease in May 1990, it began having problems with the premises that culminated in April 1991, with Traxler advising that it would withhold rental payments because of water leaks and electrical problems. After negotiations, the parties agreed to resolve the dispute under the following terms: John Hancock would release all of Traxler’s future obligations under the lease and Traxler would make all payments through August 1991 (including past payments withheld), forfeit its security deposit, and vacate the premises by the end of August. Also, the parties agreed to waive all claims, liabilities, causes of action, damages, expenses, and fees which either might assert against the other. By its terms the new agreement would replace all obligations in the original lease.

On July 6, 1991, Traxler signed the release agreement and forwarded the agreement to John Hancock. On August 6, 1991, Traxler signed a lease for new office space. On August 7, 1991, John Hancock advised Traxler that the signed copy of the release agreement had been misplaced and asked Traxler to send another signed agreement. On August 8, 1991, John Hancock signed the agreement, but did not send an executed document to Traxler.

According to Traxler, however, on August 12, 1991, its main computer system failed because of the conditions of the premises. During the week of August 16, 1991, John Hancock advised Traxler that it had signed the release agreement and expected to be paid all money due under the agreement. On August 30, 1991, however, Traxler claimed to be constructively evicted, and on September 1, 1991, Traxler moved into its new premises. On September 16, 1991, John Hancock provided Traxler with an executed copy of the agreement.

Thereafter, John Hancock filed suit to recover under the novation and release and later moved for summary judgment on its claim. Traxler’s response to the motion, however, asserted that the delay in providing the executed copy of the novation and release operated to reject it; therefore, Traxler was authorized to assert its constructive eviction claim. After the trial court granted summary judgment to John Hancock, Traxler appealed. Held:

1. Traxler contends that John Hancock took inconsistent positions on whether genuine issues of material fact exist and that the affidavit in support of John Hancock’s motion did not lay the proper factual foundation for the matters stated in the affidavit. Pretermitting these issues, however, is the fact that the record shows there are no genuine issues of material fact on the essential issue of whether there was an agreement by the parties and the fact that Traxler’s affidavit itself establishes that there was such an agreement. Moreover, on appeal it is not significant whether the parties correctly concluded that there were no genuine issues of material fact. “[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Emphasis supplied.) Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

Decided July 13, 1993.

Herbert P. Schlanger, for appellant.

Hanna & Pelerose, Frederick J. Hanna, L. Lynn Hanna, MaryTheresa Clark, for appellee.

Consequently, as Traxler’s affidavit states that the parties’ negotiations “culminated in an agreement as to terms,” and further states that Traxler signed the executed agreement and forwarded it to John Hancock (from which Traxler implied an assent to its terms), it is not legally significant that John Hancock did not immediately sign and return the agreement. Warthen v. Moore, 258 Ga. 198, 199 (366 SE2d 666). As the record fully demonstrates that all the essential elements for novation were present (see Ga. Income Property Corp. v. Murphy, 182 Ga. App. 101, 103 (354 SE2d 859)), the trial court did not err by granting summary judgment to John Hancock.

2. In view of our disposition in Division 1, Traxler’s contention that it was constructively evicted from the premises is also without merit. Traxler’s departure from the premises was in accordance with the novation and release. Further, the one instance of which Traxler claims after the novation and release would not be sufficient to constitute a constructive eviction. See Hightower v. Daniel, 143 Ga. App. 217 (237 SE2d 688); Alston v. Ga. Credit Counsel, 140 Ga. App. 784, 785 (232 SE2d 134). Accordingly, the trial court did not err by denying Traxler’s motion for summary judgment.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A0196.
    WILSON v. THE STATE.
    (433 SE2d 703)
   Smith, Judge.

Alfred Lee Wilson was convicted of possession of cocaine with intent to distribute, and he appeals from the denial of his motion for new trial. His sole enumeration of error is the failure of the trial court to grant his pre-trial motion, renewed at the close of the State’s case, to compel the State to reveal the identity of a “witness-informant” based on Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957). See generally Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977).

In August 1989, the Georgia Bureau of Investigation (GBI) began conducting undercover drug operations in and around Rome, Georgia. A confidential informant introduced GBI agents to suspected drug dealers. The agents would attempt to make drug purchases from persons implicated by the informant. If agents succeeded in purchasing controlled substances from a particular suspect, arrest was postponed in order to avoid compromising the success of continuing operations in the area.

On August 17, 1989, the informant and Agents Scott Whitley, Cathy Sapp (nee Christensen), and Cheryl Bowers travelled to a certain residence in Rome to purchase drugs. Agent Whitley testified that the informant exited the vehicle, approached the suspect’s residence at 617 Calhoun Avenue, and arranged a transaction. Agent Whitley ascertained the street address on the day of arrest by its relation to the “Country Cupboard” store across the street.

Sapp, unlike Whitley, did not recall anyone leaving the vehicle before the suspect approached it, but did recall that he approached “from his residence.” Ms. Sapp never testified, expressly or impliedly, that the residence from which appellant approached was in fact 617 Calhoun Avenue, as did Whitley. Agent Bowers, unavailable when appellant was tried, did not testify. Agent Whitley ultimately purchased cocaine from a person identified by the informant as Alfred Turner, a/k/a “Big Al.”

The following April, the GBI concluded its operations and set out to arrest those from whom they had purchased drugs during the past several months. Agent Whitley, along with Sergeant Stanley Sutton of the Floyd County Police Department, attempted to locate the person known as Al Turner. They first tried the home believed by Whitley to be “Big APs” residence, but to no avail. Sergeant Sutton then realized that Agent Whitley’s description of “Al Turner” matched the description of appellant, Alfred Lee Wilson. Sergeant Sutton also knew that appellant lived at 617 Calhoun Avenue, that he worked at the local Salvation Army store, and that he was known as “Big Al.”

Sergeant Sutton took Agent Whitley to Wilson’s place of employment, and Agent Whitley identified Wilson as the person who sold him drugs on August 17. Agent Sapp, also present during the August transaction, likewise identified him while he was being booked at the Floyd County Jail. Both Whitley and former agent Sapp positively identified appellant at trial.

Wilson’s defense at trial was that a man named “Al Turner,” and not Wilson, sold the cocaine on the occasion in question, exactly as the unnamed informant told police at the time. During cross-examination of former Agent Sapp, she was shown a mug shot of a man later identified as “Al Turner,” who, like Wilson, could be described as a large black male of approximately Wilson’s age, living in the general vicinity of Calhoun Avenue at the time of the August transaction. Ms. Sapp’s first words upon seeing the photograph on the witness stand were, “I don’t know who this is.” She commented on the poor quality of the photograph and stated that the person in the photograph “could be anyone.” Ms. Sapp ultimately conceded, however, that the mug shot of Turner might or might not be of Wilson. Appellant testified on his own behalf and also offered alibi witnesses in furtherance of his mistaken identity defense. Finally, we note that almost eight months passed between crime and arrest, and over two- and-one-half years between arrest and trial.

The question raised is whether the trial judge erred as a matter of law in refusing to compel the state to reveal the identity of its informant. Roviaro v. United States, supra, provides that, pursuant to a proper “Brady” motion, “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61. Hunt v. State, 204 Ga. App. 799 (420 SE2d 656) (1992).

This case does not fit neatly among others dealing with the question of whether a defendant’s right to a fundamentally fair trial demands revealing a police informant’s identity irrespective of the State’s privilege to the contrary. But see Sowers v. State, 194 Ga. App. 205 (390 SE2d 110) (1990) (case remanded for post-trial proceedings where informant identified appellant as Traci Pless, rather than Traci Sowers, since the informant was the only person in a position to “amplify or contradict” testimony of the defendant and the officer, and since no in camera hearing with informant was held prior to trial). A1 Wilson does not merely speculate on what the confidential informant might say if produced. Instead, he relies on what the informant has already said — specifically, that the perpetrator’s name was “A1 Turner.” It is uncontroverted that only the informant knew the perpetrator beforehand. Under such circumstances, if the informant had taken the stand and reaffirmed his prior extrajudicial statement regarding the identity of the perpetrator, that testimony might well have served to establish a reasonable doubt in the minds of the jurors as to Wilson’s guilt. In the interest of fundamental fairness to the appellant under the facts presented, it must be assumed, without the benefit of an in camera interview of the informant, that his testimony at trial would have been credible, consistent with his prior extrajudicial statements, and therefore both material and exculpatory in nature. See Bannister v. State, 202 Ga. App. 762, 764 (1) (415 SE2d 912) (1992).

We hold that where, as here, the accused makes a credible initial showing that the informant may not have been merely mistaken as to the name of the person selling drugs to undercover police officers on the occasion in question, the police privilege against revealing the name of its informant must yield to a defendant’s fundamental right to a fair trial. A possible exception is where the State responds to the defendant’s assertion by showing beyond all doubt that the informant must have been mistaken in his or her original identification.

Decided July 13, 1993.

Hine, Carroll & Niedrach, Paul T. Carroll III, for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellee.

In this case, we find the State failed to establish at trial that the name actually communicated to police by the confidential informer of an actual person residing in the. vicinity, could not have been the name of the person who committed the crime. Circumstances described by one agent tending strongly to implicate Wilson, as opposed to A1 Turner, were not echoed by a second agent also present during the transaction. Moreover, the State presented evidence that the A1 Turner implicated by appellant began serving a five-year prison sentence for aggravated assault just 70 days prior to the transaction underlying this case. This circumstance, however, does not necessarily show beyond doubt that the man known as A1 Turner could not have made the sale on the evening in question. The record clearly shows that Mr. Turner has also been charged with simple assault and making terroristic threats during parole of that sentence. The exact date on which Mr. Turner was paroled has not been made part of the record, and, unfortunately, we cannot simply assume that Turner actually served even as much as 70 days of that sentence.

We therefore find that the trial court erred in failing to conduct an in camera hearing to determine whether the informer’s testimony would aid, rather than negate, Wilson’s defense. The case is remanded for post-trial hearing as outlined in Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988), to determine whether a new trial is required.

Case remanded with direction.

Johnson and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0203.
    LAWAL v. STANLEY BOSTITCH COMPANY, INC. et al.
    (433 SE2d 706)
   Cooper, Judge.

Appellant was employed by appellee as a mail clerk. Appellant informed appellee that his mother died and requested time off to attend her funeral in the Bahamas. However, while appellant was away, appellee learned from appellant’s immediate family that appellant was not attending his mother’s funeral but instead had gone on vacation. Upon appellant’s return, his supervisor requested proof of his mother’s death in accordance with appellee’s funeral leave policy which requires an employee to submit proof of a relative’s death before wages are paid for funeral leave. Appellant never provided the required documentation of his mother’s death. Appellee also discovered that appellant had submitted duplicate reimbursements for postage and gasoline; that he purchased 120 light bulbs under appellee’s name for personal use; and that he failed to repay a travel advance, all at a cost to appellee of $781.57. Three days after appellant’s return, he was terminated for allegedly falsifying expense reports and appropriating $781.57 from appellee.

Appellee twice requested repayment of the misappropriated funds in writing. Appellant agreed to repay $327.55 but never made any payment. Consequently, appellant was indicted for theft by taking and filed this action for malicious prosecution and defamation, seeking lost wages, attorney fees and litigation expenses. Appellant sought back wages for the period of time he was on funeral leave and the three days he worked after his return. Appellee answered the complaint and asserted a counterclaim for $781.57. The parties subsequently reached an agreement in conjunction with the district attorney wherein the criminal charge was dismissed in exchange for appellant’s voluntary dismissal of the defamation and malicious prosecution claims, leaving for resolution the prayer for lost wages, court costs and attorney fees. Appellee moved the court to dismiss appellant’s complaint based on appellant’s wilful failure to appear for a deposition and for the entry of summary judgment on the complaint and its counterclaim. In the motion, appellee submitted that appellant was entitled to back wages for the three days he worked prior to his termination and, as a result, reduced its claim to $628.99. The court denied the motion to dismiss appellant’s complaint but granted appellee’s motion for summary judgment on the complaint and the counterclaim. Appellee was awarded $628.99, and this appeal followed. Appellant contends the trial court erred in granting appellee’s motion for summary judgment.

OCGA § 9-11-56 “places the burden on the moving party to show that no material issues of fact exist. The burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time, or suffer judgment against him. Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.” Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977).

Decided July 13, 1993.

Jimmy Lawal, pro se.

Kidd & Vaughan, Gwenn D. Holland, for appellees.

In support of its motion for summary judgment, appellee submitted the affidavit of appellant’s supervisor who described the methods by which appellant obtained excessive reimbursements for postage and gasoline as well as appellant’s purchase of a certain type of light bulb, which appellee did not use and never received, in appellee’s name. The affidavit also indicated that appellant signed a promissory note for the travel advance which he never repaid and set forth the circumstances under which appellee declined to pay appellant for the time he was on “funeral leave” due to his failure to provide proof of his mother’s death. In addition, the motion included various expense reports, cancelled checks, receipts and demand letters as evidence of appellant’s appropriation of appellee’s funds in the amount of $781.57. Thus, appellee made a prima facie showing of its entitlement to judgment as a matter of law.

On the other hand, appellant failed to provide a timely response to the motion, and there is no evidence in the appellate record which rebuts the evidence introduced by appellee in support of its motion. Appellant has attached certain documents to his appellate brief which he contends demonstrate that issues remain for resolution by a jury. “ ‘We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court. (Cit.)’ [Cit.]” Brooks v. Kroger Co., 194 Ga. App. 215, 216 (2) (390 SE2d 280) (1990). Accordingly, we find no error in the trial court’s grant of summary judgment.

Judgment affirmed.

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


author: Blackburn, Judge. Johnson, Judge,

text:
    A93A0331.
    BELLSOUTH ADVERTISING & PUBLISHING CORPORATION v. McCOLLUM.
    (433 SE2d 437)
   Blackburn, Judge.

The appellant/plaintiff, BellSouth Advertising & Publishing Corporation (BellSouth), brought the instant breach of contract action against the appellee/defendant, Dean McCollum, based upon an alleged order for advertising in the 1990 Yellow Pages placed by defendant.

BellSouth introduced and relied upon a directory advertising order form, dated September 1, 1989, which document was completely filled-in at the time of trial and contained the signature of defendant. The document was admitted as a business record without objection.

Defendant testified that although he did sign the directory advertising order on September 1, 1989, he did so because he was told by the BellSouth representative that this was necessary in order to initiate the artwork on the proposed ad, and the order was not completed and contained no agreement as to the price of the advertising at the time he signed it, or at any other time material to the subject action. BellSouth’s sales representative did not testify and plaintiff offered no direct testimony to refute defendant’s statements concerning the events of September 1, 1989, or the fact that the price of the ad was not agreed upon by the parties at the time the contract form relied upon by plaintiff was signed, or at any other time material to the subject action. Susan Anderson, an assistant manager in customer service and custodian of BellSouth’s records, testified that it is the customary practice for BellSouth’s representatives to complete the order forms at the time the order is signed; she admitted, however, that she was not present during McCollum’s meeting with the representative.

McCollum asserted several defenses and a counterclaim for attorney fees and expenses of litigation. After the commencement of discovery, BellSouth moved for summary judgment. The trial court did not issue a decision on BellSouth’s motion as McCollum’s attorney stated he had not timely received a copy of same and the action proceeded to a bench trial, after which the trial court entered a judgment in favor of McCollum. The court concluded that the parties never agreed to the terms and content of any advertisement to be published by BellSouth and the contract lacked the mutual assent necessary for validity. This appeal followed:

Shortly after the meeting of September 1, 1989, McCollum testified that he received a telephone call from the representative that he had met earlier and was informed that the advertisement was ready for presentation to McCollum. McCollum averred that he informed the representative that he wanted to make changes in the layout of the advertisement and the representative indicated that the changes could be made as requested and he would contact McCollum after the changes were made. Anderson admitted that documentation in Bell-South’s files corroborated the discussion that McCollum had with the representative concerning the changes in the advertising layout. Mc-Collum further testified that he received a subsequent telephone call from the representative who informed him that he would need to make a decision on the advertisement, at which time he asked the representative if the changes in the advertisement had been made as requested. When told by the representative that he was unable to make the changes as agreed, McCollum informed the representative that he would not complete the agreement to place the subject ad and would wait and place the changed ad in a future directory.

BellSouth published the ad anyway in its 1990 Yellow Pages directory but did not submit a monthly bill to McCollum for the allegedly due monthly advertising expense of $399.99, for approximately ten months following the publication of the 1990 Yellow Pages directory, at which time they sent a single, cumulative bill. The undisputed testimony of McCollum was that he never received any further bills from BellSouth after returning the original bill to it and that he never paid for the advertisement.

Kenneth Young, a directory advertising sales representative, was assigned to McCollum’s account in the summer of 1990, to prepare for the 1991 Yellow Pages directory. Young testified that he left messages for McCollum over a two-and-a-half month period but did not receive a return telephone call from him. Young also testified that thereafter, he forwarded to McCollum’s attention a certified letter informing him of the upcoming directory issue and the increase in the monthly rate, and included therewith a copy of the directory advertising order for 1991. No return receipt was offered into evidence. Young testified that once he received notification from the post office that the letter had been delivered as addressed, he forwarded a pre-printed order form to the advertising department for publication. This was done by BellSouth with full knowledge of the nonpayment and dispute concerning the 1990 advertising which they were seeking to “renew.” Young admitted that he had never seen or spoken with McCollum. McCollum testified that he has never received any telephone calls or notices concerning the past due nature of any account with BellSouth, with the exception of the bill received by him in September 1990.

McCollum testified that in mid-August 1990, another BellSouth representative, Vickie Berry, telephoned him to determine if he was interested in placing an advertisement in the 1991 Yellow Pages directory, at which time he informed her that he had never placed an ad in the 1990 Yellow Pages directory and did not want an ad in the 1991 Yellow Pages directory. At that time, McCollum testified that he was informed that he needed to sign a release form to cancel the ad contained in the 1990 Yellow Pages directory. On August 23, 1990, based upon the representations of Berry, McCollum signed a preprinted order form of that date which he understood was necessary to resolve the matter of the 1990 advertisement. In view of the trial court’s holding that there was no contract between the parties as to the 1990 advertisement, there was nothing to be renewed by the August 23, 1990, renewal form.

1. In its first enumeration of error, BellSouth contends that the trial court erred in refusing to consider and rule on the motion for summary judgment. However, the trial transcript shows that in response to the statement made by McCollum’s counsel that he only recently received the motion for summary judgment, the trial judge specifically stated that he would not address the merits of the motion for summary judgment. BellSouth did not protest the ruling of the trial court. Where a motion for summary judgment is overruled and the case is tried, the appellate court will review the evidence in support of the judgment as well as other enumerations of error, but because the same issues are involved, the court will not review the denial of a motion for summary judgment. Rothstein v. Mirvis & Fox, Inc., 155 Ga. App. 79 (270 SE2d 301) (1980). The refusal of the trial court to rule on the motion for summary judgment in the instant case is equivalent to its having overruled same and this enumeration is without merit.

2. In its second enumeration of error, BellSouth contends that the trial court erred in allowing parol evidence to vary or explain the terms and conditions of the purported advertising contract because the contract was unambiguous, properly executed and enforceable. We disagree.

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. “ ‘A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible.’ [Cits.]” White & Assoc. v. Decker & Hallman, P.C., 203 Ga. App. 14, 15 (1) (416 SE2d 352) (1992). “The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” OCGA § 13-3-2. Further, as price is an essential element of a valid contract, an alleged contract on which there is no firm agreement as to the price is unenforceable. See Charter Investment &c. Co. v. Urban Med. Svcs., 136 Ga. App. 297, 298 (2) (220 SE2d 784) (1975). In Progressive Life Ins. Co. v. Reeves, 89 Ga. App. 900 (81 SE2d 519) (1954), we held that a blank note signed and delivered to an agent without any understanding or agreement between them as to the amount that the note was to be filled in for, or as to the due date, was not a binding and enforceable obligation, as the note was never delivered for the purpose of giving it the effect of a written obligation to pay money and neither party assented to all the terms and conditions of the note. Cf. Cohen v. William Goldberg & Co., 202 Ga. App. 172, 174 (1a) (413 SE2d 759) (1991), rev’d in part on other grounds, 262 Ga. 606 (423 SE2d 231) (1992).

Although parol evidence cannot be used to contradict or vary the terms of a valid written agreement, “parol evidence may be used to show no valid agreement ever went into existence. [Cits.]” C & S Nat. Bank v. Williams, 147 Ga. App. 205, 207-208 (249 SE2d 289) (1978); Cohen, supra at 174. In the instant action, McCollum’s testimony was not admitted to vary the terms of the written order form. Contrary to BellSouth’s contentions, the trial court allowed McCollum to testify to the circumstances surrounding the signing of the advertising order to establish whether there was mutual assent to its terms and whether the order, in fact, constituted a valid contractual agreement. As we stated in Jackson v. Easters, 190 Ga. App. 713, 714-715 (379 SE2d 610) (1989), “[i]f there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement... it must follow that a valid and binding contract was not made. . . .” (Citations and punctuation omitted.) McCollum’s testimony as to the incompleteness of the document at the time that he signed it was not contradicted by anyone with personal knowledge of the transaction on September 1, 1989. Further, there is no evidence that McCollum ratified the price of the ad by payment or otherwise. Consequently, the trial court held that, as the parties did not mutually assent to an essential term, there was no meeting of the minds and the order form did not constitute a valid contract.

The trial court weighed the evidence, determined the credibility of the witnesses, and found in favor of McCollum. “On appeal, we do not weigh the evidence nor do we determine its sufficiency, but look only to see whether there was evidence to enable the [factfinder] to find as it did; wherever there is any evidence to support the verdict, all conflicts in evidence are resolved in favor of the [factfinder’s decision] and we are bound to affirm it. [Cit.]” Hightower v. Cox, 204 Ga. App. 105, 107 (418 SE2d 613) (1992). Consequently, we cannot say that the decision of the trial court was clearly erroneous.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper and Smith, JJ., concur. Andrews and Johnson, JJ., dissent.

Johnson, Judge,

dissenting.

The parol evidence offered by defendant/appellee McCollum at trial should not have been allowed to defeat the unambiguous language of the contract for advertising admittedly signed by him. The Directory Advertising Order specifically provided that publication of the advertising would continue until canceled in writing, as well as a merger clause which stated that “This order, if accepted by us, and any associated printing orders are our entire agreement with you.” The accompanying printing order also contained McCollum’s signature under the statement “As an authorized representative of the above named firm, I have reviewed the advertising copy shown and find it to be correct. I understand that this printing order is subject to the Terms & Conditions of the associated Directory Advertising Order. . . .’’As this court recently held, “ ‘Parol evidence is inadmissible to add to, take from, or vary a written contract.’ OCGA § 13-2-2 (1). Even if consideration of circumstances surrounding the execution of the agreement creates an ambiguity, ‘(w)here the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, it should not be admitted. (Cits.)’ [Cit.]” Loveless v. Sun Steel, 206 Ga. App. 247, 248-249 (424 SE2d 887) (1992). The advertising was published and Mc-Collum received the benefit of that advertising. I believe that the trial court erred in considering the parol evidence and in excusing McCollum from performance of his obligations under the contract. Accordingly, I would reverse the trial court.

Decided July 13, 1993.

Strongwater & Cherniak, Jay L. Strongwater, Leeza R. Cherniak, for appellant.

Robinson & Harbert, John E. Robinson, for appellee.

I am authorized to state that Judge Andrews joins in this dissent.


text:
    A93A0492.
    ROBINSON v. STATE OF GEORGIA.
    (433 SE2d 707)
   Andrews, Judge.

This case involves the condemnation of property pursuant to OCGA § 16-13-49. On June 5, 1992, the State filed a complaint for forfeiture of certain property of Robinson’s which had been seized pursuant to a search warrant. The complaint was also served on Robinson on June 5. Robinson’s answer and motion to dismiss were filed on July 7, 1992. On August 4, 1992, the State filed a motion for a judgment of forfeiture, which the court granted after a hearing on September 23, 1992. From that judgment, Robinson appeals.

1. In his first enumeration of error, Robinson contends that the trial court erred when it granted the State’s motion for a judgment of forfeiture. Robinson argues that under OCGA § 16-13-49 (e), the date on which his answer was due fell on a weekend, and thus the answer was due on Monday, July 6, pursuant to OCGA § 9-11-6. He argues that the clerk’s office received the answer, but did not file it, on July 6. At the hearing, Robinson set forth this argument and presented a “print-out,” not included in the record here, which he claimed showed that his answer was delivered on July 6.

Even assuming that Robinson’s argument, if proven, had a bearing on the filing date, there is no evidence in the record to support Robinson’s contentions. His assertions that the answer was delivered on July 6 are not evidence of that fact. See Duval v. Kidder, 191 Ga. App. 856 (383 SE2d 356) (1989). Accordingly, Robinson’s answer was not filed within the 30-day period mandated by OCGA § 16-13-49 (o) (4) and because of this, the trial court properly granted the motion for judgment of forfeiture.

2. In his second enumeration, Robinson contends that the trial court erred by failing to conduct a hearing on his motion to dismiss. He claims that even if his answer was untimely, his motion to dismiss was timely and should have been considered. Robinson argues that dismissal was proper since the complaint for forfeiture was filed June 5, which was more than 60 dáys after the April 3 seizure, which Robinson argues violates the provisions of OCGA § 16-13-49 (h) (3).

Both the State and Robinson rely on facts not contained in the record. The State claims that it filed a “notice of the seizure” on April 9, 1992; both parties agree that Robinson filed a claim to the property — the State asserts that his claim was filed on May 8, 1992.

OCGA § 16-13-49 (h) (2) provides that within 60 days “from the date of seizure, a complaint for forfeiture shall be initiated as provided for in subsection (n), (o), or (p) of this Code section.” Subsection (h) (3) states that if the State fails to “initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified in paragraphs (1) and (2) of this subsection” the property must be released upon the owner’s request.

The State claims that its complaint was timely under OCGA § 16-13-49 (n) (5). We agree. Subsection (n) (5) provides that “[i]f a claim [to the personal property under $25,000] is filed [after proper notice is given], the district attorney shall file a complaint for forfeiture as provided in subsection (o) [regarding in rem proceedings] or (p) [regarding in personam proceedings] of this Code section within 30 days of the actual receipt of the claim.” The State argues that its complaint was filed 30 days from Robinson’s May 8 claim and was timely, despite the fact that it was filed after the 60-day provision of subsection (h) expired.

The time provisions of subsection (n) operate independently of the 60-day requirement of OCGA § 16-13-49 (h) (2) and provide an alternative procedure for cases like the instant one which involves personal property with a value of $25,000 or less. If the provisions of subsection (n) are followed, the 60-day period outlined in (h) (2) may be extended. Compare Alford v. State of Ga., 208 Ga. App. 595 (431 SE2d 393) (1993). Robinson does not argue that the State failed to comply with other provisions of subsection (n) and the State’s filing of the complaint was timely.

We are mindful that under the predecessor to the current statute, Code Ann. § 79A-828 (e), the State’s failure to file the complaint within the 30-day period set forth therein prevented forfeiture. See State v. Ellis, 156 Ga. App. 779 (1) (275 SE2d 361) (1980); State v. Luke, 183 Ga. App. 182 (358 SE2d 272) (1987). Nonetheless, the previous statute did not contain the additional, alternative time provisions of subsection (n), which are at issue here.

Decided July 13, 1993.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Patricia A. Buttaro, for appellant.

Joseph H. Briley, District Attorney, Gary C. McCorvey, Assistant District Attorney, Lance K. Hiltbrand, F. Maxwell Wood, for appellee.

In light of our presumption that the trial court’s factual findings were proper, and given our interpretation of OCGA § 16-13-49 (n), there was no harmful error in the trial court’s failure to entertain Robinson’s motion to dismiss.

3. Finally, Robinson contends that the trial court erred when it granted the State’s motion for judgment of forfeiture as to the contents of the passbook accounts. The majority of this argument involves Robinson’s contention that the property actually seized was the passbooks, not the accounts themselves. For several reasons, this argument is without merit.

Judgment affirmed.

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