text:
    A97A1417.
    HIGHTOWER v. THE STATE.
    (487 SE2d 646)
   Eldridge, Judge.

On September 17, 1988, appellant, Michael Hightower, raped a 14-year-old neighbor who lived across the street from appellant’s home. Appellant lived with his wife and his two small children. The victim frequently came to appellant’s home to use his washing machine to do laundry, because the victim had no washer or dryer.

The victim testified that at about 1:30 p.m. on Saturday, September 17, 1988, when she came to appellant’s kitchen to wash clothes, appellant raped her in the kitchen while his children were playing outside, and appellant’s wife was sewing in the bedroom. Appellant came into the kitchen and locked the back door. Appellant shoved the victim into a corner next to the sink and pulled up and to the side her baggy shorts and put his penis in her vagina. The victim did not consent to have intercourse with appellant but did not cry out. The penetration took place while they stood in the corner, and appellant commanded her to “get [her] damn ass on the . . . sink.” Appellant scared the victim, and he refused upon her plea to stop. The victim started to bleed after appellant withdrew.

Appellant’s wife entered the kitchen while the victim was in the bathroom. Appellant’s wife began to question the victim about what had happened, but the victim began to cry. The wife questioned appellant as to what went on with the victim. The victim and appellant’s wife went into the living room to confront appellant, and appellant accused his wife of putting lies in the victim’s head, and indicated that he had not meant to hurt the victim and was sorry. The victim went home and told her mother that appellant had raped her.

The victim was taken to the hospital where she underwent a rape examination by a doctor. The examining physician testified that he found a laceration to the bottom base of the vagina which was fresh, superficial, and about a half-inch in length. In the doctor’s opinion, the victim’s vagina had been traumatized recently. It was his opinion that there had been forcible penetration of the vagina. The doctor found no bruising on the rest of the victim’s body.

The victim’s mother corroborated as an outcry witness. The victim’s mother stated that the appellant’s wife also related that the victim made an outcry. The victim’s mother also confronted the appellant immediately, and he told her, “I didn’t do what you think I did to her. ... I didn’t penetrate her like you think I did.” Appellant admitted that he had grabbed her and pulled up her pants.

The victim’s panties were taken at the hospital and sent to the GBI State Crime Laboratory for analysis. Upon analysis, human semen was found mixed with blood on the panties.

No sperm was found in the vaginal smear, which defense counsel emphasized on cross-examination. Defense counsel also sought, through cross-examination of the lab technician, to bring out that she could not distinguish whether the blood on the panties was menstrual blood or came from a laceration. The defense also called appellant’s wife to the stand, and she denied that the victim ever told her that appellant had penetrated the victim. In addition, appellant testified in his own defense that he did not rape the victim, although he did kiss her, pull up her shorts, and place his fingers in her vagina. Appellant denied grabbing the victim. He denied ejaculating on the victim’s panties. Further, as appellant is a minister, the defense put up evidence of good character.

On October 13, 1989, the jury found appellant guilty of rape and aggravated assault. On October 13, 1989, appellant was sentenced. On November 29, 1989, a motion for new trial was filed. On December 6, 1989, the motion for new trial was denied, and appellant filed a notice of appeal. On March 2, 1992, the notice of appeal was dismissed by the trial court for failure to obtain a transcript in a timely fashion. On December 12, 1996, an extraordinary motion for new trial was filed, raising the issue of ineffective assistance of counsel. The motion was denied after a lengthy hearing. Appellant filed a new notice of appeal from the denial of the extraordinary motion for new trial. Held:

Appellant’s sole enumeration of error is that the trial.court erred in denying his extraordinary motion for new trial on the issue of ineffective assistance of counsel. Appellant contends that: the victim made a prior inconsistent written statement that was impeaching to the GBI investigator; appellant’s trial counsel never sought any formal discovery, because the prosecution had an open file policy; trial counsel failed to discuss with appellant having sexual intercourse previously with the victim which could allow an exception to the Rape Shield Statute; appellant told counsel that he had previously had intercourse with.the victim; trial counsel did not seek to make a showing to the trial court of prior sexual intercourse with the 14-year-old victim as an exception to the Rape Shield Statute; trial counsel failed to meet with him between March 1989 and the first day of trial on October 12, 1989, nor did trial counsel meet with appellant’s wife; the victim and the victim’s mother stated that they had never been contacted by appellant’s trial counsel; appellant’s statement to the GBI, which was introduced at trial, may have been suppressible if a Jackson-Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing had been held; and trial counsel failed to determine if there existed pervasive and extensive pretrial publicity which was harmful to appellant. In short, appellant raises a total of 20 acts that he contends are evidence of ineffective assistance of counsel. We do not agree.

(a) The victim’s statement was not impeaching as a prior inconsistent statement.

While the trial court records do not reveal pretrial discovery, in ruling upon the motion for new trial on the ground of ineffectiveness, the trial court found that there existed no exculpatory or impeaching Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), materials in the district attorney’s file that appellant would have been entitled to obtain had a request been made. This ruling was correct. The statement of the victim is neither a prior inconsistent statement, nor contradictory so as to come within the ambit of Brady.

A witness may be impeached by prior inconsistent statements which contradict a witness’ testimony from the stand; those statements must be relevant and material to the witness’ testimony and to the case. OCGA § 24-9-83. However, “if such contradiction is not on matters relevant to [her] testimony and to the case, or if, indeed, such prior statement fails to amount to a contradiction at all, the question of whether or not [she] has been successfully impeached is not then one of fact for the jury, but one of law for the court.” Travelers Ins. Co. v. Bailey, 76 Ga. App. 698, 703 (1) (47 SE2d 103) (1948); see also Hudgins v. Bloodworth & Co., 109 Ga. 197 (1) (34 SE 364) (1899). “Proof of a different but not inconsistent statement would not suffice to raise an issue either as to impeachment or as to substantive use.” Hopkins v. State, 167 Ga. App. 811, 814 (1) (307 SE2d 707) (1983); see also Hodo v. Jenkins, 209 Ga. 4 (70 SE2d 452) (1952); Berry v. Dinsmore, 115 Ga. App. 256 (154 SE2d 653) (1967). “As the absence of a prior statement at the hearing fails to amount to a contradiction, there could be no impeachment under the provisions of OCGA § 24-9-83.” Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983). “However, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter. Mann v. State, 124 Ga. 760 (4) (53 SE 324) [(1906)]. Whether the victim had given testimony as to the particular sexual act in question at a hearing prior to trial is wholly immaterial to the issue of defendant’s guilt of the crimes charged. Gilbert v. State, 159 Ga. App. 326, 327 (2) (283 SE2d 361) [(1981)].” Id.

“The excluded testimony showed only that the State’s witness had made a prior statement which was less expansive than her trial testimony. That the trial testimony of the State’s witness merely included additional facts demonstrates no impeaching inconsistency with the excluded prior statement attributed to her.” Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449) (1991); see also Thomas v. State, supra at 587.

An inconsistent prior statement to subsequent testimony is the difference between an assertion that an event took a “pretty long time” and “around an hour” versus trial testimony that the same event took “a couple of minutes.” Shearer v. State, 259 Ga. 51, 52 (5) (376 SE2d 194) (1989). “To constitute a self-contradiction ‘[i]t is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required. ... As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. . . .’ 3 Wigmore Evidence 725, § 1040.” (Emphasis in original.) Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 564 (2) (c) (122 SE2d 268) (1961). “The object of showing self-contradiction as impeaching evidence is to demonstrate the witness’ capacity to make errors, rather than to prove a specific error. ‘We place [her] contradictory statements side by side, and, as both cannot be correct, we realize that in at least one of the two [she] must have spoken erroneously. Thus, we have detected [her] in one specific error, from which may be inferred a capacity to make other errors. ... It is the repugnancy of the two that is significant.’ 3 Wigmore Evidence 685, 686, § 1017.” Id. at 565.

In the case sub judice, the contended contradictory or inconsistent prior statement is that the victim told the GBI investigator that appellant yelled at her to “open her damn legs”; that he told her that he wanted for her to have a baby like “the other girl”; and that he struggled to force her legs apart. Such facts were neither contradictory nor inconsistent with her trial testimony, but were merely additional facts that corroborate the trial testimony and demonstrate no impeaching inconsistency. Weathers v. State, supra at 871. This evidence would not be discoverable under Brady because it was inculpatory and not impeaching.

(b) The issue of consent does not provide a basis for finding ineffective assistance of counsel.

Appellant contends that trial counsel was ineffective in not bringing out that appellant had sexual intercourse with the victim on several prior occasions and that prior sexual relations between the victim and the appellant would corroborate the defense of consent and come within the exception to the Rape Shield Act. OCGA § 24-2-3 (b). The victim, at the motion for new trial, denied any prior sexual relations with appellant.

The victim was born on September 30, 1973, and the rape occurred on September 17, 1988, which would make the victim almost 15 years of age at the time of the occurrence. At the time of the prosecution, statutory rape applied only to females “under the age of 14 years” and did not apply to the case sub judice; thus, alleging consent was a defense to the offense of rape. However, for a minister to engage in adultery with a 14-year-old female in his home on multiple occasions would clearly affect his credibility and could cause substantial prejudice against him with the jury, especially where such events were denied by the victim. The decision not to inject such issue in the trial (even if true) was clearly a matter of trial strategy, because character, consent, and credibility were appellant’s defenses. While testimony as to prior acts of consensual sex would corroborate consent on this occasion, it would undermine the character and credibility defenses; further, it would be appellant’s word against the victim’s testimony that he had been molesting the minor for as long as three months for his own sexual gratification, even though the acts, with consent, were not criminal simply because of the age of the victim. Legitimate trial strategy cannot be the basis for a claim of denial of the constitutional right to “effective assistance of counsel,” because such decision falls within the range of reasonable professional assistance. See Fargason v. State, 266 Ga. 463, 464-465 (2) (467 SE2d 551) (1996); Lakes v. State, 266 Ga. 389, 390 (2) (467 SE2d 566) (1996); Black v. State, 264 Ga. 550, 551 (448 SE2d 357) (1994); Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994).

(c) Trial counsel’s asserted lack of preparation does not provide a basis for ineffective assistance of counsel in the case sub judice.

Appellant contends that trial counsel never met with him from March 1989 until the beginning of trial on October 12, 1989. However, trial counsel testified that he did meet with appellant at various times to assist in trial preparation. Trial counsel testified that he talked to appellant’s wife prior to trial regarding her testimony at trial. Appellant has made no specific showing that trial counsel was not prepared for trial as a consequence or that appellant was in fact prejudiced by the alleged unpreparedness. Appellant asserts that trial counsel did not interview the victim or her mother; however, evidence showed such witnesses would not consent to be interviewed and would have refused to talk to defense counsel even if they had been contacted for an interview. Therefore, the evidence does not support a finding of ineffective assistance of counsel based on lack of preparation.

(d) Appellant’s voluntary statement provides no basis for finding ineffective assistance of counsel.

Appellant contends that trial counsel should have filed a Jackson-Denno motion to suppress his pretrial statement to the GBI. Even if the statement had been suppressed, the voluntary statement could have been used as a prior inconsistent or contradictory statement to impeach appellant’s trial testimony, thus becoming substantive evidence in the case. Michigan v. Harvey, 494 U. S. 344 (110 SC 1176, 108 LE2d 293) (1990); Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971). However, appellant’s statement was given voluntarily. The Miranda v. Arizona, 384 U. S 436 (86 SC 1602, 16 LE2d 694) (1966), rights were given to appellant prior to his being questioned. Appellant was neither threatened nor promised anything, and appellant waived his rights freely and voluntarily, giving a written statement. In his statement, appellant admitted to kissing the victim, backing her against the sink, lifting her shorts, and inserting two to three fingers into her vagina before his wife came into the kitchen. When the appellant testified, he stated the same facts in his defense. Appellant, at trial on the motion for new trial, never alleged that his statement was not freely and voluntarily given. Thus, the lack of a Jackson-Denno hearing was not prejudicial, and the conduct of trial counsel was a reasonable trial strategy.

(e) Failure to move for a change in venue provides no basis for finding ineffective assistance of counsel.

Decided June 10, 1997

Reconsideration denied June 26, 1997

James N. Finkelstein, Howard J. Stiller, for appellant.

There was no evidence that pretrial publicity was such as to authorize the trial judge to exercise his discretion and grant a change of venue. OCGA § 17-7-150. There was no evidence that “an impartial jury [could not] be obtained in the county where the crime [was] alleged to have been committed.” OCGA § 17-7-150 (a) (1). The voir dire was not taken down, so there is no evidence of community prejudice revealed by the voir dire. Appellant showed interest on the part of the news media; he produced his wife to testify as to the news coverage; however, such evidence was insufficient to require a change of venue.

“At the hearing on the motion for new trial, the burden was on appellant to establish that he received ineffective assistance of trial counsel. Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993). To meet this burden, appellant was required to show not only that trial counsel’s performance was deficient, but also that, absent trial counsel’s deficient performance, there is a reasonable likelihood that the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Hayes v. State, 263 Ga. 15 (426 SE2d 557) (1993).” White v. State, 265 Ga. 22 (2), 23 (453 SE2d 6) (1995). “ ‘When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ [Strickland v. Washington, supra] at 695; see Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974) (adopting standard of ‘reasonably effective assistance’ at the time service was rendered).” Black v. State, 264 Ga. 550, 551 (1) (448 SE2d 357) (1994). Here the evidence was overwhelming: the victim’s testimony; the victim’s outcry to both her mother and appellant’s wife; trauma caused to the vagina, resulting in immediate bleeding; semen mixed with the blood on the victim’s panties; and appellant’s admission that he had sexual contact with the victim in the kitchen. The trial judge did not abuse his discretion in denying the extraordinary motion for new trial based upon ineffective assistance of counsel.

Judgment affirmed.

Birdsong, P. J, concurs. Ruffin, J., concurs in judgment only.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Jennifer A. Thomas, Assistant District Attorneys, for appellee.

       Ga. L. 1968, p. 1249, § 1, applicable at the time of the offense, was changed in OCGA § 16-6-3 to 16 years. Ga. L. 1995, p. 957, § 3; Ga. L. 1996, p. 871, § 1; Ga. L. 1996, p. 1115, § 3.

       The child molestation statute at the time of the occurrence, OCGA § 16-6-4 (a) (Ga. L. 1968, p. 1249, § 1), applied only to a minor under 14 years of age. In 1995, the Georgia legislature increased the age to 16 years. Ga. L. 1995, p. 957, § 4.

       Such evidence satisfies Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), because a rational trier of fact could find guilt beyond a reasonable doubt.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1438.
    JACOBSON v. GARLAND.
    (487 SE2d 640)
   Eldridge, Judge.

This case is an action brought by the appellee to enforce a guaranty agreement against the appellant. The appellant is a resident of Seminole County, Florida. However, since the guaranty agreement was executed in Dalton, Whitfield County, Georgia, the appellee elected to file suit in the superior court of such county and serve the appellant under the Georgia Long Arm Statute, OCGA § 9-10-91 et seq.

The appellee initially attempted service on the appellant while he was in attendance at a hearing in the United States Bankruptcy Court, Middle District of Georgia, Macon Division. However, such service was later quashed by order of the trial court. The appellee subsequently attempted service by substituted service upon the appellant’s wife at their home in Seminole County, Florida. The appellant timely answered and attacked such substituted service by a motion to dismiss and motion to quash return of service. The lower court denied said motions by order filed of record July 3, 1996.

A non-jury trial was conducted by the parties on December 6, 1996, wherein the trial court entered a final judgment in favor of the appellee in the principal sum of $258,333.23, accrued interest in the amount of $33,870.66, costs of suit, and interest on said judgment. The appellant has appealed from the entry of this judgment.

1. The appellant, in his first enumeration of error, contends that the lower court erred by denying the appellant’s motion to dismiss and motion to quash service as the appellee did not obtain proper service of the appellant by substituted service upon his wife, Angela Jacobson, in the State of Florida.

Under the Georgia Long Arm Statute, “[a] person subject to the jurisdiction of the courts of the state under Code Section 9-10-91. . . may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state ... in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” OCGA § 9-10-94; see also Samay v. Son, 213 Ga. App. 812 (446 SE2d 230) (1994). Under the facts of the case sub judice, the two methods of service in Georgia are to either serve the defendant personally or to leave “copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” OCGA § 9-11-4 (d) (7).

In the case sub judice, an entry of service signed by Timothy E. Lynch, who is a special process server appointed to serve process in cases filed within the Eighteenth Judicial Circuit of Florida, which includes Seminole County, was filed with the court on December 22, 1995. Such entry of service stated that Lynch had served the appellant by substitute service at his principal place of abode on December 14, 1995, at 9:29 a.m., by leaving a copy of the complaint and summons with Mrs. Jacobson, the appellant’s wife. The appellant contends that this substitute service was insufficient because the copies were not placed into the hands of his wife, but were left on the ground outside the door. In support of his motion to dismiss and motion to quash service, the only evidence the appellant submitted was the affidavit of his wife, Angela Jacobson.

In her affidavit, Mrs. Jacobson stated that she resided at 545 Julie Lane, Winter Springs, Florida; that on Wednesday, December 13, 1995, she was at her home when around 10:00 a.m., the telephone rang; that she answered and the caller stated that he was calling from the intercom by the front gate of her home and asked to see the appellant; that she replied the appellant was not home and hung up; that the phone rang again and she did not answer it, but her son, who had been asleep, woke up and, instead of answering the call, hit the code buttons which caused the front gate to open; that the dog, which was outside began barking, and she went to the door; that when she opened the door a man was standing there with “some papers in his hand,” and asked if she was Mr. Jacobson’s wife; that she informed the man that he was trespassing, and he should get off their property, and closed the door; that later in the day, she opened the door and picked up the papers, which had been left on the ground; and that these papers consisted of the summons and complaint in the case sub judice.

In response to the appellant’s motion, the appellee submitted as evidence the affidavit of Lynch. Lynch stated that on December 14, 1995, at 9:29 a.m., he visited the residence located at 545 Julie Lane, Winter Springs, Florida; that he used the intercom by the front gates to call the house; that a person answered and identified herself as Angela Jacobson, wife of the appellant; that Mrs. Jacobson verified that the residence was the principal place of abode for both her and her husband; that he informed Mrs. Jacobson that he was in possession of and desired to serve the appellant with process issued by the Superior Court of Whitfield County, Georgia, in Civil Action No. 58,780-2; that Mrs. Jacobson informed him that the appellant was not there and disconnected the telephone; that he attempted to use the intercom again to contact the residence when the gate opened; that he traveled to the front door of the residence, but before he was able to knock, a female opened the door, whom he recognized to be Angela Jacobson from earlier services on both her and the appellant; that he informed Mrs. Jacobson that he was serving papers upon her; that Mrs. Jacobson told him he was trespassing and to immediately get off their property and closed the door; that he immediately declared in a voice sufficiently loud enough to be heard through the door that he was leaving the process papers at the front door; and that he placed the same at the foot of the door and left the premises.

“It is the duty of a defendant to accept and submit to the service of process when he is aware of the process server’s purpose. [Cits.]” Hickey v. Merrit, 128 Ga. App. 764, 768 (197 SE2d 833) (1973) (Eberhardt, P. J., concurring). “It is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.” (Citations and punctuation omitted.) Id. at 767. This rule would apply to substituted service as well. See 87 ALR2d 1163, § 3 (1963); Edward Hines Lumber Co. v. Smith, 172 NE2d 429 (Ill. App. 1961).

Lynch properly served the appellant by his valid substituted service on Mrs. Jacobson. Mrs. Jacobson was of suitable age and discretion, and resided at the appellant’s residence. Lynch informed Mrs. Jacobson in a face-to-face conversation at the appellant’s residence that he was serving process on her. Mrs. Jacobson closed the front door on Lynch, which prevented him from physically handing her the process papers. Lynch declared in a voice loud enough to be heard through the door that he was leaving the papers at the foot of the door. Lynch’s statements would convince a reasonable person that service was being attempted, so Mrs. Jacobson could not avoid service by refusing to physically accept the process papers. It was reasonably probable, based on Lynch’s actions, that the appellant would actually receive the notice of the action against him.

“Where a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. OCGA § 9-11-12 (d). This finding will not be disturbed as long as there is ‘some evidence to support’ it. Further, when a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The process server’s return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 667-668 (476 SE2d 43) (1996). The appellant failed to carry his burden of showing improper service, and the trial court was correct in denying the appellant’s motion to dismiss and motion to quash return of service.

Decided June 9, 1997

Reconsideration denied June 26, 1997

Avrett, Ponder & Withrock, John T. Avrett, William B. Barnwell, for appellant.

McCamy, Phillips, Tuggle & Fordham, Charles L. Daniel III, for appellee.

2. This Court, having found there was sufficient service of process on the appellant in Division 1, finds that the appellant’s second enumeration of error is rendered moot.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       The facts of the case sub judice are sufficiently different from those found in Fain v. Hutto, 236 Ga. 915 (225 SE2d 893) (1976), and Cook v. Bright, 150 Ga. App. 696 (258 SE2d 326) (1979), which are cited by the appellant in support of his assertion that the substituted service was invalid. In both Fain and Cook, the process server did not communicate with either the defendant or a person of suitable age and discretion who resided at the defendant’s place of abode; indicate that he was there to serve process; have service refused; and then, after informing the individual in a voice loud enough to be heard that he was leaving process at the door, leave the complaint at the door. Therefore, such cases are not controlling.


author: Judge Harold R. Banke.

text:
    A97A1656.
    CANAL INDEMNITY COMPANY v. E.M.C. MOTORS, INC. et al.
    (488 SE2d 126)
   Judge Harold R. Banke.

This appeal arose from a determination of insurance coverage relating to allegedly tortious conduct occurring during the repossession of a vehicle. Canal Indemnity Company (“Canal”) appeals the partial denial of its motion for summary judgment.

At issue is the scope of the Garage Keepers Liability Insurance policy between Canal and its insured, E.M.C. Motors, Inc. (“EMC Motors”). EMC Motors is primarily in the business of buying, selling, and financing used cars and is not in the repossession business. EMC Motors’ president Tyler T. Williams testified that his company never repossesses cars and instead contracts with third parties to do so. Williams testified that before he contracted with Southeast Investigators & Recovery, Inc. d/b/a American Lender Service Corporation (“Southeast”) to repossess Fred B. Glance’s vehicle, he verified that Southeast had the applicable insurance. EMC Motors then agreed to pay Southeast $225 for the repossession.

After Southeast’s wrecker driver, Toby Ingram, had attached Glance’s vehicle to his tow truck, Glance allegedly sustained injuries when he purportedly positioned himself between the tow truck and his car. Seeking to hold EMC Motors and Southeast liable for Ingram’s actions, Glance sued both EMC Motors and Southeast alleging, inter alia, breach of peace, wrongful repossession, negligent hiring, and negligent retention.

Canal filed a declaratory judgment action against EMC Motors, Southeast, and Ingram, claiming that the policy at issue afforded no coverage for Glance’s claims. It is undisputed that EMC Motors refused to purchase haulaway coverage. A “haulaway” is an “automobil[e] used to tow, pull or transport automobiles, cargo, or freight.” The haulaway exclusion in the effective policy at issue precluded coverage for “bodily injury or property damage arising out of the . . . operation, use, loading ... of any (1) haulaway . . . owned, hired, or held for sale by the named insured [EMC Motors] and not being delivered, demonstrated or tested.”

The trial court determined that this haulaway provision was susceptible to more than one interpretation. The court found that the haulaway provision, when coupled with the Notice section on repossession, justified a reasonable insured’s interpretation that the policy provided coverage for accidental injuries occurring during repossession. It further determined that Southeast and Ingram were independent contractors and not employees of EMC Motors. Construing this purported ambiguity against the insurer, the court held that Canal had to provide coverage to EMC Motors to the extent of EMC Motor’s liability in Glance’s lawsuit, but that Canal had no obligation to defend or indemnify Southeast or Ingram or any other party. Only Canal appeals that ruling. Held:

1. Canal argues that the trial court erred in its construction of the policy by considering the “Important Notice to Insured” which was attached to the policy. “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.” OCGA § 33-24-16. See West v. Rudd, 242 Ga. 393, 395 (249 SE2d 76) (1978). By its express terms, however, the Notice was merely explanatory and did not amend the parties’ contract. In fact, at the top of the form, the Notice plainly apprised EMC Motors as follows: “This [notice] is intended to help you understand Georgia Garage Insurance. It does not amend your policy.”

The first paragraph of the Notice states: “REPOSSESSION — Your insurance covers ACCIDENTAL occurrences resulting in Bodily Injury or Property Damage. Your insurance does not cover payment of defense of other claims such as claims for any intentional act or PERSONAL INJURY, Libel, Slander, False Arrest, Assault, Battery, Defamation of Character, Taking of Personal Property unless specifically purchased.” About one inch below that paragraph the same Notice specifically provides: “Haulaway vehicles are not insured unless scheduled on the policy and a premium is paid for them. ‘Haul’ means to ‘tow, pull, or tug.’ Wreckers and car carriers must he scheduled to he insured.” (Emphasis supplied.) The Notice also states in bold: “The NAMED INSURED must own the auto in order to be insured in most losses.”

Inasmuch as the Notice plainly states no coverage is available for haulaway vehicles unless scheduled on a policy and a premium paid, reliance on the paragraph on repossession in isolation from the rest of the Notice and from the policy itself is unavailing as a matter of fact and a matter of contract law. See OCGA § 13-2-2 (4). Because the Notice explicitly stated that it did not in any way amend the terms of the policy, the paragraph on repossession in the Notice did not operate to amend the explicit exclusion for haulaways contained in the policy itself. West, 242 Ga. at 395.

2. Canal contends that the trial court erred by finding ambiguity in the policy at issue. Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31, hn. 5 (163 SE 298) (1932). A word or phrase is ambiguous when “ ‘ “it is of uncertain meaning and may be fairly understood in more ways than one.” ’ ” (Citations omitted.) Kusuma v. Metametrix, 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989).

According to the policy schedule, “The insurance afforded is only with respect to such of the coverages and hazards in the declarations and indicated by specific premium charge or charges.” EMC Motors, as noted above, had no haulaway coverage “arising out of the . . . operation, use, loading of any (1) haulaway . . . hired ... by the named insured and not being delivered, demonstrated or tested.” Southeast’s tow truck was not being delivered, demonstrated or tested.

Further, the policy restricted PERSONS INSURED as follows: “None of the following is an insured: . . . (ii) any person or organization other than the named insured or its directors, stockholders, partners, members, or employees while acting within the scope of their duties as such, with respect to operations performed by independent contractors for the named insured.” Also, where Canal provided space for EMC Motors to designate any “independent contractors, subcontractors and their employees,” EMC Motors wrote “None.”

By its express terms the haulaway exclusion did not apply to the repossession incident at issue. Further, the policy excluded coverage for operations performed by persons and organizations other than EMC Motors. Indisputably, EMC Motors failed to list Southeast as an independent contractor when afforded an opportunity to do so. Nor does EMC Motors point to any contrary language in the policy which would provide coverage. Assuming without deciding that the policy afforded coverage for accidental injuries-resulting from repossession when performed by EMC Motors when not using a haulaway, such as using an ignition key to a vehicle, the policy specifically stated that coverage was limited to the named insured, and not to an independent contractor like Southeast. After applying the applicable rules for contract construction, we find no ambiguity in the provision at issue. OCGA § 13-2-2 (1), (2), (4). See Cherokee Credit Life Ins. Co. v. Baker, 119 Ga. App. 579, 584-585 (3) (168 SE2d 171) (1969).

Because the words in the policy at issue here are plain and obvious, they must be given their literal meaning. U. S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987). Although ambiguous exclusions may be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion, as here, is clear and unequivocal. United Svcs. &c. v. Lail, 192 Ga. App. 487, 489 (1) (385 SE2d 424) (1989). By its express terms, the haulaway exclusion provided no coverage for the tort claims. Nor did the policy at issue cover any independent contractors. See Canal Indem. Co. v. Lee's Used Car Sales, 841 FSupp. 775, 779 (S.D. Miss. 1994) (haulaway exclusion coupled with independent contractor provision entitled insurer to summary judgment as a matter of Mississippi law).

Despite EMC Motors’ argument to the contrary, no binding Georgia authority requires that a creditor’s insurer provide coverage in contradiction to policy terms where a third party is allegedly injured by an independent contractor during repossession. See Fulton v. Anchor Sav. Bank, FSB, 215 Ga. App. 456, 462 (2) (b) (452 SE2d 208) (1994) (physical precedent only). Notwithstanding EMC Motors’ self-serving declaration that it desired coverage for repossession, nothing in the policy authorizes coverage for an unlisted independent contractor like Southeast who was using a haulaway. See Nat. Security Fire &c. Co. v. London, 180 Ga. App. 198, 200 (2) (348 SE2d 580) (1986) (contract law rather than underlying motives of the contracting parties is ultimately controlling).

Where contract terms, as here, are plain on their face, judicial contract construction is improper. See Lyle v. Southern Fed. Sav. &c., 160 Ga. App. 196, 197 (2) (286 SE2d 438) (1981). For these reasons, Canal was entitled to summary judgment as a matter of law in its action against EMC Motors. We, therefore, reverse that part of the judgment denying summary judgment as to EMC Motors.

Decided June 26, 1997.

Schulten, Ward & Turner, Susan K. Murphey, Donald W. Osborne, for appellant.

Smith, Howard & Ajax, John A. Howard, Bruce H. Beerman, Jett & Liss, Adam G. Jett, Jr., Lane, O’Brien & Caswell, Stephen J. Caswell, for appellees.

Toby Ingram, pro se.

Judgment reversed in part.

Birdsong, P. J, and Ruffin, J, concur.

       Williams testified that about three or four hours after the car was towed in, Glance arrived at EMC Motors, expressed his dissatisfaction, and paid off the outstanding balance.


author: Birdsong, Presiding Judge.

text:
    A97A0249.
    GRANT et al. v. THE STATE.
    (488 SE2d 79)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying Jeffery R. Grant’s and Georgia Southern Lumber Inc.’s special demurrers to the Racketeer Influenced & Corrupt Organizations Act (RICO) prosecution under OCGA § 16-14-1 et seq. against them. Appellants were indicted with others for timber transactions wherein they fraudulently obtained timber, misrepresented the acreage of timber bought or sold, or sold timber at a price excessively greater than market price by fraudulently calculating the acreage or timber involved.

The indictments are stated in two counts. The first count names 28 defendants and sets forth in detail a particular “pattern of racketeering activity consisting of violations of. . . OCGA § 16-14-4 (b).” In 122 pages this count describes in detail the roles played by the individual and corporate defendants, who were lumber companies, procurement foresters, timber brokers and loggers and real estate brokers; it alleges they “committed various acts of theft by taking against Keadle Lumber Enterprises Inc., and various other timber property owners, making and filing fraudulent timber deeds and uttering forged documents.”

Jeffery R. Grant is named as a timber broker participating in the pattern of racketeering activity. Count 1 alleges the pattern of racketeering activity occurred from January 1, 1983 to December 31, 1990, and that each defendant actively participated in the racketeering activity. It further states that on October 23, 1989, the victim, Keadle Lumber Enterprises Inc., discovered “a wide-ranging timber inventory shortage . . . of at least $1.3 million dollars. It was determined that Joseph R. Garrard [a wood procurement forester] had manipulated the company’s inventory books by miscrediting timber from various Keadle tracts in an effort to cover up the ongoing criminal enterprise entered into between himself and the defendants. As a part of the criminal enterprise and in order to facilitate and secrete the theft of merchantable timber owned by [Keadle] and other property owners Joseph R. Garrard and the other defendants committed the following acts in furtherance of their criminal activity: inflated or deflated the value of merchantable timber and timber cuts thereby defrauding the timber owner or the mill which purchased the timber; forged contracts which were procured for the cutting of timber not owned by the defendants; sold timber contracts to [Keadle] on land that does not exist; sold timber contracts to [Keadle] for timber they did not own; stole timber from [Keadle] and sold it to [Keadle] and in other markets; inflated the acreage of timber tracts, purchased by [Keadle] through Garrard and the defendants in order to inflate the purchase price paid by [Keadle]; inflated the cruise value on timber contracts sold to [Keadle] through Garrard and the defendants to inflate the purchase price paid by [Keadle]; and miscredited timber which was delivered to [Keadle] for the purpose of covering up previous thefts under contracts. The success of the criminal enterprise depended upon the cooperation of the defendants to move the timber product through their various companies until its origin or final destination was hidden from [Keadle] and/or the other timber property owners.”

Subsection “A” of Count 1 avers: “At all times material to this count of this indictment (1) the ‘enterprise’ was (a) a group of individuals associated in fact although not [as] a legal entity, to-wit: Joseph R. Garrard, Jeffery R. Grant, [and 16 others]; (b) a sole proprietorship/corporation/partnership to-wit: Georgia Southern Lumber Inc.; Bickley Logging Inc.; Pope Brothers Logging Inc.; Penn Pulp wood Company; Ronald Davis Logging Inc.; Bunn Logging Inc.; Flynt Logging Inc.; Truitt & Pitts Logging Inc.; Towaliga Wood Inc.; Evans Timber Company Inc. (2) Joseph R. Garrard . . . was an employee of [Keadle] and was associated in fact with Jeffrey R. Grant [and the other named persons and companies]. (3) Jeffrey R. Grant. . . doing business as Georgia Southern Lumber Inc. . . . was associated in fact with Joseph R. Garrard [and the other named entities].” Thereafter, each of the persons and the companies they owned or by which they “did business as” or were associated or employed by were named and identified in like fashion, stating a total of 18 elements of the enterprise.

Subsection “B” of Count 1 states: “The pattern of racketeering activity consisted of the following: [thereafter, in 106 numbered paragraphs the indictment alleges, as to 106 instances, on particular dates certain named defendants unlawfully took property of Keadle Lumber Enterprises Inc., having a value in excess of $500 to-wit: money represented by Keadle Lumber Enterprises Check #(check number provided) made payable to the named defendants on a certain stated date, drawn on the account of Keadle Lumber Enterprises Inc. at a certain named bank, with the intent of depriving said owner of said property, contrary to the laws of said state; and that certain named defendants on a certain stated date in a named county did then and there unlawfully and knowingly make and use a false writing by causing a deed to be filed in a certain named and described Deed Book and page of a certain county court clerk’s office, and that the writing was false in that it contained a false, fictitious and fraudulent entry which the accused knew to be false in that at the time of writing a named defendant did not have title to the trees described in said deed].”

Appellant Jeffery R. Grant was named in Predicate Act (9), in that “On August 1, 1986, Jeffery R. Grant, Georgia Southern Lumber Inc., and Joseph R. Garrard, in Upson County Georgia, did then and there unlawfully take property of [Keadle] having a value in excess of $500 to-wit: money represented by [Keadle] check #771, made payable to Jeff Grant d/b/a Georgia Southern Lumber Co. Inc., dated August 1, 1986, drawn on the account of [Keadle] at the West Central Georgia Bank of Thomaston, Georgia, with the intention of depriving said owner of said property.” Predicate Act (10) alleges that “on August 1, 1986, Jeffery R. Grant and Joseph R. Garrard, in Pike County, Georgia, did then and there unlawfully and knowingly make and use a false writing by causing a deed to be filed in Deed Book 100, Page 250, Clerk of Superior Court Records, Pike County, Georgia. The writing was false in that it did contain a false, fictitious and fraudulent entry which the accused knew to be false in that at the time of filing, Jeffery R. Grant did not have title to the trees described in said deed [or, as the Predicate Act specifically alleges, in that the land did not exist, or in that Grant had placed this contract at Keadle containing different terms and with different land descriptions]. The recording of the aforementioned deed when filed was a matter within the jurisdiction of the county superior court clerk, contrary to the laws of said state, the good order, peace and dignity thereof.” Appellant Grant was similarly named for filing specifically described false deeds in certain counties, in Acts 11, 12, 13, 15, 17, 19, 33, 34, 35, 41, 43, 44; and for unlawfully taking property in excess of $500, to-wit, “money represented by [Keadle’s] check” #(number stated), date of check stated, payee named, drawee account named, and drawee bank named, in Acts 14, 16, 18, 29, 30, 32, 40, 42, 48, 54, 105, 106. Held:

1. The indictments are in no way defective for being insufficient to support a prosecution and conviction. The requisite predicate acts and enterprises comprising the charges against appellants are precisely described and named in each instance. No greater detail was required to allege the RICO offense under Georgia law. Due process is satisfied where an indictment puts a defendant on notice of the crimes with which he is charged and against which he must defend. Dunn v. State, 263 Ga. 343, 344 (434 SE2d 60); see OCGA § 17-7-54. The true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal of conviction. Jordan v. State, 220 Ga. App. 627, 629 (470 SE2d 242). In Jordan, we held that “[w]hile each count was not specifically individualized to each person named in the count [it] contained the elements of the offense charged and defendants cannot claim the charges were so insufficient that they were surprised by evidence introduced at trial or were unable to prepare a defense.” See also Hopper v. Hampton, 244 Ga. 361, 362 (260 SE2d 73); Carter v. State, 155 Ga. App. 49, 50 (270 SE2d 233). The indictment is read as a whole and one part may incorporate other parts. Staples v. State, 199 Ga. App. 551, 552 (405 SE2d 551). “The two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense. [Cits.]” Id.

These predicate acts are sufficiently described to permit appellants to mount a defense to them as racketeering acts. The transactions which the State alleges are criminal racketeering charges are specific timber transactions involving specific persons, places, acreages, deals, and owners. The transactions are specifically identified by the numbered checks representing them; the checks are drawn on a certain bank on a certain date, made payable to a certain person. Although the amount is not stated to the penny in each described check, the check and circumstances of the check are sufficiently described to enable appellants to ascertain the precise amount, and to identify with specificity the particular act being prosecuted and thus enable appellants to mount a defense thereto, and to permit them to raise this prosecution as a bar to a future prosecution based on the same act. When the indictment is read as a whole (id.), particular predicate acts are identified by identifying the negotiable instrument appellants received as to each described fraudulent transaction in each named county, and by naming and describing each false deed supporting a transaction.

The indictments set out the alleged offense with sufficient specificity so as to apprise appellants of the particular charges they must meet, and to allow them to plead this prosecution as a jeopardy bar to future prosecution for the same acts. See Jordan, supra; Hall v. State, 201 Ga. App. 133 (410 SE2d 448).

Decided May 27, 1997

Reconsideration denied June 27, 1997

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, George T. Smith, Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellants.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Joseph L. Chambers, Patrick D. Deering, Robert G. Morton, for appellee.

2. Appellants contend that charges alleging the clerk of superior court to be a state political “subdivision” are defective, because OCGA § 16-10-20 (entitled “False statements and writings, concealment of facts, and fraudulent documents in matters within jurisdiction of state or political subdivisions”) applies to the executive branch only. However, the actual language of the Code section refers to false writings “in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state.” (Emphasis supplied.) We find nothing in that language which proscribes false writings made only within the jurisdiction of “the executive branch” of the state; nothing in that language excepts from its terms false statements made in a court clerk’s office; nothing in the codal language refers only to “political” subdivisions, whatever this may mean, so as to exclude the judicial branch. And, we do not agree that an office of the “judicial branch” is not a “department or agency of state [county, or city] government.”

3. We find entirely erroneous appellants’ complaint that the allegations that they “caused” false deeds to be made do not allege an offense within OCGA § 16-10-20 because that statute focuses on the first-person as actor, to-wit, the Code says that “a person who knowingly and willfully [commits]” such act shall be convicted and punished. (Emphasis supplied.)

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Andrews, Chief Judge.

text:
    A97A0766.
    DANIEL v. THE STATE.
    (488 SE2d 129)
   Andrews, Chief Judge.

Mary Daniel appeals from her conviction of driving under the influence of alcohol, contending that the trial court erred in admitting certificates of the State-administered breath test in lieu of live testimony. Specifically, Daniel asserts that the document was hearsay and its admission violated her Sixth Amendment right to confrontation.

Decided June 27, 1997.

William C. Head, for appellant.

On December 21, 1995, officers Williams and Plough responded to an accident on the exit ramp of 1-285 northbound at Lavista Road. They observed that Daniel had been involved in a two-car accident and that she had a strong smell of alcohol on her breath. The officers observed that she had difficulty standing, was slurring her speech, and had red, glazed eyes. Daniel admitted consuming alcohol before operating her vehicle.

Following a series of field sobriety tests, Daniel was arrested and charged with driving under the influence of alcohol. She submitted to a breath test using the Intoxilyzer 5000 and registered a .207 and .208 grams on her first and second tests. At trial, certificates for the Intoxilyzer 5000 were admitted into evidence showing that it was properly functioning both prior to and following Daniel’s tests.

Daniel contends that admitting these certificates in lieu of live testimony violated her Sixth Amendment right to confrontation. In Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), the Supreme Court held that admission of certificates certifying the Intoxilyzer 5000 pursuant to OCGA § 40-6-392 (f) did not violate the defendant’s Sixth Amendment right to confrontation, finding that “the confrontation clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant but rather that such evidence can be used to support a criminal conviction where the State has carried its burden of proving that the hearsay evidence bore sufficient indicia of reliability to withstand scrutiny under the confrontation clause. [Miller v. State, 266 Ga. 850,] 853 [(472 SE2d 74) (1996)].” (Emphasis supplied.) Brown, supra at 77.

In Brown, that indicia of reliability was provided by the State’s proof that the certificates were admissible under “the firmly rooted hearsay exception for business records. . . .” Id. at 81.

As pointed out by Daniel, however, here the State did not prove the requisites of OCGA § 24-3-14, and the certificates were improperly allowed into evidence.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Assistant Solicitors, for appellee.

       She was convicted of one count of OCGA § 40-6-391 (a) (1) (less safe to drive) and one count of OCGA § 40-6-391 (a) (4) (alcohol concentration of more than .10 grams).


text:
    A97A1189.
    JONES et al. v. PHILLIPS.
    (488 SE2d 692)
   Judge Harold R. Banke.

After Marjorie S. Jones initiated foreclosure proceedings against Lynne S. Phillips and J. Glenn Davis, the trial court permanently enjoined foreclosure. This appeal followed.

In June 1991, Jones made an unsecured loan of $90,000 to Phillips and her son, J. Glenn Davis. At the time of the loan, Davis and Phillips were sharing a household and may have been common law spouses. Davis testified that he deposited the $90,000 from his mother into his personal bank account. Part of the money was used to purchase the residence which Phillips and her siblings had inherited. The balance of the funds, according to Davis, went to repairs. Several months later, Davis retained an attorney to draft a promissory note and a deed to secure debt relating to the $90,000 loan. In a letter of February 10, 1992, the attorney instructed Davis and Phillips that the documents had to be witnessed, notarized, and recorded. About a month later, counsel advised them that the copy of the “debt deed” signed by them and mailed to him was not valid because it had not been witnessed, notarized or recorded. After receiving that letter, according to Phillips’ testimony, Davis refused to give the deed to his mother because “she would hold it over our heads.” Phillips testified that Davis placed the deed under a bookcase. It is undisputed that the deed to secure debt was not attested, notarized, or recorded. Nor was it ever delivered to Jones. Jones admitted on deposition that neither she nor any representative on her behalf ever received the original deed or promissory note from Davis and Phillips. Only two payments totaling about $2,000 were ever made to Jones.

Several years after the loan, Jones instituted proceedings to foreclose against Phillips and Davis. Phillips then sued Jones and Davis, seeking to enjoin the foreclosure. Phillips alleged that Jones and Davis were engaged in a conspiracy to deprive her of the real property she was seeking in the divorce.

The trial court noted that Jones never asserted a title based on the security deed at issue until after Phillips filed for a divorce from her son and was awarded temporary possession of the house. Finding that the deed to secure debt lacked legal effect, the trial court awarded Phillips judgment in the form of a permanent order enjoining foreclosure. Jones and Davis (collectively “Jones”) appeal. Held:

Decided June 30, 1997.

M. Francis Stubbs, for appellants.

Dwight T. Feemster, for appellee.

1. The trial court did not err in finding that the foreclosure provisions of the deed to secure debt could not be enforced because the deed had never been delivered and recorded.

“A security deed is first of all a conveyance of land, and must meet all the standards of validity applicable to deeds generally, including the naming of a grantor and a grantee, sufficient words of conveyance or grant, a valid description of the property conveyed, proper execution and attestation, and an effective delivery.” Pindar & Pindar, Ga. Real Estate Law & Procedure (4th ed.), § 21-15. See OCGA §§ 44-5-30; 44-14-63.

One of the requisites of a valid deed to land is that, after it is properly executed, and attested, it must be delivered to the grantee or someone for him. Giuffrida v. Knight, 210 Ga. 128, 129-130 (1) (78 SE2d 29) (1953). Delivery of a deed to the grantee or a third person for his behalf is essential for the purpose of conveying title. See Morris v. Johnson, 222 Ga. 76, 78 (6) (148 SE2d 392) (1966); Thomas v. Lockwood, 198 Ga. 437, 448 (2) (31 SE2d 791) (1944). “A deed is delivered in the sense of the law when the person who makes it puts it in the possession of the person to whom it is made with the intention that it shall pass title to such person.” Pindar, § 19-84. Here, no valid delivery of the deed ever occurred. Jones’ admission that neither she nor anyone acting on her behalf ever received the security deed is fatal because “a deed passes no title unless and until delivered.” Brown v. Brown, 192 Ga. 852, 853 (2) (16 SE2d 853) (1941). “Without delivery, the deed is nothing and conveys no title.” Maddox v. Gray, 75 Ga. 452, 453 (1886); compare Barkley v. Nat. Security Fire &c., 170 Ga. App. 17 (315 SE2d 923) (1984) (rebuttable presumption of delivery created where properly attested deed recorded and grantee in possession of property). Pretermitting consideration of other defects in the deed, Jones’ failure to show any evidence of delivery entitled Phillips to judgment as a matter of law. Giuffrida, 210 Ga. at 130 (2).

2. The trial court did not err in issuing a permanent injunction enjoining the enforcement of the foreclosure provisions of an invalid security deed.

Judgment affirmed.

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

       The Supreme Court transferred this case to this Court.


author: Andrews, Chief Judge. BEASLEY, Judge,

text:
    A97A0839.
    VIRGIL v. THE STATE.
    (488 SE2d 694)
   Andrews, Chief Judge.

Rosene Virgil was found guilty by a jury of driving or being in actual physical control of a moving vehicle while under the influence of alcohol. She appeals claiming that the trial court: (1) erred by refusing to charge the jury on the defense of accident, and (2) erroneously charged the jury as to what action constituted actual physical control of a moving vehicle.

1. The evidence was sufficient to allow a rational trier of fact to conclude beyond any reasonable doubt that Virgil was guilty of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Virgil and her husband testified that they drove to Morgan’s Supper Club at about 4:00 a.m. on the morning of December 16, 1995. Virgil’s husband testified that he drove the car to the club, parked in front, and went inside leaving Virgil in the car in the front passenger seat with the engine running. Virgil testified that, while her husband was inside the club, she was sitting in the passenger seat watching various people she knew walk out of the club. She testified that Greg Lewis walked over to the car and leaned in the open driver’s side window to speak to her. In order to speak to Lewis, Virgil testified that she leaned from the passenger seat toward the driver’s side window over a console between the driver’s and passenger’s seats placing her hand down on the driver’s seat for balance. A doorman at the club also testified that he saw Virgil leaning from the passenger seat across the front of the car to speak to Lewis. As she was attempting to move her upper body from this position to sit back in the passenger seat after speaking to Lewis, Virgil testified that she lost her balance and fell, with her head and upper body falling under the steering wheel and onto the floorboard of the car in the area of the accelerator and brake pedals. She testified that, as she was struggling to get up from the floorboard of the car, she could feel herself being jarred around and then felt a hard impact. She testified that, after the impact, she crawled out of the driver’s side door and saw that the car had moved from where it was parked, traveled across the parking lot in front of the club, and crashed into a fire hydrant. She testified that she had no intention of moving the car and was not driving or in actual physical control of the car when it moved.

In conjunction with this testimony, Virgil also presented testimony that the car was equipped with an automatic transmission that was operated by a stick shift on the floor of the car adjacent to where she was leaning and fell. She presented evidence that the car could be easily shifted from park to drive by depressing a button on the shift without the necessity of first depressing the brake pedal.

Virgil admitted that she had been drinking alcoholic beverages prior to the incident and that she had consumed enough drinks to feel intoxicated. But she testified that she was not concerned about how much she was drinking because her husband was doing all the driving. Her defense was that she was not driving or in actual physical control of the car when it moved. Based on the evidence she presented, her contention was that, when she lost her balance and fell onto the driver’s side floorboard while leaning over from the passenger seat, she unintentionally fell against the shift lever and the gas pedal apparently causing the car to shift into drive and move forward while she was floundering on the floor of the car.

In contrast to the evidence presented by the defense, the State presented testimony from eyewitnesses who testified they saw Virgil in the driver’s seat of the car at the time of the incident. Greg Lewis testified that, when he spoke to Virgil outside the club, she was seated in the driver’s seat of the car. He testified that, after taking a few steps away from the car, he heard the car engine race. As he turned to look, he testified the car came past him and ran over his foot, then proceeded to hit two other people in the parking lot and crash into a fire hydrant. Jessie Small testified that, when she walked out of the club, she saw Virgil sitting in the driver’s seat of the car. She spoke to. Virgil as she was sitting in the car, then walked away a short distance. She testified she heard a loud engine noise and turned around and saw. the car accelerate forward, hit two people and crash into a fire hydrant. Although she could not see the driver when the car was moving, she testified that Virgil was the only person in the car. Yummett McBain testified that, when she left the club, she saw Virgil sitting in the car in the driver’s seat. After she spoke to Virgil, she walked away a short distance, then heard a loud noise and a screech and saw Virgil driving the car toward her in an erratic manner. She said she saw the car hit one person, swerve up on a curb, hit another person, then come to an abrupt stop against a fire hydrant with the wheels still spinning. She testified that, as the vehicle was moving, she could see Virgil in the driver’s seat “hovered over the steering wheel.”

A police officer called to the scene of the incident testified that, based on his observations of Virgil at the scene, including the smell of alcohol on her breath and her inability to successfully complete field sobriety tests, his opinion was that it was less safe for her to drive. After being read her implied consent rights, Virgil consented to a State-administered test of her blood. A forensic chemist from the State Crime Lab testified that Virgil’s blood tested positive for alcohol at a level of .19 grams per hundred milliliters of blood.

The State also presented testimony from a police officer that Virgil gave varying accounts of what happened, first saying that she was in the driver’s seat of the car when it accelerated on its own, then later contending that she was in the passenger’s seat when the car took off on its own and that she jumped into the driver’s seat to attempt to stop the car.

2. As to Virgil’s contention that the trial court erred by refusing to give her requested charge on the defense of accident, we find no basis for a charge on the defense of accident under the facts of this case.

A crime is defined as “a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Under OCGA § 16-2-2 “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” Thus, the essence of the defense of accident is that the criminal act alleged to have been committed by the defendant was not intentional or the result of criminal negligence. Campbell v. State, 263 Ga. 824, 825 (440 SE2d 5) (1994).

Virgil admitted at trial that she was in the car under the influence of alcohol when the car accelerated and moved across the parking lot. She contended that the State failed to establish the element of the offense requiring proof that she drove or was in actual physical control of the car. She did not contend that she unintentionally drove or was unintentionally in actual physical control of the car. Rather, she testified that, while leaning over from the passenger seat, she lost her balance and fell in a manner that accidentally caused the car to move forward and that, when the car moved forward, she was in a position on the floorboard of the car where she was neither driving nor in actual physical control of the car. Accordingly, she did not claim that any contested element of the offense was done by accident. She simply claimed that the evidence showed she was not driving or in actual physical control of the car. The trial court did not err by refusing to give a.charge on accident.

3. Virgil claims the trial court erred by charging the jury that: “[A] person shall be considered in control of a moving vehicle if her actions are responsible for the movement of that vehicle, whether she intends to move the vehicle or not, as long as the vehicle moves from the actions of the person and not from a force totally beyond her control.” She objected to this charge at trial and contends on appeal that it was an improper instruction as to intent and relieved the State of its duty to prove that she was driving or in actual physical control of the car.

We agree that the charge was harmful error and that Virgil is entitled to a new trial. The State cites as authority for this charge the case of Greene v. State, 214 Ga. App. 664, 665 (448 SE2d 758) (1994), where the issue was “whether Greene was in control of a moving vehicle at any time while intoxicated.” In that case, a police officer observed Green, who admitted he was intoxicated, passed out in the driver’s seat of the truck and slumped over the steering wheel. Id. at 665. Greene’s foot was on the brake while the truck was in a stationary position with the engine running in-reverse gear. Id. When the officer tapped on the driver’s side window, Greene “jumped up” and the truck rolled back a few inches. Id. Greene argued that this was not the kind of movement prohibited by OCGA § 40-6-391 and suggested that it was no different than if a gust of wind had blown the truck back a few inches without any action on his part. Id. In finding the evidence sufficient to show that Greene was in control of a moving vehicle while intoxicated, we stated that, “It was Greene’s own failure to maintain control of a vehicle that was running and in gear that caused it to move in the officer’s presence, and not a force totally beyond his control.” Id. at 665-666.

The facts in the present case are not remotely similar to the facts in Greene, supra, where the defendant was sitting in the driver’s seat of the truck and argued that the movement of the truck was not sufficient. The central issue in the present case was not the movement of the car, but whether, taking Virgil’s version of the incident as true, she was driving or in actual physical control of the moving car after she fell headfirst onto the floorboard. This was an issue for the jury’s consideration, and nothing in Greene, supra, supported the charge. Under the facts of this case, the charge had the effect of eliminating the jury’s consideration of Virgil’s defense that she was not driving or in actual physical control of the car. Accordingly, the error was harmful and requires reversal.

Judgment reversed.

Beasley, J., concurs specially. McMurray, P. J., concurs in Divisions 1 and 2 and in the judgment.

BEASLEY, Judge,

concurring specially.

I agree that defendant is entitled to a new trial and fully concur in Divisions 1 and 3 but not in Division 2. If the jury believes Rosene Virgil’s version of the event, then it must be guided in its deliberations by a charge on accident. It was her sole defense, she sought such a charge from the pattern charge book, she objected to the court’s refusal to give it, and she reserved objections after the court’s charge was given.

Even without request, the trial court must instruct the jury on the principle of accident when it is the sole defense; the court is obligated to call this defense to the jury’s attention and enable the jury to intelligently consider it. Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993); Harris v. State, 145 Ga. App. 675 (244 SE2d 620) (1978).

Defendant did not dispute that she was the only person in the car and in the front seat when it moved. She did not dispute that the car moved from where it was standing idle with the engine running and ended up against a fire hydrant. She did not dispute that she had consumed alcoholic beverages prior to the incident. She did not even dispute that she had caused it to move. Then how could she escape conviction for being in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe to her to do so, in violation of OCGA § 40-6-391 (a) (1)?

“A person shall not be found guilty of any crime committed by . . . accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2. “ ‘The essence of the defense of accident is that the defendant’s act is not intentional.’ ” (Citation omitted.) Metts, supra at 198.

Virgil’s explanation for what occurred is that it was an accident, that she “slipped and fell” onto the floor of the car while sitting on the passenger’s seat and leaning on the driver’s seat, some part of her body depressing the accelerator with the car in gear, and that her glasses fell off, and when she attempted to rise from the floor, she faced air bags which had deployed. If the jury believes the movement of the car was the result of an accident, then it could not find she was in physical control of the car. Like the testimony of the defendant in Metts that he may have unintentionally touched the child, Virgil’s evidence is that she unintentionally touched the accelerator. Metts was entitled to a charge on accident, and likewise, so is Virgil. She did not depend solely on an inability of the State to prove she was in control of the vehicle beyond a reasonable doubt but rather came forward with the affirmative defense explaining what did cause the car’s movement and thereby attempting to eliminate the element of criminal intent and “control.” The trial court deprived her of that defense.

In Morris v. State, 210 Ga. App. 617, 618 (2) (436 SE2d 785) (1993), defendant was entitled to a new trial because the court refused to give a charge on accident; the defense was that Morris did not see the stop sign because of the fog. He was convicted of vehicular homicide in the first degree for driving while under the influence of drugs in violation of OCGA § 40-6-391 (a) (2). Again, his explanation of why the incident occurred raised the defense of accident, as it does in Virgil’s case.

“It is the law of this state that where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense with sufficient clarity and specificity that the jury will not only be required to pass upon it, but do so intelligently, in practicality directs a verdict against the defendant, in that the effect of the failure to charge is to withdraw and deny the defense and to that extent prejudices a defendant’s right to a fair and impartial trial. [Cits.]” Dinnan v. State, 173 Ga. App. 191, 195 (1) (325 SE2d 851) (1984).

Only slight evidence requires the giving of a charge on a defendant’s sole defense, even if other evidence tends to disprove the fact. Id. Even farfetched explanations must be given deference by the court in charging the jury, as the jury and not the court has the power to reject “ ‘the defense theory raised by the accused’s testimony.’ ” (Citation omitted.) Owens v. State, 173 Ga. App. 309, 313 (5) (326 SE2d 509) (1985). See also Jones v. State, 220 Ga. App. 784, 785 (470 SE2d 326) (1996). “ ‘The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning.’ ” (Citation omitted.) Williams v. State, 209 Ga. App. 355 (1) (433 SE2d 361) (1993).

The court erred in refusing the charge on the basis that the charges on intent were sufficient to cover it. They were not, as they focused on the State’s burden of proof.

In fact, the instructions were contradictory, as the court first charged that the jury could find defendant guilty if it found “that [she] intended to operate her vehicle at such time that she was under the influence of alcohol to the extent that she was less safe to do so than she would have been if sober. The State is not required to prove that the defendant intended to be driving under the influence or even — or even that she knew she was doing so.” Later the court charged: “a person shall be considered in control of a moving vehicle if her actions are responsible for the movement of that vehicle, whether she intends to move the vehicle or not, as long as the vehicle moves from the actions of the person and not from a force totally beyond her control.”

No instructions were given to guide the jury as to the proper consideration to be given to Virgil’s explanation for the event, the reason for the occurrence as she, the only directly involved witness, understood it. The jury was not told that if the movement of the vehicle was accidental, i.e., not in her control, she could not be found guilty because of the principle of law codified in OCGA § 16-2-2. The jury should have been required to pass on this issue, intelligently and under the pertinent rule of law. Harris, supra at 676.

Decided July 1, 1997.

Colette B. Resnik, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Elaine W. Brooks, Assistant Solicitors, for appellee.

       She was found guilty under two counts alleging that she was a less safe driver (OCGA § 40-6-391 (a) (1)) and that she drove with an alcohol concentration in her blood in excess of the legal limit (OCGA § 40-6-391 (a) (5)). The trial court merged the two counts and sentenced Virgil only on the conviction under OCGA § 40-6-391 (a) (1).

       We need not consider Virgil’s additional claim that the charge constituted an improper comment by the trial court on the evidence.


text:
    A97A0133.
    MAVERICK MATERIALS, INC. v. KAUFFMAN et al.
    (488 SE2d 690)
   Andrews, Chief Judge.

Maverick Materials, Inc. (“Maverick”) appeals from the trial court’s order granting summary judgment to James and Nancy Kauffman on a materialman’s lien filed by Maverick against the Kauffmans’ property. For the reasons which follow, we affirm the judgment of the trial court.

In August 1994, the Kauffmans entered into a contract for the construction of a house for $182,000. The contractor abandoned the project after receiving $135,000 of the contract price. The contractor submitted an affidavit stating that only $59,928 of the total $135,000 paid was properly applied to labor and materials for the house. The Kauffmans then spent $123,974 to complete the house.

The Kauffmans claim payments in excess of the contract price as a defense to the claim of lien. OCGA § 44-14-361.1 (e) provides: “In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.” In situations where the contractor has abandoned the project, “the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens; and if such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the subcontractors and material-men have no lien, since there is nothing due under the contract. . . . [T]he owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained.” (Citations and punctuation omitted.) Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812 (267 SE2d 251) (1980). The Kauffmans argue the trial court correctly granted their motion for summary judgment as the $59,928 applied under the contract plus the $123,974 spent to complete the house, total $183,902, which is $1,902 in excess of the contract price.

1. Maverick claims, however, that there is no such thing as “partial payment” of amounts properly applied under the contract. It cites no authority for the proposition that since the whole $135,000 was not properly applied to labor and materials for the house, then even the amount that was paid cannot be considered. Case law is to the contrary.

Although it is true that “[t]he payment of some of the contract price when not properly applied does not relieve the owner for the amount of the subcontractor’s and materialmen’s liens remaining unpaid, so long as the liens are within the limits of the contract entered into between the owner and the contractor.” Hinkel, Ga. Construction Mechanics & Materialmen’s Liens, § 5-6 at 45 (9th ed. 1988); Henderson v. Mitchell Engineering Co., 158 Ga. App. 306 (279 SE2d 750) (1981). However, the owner is entitled to credit against lien claims for any sums paid to the contractor which were properly applied to bills for labor and material. Hinkel, supra at 45, citing Sanford v. Hodges Builders Supply, 166 Ga. App. 86 (303 SE2d 280) (1983).

2. Maverick also argues that the full contract price had not been paid at the time its lien was filed and, therefore, the defense of payment of the contract price is not available to the Kauffmans. We disagree. “It does not matter if the owner pays additional costs for completion before or after lien claims have been filed so long as the owner can prove the cost of completion and can produce a valid contractor’s affidavit or show the sums paid the contractor were properly appropriated to subcontractors, materialmen or laborers.” Hinkel, supra at 42, citing Adams v. W.P. Stephens Lumber Co., 158 Ga. App. 761 (282 SE2d 217) (1981).

The recent Supreme Court decision in Browning v. Gaster Lumber Co., 267 Ga. 72 (475 SE2d 576) (1996) is not to the contrary. In that case, payments made by the owner to the contractor were disbursed after the liens were filed. Id. This is consistent with well-settled case law that “[i]t is the owner’s responsibility to see to it that the payments which he makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials, and in establishing his defense to the foreclosure he has the burden of showing that this was done.” Id. at 76, quoting Jones Brick Co. v. Seagler Brothers, 146 Ga. 19 (90 SE 473) (1916).

In Adams, supra, this Court distinguishes between payments made to the contractor for disbursement and payments made by the owner to complete the project after the contractor has abandoned the work. Id. at 762. Adams relied on the early Supreme Court of Georgia case of Young v. Harley-Mitchell Hardware Co., 173 Ga. 35 (159 SE 567) (1931), which allowed the owner to complete the work even though liens were filed between the time the contractor discontinued work and prior to the owner’s completion of the project. Id. at 36. Sinee Browning is distinguishable and Adams and Young are directly on point, we find the latter two cases controlling in this case. The trial court did not err in granting summary judgment to the Kauffmans.

Decided June 17, 1997

Reconsideration denied July 2, 1997

Rachelson & Beloin, Ira L. Rachelson, Edward A. White, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, Thomas H. Rogers, Jr., for appellees.

In light of our holding above, we need not address the remaining enumerations of error.

Judgment affirmed.

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

       Maverick does not dispute these amounts.


text:
    A97A0903.
    ALLSTATE INSURANCE COMPANY v. ACKLEY et al.
    (488 SE2d 85)
   Judge Harold R. Banke.

Allstate Insurance Company (“Allstate”) appeals an order granting summary judgment to its insureds John and Sharon Ackley. Allstate enumerates two errors.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the undisputed facts reveal that this case arose after one of the Ackleys’ cars was involved in a May 13, 1995 accident and Allstate denied coverage. The Ackleys’ premium period on the policy at issue extended from February 5, 1995 to August 5, 1995. They opted to pay the premiums on a monthly basis, with each $120.25 payment due on the fifth day of the month. Allstate posted their February payment on February 8, their March payment on March 11, and their April payment on April 20.

On April 15, Allstate sent the Ackleys a cancellation notice which stated, “The insurance afforded under your policy will be terminated if we do not réceive the Minimum Amount Due by the Cancel Date. Cancellation will be effective at 12:00 a.m. Standard Time on May 5.” The notice stated that the minimum amount due was $237.50, reflecting a past due amount of $117.25 for April and May’s payment. It also advised the Ackleys to contact their agent if they had any questions about the cancellation notice.

On April 17, 1995, John Ackley sold one of the vehicles covered by the policy and purchased the car involved in the accident at issue, a Geo Metro. On April 19, he contacted his insurance agent and received an insurance identification card for the new car with the understanding that his May premium could change to reflect the new coverage. Allstate’s paperwork reflecting this transaction indicates that the effective date of the Metro’s addition to the policy was April 20, 1995. Although Ackley attested that he took his cancellation notice to the agent so he would have the policy number, the agent did not remind Ackley that any payments were due or inform him that his coverage was in jeopardy. Allstate received and accepted the Ackleys’ $120.25 April payment on April 20.

On May 4, Allstate issued an amendment to the Ackleys’ policy to add the car at issue. Allstate received and accepted the Ackleys’ May payment of $120.25 on May 19, six days after the accident. After accepting this payment, Allstate informed the Ackleys that their premium had increased.

Allstate premised its denial of coverage on the ground that the policy had lapsed on May 5. Allstate contended that the policy was reinstated upon receipt of the $120.25 May payment.

The trial court found that the Ackleys were covered on May 13, the date of the accident because coverage was reinstated on April 20, the date Allstate accepted the April payment. It determined that Allstate’s notice of cancellation would have been effective to cancel the policy, had Allstate not accepted the April payment, which rendered the notice ineffective as to the late May payment. Held:

1. Allstate contends that the trial court considered unspecified evidence inadmissible for lack of foundation due to the Ackleys’ failure to comply with OCGA § 9-11-29.1. Allstate’s failure to raise this issue in the trial court precludes us from addressing it. Love v. State, 199 Ga. App. 482 (1) (405 SE2d 308) (1991); Hill v. Delta Air Lines, 143 Ga. App. 103 (2) (237 SE2d 597) (1977).

Allstate also contends that the trial court failed to consider the entire record, specifically, Allstate’s responsive pleadings to the Ackleys’ interrogatories and requests for admission. This argument is undercut by the fact that it was incumbent on Allstate to ensure these documents were included in the record, if judicial consideration of them was desired. OCGA § 9-11-29.1 (a) (3).

2. The trial court properly granted summary judgment. The methods for proper cancellation of insurance policies set forth in OCGA § 33-24-44 are mandatory and strictly construed against the insurer. Travelers Indem. Co. v. Guess, 243 Ga. 559, 560 (1) (255 SE2d 55) (1979). By statute, the Ackleys were entitled to ten days notice before effective cancellation. OCGA § 33-24-44 (d). Moreover, the policy guaranteed the Ackleys at least ten days notice before cancellation for non-payment. Because Allstate’s acceptance of the April payment rendered the notice of cancellation posted April 15 ineffective, cancellation in May required additional notice. See Pennsylvania Nat. &c. Co. v. Person, 164 Ga. App. 488 (1), 489-490 (297 SE2d 80) (1982) (notice of cancellation given before premium was due is ineffective); American &c. Ins. Co. v. Hartsfield, 147 Ga. App. 213, 215-216 (4) (248 SE2d 518) (1978). The fact that Allstate accepted the Ackleys’ May payment contradicts its contention that it canceled the policy.

Notwithstanding its claim that an additional notice was sent on April 20, Allstate has presented no evidence that it sent the Ackleys any other cancellation notice. Compare Stapleton v. Colonial Ins. Co. &c., 209 Ga. App. 674 (2) (434 SE2d 116) (1993); see Court of Appeals Rule 27 (c) (3) (i). Allstate provided no evidence of a second cancellation notice, a post office receipt, or mailed envelope containing the statutory cancellation notice for the purported second mailing. Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621, 623 (1) (204 SE2d 317) (1974) (physical precedent only). Nor does the affidavit of Toni Wade provide support. Wade attested only that, “It is the practice of Allstate Insurance Company to mail a special notice to the insured where insufficient cash input is received . . . [to] inform[] the insured that the policy will not be reinstated unless the entire amount due is received by the cancellation date.” Wade never stated that a second notice was actually mailed to the Ackleys after April 18. In the absence of evidence of such notice, we agree with the trial court’s conclusion that coverage continued into May. OCGA § 33-24-44 (d); Person, 164 Ga. App. at 490 (1) (notice requirements strictly construed).

The facts that Allstate accepted the late April payment without restriction, issued the insurance identification card on the new car and added the new car to the policy support this result. Where one’s course of conduct leads another to believe that he will not insist upon the strict terms of a contract, one may not complain because the other contracting party relies upon his acquiescence, as evidenced by his actions in similar situations. OCGA § 13-4-4.

Decided June 17, 1997

Reconsideration denied July 2, 1997

Bonne K. Cole, for appellant.

Almand & Wiggins, O. Hale Almand, Jr., Debra J. Csikos-Vandrasik, for appellees.

Allstate presented no argument or authority in support of that portion of its enumeration challenging the denial of its motions for judgment on the pleadings or to dismiss. Therefore, these purported errors are deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       The record shows that the Ackleys had purchased several policies from Allstate. The policy at issue, 021 711221, covered the Ackleys 1990 Ranger and a 1987 Escort, as well as the Metro, on May 4, 1995. The record shows that a 1987 Escort was also insured on policy 645522113.

       During the ten years in which the Ackleys were Allstate insureds, Allstate had accepted their numerous 'late payments. Allstate admitted it had issued ten cancellation notices on the policy at issue over the years, but had never canceled it.


author: Johnson, Judge.

text:
    A97A1000.
    McGEE v. STATE OF GEORGIA et al.
    (487 SE2d 671)
   Johnson, Judge.

Paula McGee brought suit pursuant to the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.) against the State of Georgia and one of its employees, William Avant, seeking to recover damages for injuries she allegedly sustained in an automobile accident. The trial court granted the State’s motion for summary judgment on the grounds that McGee had failed to comply with ante litem notice requirements and that Avant, acting within the scope of his employment at the time of the accident, was not a proper party to the action. McGee appeals.

1. McGee asserts that strict compliance with the ante litem notice provision of the Georgia Tort Claims Act, OCGA § 50-21-26, violates her due process and equal protection rights. McGee originally filed this appeal in the Supreme Court of Georgia which transferred the case to this Court because the trial court did not rule on any constitutional issue. Likewise, while this Court has jurisdiction in this case generally, we cannot consider an issue which was not addressed below. See Brooks v. Barry, 223 Ga. App. 648, 649-650 (4) (478 SE2d 616) (1996).

Even interpreting this enumeration of error broadly, as a challenge to the trial court’s strict application of the ante litem requirements of the Georgia Tort Claims Act, McGee’s argument still must fail. As a condition precedent to any tort action filed against the State, OCGA § 50-21-26 (a) (1) and (2) provide that ante litem notice be made as follows: “Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered. . . . Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.” The collision giving rise to this suit occurred on September 27, 1993. McGee was contacted by an insurance adjuster retained by the State’s liability insurance carrier, American Southern Insurance Company, and a settlement offer was made. This offer remained open until February 1, 1995, when it was withdrawn. McGee filed suit in September 1995. In support of its motion for summary judgment, the State provided the affidavits of James Newsom, Director of the Risk Management Division of the Georgia Department of Administrative Services, and Bill Atkins, Director of the Georgia Drugs & Narcotics Agency, which .stated that as of October 13, 1995, neither agency had received ante litem notices in connection with this matter. These affidavits establish that notice Ayas not given within 12 months of the accident to the parties specified in the statute.

McGee argues that even if the State was not served with ante litem notices, it clearly had notice of the claim because of the actions of the insurance adjuster acting on its behalf. She argues that this represents substantial compliance with the statute and should be adequate as a matter of law. Whether substantial compliance with the ante litem provisions of the Georgia Tort Claims Act is sufficient is not, as asserted by McGee, an issue of first impression. The trial court correctly relied on Hardy v. Candler County, 214 Ga. App. 627 (448 SE2d 487) (1994), in which this Court affirmed the grant of summary judgment to the co-defendant State holding that “pursuant to OCGA § 50-21-26 (a) written notice of the claim must be received by the State within the requisite statutory period so that the State can take appropriate action on the claim.” (Emphasis supplied.) Id. at 631. And recently, this Court contrasted ante litem notice requirements pursuant to the Georgia Tort Claims Act with the “substantial compliance” standard applicable to notice given prior to the initiation of suit against local governments or municipalities. Howard v. State, 226 Ga. App. 543 (487 SE2d 112) (1997). In holding that substantial compliance is inadequate under the Georgia Tort Claims Act, Howard notes that “the State Tort Claims Act cannot be considered unclear or at all open-ended about the service aspect of its ante litem notice provision. In fact, it cannot get any more specific: ante litem notice must be served upon the Risk Management Division of the Department of Administrative Services and whichever state governmental entity the plaintiff holds as liable for the alleged injury.” (Footnote omitted, emphasis in original.) Id. at 544. Therefore, McGee’s reliance on City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19 (438 SE2d 137) (1993) for the proposition that substantial compliance with the ante litem notice, requirement is sufficient is misplaced. The jurisdictional prerequisite of OCGA § 50-21-26 was simply not met, and the trial court properly granted summary judgment to the State.

2. McGee also argues the trial court erred in finding, as a matter of law, that Avant was acting within the scope of his employment at the time of the accident and dismissing him from the suit. OCGA § 50-21-25 (a) provides that the Georgia Tort Claims Act is the exclusive remedy for any tort committed by a State officer or employee who commits a tort while acting within the scope of his official duties. OCGA § 50-21-25 (b) provides that the only proper party defendant in a suit brought under the Georgia Tort Claims Act is the State government entity for which the State officer or employee was acting at the time of the subject tort.

In response to requests to admit, both the State and Avant admitted that Avant was an employee of the State and was driving a State-owned vehicle with the State’s permission at the time of the collision. In response to interrogatories, Avant stated that he was on his way to the. post office to get reports from the State and the Royston Police Department in connection with his job duties at the time of the accident. Having established that he was acting within the scope of his employment, the burden shifted to McGee to come forward with specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e). McGee has come forward with no evidence that Avant was acting outside the scope of his employment at the time of the accident. In her brief, McGee speculates that Avant’s logbook, which has not been produced, may contain some evidence regarding whether Avant was “on-duty” at the time of the accident and suggested at oral argument that Avant may have also been retrieving personal mail at the post office. Such speculation, unsupported by the record, has no probative value against positive and uncontradicted evidence that no such fact exists. See Lea v. American Home Equities, 210 Ga. App. 214 (1) (435 SE2d 734) (1993). The trial court did not err in granting summary judgment in favor of Avant individually and dismissing him from the action.

Judgment affirmed.

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

Decided June 16, 1997

Reconsideration dismissed July 2, 1997

Elizabeth G. Marlowe, for appellant.

Thurbert E. Baker, Attorney General, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, for appellees.