text:
    A01A1157.
    ROYLSTON et al. v. CONWAY.
    (555 SE2d 28)
   Smith, Presiding Judge.

A special master was appointed to settle a boundary line dispute between two next-door neighbors. The special master recommended a particular dividing line, and the trial court entered an order to that effect. Because we find that the trial court’s order relied upon “evidence” not of record and that insufficient findings were made as to the issue of prescriptive title, we reverse.

This case is a dispute as to the exact location of an interior boundary line between Lot 6 and Lot 7 of Block B of the Legend Park subdivision. In April 1996, Grayson M. Roylston and Wynell Roylston purchased Lot 6 which had a one-story home with a basement on it. Almost immediately thereafter, Betty J. Conway, the next-door neighbor and owner of Lot 7, erected a chain-link fence that ran within two feet of the Roylstons’ house down the length of their side yard. The placement of the fence impeded access to the Roylstons’ backyard and effectively precluded their use of a one-car garage door dubbed a “boat door” located on the side of their house. The boat door provided the sole access for storing a vehicle or boat in the basement. It is undisputed that a brick wall running down the property line on the opposite side of the Roylstons’ house blocks access to the backyard from that side. Wynell Roylston testified that after Conway erected the fence, they could no longer use their backyard or the basement storage area and were unable to move their riding lawnmower out or to remove their furniture stored in the basement. After installation of the fence, meter readers “had to come through our house and go down the steps to the back porch to read the meter.” To mow the grass in their backyard, the Roylstons had to use a push mower which they carried through their house and down their back steps.

Conway’s chain-link fence remained in place from May 1996 until October 14,1996, when one of the Roylstons’ sons dismantled it. After negotiations between the Roylstons and Conway floundered, Conway filed a petition to quiet title. The disputed property forms a pie-shaped piece of land that begins at a common front boundary point on the right-of-way of Ridge Road and widens to form a wedge about 20 feet wide at its back point.

The trial court referred the matter to a special master. At the hearing before the special master, the Roylstons and Conway presented conflicting testimony and land surveys. A discrepancy of approximately 13 feet, perhaps attributable to an early surveying error in marking adjacent lot lines on the original subdivision plat, formed the crux of the controversy. The Roylstons also asserted that prescriptive title had been obtained by adverse possession by their predecessors in title. Chester Thomas Harden, a neighbor living directly across the street for 32 years, testified that Opal Erwin, his wife’s sister, and her husband had built the house on Lot 6 in 1968. Harden, who had a role in the construction, testified that he was familiar with the side yard area between Lot 6 and Lot 7 and knew the location of the original back comer pin. Harden testified that the Erwins kept a car in the basement behind the boat door and had adequate room in their side yard to turn the car around. Harden recalled having occasionally driven his brother-in-law’s car down there. He testified that the Erwins planted shrubbery in the currently disputed area and grew “regular grass” which they kept mowed.

In 1980, Opal Erwin sold the property to Nancy Ross Gresham, who sold it in 1990 to the Jacobsens, who subsequently sold it in 1996 to the Roylstons. When the Roylstons bought the property, they were unaware that since 1995 Conway and Jacobsen had been embroiled in a dispute over the interior boundary line. As a result of that disagreement, Conway had ordered a fence in April 1996 because as Conway testified, “I was fencing Mr. Jacobsen out.” Bobby Conway testified that Mr. Erwin never commented when he cut trees in the disputed area and never disputed the title or any of the actions he took. Yet a warranty deed shows that the Erwins sold their interest in Lot 6 in 1980, years before the Conways purchased Lot 7.

After the hearing, the parties agreed to a consent order authorizing the special master to select an independent surveyor. The special master selected Herndon & Betterton, Inc. as the independent surveyor “to work with me in determining the correct dividing line between the properties.” Subsequently, the special master found:

After [hearing] the testimony of the parties, having personally inspected the property in the presence of Mr. Bobby Betterton of Herndon & Betterton, Inc., Surveyors, and after having further discussions with Mr. Betterton regarding the proper dividing line between the parties, I find the proper dividing line between the parties is that as shown on the plat of Herndon & Betterton which is more particularly described as follows. . . .

After citing a lengthy legal description, the special master stated, “It is my recommendation that the Court issue an Order making this line as the dividing line between the parties.” The trial court adopted the findings of the special master and ordered the parties to abide by the dividing line set forth in the special master’s report.

The Roylstons sought a new trial or, in the alternative, the entry of supplemental findings of fact and conclusions of law. They asserted that the original pin established a boundary line that included all of the area in dispute as belonging to Lot 6. They also claimed that the special master ignored uncontroverted evidence proving that they had obtained title by prescription. They pointed to evidence that their predecessors in title had planted and mowed grass, maintained landscaping, and used the area now in dispute for ingress and egress to the boat door.

The trial court directed the special master to file supplemental findings. The special master submitted a supplemental report in which he noted, “After hearing all testimony, I reported to the parties that I did not feel that the Plaintiff had carried the burden of proof to be entitled to have her Quia Timet action granted.” According to the supplemental report:

There was no testimony heard other than the original testimony given in the Quia Timet action. As Special Master, I hired the surveying firm of Herndon & Betterton, Inc. to prepare the independent survey and once completed, I visited the property in the presence of Mr. Bobby Betterton of Herndon & Betterton and inspected his findings and inspected the property. The boundary line between the parties, as determined by Mr. Betterton, was within an area between the parties’ homes that was not in conflict with the testimony received at the Quia Timet hearing and was in an area that in my opinion was not adversely possessed by either party.

The trial court adopted the special master’s supplemental findings of fact and conclusions of law and denied the motion for new trial. Enumerating four errors, the Roylstons appeal.

1. The Roylstons contend that the trial court erroneously considered matters outside the scope of the evidence introduced at trial in the form of conversations between the special master and the independent surveyor who was not a sworn witness and who was never subject to direct or cross-examination by the parties. They argue that no evidence of record supports the boundary as set and that the survey tried to account for a 13-foot error in the wrong place.

The purpose of findings of fact is threefold: as an aid in the trial court’s process of adjudication; for purposes of res judicata and estoppel by judgment; and as an aid in appellate review. Gen. Teamsters Local Union No. 528 v. Allied Foods, 228 Ga. 479, 480 (1) (186 SE2d 527) (1971). But “[a] bare statement of what the court considered in reaching its conclusions is not a recitation of how those facts give support to or what constitutes the separate conclusions.” (Citation and punctuation omitted.) Childs v. Sammons, 271 Ga. 161, 162 (516 SE2d 779) (1999). In order to facilitate judicial review, the special master must make a complete record detailing the relevant facts entered in evidence. See generally Meadows v. Barker, 241 Ga. App. 753, 754 (1) (526 SE2d 643) (1999) (special master in quiet title action has the right to require the parties to file pertinent documents for which evidentiary foundation was already made at hearing). Moreover, he may not rely upon or recognize new facts or new evidence outside the proceedings.

But here, the special master apparently disregarded the evidence presented at the proceeding and relied entirely upon a newly created independent survey fashioned after the hearing. Although the parties consented to the order authorizing the special master to select an independent surveyor “to assist him in his duties,” they did not agree to be bound by the resulting survey. The special master candidly admitted basing his factual findings as to the boundary line entirely on the independent survey, his conversations with Better-ton, his meeting with Betterton, and his personal inspection of the property. Herndon & Betterton’s billing statement reflects that this survey required extensive work, including 15.25 hours of field crew work, two hours by a registered land surveyor, another hour of research, plus ten hours of computer computations.

Inexplicably, the Betterton survey relies upon certain “computed points” at the southwest corners of Lot 6 and across the street, despite the fact that at least two other surveys in evidence used “IPF” (iron pin found) to denote the same comers of the subject property. The Betterton survey also does not appear to correspond with the legal description in the 1968 warranty deed for Lot 6. Other surveys in evidence, offered by the Roylstons and Conway, show entirely different boundary lines for the disputed area. The record contains no evidence about what a “computed point” is, how it was calculated, or why the use of a computed point was necessary. Nor was there any testimony about the relative value of a computed point vis-a-vis an iron pin.

When facts not properly in evidence are considered, the other party’s rights cannot be protected fully since the privilege of cross-examination is denied. Arnau v. Arnau, 207 Ga. App. 696, 697 (1) (429 SE2d 116) (1993). Effective cross-examination is a substantial right, essential to the proper administration of justice, and extends to all matters that are material to the controversy and are within the knowledge of the witness. Frady v. State, 212 Ga. 84, 85 (2) (90 SE2d 664) (1955). An expert witness may be impeached by disproving the facts to which he testified. OCGA § 24-9-82.

The special master relied upon post-hearing ex parte communications in order to make his findings. The independent survey constituted new “evidence” created sub silentio and was accepted without affording any opportunity to litigate the merits of the document. Reliance upon a document, unsworn statements, and ex parte conversations not in evidence was harmful error and highly prejudicial to the Roylstons. See Osgood v. Dent, 167 Ga. App. 406, 409-410 (2) (306 SE2d 698) (1983). Because the sole “evidence” of the true boundary is a document created by a witness not under oath and not subject to cross-examination, the Roylstons were deprived of all opportunity to engage in a thorough and sifting cross-examination of the witness. They were denied an opportunity to examine the methodologies employed so they could ascertain the basis for the calculation of the computed points and the surveyor’s measurements. They were not afforded an opportunity to present evidence to contradict the independent survey or to determine whether it conflicted with recorded legal instruments. Although this survey may well be correct, it is not “evidence of record.” Because a fundamental right was denied to the Roylstons, we must reverse the judgment of the trial court. Arnau, supra, 207 Ga. App. at 697.

2. The Roylstons contend that the location of the boundary is in direct conflict with uncontradicted evidence of their prescriptive title.

On this issue, the special master’s comment that “[t]he boundary line between the parties, as determined by Mr. Betterton, . . . was in an area that in my opinion was not adversely possessed by either party,” fails to provide any explanation as to how this conclusion was reached. See Walker v. Hill, 253 Ga. 126, 131 (2), (3) (317 SE2d 825) (1984) (failure to consider evidence of adverse possession warranted new trial). The special master’s conclusory remark does not afford an adequate basis for determining what facts were considered or what law was applied. See Allied Foods, supra, 228 Ga. at 480.

Here, Conway acquired Lot 7 in September 1985 and began occupying a house on the property in October 1986. The Roylstons’ evidence showed that from 1968 forward their predecessors in title had planted and mowed grass, maintained the landscaping, and used the area now in dispute for ingress and egress to the boat door and to access the backyard. The boat door, a one-car garage door, is original to the house and has been in existence since 1968. That the original owners, the Erwins, had exclusive possession of the area in controversy from 1968 until 1980 was not disputed, impeached, or otherwise contradicted by Conway. Wynell Roylston testified that the sprinkler system installed by Conway covered Conway’s yard but provided “absolutely no water” to the area in controversy. Wynell Roylston testified that from “the way it was landscaped, you could tell” that the disputed area belonged to the owner of Lot 6. From her testimony it appears that the successors to the Erwins continued to maintain the grass and shrubbery in the area now claimed by Conway. Undisputed testimony showed that the only path for a lawnmower to reach the backyard was by passing through this area. In addition, David Lynah, a surveyor hired by Conway, testified that the normal, minimum setback would have required a house to be ten feet off the line, a legal requirement met only by the surveys presented by the Roylstons.

Numerous legal principles could have been applied to these facts. Generally, title by prescription is the right to property that a possessor acquires by the continuance of his possession for the period fixed by law. OCGA § 44-5-160. Prescriptive title requires proof that the possession did not originate in fraud and was public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. OCGA § 44-5-161; Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000). Possession by different holders may be tacked together when the prior possession also satisfies the other elements of adverse possession. Fraser v. Dolvin, 199 Ga. 638, 642 (34 SE2d 875) (1945). A claim of right will be presumed from the assertion of dominion, especially when the assertion of dominion is made by the erection of valuable improvements to the property. Id.; Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977). When an adverse possessor has held the property for the requisite period and prescriptive title ripens, all other inconsistent titles or claims are extinguished and the prescriptive title becomes the true title. Fraser, supra, 199 Ga. at 642. Alternatively, the Code provisions governing the determination of disputed boundaries could have application here. See, e.g., OCGA §§ 44-4-6; 44-4-7. But in the absence of any reference to the facts or the law, we cannot determine the legal principles relied upon in the special master’s brief, conclusory, and .unsupported finding.

On remand, should the evidence show that the Roylstons’ predecessors in title obtained title by prescription, then resolution of the discrepancies in the competing surveys would be unnecessary. See Ross v. Lowery, 249 Ga. 307, 308 (2) (290 SE2d 61) (1982). Similarly, if prescriptive title ripened in 1988, then the subsequent disputes between Jacobsen and Conway or between the Roylstons and Conway would have no bearing on the issue of title.

Decided September 26, 2001.

Sams & Larkin, Garvis L. Sams, Jr., Mitchell K. Greene, for appellants.

Edward A. Curtis, Jr., for appellee.

3. In view of our holding in Division 1, the remaining issues are moot.

Judgment reversed.

Barnes and Phipps, JJ., concur.

       Finding this case did not invoke its title to land jurisdiction, the Supreme Court transferred it to this court.

       At the motion hearing, counsel for the Roylstons told the trial court that the portion of the disputed area given to his clients, measuring 6.2 feet at the back comer, left the boat door unusable and was “not in keeping with common sense.”

       Although direct and circumstantial evidence appears to prove that prescriptive title ripened in the owner of Lot 6 in 1988, this issue should be determined by the factfinder because the evidence relating to the period between 1980 to 1988 seems less than conclusive.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1576.
    PEACE v. DOMINY HOLDINGS, INC.
    (554 SE2d 314)
   Mikell, Judge.

This is an appeal from a judgment entered by the trial court, sitting without a jury, awarding $25,000 plus prejudgment interest to Dominy Holdings, Inc. We affirm. The relevant facts are as follows: Langford Peace owns 336 acres of timberland in Pierce County. On February 16, 1995, Peace contracted with Dominy to sell the timber for $365,000. The contract provided for a down payment of $25,000, which was designated as an option to purchase that expired on February 28. The agreement further provided that a binding contract of purchase and sale would result upon the exercise of the option; that the closing would take place within 30 days thereafter; that Peace would retain the $25,000 in the event Dominy failed to exercise the option; and that a timber deed would be prepared to convey title to the timber. Other provisions in the contract concerned title and payment of closing costs and taxes. A legal description of the property was included.

On February 28, 1995, Dominy exercised its option, tendering a check for $25,000. On March 30, Dominy’s president, Jewett Tucker, Jr., wrote Peace a letter indicating that the parties needed to agree upon the “cutting term,” or the amount of time for harvesting the timber. Tucker stated that he would contact Peace concerning the cutting term as soon as he spoke with the producer who would harvest the tract. The letter also expressed concern about the lack of access to the tract. In response, Peace obtained a two-year easement of access to the land, as evidenced in correspondence from his counsel to Dominy dated April 11. In the letter, counsel demanded that the transaction be closed within the next few days.

The parties could not agree on the cutting term. In a letter dated April 27,1995, Dominy’s counsel rejected the two-year term proposed by Peace, offered alternatives, claimed that the parties had failed to reach a meeting of the minds, and demanded that Peace return the $25,000 option money. Peace refused and ultimately sold the timber for $350,000.

Dominy then filed suit to recover the $25,000, asserting that Peace had converted the sum while refusing to grant Dominy title to the timber in accordance with the parties’ agreement. Dominy also asserted an unjust enrichment theory. Peace claimed he was entitled to retain the option money because Dominy refused to close the transaction. Dominy argued that since the cutting term was not stated in the contract, there was no meeting of the minds, and Peace should refund the money.

The case proceeded to trial before the court sitting without a jury. The evidence was in sharp conflict as to whether the parties had orally agreed to a two-year cutting term. Based on the parties’ testimony, the court determined that the cutting term was an essential element of the contract and that absent a meeting of the minds on the term, no contract had been formed. The court thus awarded Dominy $25,000 plus prejudgment interest. Peace appeals.

1. In his first enumeration of error, Peace asserts that the trial court erred in determining that the contract was unenforceable due to its failure to specify a cutting term. We disagree. OCGA §§ 13-3-1 and 13-3-2 provide that a contract is not complete and enforceable. until there is a meeting of the minds as to all essential terms.

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Each of these essential terms must be certain. The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where time and place are essential.

In the instant case, Tucker, Dominy’s president, testified that he has been involved in the timber business for 28 years; that a cutting term is essential to a timber purchase contract, as it has a direct bearing on the value of the timber; and that he has never been able to procure title insurance on such a contract unless it specified a cutting term. Tucker further testified that Peace insisted upon a two-year term, which Dominy would not accommodate due to potentially adverse weather and logging conditions.

David Joyner, the attorney who prepared the contract for Peace, testified that he was present during the negotiations with Dominy’s representative, Henry Chappell, Jr. Joyner testified that he understood that Chappell was agreeable to a two-year term with a six-month wet weather extension. Joyner explained that this understanding was the reason the easement was obtained for a two-year term. Joyner further testified that out of the 30-40 timber transactions he handled, only once did the cutting term exceed two years. Peace also testified that Chappell had agreed to a two-year term. Chappell, however, testified that he and Peace never orally agreed to a two-year term. Chappell testified that he and Peace discussed “the fact that the timber was real wet, and we knew it was going to take time to get the timber out.”

Based on this evidence, the trial court determined that there had been no meeting of the minds on the cutting term, without which there could be no contract. A trial court’s findings in a nonjury trial will not be set aside unless clearly erroneous. The “clearly erroneous” test is the same as the “any evidence” rule. If there is any evidence to support the findings of fact by a trial court sitting without a jury, then this Court must affirm the judgment. Further, while “[t]he construction of a contract is a question of law for the court,” fact questions must be resolved by the jury, or in a bench trial, the judge. In the instant case, whether there had been a meeting of the minds on the cutting term was a question for the factfinder. As evidence exists to support the trial court’s findings of fact, we will not disturb them on appeal.

Decided August 23, 2001

Reconsideration denied September 27, 2001.

Cheeley & Joyner, C. David Joyner, Kenneth E. Futch, Jr., for appellant.

Alvin G. Wells, Jr., for appellee.

Peace’s arguments do not persuade us otherwise. Peace contends that the absence of a cutting term is not a fatal flaw to a timber purchase contract. Rather, he maintains that where the parties fail to agree to a cutting term, it is the duty of the trier of fact to determine what is a reasonable term under the circumstances. In support of this proposition, Peace cites Dean v. Great Northern Nekoosa Corp. Harrell v. Williams & Sons, and Mills & Williams v. Ivey. However, in Dean and Mills, the purchaser had already acquired title to the timber through a timber deed. In Harrell, the purchaser had already begun to harvest the timber before a dispute arose as to the cutting term. In the instant case, Peace’s attorney, Joyner, admitted that the cutting term is routinely set out in the timber deed. However, it is undisputed that no deed was ever delivered. Accordingly, the aforementioned cases are distinguishable.

2. In his second enumeration of error, Peace asserts that the trial court erred in failing to rule that Hominy’s actions constituted an anticipatory repudiation of the contract. At trial, Joyner testified that he considered Dominy’s letter dated April 27,1995, to be a repudiation of the contract. However, Peace failed to obtain a ruling by the trial court on this issue. Therefore, it has been waived on appeal. Bell v. Owens, 230 Ga. App. 826, 828 (3) (497 SE2d 591) (1998).

Judgment affirmed.

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

       In the complaint, Dominy also claimed that it lost $100,000 in profits as a result of Peace’s failure to consummate the transaction. However, it appears that this claim was abandoned at trial.

       OCGA § 13-3-2: “The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”

       (Citation omitted.) Gill v. B & R Intl., 234 Ga. App. 528, 531 (1) (b) (507 SE2d 477) (1998).

       OCGA § 9-11-52 (a); Municipal Elec. Auth. of Ga. v. City of Calhoun, 227 Ga. App. 571, 572 (1) (a) (489 SE2d 599) (1997).

        CFUS Properties v. Thornton, 246 Ga. App. 75, 76 (1) (539 SE2d 571) (2000).

       OCGA § 13-2-1.

       251 Ga. 131 (303 SE2d 445) (1983).

       159 Ga. 230 (125 SE 452) (1924).

       3 Ga. App. 557 (60 SE 299) (1908).


author: Pope, Presiding Judge.

text:
    A01A1118.
    STEWARD v. THE STATE.
    (555 SE2d 33)
   Pope, Presiding Judge.

During Michael Steward’s trial on counts of rape, incest and two counts of aggravated sodomy, the court declared a mistrial when the state’s expert witness introduced evidence that violated the ultimate issue rule. Steward then filed a plea in bar to prevent retrial on the grounds that another trial would constitute double jeopardy because the mistrial was caused by intentional prosecutorial misconduct. The trial court denied the motion, and Steward appeals.

Generally, where a mistrial is granted on the defendant’s motion, double jeopardy does not bar a retrial unless it is established that the State intended to “goad” the defendant into moving for a mistrial to avoid a reversal or to obtain a more favorable chance of a guilty verdict on retrial. Williams v. State, 268 Ga. 488, 489 (491 SE2d 377) (1997); Mobley v. State, 262 Ga. 808 (2) (426 SE2d 150) (1993).

Weems v. State, 269 Ga. 577, 580 (4) (501 SE2d 806) (1998). If the record does not show that the prosecutor’s conduct was for these improper purposes, the defendant may be retried. Dinning v. State, 267 Ga. 879, 880-881 (485 SE2d 464) (1997). The intent of the prosecutor is a fact question for the trial court to resolve. Haralson v. State, 227 Ga. App. 118 (488 SE2d 497) (1997). Even though the trial court may have been authorized to reach the opposite result, we will affirm if there is evidence to support the trial court’s finding. Spradley v. State, 242 Ga. App. 340, 342-343 (529 SE2d 647) (2000).

Here, we find no evidence in the record to show that the prosecutor was motivated by improper purposes. Although the record shows that the prosecutor did an inadequate job of instructing the state’s witnesses about what they could and could not say, and that several witnesses in nonresponsive answers made improper remarks that may have resulted from this lack of preparation, Steward has not pointed to any evidence of improper motive. For instance, Steward has not shown that the state stood to gain by retrying the case or that “the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause.” (Citations omitted.) Dinning, 267 Ga. at 881. The court immediately set the trial for retrial the following Monday, and there is no evidence that the state would have benefitted from this short delay. The state may have grossly mishandled its witnesses, but “[t]he fact that the government blunders at trial and the blunder precipitates a successful motion for a mistrial does not bar a retrial.” (Punctuation omitted.) Williams, 268 Ga. at 490.

Steward argues that the prosecutor completely and repeatedly failed in her duty to instruct the state’s witnesses what they could and could not say. He claims that this patent disregard for basic trial procedure rises to the level of blatant error and that it could not have been simply a negligent act. See Wilson v. State, 233 Ga. App. 327, 329-330 (3) (503 SE2d 924) (1998) (physical precedent only). But, in Wilson, the prosecutor asked an improper question, whereas in this case, the improper information came in the form of nonresponsive answers. Also, in Wilson, the prosecutor attempted to keep certain trial evidence out of the record on appeal, further showing improper motive. In this case, although the court admonished the prosecutor for failing to adequately instruct her witnesses, there was no evidence that she intended for the witnesses to give improper testimony thereby necessitating a mistrial.

Decided September 27, 2001.

Sean M. Maher, Tamara J. Wayland, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

In Haralson, the trial court made a finding that the prosecutor did not deliberately engage in any misconduct with the intent of securing a mistrial, and because there was evidence to support that finding, we affirmed. Haralson, 227 Ga. App. at 120-121. The same holds true here.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: Miller, Judge.

text:
    A01A1453.
    JOHNSON v. THE STATE.
    (555 SE2d 34)
   Miller, Judge.

A jury found Michael Ray Johnson guilty of two counts of DUI and one count of no proof of insurance. Johnson moved for a new trial, which motion the court granted as to the DUI convictions, but denied as to the no proof of insurance conviction. On appeal Johnson challenges the denial of his motion for a directed verdict on the no proof of insurance conviction and the failure of the court to give his requested charge on circumstantial evidence. Johnson also argues that the court should have suppressed the evidence because the stop was not based on reasonable suspicion, and that it was error for the court to refuse to hear his motion to suppress on the basis of untimeliness. As these claims are without merit, we affirm.

The evidence showed that while conducting a late night road-check, officers noticed Johnson make a U-turn prior to reaching the checkpoint. An officer dispatched to follow Johnson observed that Johnson was weaving within his lane. The officer stopped Johnson and asked him for his license and proof of insurance. Johnson responded that he had a driver’s license but that it was suspended. The officer then detected a strong odor of alcohol and asked Johnson to exit the vehicle. Johnson stumbled as he exited, and the officer noticed that his eyes were bloodshot and glassy and that his speech was slurred. After testing positive on an alco-sensor, Johnson was arrested.

1. Johnson argues that the court erred in denying his motion for a directed verdict on the no proof of insurance charge. The standard of review for the denial of a motion for directed verdict of acquittal or a motion for new trial is the same as that used under Jackson v. Virginia when the sufficiency of the evidence is challenged. We view the evidence in the light most favorable to the verdict and do not weigh the evidence or assess the credibility of the witnesses.

OCGA § 40-6-10 (a) requires the owner or operator of a vehicle to keep proof of the required minimum insurance coverage in the vehicle at all times. To support a conviction under this Code section, “there must be some evidence from which it can reasonably be inferred that the person charged did not have proof of insurance.” The officer testified that despite his request, Johnson never produced a driver’s license or proof of insurance. The facts that the officer requested proof of insurance and that Johnson did not provide such proof were sufficient to establish that Johnson failed to comply with OCGA § 40-6-10. Thus, the court did not err in denying Johnson’s motion for directed verdict on this ground.

2. Johnson argues that the court erred in failing to grant a new trial on the no proof of insurance charge because his requested jury charge on circumstantial evidence was warranted. Johnson is correct that it is error to fail to give a requested charge on circumstantial evidence when the State’s case includes both direct and circumstantial evidence. Here, however, the State’s evidence that Johnson failed to provide proof of insurance was direct evidence, and therefore a jury charge on circumstantial evidence was not warranted.

3. Johnson filed a motion to suppress the evidence more than eight months after his scheduled arraignment for which he failed to appear. The trial court denied the motion as untimely. At trial, however, Johnson objected to the admission of the arresting officer’s testimony on the basis that the stop was not supported by reasonable suspicion, which objection the court overruled. Johnson argues that the court should have sustained his objection to suppress the evidence.

Decided September 28, 2001.

Lee W. Fitzpatrick, for appellant.

David McDade, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

An officer may conduct a brief investigative stop of a vehicle when such a stop is justified by articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This case is analogous to Semich v. State, where the defendant, at a late hour, abruptly changed his course of travel prior to a checkpoint and was observed weaving within his lane. There this Court held that “ [although turning around to avoid police is not alone sufficient to justify a stop, combined with weaving and the late hour it is.” Similarly, in the present case, around 1:45 a.m. officers observed Johnson make a U-turn prior to reaching a police roadcheck and weave within his lane. In light of the combination of these factors, officers had reasonable and articulable grounds to stop Johnson on the suspicion that he was engaging in criminal conduct.*

4. Since we hold that there was reasonable and articulable suspicion for the stop of Johnson’s vehicle, even if the court did err in failing to hear Johnson’s motion to suppress, such error would have been harmless.

Judgment affirmed.

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

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Monteagudo v. State, 247 Ga. App. 801 (545 SE2d 351) (2001).

       Id.

        Kersey v. State, 243 Ga. App. 689, 692 (1) (c) (534 SE2d 428) (2000).

       Compare id.; see Taylor v. State, 184 Ga. App. 368 (1) (361 SE2d 667) (1987).

        Burks v. State, 246 Ga. App. 22, 24 (2) (538 SE2d 769) (2000); Cawthon v. State, 235 Ga. App. 791 (3) (510 SE2d 586) (1998).

       See Cawthon, supra, 235 Ga. App. at 791-792 (3); Carroll v. State, 224 Ga. App. 543, 548 (2) (481 SE2d 562) (1997); cf. Holcomb v. State, 268 Ga. 100, 105 (6) (485 SE2d 192) (1997).

        State v. Warren, 242 Ga. App. 605-606 (530 SE2d 515) (2000); Green v. State, 240 Ga. App. 377 (1) (523 SE2d 581) (1999).

       234 Ga. App. 89 (506 SE2d 216) (1998).

       (Footnotes omitted.) Id. at 93 (b).

       See id. at 92-93 (b); Castillo v. State, 232 Ga. App. 354, 357 (502 SE2d 261) (1998) (deliberately furtive reaction to roadblock gave officers reasonable suspicion).


author: Andrews, Presiding Judge.

text:
    A01A1524.
    MOTORS INSURANCE COMPANY v. AUTO-OWNERS INSURANCE COMPANY.
    (555 SE2d 37)
   Andrews, Presiding Judge.

The primary issue in this appeal involves construction of the automobile insurance provision set forth in OCGA § 33-34-3 (d) which provides in general that, where a car owned by a car dealer engaged in the business of selling new or used cars is involved in an accident while being test-driven by a person who is neither the dealer-owner nor an employee of the dealer-owner, the test driver’s private automobile policy affords primary coverage and the dealer-owner’s automobile policy affords excess coverage. It is undisputed that the car at issue was owned by a dealer engaged in the retail sale of cars and that the car was involved in an accident while it was being test-driven by an employee of the dealer who wished to purchase the car. Motors Insurance Company, which provided insurance for the dealer’s automobile inventory, contends that, even though an employee of the dealer was test-driving the car when the accident occurred, OCGA § 33-34-3 (d) should be construed to impose primary coverage on the employee’s private automobile insurer, Auto-Owners Insurance Company, because the employee was not acting in the course of his employment, but was test-driving the car on a personal mission as a customer of the dealer.

1. The statute at issue provides as follows:

Each policy of liability insurance issued in this state providing coverage to motor vehicles owned by a person, firm, or corporation engaged in the business of selling at retail new and used motor vehicles shall provide that, when an accident involves the operation of a motor vehicle by a person who is neither the owner of the vehicle involved in the accident nor an employee of the owner and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the liability policy insuring the said operator and any liability policy under which the owner is an insured shall' afford excess coverages. If the liability policy under which the owner is an insured and which affords excess coverage contains a provision which eliminates such excess coverage based on the existence of coverage provided in the operator’s liability policy, such provision of the owner’s liability policy shall be void.

OCGA § 33-34-3 (d).

By making the driver’s insurance primary while driving a car owned by the dealer under the terms of the statute, OCGA § 33-34-3 (d) shifts primary coverage from the dealer’s insurer in derogation of the general rule that automobile insurance “follows the car.” Indus. Indem. Co. v. Walck, 192 Ga. App. 754, 755-756 (386 SE2d 521) (1989). Because in the present case the dealer’s car was being test-driven at the time of the accident by an employee of the dealer, the plain language of the statute shows that it did not operate to shift primary coverage to the driver’s private automobile insurer. Regardless of whether the dealer’s employee was acting within or outside the scope of employment, nothing in the statute could be construed to trigger its operation where the dealer’s car was being driven by the dealer’s employee. Standard Guaranty Ins. Co. v. Grange Mut. Cas. Co., 182 Ga. App. 842, 844 (357 SE2d 295) (1987). “[W]here the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” (Citations and punctuation omitted.) Id. at 843. Accordingly, under the general rule that automobile insurance “follows the car,” primary coverage for claims arising from the accident was afforded by the dealer’s insurer, Motors Insurance, and excess coverage was afforded by the driver’s insurer, Auto-Owners Insurance. Indus. Indem. Co., 192 Ga. App. at 755-756; Zurich Ins. Co. v. New Amsterdam, Cas. Co., 117 Ga. App. 426, 428 (160 SE2d 603) (1968).

2. Because primary coverage for claims arising from the accident was afforded by Motors Insurance, the trial court correctly granted summary judgment in favor of the excess insurer, Auto-Owners Insurance, on its suit for indemnification against Motors Insurance for amounts paid by Auto-Owners Insurance in settlement of the claims arising from the accident.

As a result of the accident, personal injury and property damage claims were made against the employee-driver. The record shows that Motors Insurance was notified of the claims, denied coverage under its policy, and refused to defend the claims despite being the primary insurer. Instead, Motors Insurance asserted that Auto-Owners Insurance was the primary insurer and was obligated to defend and adjust the claims. As a consequence, the excess insurer, Auto-Owners Insurance, defended the claims against its insured, paid settlement amounts on behalf of its insured in the amount of $10,764, and sued Motors Insurance for indemnification to collect the sum paid in settlement.

As the primary insurer on the claims, Motors Insurance was obligated to indemnify the excess insurer, Auto-Owners Insurance, for sums (up to the Motors Insurance policy limit) paid by Auto-Owners Insurance in settlement of the claims. Aetna Cas. &c. Co. v. Empire Fire &c. Ins. Co., 212 Ga. App. 642, 646 (442 SE2d 778) (1994). There was no requirement that Auto-Owners Insurance notify Motors Insurance of its intention to seek indemnification before accepting a tender of the defense of the claims. Nat. Union Fire Ins. Co. v. American Motorists Ins. Co., 269 Ga. 768, 770 (504 SE2d 673) (1998). Motors Insurance was notified of the claims and was aware of the facts which obligated it to provide coverage and defend the claims as the primary insurer. When Motors Insurance refused to do so and asserted that Auto-Owners Insurance was obligated to defend and adjust the claims, it did so at its peril. 8A Appleman, Insurance Law & Practice, § 4923, p. 559. Under these circumstances, the excess insurer, Auto-Owners Insurance, was entitled to make a reasonable settlement of the claims without giving notice or demanding that Motors Insurance participate in the settlement. On these facts, Motors Insurance was estopped to deny the validity of a settlement made by Auto-Owners Insurance in good faith, unless the amount paid was so excessive as to show evidence of bad faith, or there was other evidence that the settlement was made in bad faith. Aetna Cas. &c. Co., 212 Ga. App. at 646; Ga. Southern &c. R. Co. v. U. S. Cas. Co., 97 Ga. App. 242, 244 (102 SE2d 500) (1958). Motors Insurance made no claim that the amount of the settlement or any other fact in the case was evidence that Auto-Owners Insurance acted in bad faith.

Decided September 28, 2001.

Anderson, Walker & Reichert, Robert A. B. Reichert, John B. Critchfield, for appellant.

Finally, we find no merit in Motors Insurance’s contention that Auto-Owners Insurance was not entitled to indemnification because it paid the settlement as a volunteer pursuant to OCGA § 13-1-13. As the excess insurer, Auto-Owners Insurance had a duty to defend the claims against its insured after the primary insurer denied coverage and refused to defend. Zurich Ins. Co., 117 Ga. App. at 428. Having paid the settlement pursuant to this duty, we decline to find that Auto-Owners Insurance acted as a volunteer. Nat. Union Fire Ins. Co., 269 Ga. at 771; Aetna Cas. &c. Co., 212 Ga. App. at 645.

Judgment affirmed.

Eldridge and Miller, JJ., concur.

Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

       Although the employee was on a medical leave of absence from his normal work duties, he received a weekly paycheck from the dealer and remained employed by the dealer at the time of the accident.

       Motors Insurance does not claim that the settlement amount was in excess of its policy limit.

       Although estopped to deny the validity of a good faith settlement, Motors Insurance was still entitled to assert that its policy did not provide coverage for the claims. McCraney v. Fire & Cas. Ins. Co., 182 Ga. App. 895, 896 (357 SE2d 327) (1987); Colonial Oil Indus. v. Underwriters Subscribing to Policy Nos. &c., 268 Ga. 561, 563 (491 SE2d 337) (1997).


text:
    A01A1619.
    KEMPER v. THE STATE.
    (555 SE2d 40)
   Miller, Judge.

A jury found Dione B. Kemper guilty of armed robbery, hijacking a motor vehicle, aggravated assault, and possession of a firearm during the commission of a crime. The court sentenced Kemper to 25 years confinement. On appeal Kemper challenges the sufficiency of the evidence to sustain his armed robbery conviction and argues that his aggravated assault conviction should have merged with either his hijacking or armed robbery conviction. We affirm.

The evidence showed that Kemper approached the victim in a parking lot as he entered his vehicle. Kemper opened the passenger’s side door of the victim’s vehicle and sat down with a gun on his lap. Kemper then ordered the victim to open the trunk and to walk to the back of the vehicle. When the victim failed to do as instructed, Kemper took the victim’s keys and opened the trunk. The victim then took money out of his pocket, asked Kemper to “please just take the money, take the car . . .,” and laid the money inside the trunk. Kemper responded, “no, get in the trunk,” and pointed the gun at the victim. The two men then struggled, the gun fired, and the victim ran. Officers later found the gun and the victim’s keys several blocks away, but found no money.

1. Kemper contends that he did not force the victim at gunpoint to relinquish possession or control of the money. Specifically, he argues that since he expressly rejected the money that the victim offered him and there was no money found on his person, the evidence is insufficient to support a finding that he took the money as alleged in the indictment.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . ,” The indictment alleged that Kemper, with intent to commit theft, took currency from the victim by use of an offensive weapon.

Evidence that the victim placed money in the trunk of the vehicle before escaping and that no money was recovered is sufficient to establish that Kemper took the victim’s money. The fact that Kemper replied, “no, get in the trunk,” when offered the money does not necessarily mean that Kemper refused the money, for the jury could have found that Kemper simply would not take the money in substitution for the victim’s getting into the trunk.

The force or intimidation to establish robbery

must either precede or be contemporaneous with, and not subsequent to, the taking. Where, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized regardless of when the intent to take the victim’s property arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly.

Here the force — the use of the gun against the victim — preceded the taking, and regardless of when Kemper formed the intent to take the victim’s money, the evidence was sufficient to sustain Kemper’s conviction for armed robbery.

2. Kemper argues that the aggravated assault offense should have merged with either the armed robbery offense or the hijacking offense.

(a) Kemper’s argument that the aggravated assault offense should have merged with hijacking is without merit. Pursuant to OCGA § 16-5-44.1 (d), “[t]he offense of hijacking a motor vehicle shall be considered a separate offense and shall not merge with any other offense. . . .”

(b) Armed robbery and aggravated assault do not merge as a matter of law. Therefore, the question is whether the offenses merge as a matter of fact. “For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.”

The facts used to prove that Kemper committed aggravated assault were that he attempted to force the victim into the trunk of his own vehicle at gunpoint. These same facts are used to establish the force that preceded the taking for the armed robbery conviction. Here the offenses of aggravated assault and armed robbery do merge as a matter of fact, and the court erred in failing to merge these convictions. Therefore, we vacate the sentences on Counts 1 and 3 and remand to the trial court for resentencing.

Decided September 28, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

Judgment of convictions affirmed, sentence vacated in part and case remanded for resentencing.

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

       OCGA § 16-8-41 (a).

       (Citations and punctuation omitted; emphasis in original.) Hudson v. State, 234 Ga. App. 895, 897 (1) (a) (508 SE2d 682) (1998); see Johnson v. State, 247 Ga. App. 157, 159-160 (1) (543 SE2d 439) (2000).

       Moreover, the “immediate presence” element is satisfied even though the victim managed to escape before the money was taken. See Matthews v. State, 268 Ga. 798, 804 (7) (a) (493 SE2d 136) (1997).

        Robinson v. State, 246 Ga. App. 576, 583 (8) (541 SE2d 660) (2000); Braswell v. State, 245 Ga. App. 602, 604 (4) (538 SE2d 492) (2000).

        Braswell, supra, 245 Ga. App. at 604 (4).

       (Citations and punctuation omitted.) Johnson, supra, 247 Ga. App. at 162 (10).

       See id.


author: Johnson, Presiding Judge.

text:
    A01A1366.
    WILLIAMSON et al. v. COASTAL PHYSICIAN SERVICES OF THE SOUTHEAST, INC. et al.
    (554 SE2d 739)
   Johnson, Presiding Judge.

Joe Williamson was treated by a doctor in a hospital emergency room and died approximately two weeks later. Williamson’s wife sued, among others, Coastal Physician Services of the Southeast, Inc., which had supplied the emergency room doctor. This appeal arises from the trial court’s grant of summary judgment to Coastal on the ground that it cannot be held vicariously liable for the actions of the independent contractor doctor. Because the trial court correctly found that there is no genuine issue of material fact that the doctor was an independent contractor, rather than an employee, we affirm the grant of summary judgment.

On June 14, 1996, Joe Williamson was experiencing shortness of breath, so he went to the emergency room of Columbia Fairview Park Hospital in Dublin. In the emergency room, he was treated by Dr. Sam Johnson, who diagnosed Williamson with cellulitis, hyperglycemia, and chronic obstructive pulmonary disease. Dr. Johnson discharged Williamson, but Williamson returned to the emergency room six hours later. Dr. Johnson saw Williamson and again discharged him.

On June 17 and 20, 1996, Williamson went to Dr. Andy Williamson’s office, where he was treated and released. On July 1, 1996, Joe Williamson was admitted to the Carl Vinson VA Medical Center. The following day he died.

Charlotte Williamson, surviving spouse and administratrix of Williamson’s estate, brought this medical malpractice lawsuit against the hospital, Dr. Johnson, Dr. Williamson, and Coastal Physician Services, which had hired Dr. Johnson to work in the emergency room pursuant to a staffing agreement with the hospital. The lawsuit claims that Coastal is vicariously liable for the actions of Dr. Johnson. Coastal moved for summary judgment, arguing that it cannot be held liable for the actions of Dr. Johnson because he is an independent contractor and not an employee. The trial court granted Coastal’s motion.

Charlotte Williamson filed this appeal, arguing that the trial court erroneously granted summary judgment because there is a genuine issue of material fact as to whether Dr. Johnson was a Coastal employee, and that the court erred in denying her motions to strike an affidavit and various interrogatory responses. Coastal filed a cross-appeal. Williamson and Coastal later agreed that Williamson would withdraw her challenges to the denials of her motions to strike, and that Coastal would withdraw its cross-appeal. Pursuant to the parties’ joint request, we have allowed these withdrawals, thereby leaving for our review only Charlotte Williamson’s claim that the trial court erred in granting summary judgment to Coastal because there is a genuine issue of material fact as to whether Dr. Johnson was a Coastal employee rather than an independent contractor.

We determine whether a person is an employee or an independent contractor by examining whether the employer has assumed the right to control the time, manner, and method of executing the work. The right to control the time means the employer has assumed the right to control the person’s actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow.

In support of its motion for summary judgment, Coastal presented the affidavit of Dr. Johnson and a copy of its agreement with him. In the affidavit, Dr. Johnson stated that he would inform Coastal of the times he was available to work in the Fairview hospital emergency room, that Coastal had the right to schedule him to work only at those times, and that Coastal never attempted to schedule him for work at a time not designated by him. He further stated that Coastal had no right, and never attempted, to control the manner or method by which he diagnosed or treated patients in the emergency room.

The contract between Dr. Johnson and Coastal, entitled Independent Contractor (Physician) Agreement, supports Dr. Johnson’s affidavit. The contract specifically provides that each month Dr. Johnson shall notify Coastal of the days and hours that he is available to work in the emergency room, and that Coastal will schedule him to work based on his notification of availability. Moreover, the contract provides that Dr. Johnson shall act as an independent contractor practicing his profession of medicine, and that Coastal shall have no control over the manner or method by which he performs his professional medical practice.

Coastal also supported its summary judgment motion with a copy of an emergency room physician’s independent contractor agreement that had been reviewed in the case of Brown v. Coastal Emergency Svcs. That agreement is materially similar to the independent contractor agreement between Coastal and Dr. Johnson in that it provides that the physician shall designate the times he can work each month, and that the physician is an independent contractor practicing his profession of medicine without any control over the manner or method of his practice by the corporation. In Brown, this court held that the emergency room physicians hired pursuant to that contract were independent contractors because the corporation did not control the time, manner, or method of their work.

In an attempt to refute Coastal’s evidence establishing that it has no control over the time, manner, or method of Dr. Johnson’s work, Williamson relies on the staffing contract between Coastal and the hospital whereby Coastal agreed to provide physicians for the hospital emergency room. But Williamson’s reliance on that agreement is misplaced. First, the contract plainly provides that Coastal is supplying independent contractor physicians. Second, it states that the hospital shall not have any control over the physicians’ performance of their medical duties which would jeopardize the physicians’ status as independent contractors with Coastal. Finally, contrary to Williamson’s claims, there is nothing in the agreement that gives Coastal the right to assume control over the time, manner, or method of the physicians’ work.

For instance, Williamson argues that there is some evidence that Coastal controls Dr. Johnson’s time because the staffing agreement requires Coastal to coordinate the schedule so that physicians are always available to work in the emergency room. This argument is flawed in that it is illogical to leap from the mere fact that Coastal coordinates the emergency room schedule to the conclusion that it therefore controls Dr. Johnson’s time. Coastal’s scheduling responsibility does not contradict the affidavit of Dr. Johnson or the independent contractor agreement between him and Coastal, both of which unequivocally prove that he controls his time by telling Coastal when he can be scheduled for emergency room work.

Decided September 13, 2001

Reconsideration denied October 2, 2001

Watkins, Lourie & Roll, Joseph W. Watkins, Lance D. Lourie, Stephen R. Chance, Richard W. Summers, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train IV, Alston & Bird, Robert D. McCallum, Jr., Elizabeth Bertschi, Love & Willingham, Michael J. Hannan III, for appellees.

Similarly flawed is Williamson’s argument that there is evidence that Coastal directs Dr. Johnson’s work based on provisions in the staffing agreement that Coastal will assist the hospital in developing emergency room policies and procedures, and that physicians are required to comply with emergency room policies and procedures. It is not apparent from Williamson’s brief if there are any specific policies or procedures that govern the method or manner by which emergency room physicians perform their professional medical duties. Just as its scheduling responsibility does not show that Coastal controls Dr. Johnson’s time, Coastal’s assistance in developing emergency room policies and procedures does not prove that it controls the manner or method of Dr. Johnson’s emergency room work. More specifically, there certainly is no evidence in the instant case that Coastal controlled Dr. Johnson’s emergency room diagnosis and treatment of Joe Williamson.

Because the evidence unquestionably shows that Coastal did not control the time, manner, or method of Dr. Johnson’s work, the trial court correctly concluded that he is an independent contractor, and that Coastal cannot be held liable for his acts. We therefore affirm the trial court’s grant of summary judgment to Coastal.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Rains v. Dolphin Mtg. Corp., 241 Ga. App. 611, 613 (2) (525 SE2d 370) (1999).

       Id.

       Id.

       181 Ga. App. 893 (354 SE2d 632) (1987).

       Id. at 896 (2).

       Id.

       See Epps v. Gwinnett County, 231 Ga. App. 664, 668 (4) (499 SE2d 657) (1998) (no vicarious liability for health care provider which did not control the time, manner, or method of independent contractor doctor’s practice of medicine).


text:
    A01A2110.
    McDADE v. THE STATE.
    (555 SE2d 43)
   Mikell, Judge.

Steven McDade appeals his conviction of possession of cocaine, contending that the trial court erred in denying his motion for a directed verdict. We disagree and affirm.

On appeal, we apply the same standard in reviewing the denial of a motion for directed verdict of acquittal as we do in reviewing the sufficiency of the evidence: that is, whether, after considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that on December 2,1999, Jeremy Grindle, a member of the Hall County Multi-Agency Narcotics Squad, was working undercover on a “sweep” case, investigating narcotics sales around the Atlanta Street Apartments. While cruising in his vehicle at 11:10 a.m., Agent Grindle was approached by McDade, who asked the officer what he was looking for. When Agent Grindle replied that he wanted marijuana, McDade said it would be much easier to find cocaine. McDade got into Agent Grindle’s vehicle and told him where to drive to find a seller. McDade saw the seller on the street and yelled to him that Grindle and McDade “were looking for a 40,” which Agent Grindle testified meant $40 worth of crack cocaine. The seller located a juvenile and instructed him to give Grindle and McDade each a $20 piece of crack.

Each man paid $20 to the seller. Agent Grindle testified that McDade took the substance and put it in his mouth to ensure it “wasn’t fake.” Agent Grindle then dropped McDade off at a carpet business. In order to preserve the integrity of the undercover operation, McDade was not arrested at that time, nor was the substance he purchased seized, Agent Grindle testified. Grindle secured the substance he bought, and testing revealed it to be cocaine.

In two related enumerations of error, McDade contends that the trial court erred in denying his motion for a directed verdict because the state failed to prove beyond'-a reasonable doubt that the substance he purchased was cocaine. McDade points out that the substance was neither seized nor tested, and no testimony was offered to show that the piece McDade purchased appeared consistent with cocaine or with the piece sold to Agent Grindle. Moreover, McDade argues, the piece he purchased was an individual rock, unlike the substance that was found in the defendant’s possession in Lawrence v. State In Lawrence, the defendant admitted that he had broken off the piece found on his person from a larger piece that he delivered to MANS undercover officers. Expert testimony established that the larger piece was cocaine. Thus, we held that the evidence was sufficient for the jury to find beyond a reasonable doubt that both pieces were cocaine, and we upheld the defendant’s conviction of selling and possessing cocaine. In the instant case, McDade argues that since no testimony connected the two pieces, the evidence is insufficient to sustain his conviction. We disagree.

The evidence, although circumstantial, was sufficient for the jury to conclude that the substance possessed by McDade was indeed cocaine. We note that McDade conducted his own field testing of the contraband by placing it in his mouth to ensure that it “wasn’t fake.” Afterward, McDade made no attempt to rescind the transaction and kept the rock, for which he had paid $20. Moreover, the piece which tested positive for cocaine was sold to Agent Grindle at the same time. The jury was entitled to infer from these facts that the rock sold to McDade was cocaine. To obtain a conviction based on circumstantial evidence, the state need not exclude every hypothesis; it need exclude only every reasonable hypothesis except the guilt of the accused. OCGA § 24-4-6.

Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused [,] is primarily a question for determination by the jury. . . . It is only where the evidence or a lack of evidence, tested by all human experience, establishes a reasonable hypothesis of innocence, that this Court may declare it so as a matter of law.

(Citation and punctuation omitted.) Ellison v. State, 233 Ga. App. 637, 639 (2) (504 SE2d 779) (1998).

In addition, the evidence was sufficient for the jury to find beyond a reasonable doubt that McDade was in joint constructive possession of the cocaine purchased by Grindle. Proving joint constructive possession requires only a showing that the defendant had the power and intent to exercise control over the contraband. McDade argues that the evidence fails to demonstrate that he had the intent or power to exercise control over the cocaine sold to Grindle. We disagree. Agent Grindle testified, without contradiction, that McDade located the drug seller and asked to purchase $40 worth of crack cocaine. This testimony provides ample evidence from which the jury could find, under the standard set forth in Jackson v. Vir ginia, that McDade intended to exercise control over the cocaine that was ultimately handed to Grindle. Therefore, the trial comí; properly denied McDade’s motion for a directed verdict.

Decided October 2, 2001.

Fox, Chandler, Homans, Hicks & McKinnon, Joseph A. Homans, for appellant.

Lydia J. Sartain, District Attorney, Lindsay H. Messick, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Sanders v. State, 243 Ga. App. 216 (534 SE2d 78) (2000).

       227 Ga. App. 70, 71 (1) (487 SE2d 608) (1997).

        Cooper v. State, 237 Ga. App. 837, 838 (2) (517 SE2d 85) (1999); see generally Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Phipps, Judge.

text:
    A01A2126.
    In the Interest of A. R. G. B., a child.
    (555 SE2d 42)
   Phipps, Judge.

The Toombs County Department of Family & Children Services instituted this proceeding to terminate the rights of the parents of A. R. G. B. and J. L. P. Appellant is the biological father of A. R. G. B. He was seventeen years old when the child was born in November 1995 and resided with the mother for only about six months. Because of a conviction of statutory rape, he was incarcerated in November 1997. He will remain incarcerated until at least November 2002. He has filed this pro se appeal from an order of the Juvenile Court of Toombs County terminating his parental rights. Because he has shown no ground for reversal of the order, we affirm.

1. Appellant first complains that the termination hearing was held in his absence. The record contradicts this assertion. It shows that appellant was present in court at the beginning of the hearing and that he was represented by appointed counsel and testified at the hearing. His rights were in no way violated.*

2. Appellant complains that his parental rights were terminated based in part on the unfounded allegation that he maintained no contact with the child. This complaint is without merit, as the allegation was supported by evidence admitted at the hearing.

3. Appellant’s complaint of ineffective assistance of counsel is without support in the record, as is his complaint that the juvenile court prevented him from filing a petition to legitimate the child. Additionally, the record shows that no psychological tests were administered to appellant because he was not cooperative. Contrary to argument advanced by appellant, the record does show that attempts were made to place the child with certain of his relatives.

Decided October 2, 2001.

J. G., pro se.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Newton, Smith, Durden, Kaufold & Rice, Sherri P. McDonald, Paul K. Cook, for appellee.

4. Appellant’s criminal conviction, his near continuous incarceration during the child’s life, and his failure to comply with reunification case plans both before and during his incarceration provided ample grounds for termination of his parental rights.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See In the Interest of F. L. S., 232 Ga. App. 100 (502 SE2d 256) (1998) (holding that an incarcerated individual does not have a due process right to personally appear at a hearing for termination of his parental rights).

       See OCGA § 15-11-103 (a) (1).

       See In the Interest of C. N. S., 248 Ga. App. 84, 85 (545 SE2d 633) (2001); In the Interest of R. M., 232 Ga. App. 727, 728 (503 SE2d 635) (1998).


text:
    A01A0832.
    UNIPAY, INC. v. LYNK SYSTEMS, INC.
    (555 SE2d 78)
   Andrews, Presiding Judge.

Lynk Systems, Inc. sued Unipay, Inc. f/k/a Smoky Mountain Technologies, Inc. £k/a Novatek Corporation to collect $164,202.54 claimed due for the sale of electronic credit card processing equipment to Unipay on a contract governed by the Uniform Commercial Code. Lynk also sought to recover expenses of litigation pursuant to OCGA § 13-6-11. Unipay appeals from the trial court’s grant of summary judgment to Lynk claiming there was evidence it did not receive all of the equipment sold to it by Lynk, and that this raised factual issues precluding summary judgment. We agree and reverse the grant of summary judgment.

1. In support of its motion for summary judgment, Lynk produced evidence that it agreed to sell and Unipay agreed to buy units of electronic equipment with a total sales price of $164,202.54, that the equipment was delivered to and received by Unipay, and that Unipay owes the entire sales price. During discovery, Unipay admitted that it ordered the equipment at a total price of $164,202.54, that it received a portion of the units of equipment, and that it owes Lynk $90,161.54 of the amount claimed due for the units that it received. As to the $74,041 remaining at issue, Unipay produced evidence that it kept a record of every serial number on each unit of equipment it received from Lynk, and that its records show a portion of the units it ordered from Lynk — units totaling $74,041 of the sales price — were never received. Unipay claimed that boxes containing the equipment shipped by Lynk either never arrived at Unipay or arrived but contained less than the number of units of equipment they were supposed to contain.

We agree with Lynk that Unipay’s evidence regarding its recording of serial numbers on equipment received did not rebut direct evidence produced by Lynk that all the boxes of ordered equipment were shipped to and received by Unipay. However, Unipay’s evidence does create a question of fact as to whether the shipments of ordered equipment contained fewer units than were ordered.

Lynk contends, however, that Unipay is liable for the entire $164,202.54 due on the shipments regardless of whether the shipments delivered less than the number of items of equipment called for by the agreement. Lynk argues that, even if there were shortages in the shipments, this was a nonconforming tender of delivery that was accepted in whole by Unipay pursuant to OCGA §§ 11-2-601 and 11-2-606. Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 440 (419 SE2d 520) (1992). Lynk contends that Unipay’s shortage defense — raised for the first time in response to the suit — was not an effective rejection of the tender of delivery because it was not timely under OCGA § 11-2-602 (1), and it failed as notice of breach under OCGA § 11-2-607 (3) (a) because it was not made within a reasonable time. Id.; Atwood v. Southeast Bedding Co., 226 Ga. App. 50, 53 (485 SE2d 217) (1997). Accordingly, Lynk argued that, because Unipay accepted the tender of delivery with the shortages and made no timely objection, it must pay the entire contract price. The trial court accepted these contentions and granted summary judgment in favor of Lynk on the basis that Unipay was precluded under these UCC provisions from denying liability for the entire amount due.

We agree that, if Lynk delivered less than the quantity of items called for by the contract, this was an underdelivery that was a non-. conforming tender of delivery pursuant to OCGA § 11-2-601. However, Unipay was entitled to view any such underdelivery as an offer by Lynk to sell the quantity of items delivered at the same rate specified for those items in the contract. Anderson, Uniform Commercial Code (3rd ed. 1997), Vol. 4, § 2-601:76. Upon accepting the underdelivery, if any, Unipay would be obligated to pay for the number of items delivered at the rate specified for such items in the contract. Id. at § 2-601:81, 82. Accordingly, questions of fact remain as to whether all of the items ordered were delivered to Unipay. Even if Unipay accepted the alleged underdelivery without timely notifying Lynk of this nonconformity, this did not preclude Unipay from denying liability for the $74,041 claimed due on the items it claims were not delivered.

Decided October 3, 2001.

Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Caroline B. Keller, for appellant.

Arnall, Golden & Gregory, Frank N. White, for appellee.

2. In view of our ruling in Division 1, supra, we also find that a jury must address Lynk’s claim for expenses of litigation pursuant to OCGA § 13-6-11. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (389 SE2d 251) (1989).

Judgment reversed.

Eldridge and Miller, JJ., concur.


author: Smith, Presiding Judge.

text:
    A01A0870.
    FIRST BANCORP MORTGAGE CORPORATION v. GIDDENS et al.
    (555 SE2d 53)
   Smith, Presiding Judge.

After a jury entered a defense verdict for a real estate attorney and his law firm in a legal malpractice suit, First Bancorp Mortgage Corporation (“Bancorp”) filed an unsuccessful motion for new trial. In this appeal, Bancorp contends that the trial court erred by excluding three exhibits, excusing a juror for cause, permitting certain testimony over objection, and directing a verdict on punitive damages. Bancorp also asserts that the trial court erred by instructing the jury on contributory and comparative negligence and by incorrectly responding to a question posed by the jury. We find no error and affirm.

Bancorp is a Virginia corporation that underwrites mortgages, funds them, and then sells them in the secondary market. In October 1996 and November 1996, Bancorp entered into two residential real estate transactions in Atlanta with Louie B. and Doreen Golden and Timothy Aiken, respectively. Shortly thereafter, both the Goldens and Aiken defaulted on their loans. Despite selling both mortgages to another company, Bancorp retained an obligation to pay foreclosure losses occurring in the first 12 months. Richard Arms, the president of Bancorp, described both transactions as being what he termed “flip sales.” In such transactions, the same property is sold twice on the same day or within a very short period with the price in the second sale substantially higher than the first. Arms testified that Bancorp would not have made either loan if he had known they were “flips” and said Bancorp’s combined losses were in excess of $78,000. Arms testified that he absolutely would have expected to be notified of the “flip sales” if his own lawyer had closed both loans.

Bancorp sued the closing attorney, Bobby L. Giddens, and his law firm, Giddens, Davidson & Mitchell, for legal malpractice. The crux of Bancorp’s complaint was that because Giddens had been the closing attorney for both prior sales, he knew, or in the exercise of ordinary care should have known, that the value of the premises was far below the amount of the loan being closed.

In the malpractice affidavit accompanying the complaint, Bancorp’s expert, William E. Duncan, testified that due care requires the lender’s closing attorney to “notify the lender of any discrepancy, abnormality or irregularity.” At trial, Duncan testified that when a flip transaction occurs that the closing attorney knows about, then that attorney has a duty to inform the lender and “let them reevaluate the risk of making a loan.” He testified that Bancorp should have been told about the substantial increases in the sales price of the same property sold within a short time period. In Duncan’s expert opinion, because Giddens had conducted the closings, Giddens was negligent for failing to notify Bancorp that the property securing the loan to the Goldens sold for $17,000 then $65,075 within 15 days and that the property securing the loan to Aiken sold for $30,000 then $77,500 a day later. According to Duncan, a flip transaction puts a person on notice that something may be wrong. But he also conceded that there may occasionally be legitimate reasons for these types of transactions.

Defense expert Pickens Andrew Patterson, Jr. disagreed with Duncan. Patterson testified that the primary responsibilities of a closing attorney are to ensure that good title can be conveyed and that the lender obtains the desired mortgage position. Patterson explained that a closing attorney must follow the written instructions provided by the mortgage lender “to the ‘t.’ ” In his view, a closing attorney does not have a duty to advise of prior sales unless the closing instructions require him to do so. Patterson reviewed both loans at issue, and in his opinion, Giddens followed generally accepted standards of care applicable to attorneys acting under the same or similar circumstances. In Patterson’s expert opinion, a closing attorney does not have a legal duty or a legal responsibility to disclose recent prior sales involving substantial discrepancies in price but agreed that it would “probably” be the “better practice” to inform the lender about such sales. After the jury found for Giddens and his law firm, Bancorp appealed.

1. The trial court did not err in excluding three exhibits that consisted of other lawsuits filed by other mortgage lenders against Giddens and his law firm alleging essentially the same closing practices. These lawsuits alleged “flip sales” that Giddens had purportedly handled to the detriment of his clients. One complaint alleged that Giddens had committed fraud and engaged in a pattern of racketeering activity. The other alleged that Giddens had committed fraud, conspiracy to defraud, racketeering, and deception. Both complaints were supported by expert testimony to the effect that Giddens and his law firm had breached their duty of care in conducting closing and post-closing proceedings. Bancorp sought to offer this evidence for the limited purpose of showing a continuing course of conduct to support its claim for punitive damages.

In suits for negligence, “[s]imilar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time or place. [Cit.]” Skil Corp. v. Lugsdin, 168 Ga. App. 754-755 (1) (309 SE2d 921) (1983); see Genins v. Geiger, 144 Ga. App. 244, 248 (6) (240 SE2d 745) (1977). Nevertheless, such evidence may under certain limited circumstances be admissible to establish, among other things, a course of conduct or bad faith. Kent v. A. O. White, Jr., Consulting Engineer, P.C., 238 Ga. App. 792, 794-795 (2) (520 SE2d 481) (1999); see Candler v. Davis & Upchurch, 204 Ga. App. 167, 169 (3) (419 SE2d 69) (1992). Or, when the question of malice or wanton misconduct enters into play, such proof may then be permitted. See Gunthorpe v. Daniels, 150 Ga. App. 113, 114-115 (3) (257 SE2d 199) (1979). But, even under these exceptions, the evidence must not only be relevant but must also be examined to ensure that it will not confuse the issues or present a potential for undue prejudice or unfair surprise. Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526, 527 (1) (428 SE2d 431) (1993). In exercising its discretion in determining the admissibility of evidence, the trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or misleading the jury. Goss v. Total Chipping, 220 Ga. App. 643, 644 (2) (a) (469 SE2d 855) (1996). Here, admitting information about the other lawsuits targeting Giddens and his law firm would likely have engendered a substantial risk of creating undue prejudice or confusion, especially since the lawsuits involved unrelated transactions and the plaintiffs were other mortgage lenders using different closing instructions and different procedures. In these circumstances, we cannot say that the trial court abused its discretion in excluding these exhibits. See Webster v. Boyett, 269 Ga. 191, 195-196 (1) (496 SE2d 459) (1998).

2. The trial court did not abuse its discretion in excusing a juror for cause. Whether a prospective juror can decide the case in accordance with the evidence presented and without bias, partiality, or outside influences is a discretionary matter for the trial court to decide. Grady Tractor Co. v. First Nat. Bank &c., 213 Ga. App. 663, 664 (1) (446 SE2d 228) (1994). Here, after juror number 18 revealed that her husband had an unrelated lawsuit pending against Giddens, the trial court agreed to excuse her. The trial court felt that the prospective juror had been properly challenged for cause because she had a potential financial interest in the outcome of this case. No manifest abuse of discretion has been shown in the excusal of this juror. See Page v. Janko, 200 Ga. App. 547, 548 (1) (409 SE2d 48) (1991).

3. Bancorp claims that the trial court erred in permitting its president, Arms, to respond over objection to . two questions about closing practices. It claims that evidence about the course of conduct between Bancorp and other attorneys was inadmissible. We disagree.

The crux of the malpractice case was whether Giddens breached a duty to Bancorp by failing to report the flip sales. During cross-examination, Arms conceded that Giddens complied with his written closing instructions and that Bancorp received good title to the property and valid first liens. Arms also admitted that nothing in the closing instructions required Giddens to disclose to Bancorp any prior sales. After Arms testified that Bancorp had used three different attorneys to close loans originated by the same broker involved in these two closings, Arms was asked if the other closing attorneys had reported to Bancorp any prior sales. Over objection, Arms admitted that these other attorneys did not report the flip sales to him. The inquiry then broadened: “And, in fact, isn’t it true that as of May of 1999, no closing attorney that had ever closed loans for First Bancorp Mortgage Corporation has ever reported prior flip sales to you prior to closing the transaction?” After conceding that point, again over objection, Arms acknowledged that none of the six flip sales in Atlanta, the two in Washington, D.C., or the one in Maryland had been reported to Bancorp by the closing attorneys.

As the plaintiff in the legal malpractice action, Bancorp had to establish as part of its case the standard of care that a closing attorney owes to a lender. Conversely, Giddens had the right to present evidence about customary practices and procedures used by other closing attorneys, including those whom Bancorp had employed. Moreover, since Bancorp was seeking punitive damages, the evidence was relevant to the issue of whether Giddens’s failure to report the flip sales was so grossly an aberration from standard practice as to constitute wilful misconduct or such an entire want of care as would raise the presumption of conscious indifference to consequences. See OCGA § 51-12-5.1.

4. The trial court did not err by directing a verdict on the issue of punitive damages. Ordinarily, the question of punitive damages lies within the exclusive province of the jury. Read v. Benedict, 200 Ga. App. 4, 7 (2) (406 SE2d 488) (1991). But absent. any evidence to support such an award, the trial court may properly, as here, direct a verdict. See Harris v. Leader, 231 Ga. App. 709, 712 (1) (499 SE2d 374) (1998); Ross v. Hagler, 209 Ga. App. 201, 204 (3) (433 SE2d 124) (1993).

5. Bancorp maintains that the record is devoid of evidence to support the jury instructions on contributory and comparative negligence.

When there is any evidence upon a particular issue, the trial court may properly charge the law applying to that issue. Oxford v. Upson County Hosp., 211 Ga. App. 59, 60 (438 SE2d 171) (1993). Moreover, the defenses of contributory and comparative negligence when supported by evidence may be raised in a professional malpractice case. See Ferro v. Boswell, 242 Ga. App. 634, 636 (3) (530 SE2d 533) (2000). Here, the evidence showed that it was Bancorp, not Giddens, who hired the real estate broker and trusted her to hire the appraiser. While it appears that this broker and the appraiser may have defrauded Bancorp, no evidence suggested that Giddens colluded with them. Arms admitted that Bancorp could have included in its closing instructions a requirement to report prior or recent sales, but did not do so. Although the title report in one transaction reflected a recent sale, Bancorp made no further inquiry. The trial court did not err in giving these instructions to the jury. See Ferro, supra.

6. Bancorp contends that a new trial is mandated because the trial court invaded the province of the jury in responding to a jury question about the meaning of malpractice. Bancorp claims that in recharging the jury the trial court expressed an opinion that the failure to use “the better practice” of advising the lender about recent sales did not constitute malpractice.

After commencing deliberations, the jury posed three questions to the court. The jury requested and received a recharge on “a legal definition for malpractice.” Another jury question inquired, “Is the phrase, ‘better practice’ (as was stated by Mr. Patterson) a legal term and is the omission of it synonymous or related to the act of‘malpractice’?” The trial court responded, “No, it is not synonymous with malpractice, and you should apply the definition of malpractice as given to you in the charge by this court in your deliberations in this case.”

Decided October 3, 2001.

Gregg Loomis, for appellant.

Pursley, Howell, Lowery & Meeks, John R. Lowery, for appellees.

In a legal malpractice case, in addition to proving the employment of the defendant attorney, the plaintiff must establish the failure of the attorney to exercise ordinary care, skill, and diligence and must prove such negligence proximately caused the plaintiff’s damages. Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985). As to the element of “ordinary care, skill and diligence . . . the law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.” (Citations, punctuation and emphasis omitted.) Allen v. Lefkoff, Duncan, Grimes & Dermer, 265 Ga. 374, 375 (2) (a) (453 SE2d 719) (1995). The breach of duty in a legal malpractice case “must relate directly to the duty of the attorney, that is, the duty to perform the task for which he was employed.” (Emphasis in original.) Tante v. Herring, 264 Ga. 694, 695 (1) (453 SE2d 686) (1994).

A jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law. Langston v. State, 208 Ga. App. 175, 177 (430 SE2d 365) (1993). But, in this context, the phrase “better practice” does not mean the same thing as the term “malpractice.” See, e.g., McClenton v. Zant, 247 Ga. 554 (277 SE2d 501) (1981) (failure to follow the “better practice” does not foreclose finding that trial counsel’s performance was reasonably effective). The issue is not what conduct might constitute “better practice” but what degree of skill and care is ordinarily used by other closing attorneys in similar situations. See Allen, supra. Although Bancorp complains that the trial court’s response to the query eviscerated its case, the dispositive issue of whether Giddens had failed to exercise the requisite degree of professional skill, care, and diligence by not notifying Bancorp about the two flip sales remained for the jury to decide.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Unknown to the jury and apparently to Bancorp or Giddens, the broker and the professional appraiser employed by Bancorp had allegedly falsified bank records and employment histories in other transactions. Evidence that this broker was under indictment for involvement in a “flip scheme” in the local real estate market was excluded from this trial.

       During his deposition, Aiken steadfastly refused to answer questions about his loan obtained from Bancorp, repeatedly invoking his privilege against self-incrimination.