text:
    A89A0343.
    A89A0344.
    McBROOM et al. v. GEORGIA POWER COMPANY. COX et al. v. GEORGIA POWER COMPANY.
    (383 SE2d 634)
   Pope, Judge.

Appellee Georgia Power Company initiated a condemnation action to obtain an easement of right-of-way across portions of appellant Cox’s and appellant McBroom’s property (hereinafter appellants), under the “Special Master Act,” OCGA § 22-2-100 et seq. The superior court appointed a special master and, following a hearing in March 1988, the special master entered his award recommending that a judgment be entered in favor of appellants or that the case be remanded to a special master for the purpose of determining whether appellee had demonstrated public use and necessity by a preponderance of the evidence.

Appellee filed exceptions to the special master’s award on March 23, 1988. On May 5, 1988 the superior court entered an order rejecting the recommendations of the special master, finding the award to be incomplete and contrary to Georgia laws of eminent domain, relieving the special master from further involvement in the proceedings and setting a date for a second hearing to be conducted before a newly appointed special master. Appellants then filed exceptions to the May 5 order. On May 23, 1988, the special master appointed in the court’s May 5 order entered an award ruling on appellants’ non-value issues and assessing a value as to the interest taken as to each appellant. Appellants filed exceptions to this award; on August 25, 1988, the superior court entered an order finding appellants’ exceptions to be without merit and affirming the award of the second special master. The August order was amended by a slight change of wording on September 12, 1988. We have consolidated appellants’ appeals for review by this court.

1. In their first, second, fifth and sixth enumerations of error, appellants challenge the trial court’s order of May 5, 1988, in which it removed the first special master and appointed a new second master to determine the just and adequate compensation of the property taken. Although it is true, as appellants argue, that once exceptions are filed to the award of the special master, the trial court is required to conduct de novo proceedings to readjudicate objections raised to issues of law erroneously decided by the special master, see Wrege v. Cobb County, 186 Ga. App. 512 (2) (367 SE2d 817) (1988), in the case at bar the trial court found that the special master failed to apply the Georgia law relating to condemnation proceedings, and found the award of the special master to be “incomplete” based on the failure of the special master to determine the just and adequate compensation of the property or interest taken. Under these circumstances, we find no error in the recommittal of the action to a new special master for proceedings consistent with OCGA § 22-2-100 et seq. See also OCGA §§ 22-2-103; 22-2-108. Moreover, contrary to appellants’ fourth enumeration of error, the trial court’s order scheduling a new hearing did not constitute an impermissible continuance in violation of OCGA § | 22-2-108. I

2. In their third enumeration of error appellants contend that 11 the appellee was required to file an appeal to the superior court con-g cerning value issues as required by OCGA § 22-2-112. However, inas-i much as the first special master did not enter an award on the value H of the property or interest taken, we fail to see any error in the appel-1 lee’s failure to file an appeal as to the amount of the award. H

3. We find no error in the trial court’s order of August 25, 1988, S finding appellants’ exceptions to the award to be without merit.

Decided June 22, 1989.

McCollum & Rawlins, Elliott P. McCollum, Jr., for appellants.

B. Thomas Conger, Donald W. Janney, for appellee.

4. In addition to their general enumeration assigning error to the trial court’s finding that their exceptions were without merit, appellants also specifically enumerate as error the overruling of their objection to the testimony of an engineer for appellee who stated that the condemnation was authorized by appellee. Appellants contend that copies of the corporate resolutions of appellee authorizing the condemnation should have been introduced into evidence. Although appellants conceded in the proceedings below that they are not contesting the right of appellee to condemn the property in question, they nevertheless argue that appellee was required to file its corporate resolution authorizing the condemnation. We disagree. The petition filed by appellee pursuant to OCGA § 22-2-102, which was signed by a company vice-president and a “supervisory” employee, recited that the petition was brought pursuant to the corporate authority granted by appellee’s Board of Directors and the provisions of Georgia law. There being nothing in the record to suggest that appellee acted in excess of that authority in bringing this condemnation action, we find no merit to appellants’ final enumeration.

Judgments affirmed.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A0495.
    HARGROVE v. JENKINS.
    (383 SE2d 636)
   Beasley, Judge.

Defendant Hargrove, a purchaser of real property from John Hancock Insurance Company, appeals from summary judgment to Jenkins, who purportedly purchased a shed on the property from the same seller. Jenkins sued in trover for the shed claiming title by sale on March 17, 1987. He alleged that on April 20 of that year John Hancock sold the land to Hargrove after notifying him of the sale of the shed, and that despite Hargrove’s knowledge of Jenkins’ ownership he refused to deliver the shed to Jenkins after repeated demands. The complaint sought possession of the shed plus lost profits and hire. Following discovery, Jenkins moved for summary judgment.

From the depositions of the two parties it appeared that Jenkins had inquired about purchasing the shed in January. Jenkins said he told Hargrove about this and that John Hancock was interested in selling the land as well.

On March 2 Hargrove and John Hancock executed a contract for the purchase of the parcel. Two weeks later John Hancock received Jenkins’ $1,000 check for the shed. The land sale closed on April 20. Neither the real estate sales contract nor the deed excluded the shed from the sale of the land or mentioned it.

Hargrove, Jenkins’ housemate, related that a couple of days either before or after the real estate sales contract, Jenkins told him he was going to buy the shed and he told Jenkins the shed was left off the contract and “I assumed it was mine because it wasn’t excluded from my contract.” He admitted that he understood that John Hancock was “going to sell the tin” to Jenkins, but maintained that he was never informed that a sale had taken place.

The position of the two parties is this: Hargrove contends that jury questions remain as to whether the shed was severed from the realty and passed to Jenkins or whether it constituted a fixture and passed as realty. Jenkins contends that the intent of the parties to the contract controls and that his intent and that of John Hancock to sell the shed as personalty is conclusively shown.

Georgia law provides that “realty” or “real estate” includes lands and buildings thereon and all things permanently attached to lands and buildings. OCGA § 44-1-2 (1 & 2). Wright v. DuBignon, 114 Ga. 765, 768 (1) (40 SE 747) (1901). Trover will not lie to recover a building, considered as realty, which has not become personalty by being detached from the land. Schrampfer v. Lindal Cedar Homes of Ga., 118 Ga. App. 92 (1) (162 SE2d 806) (1968). The term “fixtures” embraces all those chattels which by reason of their annexation to land partake both of the nature of personalty and realty, irrespective of whether they are removable. Slater v. Dowd, 79 Ga. App. 272, 274 (53 SE2d 598) (1949). OCGA § 44-1-6 (a). It is within the power of the vendor to detach fixtures before sale, or to reserve them by contract or deed. If he does not, the strict rule of the common law obtains and all fixtures actually or constructively annexed to the realty pass by conveyance of the freehold although it may describe only the land. Wolff v. Sampson, 123 Ga. 400 (1) (51 SE 335) (1905); Pindar, Georgia Real Estate Law, § 10-13. In Brigham v. Overstreet, 128 Ga. 447 (1) & (2) (57 SE 484) (1907), the court found a sugar-cane mill to be realty.

Where an item is attached to the land it becomes a part thereof and would ordinarily pass in a conveyance of the land. “ ‘Whether certain articles annexed to the realty shall pass by conveyance or not, as between grantor and grantee, may' be controlled by the agreement of the parties.’ ” Power v. Garrison, 141 Ga. 429, 433 (81 SE 225) (1913). The parties may, by an extrinsic and collateral agreement to the instrument of conveyance, treat such articles as personalty or realty. Id. at 432.

Decided June 22, 1989.

George W. Fryhofer, for appellant.

R. Hubert Reeves III, for appellee.

“[A]side from the general rule of physical attachment and remov-ability, the intent of the parties is to be considered when deciding issues of the law of fixtures.” Babson Credit Plan v. Cordele &c. Assn., 146 Ga. App. 266, 268 (246 SE2d 354) (1978). See OCGA § 44-1-6. “[W]here there is a contract by the express or implied terms of which such fixtures are to be considered as personalty they will be so treated.” Wofford Oil Co. v. Weems-Fuller Co., 166 Ga. 173, 175 (3) (142 SE 887) (1928).

John Hancock exhibited contrary expressions of intent and an issue remains whether the property was reserved by the vendor with the consent of the vendee of the realty. So, the issue is one of fact to be determined by the jury. Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125, 129 (2) (286 SE2d 448) (1981); Sawyer v. Foremost Dairy Prods., 176 Ga. 854 (2) (169 SE 115) (1933).

Although one may contract to sell fixtures without severance, they are still part of the land and as real property interests cannot be defeated by such contracts. A buyer of fixtures intended to be severed would have to protect his rights by executing the sales contract as an instrument transferring interest in land. 12 EGL 366, Fixtures, § 23 (1977 Rev.), citing Brown, Personal Property, § 142 (a).

The sequence here is a real property sales contract for the land, followed by an oral contract for sale of the shed and execution to the extent that consideration passed but the property was not severed, and then the consummation of the real property sale. The evidence does not demand a finding as to what the selling party intended as to both sales and that a valid sale of the shelter as personalty had been completed before and to the exclusion of the real estate sale. See Schrampfer, supra. Nor does the proof conclusively show just what knowledge the parties possessed and precisely at what point such knowledge was acquired by each buyer. See Powell v. Harris, 39 Ga. App. 295 (147 SE 189) (1928).

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur.


author: Banke, Presiding Judge.

text:
    A89A0525.
    KELLEY v. HORN.
    (383 SE2d 638)
   Banke, Presiding Judge.

While travelling on 1-75 just south of Atlanta, the appellee’s decedent, Benita Horn, was struck head-on and killed by the appellant’s decedent, Glenn Ford Rives, who was driving on the wrong side of the highway and was also killed in the collision. Acting in her own behalf and as executrix of Ms. Horn’s estate, Ms. Horn’s mother, Ola Mae Horn, brought the present action against Lucille Kelley, as executrix of Rives’ estate, to recover damages for Rives’ negligence. A jury returned a verdict in favor of Ms. Horn in the amount of $650,000, and Ms. Kelley filed this appeal. Held:

1. During the trial, the appellee called as a witness an individual who, some six weeks prior to the collision, had assisted Rives in reclaiming his automobile from the Macon Police Department following an incident in which Rives had become disoriented while driving in that city. This witness testified that Rives had told him following this incident “that he was blocking traffic and . . . didn’t know exactly where he was.” The appellant contends that the trial court erred in not allowing her counsel to ask this witness the following question on cross-examination: “[N]ow, the reason he was blocking traffic was, primarily, because he was confused and disoriented; is that right?” The trial court sustained an objection to this question by the appellee on the ground that it called for speculation and conclusion on the part of the witness.

The court’s ruling was correct. The witness had not been present at the scene of the incident in question and thus could not have had any first-hand knowledge of the reason Rives was blocking traffic. His relevant knowledge in this connection was thus limited to what Rives had told him. See generally OCGA § 24-3-8. Furthermore, the court’s ruling would appear to have been harmless to the appellant, for it is evident both from the form of the question and from the testimony which had already been offered by the witness that appellant’s counsel was anticipating a positive response to the question; and it has not been suggested how such a response could possibly have been beneficial to the appellant’s cause.

2. The appellant enumerates as error the trial court’s refusal to charge the first sentence of OCGA § 51-11-7, as follows: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Not only did the appellant fail to object to the court’s failure to give this requested instruction, he conceded, while interposing a different objection to the court’s charge, that there was no evidence to support it. In fact, he asked the court at this time to instruct the jury that the appellant was not asserting the defense of avoidance, stating: “The court also said that we contend that the plaintiff could have avoided the collision, and really there is no evidence of that. And, in fact, the court, we offered that as a charge and the court didn’t charge that. So that’s not really a contention that we are making in the case now, and we would respectfully ask the court to instruct the jury that we are not making those contentions in this case.” Under the circumstances, the trial court quite obviously did not err in failing to give the requested charge.

Decided June 22, 1989.

John L. Hammaker, Charles W. Smith, Jr., for appellant.

McLain & Merritt, Albert J. Decusati, for appellee.

3. Nor did the court err in charging the jury that Rives could be considered guilty of negligence per se if it were determined that he had been driving on the wrong side of a divided highway, in violation of OCGA § 40-6-50. Contrary to the appellant’s contention on appeal, the trial court did not suggest to the jury that the mere showing of such a violation would be sufficient in and of itself to establish liability on the part of the appellant. Rather, the court specifically instructed the jury tliat it was also necessary to show that the alleged unlawful act was “the proximate cause of the injury or damage claimed to have been sustained.” Compare Griffin v. Odum, 108 Ga. App. 572 (2) (133 SE2d 910) (1963).

4. The verdict was authorized by the evidence.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Benham, Judge.

text:
    A89A0559.
    REDDING v. THE STATE.
    (383 SE2d 640)
   Benham, Judge.

We granted appellant’s petition for interlocutory review of the denial of his motion to suppress evidence that he committed burglary, rape, and aggravated sodomy. Appellant contends that the evidence, samples of his hair and blood, which link him to the crime scene and victim, was obtained as a result of a search warrant issued without probable cause because it was based on misrepresentations to the issuing magistrate, and that it was illegally executed. OCGA § 17-5-30.

It is undisputed that in preparing the affidavit in support of the search warrant, the affiant, Detective Rosser, made false statements and omitted certain facts about the victim’s statements concerning appellant, and about appellant himself. For example, the detective stated that the victim said her attacker had a scar in the groin-abdomen area; actually, she referred to it as a one-half inch healed wound a few inches above the hip. He also stated that “when [the victim] observed a photograph of [appellant], she stated that he looked similar to her assaulter.” In fact, the detective had previously stated in his own report that when the victim saw appellant’s photograph in the photo lineup, she stated that he resembled her attacker, “but it was not him.” The trial court, following the standard set out in Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978) (see, e.g., Nutter v. State, 162 Ga. App. 349 (291 SE2d 423) (1982)), found that the latter statement contained in the affidavit was knowingly false or made with reckless disregard for the truth, and so it excised the false statement but found that the remaining content of the affidavit was sufficient to establish probable cause. See Kelly v. State, 184 Ga. App. 337 (1) (361 SE2d 659) (1987). Compare Daniels v. State, 183 Ga. App. 651, 652 (359 SE2d 735) (1987).

In addition to the misstatements of fact that were made in the affidavit, appellant points to certain omissions that he claims were material, and argues that the Franks reasoning should be extended to those material omissions. In other words, in reviewing the sufficiency of the affidavit, the omitted material statements or information should be added to the affidavit to determine whether the warrant would still be supported by probable cause. See, e.g., United States v. Ippolito, 774 F2d 1482 (9th Cir. 1985). The majority of courts that have ruled on this question, one of first impression in our state, have taken this approach. We have previously intimated that exculpatory material is not required to be included in an ex parte application for a search warrant if no misconduct on the affiant’s part has occurred. Hayes v. State, 182 Ga. App. 319 (1) (355 SE2d 700) (1987). Courts in other jurisdictions have interpreted Franks as meaning that “the proper procedure is to strike statements which have material omissions and then consider only the remaining affidavit,” e.g., United States v. Burke, 490 FSupp. 855 (D. Fla. 1980). Following the approach taken in the latter jurisdictions, and relying in part on Hayes, the trial court refused to consider “other exculpatory information known to the affiant when making out the warrant (such as the fact that on two other occasions the victim had failed to identify [appellant] as her assailant)” and “exclude[d] all material statements which are either false as stated or misleading because they omit certain facts. . . .” As a result, the trial court concluded that appellant’s motion to suppress should be denied.

After review of the case law and policy considerations, we adopt the interpretation of Franks utilized by the majority of courts, i.e., that the false statements be deleted, the omitted truthful material be included, and the affidavit be reexamined to determine whether probable cause exists to issue a warrant. United States v. Ippolito, supra, fn. 1. We reach this conclusion in the interest of (1) discovery of the truth; (2) protection of individual and societal rights; and- (3) assurance of proper conduct by law enforcement officers. Therefore, the trial court is instructed to review the reformed affidavit in accordance with this opinion, and to reconsider appellant’s suppression motion in light of the reformation.

Decided June 22, 1989.

Stephen T. Maples, Gregory N. Crawford, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

Case remanded with direction.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0735.
    A89A0736.
    A89A0737.
    WEITZEL et al. v. GRIFFIN & ASSOCIATES. WEITZEL et al. v. FRIEDLANDER et al. WEITZEL et al. v. MOULTRIE INSURANCE AGENCY.
    (383 SE2d 653)
   Beasley, Judge.

These cases involve three actions brought in Colquitt County by various creditors against six members of a joint venture which operates a business in Moultrie. Two members of the joint venture reside in Texas and were brought in under the long arm statute, OCGA § 9-10-91, which permits the exercise of personal jurisdiction over nonresidents who transact any business within this state. Two members reside in Henry County and two in Clayton County. In each suit, these four were brought in as joint obligors to a contractual debt.

The four members of the venture who were not residents of Col-quitt County moved to transfer the cases to Clayton County. See 1983 Ga. Constitution, Art. VI, Sec. I, Par. VIII. The trial court denied these motions, citing OCGA § 9-10-91 and Nelson Assoc. v. Grubbs, 135 Ga. App. 947 (219 SE2d 607) (1975). The aggrieved movants sought and were granted interlocutory review of the orders.

Nelson Assoc, held that a nonresident limited partnership which owned land in a Georgia county could be sued in that county even though the general partner resided in another county, under what is now OCGA § 9-10-91 and the equivalent of our present constitutional provision relating to venue of joint obligors (Ga. Const. 1983, Art. VI, Sec. II, Par. IV). It provides that suits against joint obligors residing in different counties may be tried in either county. Our Supreme Court has limited Nelson in Bergen v. Martindale-Hubbell, 245 Ga. 742 (267 SE2d 10) (1980), which held that, with regard to a nonresident entity which does business in a county, the long arm statute does not declare it to be a resident of the county in which it does business, within the meaning of the constitutional venue provision. The latter “only comes into play when two resident defendants are involved.” Id. at 743. Thus, as to the resident joint defendants, suit was not proper in the county where the business of the non-resident was transacted but had to be brought in the county where they resided. The Texans were not “residents” for venue purposes and “nonresidents” for long-arm purposes; they were simply nonresidents.

Decided June 22, 1989.

Kirbo & McCalley, William C. McCalley, for appellants.

Billy G. Fallin, for appellees.

Judgments reversed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A0748.
    KOULIANOS v. THE STATE.
    (383 SE2d 642)
   Benham, Judge.

Appellant was convicted of driving under the influence of alcohol. His appeal presents four enumerations of error, none of which we find meritorious. Therefore, we affirm the judgment of conviction.

1. Appellant contends that the trial court erred in denying his motion in limine to suppress the intoximeter test results. The hearing on appellant’s motion was not taken down, and where the record is incomplete, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). Page v. State, 159 Ga. App. 344 (6) (283 SE2d 310) (1981). In the absence of a transcript, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s findings. Brannon v. State, 176 Ga. App. 781 (5) (337 SE2d 782) (1985).

2. The first intoximeter test result introduced into evidence showed appellant as having a .13 grams percent blood alcohol level. A second test showed appellant’s level as being .11 grams percent. He complains that the second test result was inadmissible because a proper foundation had not been laid, i.e., there was no proof-that the officer who performed the second test was licensed to do so. We disagree. The record shows that the officer testified that he was a licensed intoximeter operator and that he performed the test in accordance with what he had been taught. Although the officer did not specifically state that he was licensed at the time he performed the test, the copy of the test result printout showed his name and operator permit number. The foundation was sufficient to show that the operator was certified by the State at the time of testing, so the admission of the second test result was proper. Wallace v. State, 188 Ga. App. 77 (4) (371 SE2d 914) (1988).

Decided June 22, 1989.

Davis, Sissel & Williams, Warren P. Davis, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Richard R. Read, Assistant Solicitors, for appellee.

3. The trial court charged the jury that if a person has .12 percent or more by weight of alcohol in his blood while he is driving, that person shall be in violation of Georgia law. Appellant claims that such a charge impermissibly shifts the burden of proof to the defendant. “Appellant’s argument was answered adversely to appellant by the Supreme Court in Lester v. State, 253 Ga. 235 (2) (320 SE2d 142) (1984).” Turrentine v. State, 176 Ga. App. 145 (2) (335 SE2d 630) (1985). The charge, derived from OCGA § 40-6-391 (a) (4) and OCGA § 40-6-392 (b) (4), created no such presumption but merely proscribed driving with a blood alcohol level of 12 percent. Cunningham v. State, 255 Ga. 35 (1) (334 SE2d 656) (1985).

4. The trial court declined to give appellant’s requested charge on his right to undergo an additional test under OCGA § 40-6-392 (a) (3). This omission is cited as error, but we find none. Appellant previously had moved the trial court to suppress the test results based on his contention that he was denied the right to an independent test of his own choosing. See Division 1 of this opinion. The conflict over that question was properly resolved by the trial court in favor of the State, and we find no reason to reverse it. Curtis v. State, 182 Ga. App. 388 (2) (355 SE2d 741) (1987).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    A89A0891.
    DURHAM v. THE STATE.
    (383 SE2d 654)
   Sognier, Judge.

Ronnie Benjamin Durham was convicted of criminal solicitation to commit murder, and he filed this appeal.

Appellant’s sole enumeration of error is that the trial court erred by failing to charge, absent a request, that once appellant established a prima facie case of coercion, the State had the burden of proving beyond a reasonable doubt that appellant was not coerced into committing the charged crime. We do not agree. The record reveals that the trial court gave a thorough charge on the definition of coercion, which was taken verbatim from the request to charge appellant did file. The court also charged the jury on the presumption of innocence and the State’s burden of proof as to each element of the crime, and stated further that appellant had “no burden of proof, nor burden of persuasion in this case whatsoever.” Taken as a whole the court’s charge fully and fairly presented appellant’s case and theories to the jury. See Mallory v. State, 166 Ga. App. 812, 814-815 (3) (305 SE2d 656) (1983). Contrary to appellant’s contentions, this is not a case in which “ ‘the [enumerated] omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence, (cits.)’ [cits.]” Laney v. State, 184 Ga. App. 463, 467 (361 SE2d 841) (1987), and thus appellant is not relieved from the necessity of requesting an instruction at trial as a prerequisite to challenging its omission on appeal. Compare id. at 466-467 (2). Accordingly, we find no merit in appellant’s appeal. See generally Mallory, supra at 815.

Decided June 22, 1989.

The Garland Firm, Donald F. Samuel, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1000.
    REHCO CORPORATION v. CALIFORNIA PIZZA KITCHEN, INC.
    (383 SE2d 643)
   Sognier, Judge.

Rehco Corporation, a California manufacturer and installer of restaurant equipment and fixtures, brought suit against California Pizza Kitchen, Inc. (CPK) to recover payment under a contract to equip and furnish an Atlanta restaurant owned by CPK. CPK answered, alleging, inter alia, Rehco’s noncompliance with the Nonresident Contractors Act (the Act), OCGA § 48-13-30 et seq., and moved for summary judgment. The trial court granted CPK’s motion for summary judgment and Rehco appeals.

OCGÁ § 48-13-31 provides that “[e]ach nonresident contractor desiring to engage in the business of contracting in this state shall register with the commissioner for each contract when the total contract price or compensation to be received amounts to more than $10,000.00 and shall report to the commissioner . . . with respect to the tax liability of the contractor pursuant to the business including, but not limited to, liability under [The Employment Security Law.]” Other pertinent provisions of the Act provide that “[b]efore entering into the performance of any contract the total price of which or the total compensation to be received by the [nonresident] contractor from which amounts to more than $10,000.00, the contractor shall execute and file with the commissioner a good and valid bond . . . ,” OCGA § 48-13-32 (a), that “[t]he execution and filing of the bond . . . shall be a condition precedent to commencing work on any contract in this state,”.OCGA § 48-13-32 (b), and that “[n]o contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.” OCGA § 48-13-37.

It is uncontroverted that appellant is a nonresident corporation, that it did not register or file a nonresident tax bond, and that the total compensation contemplated by the contract in issue here is greater than $10,000. Nevertheless, appellant contends the trial court erred by granting summary judgment to appellee because appellant was not subject to the Act and thus was not barred by OCGA § 48-13-37 from bringing this action.

Although we find appealing appellant’s argument that because the Supreme Court has held that the Act’s intent and principal purpose is “to require that a bond be posted to insure payment of unemployment contributions which are the responsibility of the contractor,” Gorrell v. Fowler, 248 Ga. 801, 803 (5) (286 SE2d 13) (1982), a contractor like itself which incurs no liability to the State of Georgia under the Employment Security Law should be exempt from the harsh penalty for failure to comply with the Act, we are constrained by the language employed in the statute to disagree. While the intent of the legislature is the fundamental factor in statutory construction, “ ‘where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. (Cit.)’ [Cit.]” Williamson v. Lucas, 171 Ga. App. 695, 697 (320 SE2d 800) (1984). We find the words of the legislature plain and unequivocal. OCGA § 48-13-30 defines the term “contractor” broadly as “any person engaged in the business of constructing, altering, repairing, dismantling, or demolishing . . . every . . . type of structure, project, development, or improvement coming within the definition of real property or personal property ...” and the record before us is clear that appellant’s activities are encompassed in this expansive category. Further, the Act specifically provides that it applies to “each nonresident contractor” based on the contract price, OCGA § 48-13-31, and without regard to any revenue liability the contractor may incur to the State. Thus although the Supreme Court in Gorrell, supra, identified the primary purpose of the statute, to construe the Act as addressing solely that one purpose would be to render meaningless or mere sur-plusage much of the language in the Act, a construction we cannot accept. See generally Lovett Sports v. Atlantic Exhibit Svcs., 178 Ga. App. 278, 280 (342 SE2d 726) (1986).

Accordingly, we agree with that portion of the trial court’s ruling which holds that in the present posture of this case, appellant may not maintain this action in the courts of Georgia. See Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481 (379 SE2d 6) (1989).

However, although the trial court was correct in concluding that appellant is presently foreclosed from utilizing Georgia courts to pursue this action, “the judgment was incorrect insofar as it was styled as the grant of a summary judgment rather than as the grant of a motion to dismiss. As we have stated, compliance with [the Act] is a condition precedent to filing suit [on the contract in Georgia]; however, we view the [bar imposed by OCGA § 48-13-37] as a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. [Cit.] Summary judgment motions contemplate a judgment on the merits of the case and cannot be properly utilized to raise matters in abatement. [Cit.]” Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653) (1983). Despite the involuntary nature of a dismissal based on OCGA § 48-13-37, such a dismissal is in the nature of a dismissal for lack of subject matter jurisdiction and not on the merits, and OCGA § 9-11-41 (b) is not applicable. See National &c. Corp. v. Mt. Olive &c. Inc., 244 Ga. 240, 242 (260 SE2d 1) (1979); accord Jones, supra at 810; Taco Bell, supra at_Were we to hold otherwise, our decision would result in the permanent forfeiture of appellant’s right to compensation. It is well established that [forfeitures are not favored, and courts incline against them.’” Sale v. Leachman, 218 Ga. 834, 837 (1) (131 SE2d 185) (1963).

Although we intimate no opinion on the matter because the issue is not presently before us for decision, we note that Georgia courts have held that forum-closing statutes such as OCGA § 48-13-37 do not bar the refiling of an action once the condition precedent has been satisfied. (See Jones, supra, where this court held that plaintiff’s failure to give the ante litem notice to a municipality required by OCGA § 36-33-5 necessitated dismissal of the action, but that the suit could be refiled should the notice requirement be satisfied subsequently. See also National &c. Corp., supra, where a similar result was reached by the Supreme Court when the dismissal was based on a plea of res judicata but, although summary judgment had been granted in the prior suit, it was not granted on the merits and therefore had not properly been a summary judgment.)

“In cases where the merits could not have been reached because of the failure of the plaintiff to satisfy a precondition, the appropriate action is dismissal of the case on motion. Such a dismissal should be without prejudice, [cit.], and, having no res judicata effect, would not bar the filing of another suit. [Cit.] We, therefore, reverse and remand the case for further action not inconsistent with this opinion. [Cit.]” Jones, supra at 810.

Decided June 22, 1989.

F. Carter Tate, for appellant.

Phillips, Hinchey & Reid, Robert L. Crewdson, for appellee.

Judgment reversed and case remanded with direction.

Banke, P. J., and Pope, J., concur.


text:
    A89A1014, A89A1016.
    A89A1015.
    KELLEY v. FOSTER et al. (two cases). KELLEY v. BUGGS.
    (383 SE2d 646)
   Sognier, Judge.

Gloria Foster, individually and as the representative of the estate of Tedrick Devon Foster; Leslie Buggs; and Jacqueline Foster, individually and as the representative of the estate of Samuel Lewis Foster, brought suit against Lucille Kelley, executrix of the estate of Glenn Ford Rives, seeking damages resulting from an automobile collision. Buggs and the decedents of Gloria Foster and Jacqueline Foster were passengers in an automobile traveling north on Interstate 75 when Kelley’s decedent, Rives, who had been driving southbound, crossed the median dividing the lanes of the interstate and collided head on with the other vehicle. The jury returned verdicts in favor of the plaintiffs and Kelley appeals from the judgments thereon.

1. Appellant contends the trial court erred by charging the jury on negligence per se, citing Griffin v. Odum, 108 Ga. App. 572, 576-577 (133 SE2d 910) (1963). Since the transcript reveals that the trial court charged the jury extensively as to proximate cause, the holding in Griffin is not applicable here, and as the charge given was correct as a matter of law and adjusted to the evidence, we find no error in the giving of the charge. See generally Duncan v. Deits, 185 Ga. App. 136, 137-138 (363 SE2d 601) (1987).

2. The trial court charged the jury pursuant to OCGA § 1-3-3 (3) that “act of God means an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, innundations [sic], sudden death or illness. This expression excludes all idea of human agency.” (Emphasis supplied.) We find no merit in appellant’s contentions that the trial court erred by charging the jury the emphasized language since the giving of an entire section of a statute is not usually cause for a new trial. See Chapman v. Piggly Wiggly Southern, 178 Ga. App. 835 (344 SE2d 755) (1986). Nor did the trial court err by failing to give appellant’s requested charge which deleted the emphasized language since the jury was accurately and fully charged on the relevant law for the issue covered by the requested charge. See Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (1) (369 SE2d 319) (1988).

3. We find no merit in appellant’s contention that the trial court committed reversible error by charging the jury regarding insanity or mental incompetency because there was no evidence adduced at trial regarding insanity. The transcript reveals that Dr. Robert Henry Al-meroth, Jr. testified during appellant’s case in chief that Rives suffered from “some type of dementing illness,” defined dementia as “losing our mind,” and detailed the symptoms of the illness. “ ‘Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.’ [Cits.]” Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (2) (342 SE2d 760) (1986). As to appellant’s arguments in her brief regarding other alleged errors in the giving of this charge, “ ‘[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.’ [Cits.]” City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493) (1988).

4. Since the transcript reveals that the trial court charged the jury that “[n] either prejudice against one party nor sympathy for another party should play any part in your deliberations or your verdict,” we find no error in the trial court’s failure to charge the jury appellant’s request to charge no. 10 on the issue of sympathy in the precise language requested by appellant. See Union Camp Corp. v. Daley, 188 Ga. App. 756, 759 (5) (374 SE2d 329) (1988).

5. In view of the evidence adduced at trial regarding the extensive injuries suffered by appellee Leslie Buggs as a result of the accident, expert testimony that Buggs sustained permanent injury to his shoulder, wrist, and brain, and that future surgery was a possibility, we find no merit in appellant’s contention that there was no evidence to support the trial court’s charge about Buggs’s recovery for the loss of capacity to work as an element of mental pain and suffering. See generally Duncan, supra.

6. Appellant enumerates two errors allegedly committed during the testimony by John Brown, Ph.D., an expert witness testifying on behalf of appellee Jacqueline Foster regarding the economic value of her decedent, Samuel Lewis Foster. We find meritless appellant’s contention that reversible error was committed when the trial court refused to strike as prejudicial Brown’s testimony that his actuarial! figures encompassed only the economic value of a person’s life, not the intangible values of that person as a family member, friend, or neighbor. The trial court did not abuse its discretion in admitting this testimony as relevant and responsive to questioning about what matters Brown considered in arriving at his figures, see generally Energy Contractors v. Ga. Metal &c., 186 Ga. App. 475, 476 (1) (367 SE2d 324) (1988), and as relevant evidence, the testimony was not subject to an objection that it might prejudice the jury. See generally Assoc. Health Systems v. Jones, 185 Ga. App. 798, 803 (3) (366 SE2d 147) (1988). Furthermore, “ ‘even if the evidence had been irrelevant, appellant failed to carry the burden of proving that the admission of the evidence was unduly prejudicial to [her] rights. Appellant’s contention is therefore without merit.’. . . [Cit.]” Dept. of Transp. v. Coley, 184 Ga. App. 206, 208-209 (2) (360 SE2d 924) (1987).

Decided June 22, 1989.

John L. Hammaker, Charles W. Smith, Jr., for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Eve A. Appelbaum, Nicholas C. Moraitakis, for appellees.

Turning to appellant’s other enumeration regarding her cross-examination of Brown, since the transcript reflects that Brown testified about what he considered a “conservative” investment to be, why he considered it to be so, and why he did not think the investment example proffered by appellant’s counsel constituted a conservative investment, we find no merit in appellant’s contention that the trial court abused its discretion by restricting the scope of her cross-examination of Brown on this matter. See generally Empire Forest Prods. v. Gillis, 184 Ga. App. 542, 545 (3) (362 SE2d 77) (1987).

7. Appellees’ motion for an assessment of damages for frivolous appeals is denied.

Judgments affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1112.
    CAYCE v. THE STATE.
    (383 SE2d 648)
   Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute. He contends on appeal that the trial court erred in denying his motion to suppress the contraband on which the conviction was based.

Based on information that 400 pounds of marijuana had been delivered to the appellant’s residence in Dade County, Georgia, FBI Agent Layton obtained from a federal magistrate a warrant to search the appellant’s home. The warrant identified the property to be seized as “approximately 400 pounds of marijuana, a Schedule I, nonnarcotic controlled substance.”

During the execution of the warrant, while Agent Layton was in a bedroom of the residence attempting to locate a trap door in the floor, he observed a clear Mason-type glass jar which was located on a shelf and which appeared to him to contain “rice or some other moisture absorbing material.” Testifying that in his experience such material was “typical of packaging for cocaine” and that the jar and its contents seemed “out of place being in the bedroom,” the agent removed the jar from the shelf and opened it, whereupon he discovered two plastic bags containing approximately 17 grams of cocaine embedded inside the “rice.” Based on this discovery, the appellant was arrested and charged with possession of cocaine with the intent to distribute. After executing a waiver of rights form while in custody, he explained to the investigating officers that he had found the cocaine in his yard after an airplane had flown over the property and that he had been keeping it only for his personal use. Held:

1. The appellant contends that seizure of the glass jar impermis-sibly exceeded the scope of the warrant. “An officer in the process of executing a lawful search warrant is authorized under OCGA § 17-5-21 (b) . . . to seize any stolen property, contraband, or other item, other than private papers, which he has probable cause to consider tangible evidence of the commission of a crime, even though the property is not listed in the warrant. [Cits.]” Whittington v. State, 165 Ga. App. 763, 764 (302 SE2d 617) (1983). See also Zimmerman v. State, 131 Ga. App. 793, 794 (207 SE2d 220) (1974). The discovery of the item must, however, have resulted from a bona fide search for the items named in the warrant. Dugan v. State, 130 Ga. App. 527, 534 (203 SE2d 722) (1974).

It is apparent that the agent who discovered the jar was engaged in a legitimate search for the suspected contraband identified in the warrant at the time he did so. Based on the circumstances attending the officer’s presence in the. house, his familiarity with the material which was exposed to view inside the jar, and his knowledge, based on his law enforcement experience, that such material was often used to 1 package cocaine, we conclude that probable cause existed for his belief that the jar contained contraband. Accordingly, we hold that its seizure was authorized pursuant to OCGA § 17-5-21 (b), and that the motion to suppress was properly denied.

2. During the suppression hearing, the appellant objected to the admission of an uncertified copy of the search warrant in lieu of the original document. Agent Layton, upon whose application the warrant 1 had been issued, testified without objection that he had recited the H facts contained in his affidavit to the federal magistrate, that the magistrate had thereupon signed the warrant, and that the original document remained on file in federal district court at the time of the hearing. There was no contention that the copy was not an exact duplicate of the original.

Decided June 22, 1989.

Herbert E. Franklin, Jr., for appellant.

Ralph Van Pelt, Jr., District Attorney, John L. O’Dell, Assistant District Attorney, for appellee.

“No search warrant shall be quashed or evidence suppressed because of technical irregularity not affecting the substantial rights of the accused.” OCGA § 17-5-31. Under the circumstances, the introduction of an uncertified copy of the search warrant in lieu of the original established no basis for excluding the contraband from evidence. See generally Braden v. State, 135 Ga. App. 827 (2) (219 SE2d 479) (1975).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1123.
    RABORN v. THE STATE.
    (383 SE2d 650)
   Sognier, Judge.

Arthur Raborn was convicted of child molestation and he appeals.

1. Appellant contends the trial court erred by ruling that the victim, a five year old child, was competent to testify when she did not understand the nature of an oath, as required by OCGA § 24-9-5. We do not agree. Upon cross-examination, the defense established that the victim could not define the word “oath” and did not know the difference between swearing to something and simply telling the truth, and based its objection to her competency on that ground. However, the child was examined extensively by the court, and the examination established that she knew the difference between lying and telling the truth; that it was wrong to lie, and she would be punished if she did so; and that she promised to tell the truth.

It is not necessary for a child to understand the meaning of the word “oath” in order to be competent to testify. Pace v. State, 157 Ga. App. 442, 443 (278 SE2d 90) (1981). “The competency of a child as a witness is within the sound discretion of the [trial] court and its ruling will not be disturbed unless there is a manifest abuse of discretion. [Cit.]” Adams v. State, 166 Ga. App. 807 (305 SE2d 651) (1983); accord Lancaster v. State, 250 Ga. 871, 872 (2) (301 SE2d 882) (1983). “We find no abuse of discretion. Although the child was unable to define the meaning of an oath ... , it was demonstrated that she appreciated the difference between the truth and a lie and that she knew she was obligated to tell the truth on the witness stand. [Cits.]” Akers v. State, 179 Ga. App. 529, 530 (2) (346 SE2d 861) (1986).

Decided June 22, 1989.

Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.

2. In his two remaining enumerations of error, appellant contends the trial court erred in the sentencing phase of the trial by admitting into evidence and “considering” a prior probation revocation.

a. Contrary to appellant’s assertions, the record shows that a certified copy of a Rule Nisi issued in the prior probation revocation proceeding was not admitted into evidence. It was tendered, along with a copy of a conviction on another charge, but appellant’s counsel objected to its admission, and the court reserved ruling on appellant’s objection and recessed court pending a presentence investigation. The record indicates that both exhibits were tendered but not admitted.

b. Nor do we find merit in appellant’s contention that the trial court erred by “considering” the prior probation revocation in passing sentence. We cannot assume from the mere tender of the document that it was considered by the trial court, as “ ‘there is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision ([Cit.]).’ ” Workman v. State, 137 Ga. App. 746, 749 (224 SE2d 757) (1976). Further, although the record reflects that the trial judge himself remembered the prior probation revocation proceeding, nothing in the record suggests that the trial court considered it in determining a sentence, and absent a showing to the contrary by appellant, we will apply the presumption. See Johnson v. State, 170 Ga. App. 433, 437 (8) (317 SE2d 213) (1984).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1154.
    MERRELL v. THE STATE.
    (383 SE2d 905)
   McMurray, Presiding Judge.

Defendant was convicted of “the offense of habitual violator” anc the offense of driving under the influence (of alcohol). Via thref enumerations of error, he asserts the general grounds and the impro priety of an evidentiary ruling. Held:

Decided June 22, 1989.

Roger E. Bradley, for appellant.

Roger G. Queen, District Attorney, for appellee.

1. In his first and second enumerations of error, defendant contends the evidence was insufficient to support the jury’s verdict. In this regard, he contends the State failed to prove that he operated a motor vehicle at all since the arresting officer testified that he found defendant behind the wheel of a vehicle which had run out of gas. This contention is without merit. The officer also testified that he saw defendant driving the vehicle (less than 10 feet from where the officer was standing) shortly before it ran out of gas.

The evidence demonstrated that defendant operated a motor vehicle after receiving notice of the revocation of his license and his status as an habitual violator. It also demonstrated that at the scene defendant smelled of alcohol, his eyes were red, his speech was slurred and he was unsteady on his feet. (Defendant refused a blood alcohol test so no evidence concerning his blood alcohol content was presented.) The evidence presented by the State was sufficient to enable any rational trier of fact to find defendant guilty of “habitual violator” and driving under the influence beyond a reasonable doubt. Miller v. State, 156 Ga. App. 125 (274 SE2d 122); Brooks v. State, 187 Ga. App. 194 (1) (369 SE2d 801).

2. Defendant contends the trial court erred in admitting into evidence six prior “habitual violator convictions” (from December 1982 through October 1986). This evidence was admitted to show defendant’s bent of mind and course of conduct with regard to the habitual violator count and the trial court instructed the jury that the evidence was being admitted for that limited purpose. We find no error. Sultenfuss v. State, 185 Ga. App. 47, 48 (2) (363 SE2d 337). Compare Hester v. State, 159 Ga. App. 642, 643 (2) (284 SE2d 659).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1183.
    CAMELBACK MANAGEMENT COMPANY, INC. v. PHOENIX PERIODICALS, INC.
    (383 SE2d 651)
   Banke, Presiding Judge.

This is an appeal from a default judgment entered against the appellant in an action brought by the appellee to collect an alleged indebtedness for advertising services. The complaint was filed on February 25, 1988, and the appellant was served with process on February 26, 1988. Pursuant to a written stipulation filed with the court on March 25, 1988, the parties extended the time in which the answer was required to be filed through April 26, 1988. The appellant did not file an answer on or before that date but did file an answer on May 11, 1988, accompanied by payment of costs. On January 9, 1989, the trial court entered a nunc pro tunc order granting a default judgment to the appellee, based on a determination that the appellant had failed either to pay the required costs or to file a motion to open the default. This appeal followed. Held:

1. The appellee has moved to dismiss the appeal based on the appellant’s failure to file a motion in the trial court seeking to set aside the default judgment. No such motion was required under the circumstances. The entry of the default judgment constituted a final judgment in the case and was thus directly appealable pursuant to OCGA § 5-6-34 (a) (1). See Dempsey v. Ellington, 125 Ga. App. 707 (1) (188 SE2d 908) (1972). Accord Swindell v. Swindell, 233 Ga. 854 (213 SE2d 697) (1975). Compare Holloway v. McMichael, 151 Ga. App. 802 (261 SE2d 747) (1979) (holding that a default judgment is not directly appealable where damages are unliquidated and remain to be determined by a jury). The motion to dismiss the appeal is accordingly denied.

2. The record before us contains the unopposed affidavit of the clerk of the lower court “that on May 11, 1988, all outstanding court costs in the sum of $37.00 were paid by the [appellant] for the purpose of opening the default.” It is thus apparent without dispute that, contrary to the finding made by the trial court, the appellant did in fact pay the required costs at the time it filed its answer.

3. Pursuant to OCGA § 9-11-55 (a), a default “may be opened as a matter of right by the filing of [an answer] within 15 days of the day of default, upon the payment of costs.” Since the statute allows the default to be opened as a “matter of right” under such circumstances, it was unnecessary for the appellant to file, a motion with the court seeking permission to open the default and to file defensive pleadings. Accord Whitsett v. Hester-Bowman Enterprises, 94 Ga. App. 78 (1), 79-80 (93 SE2d 788) (1956), and Parker v. Branan, 108 Ga. App. 229 (2) (132 SE2d 556) (1963) (both of which were decided under the predecessor to the present statute, former Code § 110-401).

4. For the above reasons, we hold that the trial court erred in entering the default judgment. See generally Pettus v. Smith, 174 Ga. App. 587, 589 (330 SE2d 735) (1985), citing Hardin v. Wright, 172 Ga. App. 644 (323 SE2d 918) (1984). The appellee’s motion for the imposition of sanctions against the appellant for filing a frivolous appeal is necessarily denied.

Judgment reversed.

Sognier and Pope, JJ., concur.

Decided June 22, 1989.

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., Elizabeth E. Anderson, for appellant.

Fox & Cohn, Jeffrey H. Brickman, Pamela D. Adler, George M. Fox, for appellee.


text:
    A89A0784.
    STANDARD GUARANTY INSURANCE COMPANY v. CARSWELL et al.
    (384 SE2d 213)
   Beasley, Judge.

Standard Guaranty filed a petition for declaratory judgment seeking a determination as to whether it was required to provide coverage under a business auto liability policy issued to Carswell, d/b/a Kar Korner, insuring a 1972 wrecker.

On November 5, 1985, Carswell and Garner, an employee of Kar Korner, were attempting to repossess a van sold to Willingham by Kar Korner. According to Carswell, he hooked up the van to the wrecker while Garner talked with Willingham and nothing unusual happened when they towed the van away. Carswell gave another version of the incident in which he related that Willingham tried to hit him and that he got Willingham “off” and stood him against a wall.

A few days after the incident, assault and battery warrants for Carswell and Garner were issued on Willingham’s complaint that they struck him with a moving vehicle. Carswell was served with a lawsuit by Willingham seeking damages for personal injuries on July 17, 1986, and gave notice of the incident to Standard Guaranty on July 28, 1986. Standard Guaranty entered into defense of that action under a reservation of rights.

The policy on the wrecker owned by the insured provided: “You must promptly notify us or our agent of any accident or loss. You must tell us how, when and where the accident or loss happened. You must assist in obtaining the names and addresses of any injured persons and witnesses.” After defendants answered its declaratory judgment complaint, Standard Guaranty moved for summary judgment contending that as a matter of law defendants Carswell and Garner failed to comply with the policy requirement of prompt notice. The motion was denied and the case was tried. A jury returned a verdict for defendants.

Standard Guaranty appealed and assigns as its sole error the following instruction to the jury: “I charge you that if you find that the first [Carswell] and second [Garner] defendants did not give prompt notice to the plaintiff because they did not believe they were afforded coverage for this incident, you are authorized to find in favor of the first and second defendants.” Standard Guaranty contends that the charge is an incorrect statement of law because ignorance of coverage is not an excuse for failure to give prompt notification of the incident. At trial, objection also was made that the charge was not adjusted.to the evidence but that assertion has not been pursued on appeal.

With regard to time limitations in insurance policies requiring a report of an incident, “ ‘[t]he questions of the sufficiency of the excuse offered, and the diligence ... in giving the notice ... are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.’ ” Norfolk &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 197 (2) (196 SE2d 167) (1973); Erber v. Ins. Co. of North America, 134 Ga. App. 632 (2) (215 SE2d 528) (1975).

Standard Guaranty points out that an insured in possession of his policy is chargeable with knowledge of its contents. See Fields v. Goldstein, 97 Ga. App. 286, 288 (3) (102 SE2d 921) (1958), affirmed 214 Ga. 277 (104 SE2d 337) (1958); Parris v. Pledger Ins. Agency, 180 Ga. App. 437, 439 (2) (348 SE2d 924) (1986). From this it argues that defendants are without justification or excuse, citing certain decisions. Buffalo Ins. Co. v. Star Photo &c. Co., 120 Ga. App. 697 (3) (172 SE2d 159) (1969), found the fact the insured had lost or misplaced his policy was not an excuse for not complying with the policy terms. Bituminous Cas. Corp. v. J. B. Forrest & Sons, 132 Ga. App. 714 (209 SE2d 6) (1974), held that an insured did not show justification from the fact that he concluded he was free of fault and there was no liability to the other party. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976), held that eight months delay was held to be unreasonable as a matter of law. In International Indem. Co. v. Smith, 178 Ga. App. 4 (342 SE2d 4) (1986), illiteracy was not an excuse for failure to provide the notice required by the policy and a 52-month delay was unreasonable as a matter of law.

Nevertheless, the fact that an insured did not know the policy might afford coverage under a given factual situation may provide justification for the failure to give notice. In the instant case ther< was evidence that no notice was given because the insured believec there was no “accident or loss,” that is, that the claim of Willingham was specious and manufactured. It is not that he did not know th( contents of his policy. The merit of insured’s claim of justification is not susceptible here to determination against him as a matter of law State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 466 (2) (258 SE2d 146) (1979).

Where there is a conflict in the evidence on the issue of insured’: lack of knowledge of coverage, a jury must determine the question Sands v. Grain Dealers Mut. Ins. Co., 154 Ga. App. 720 (270 SE2d 8 (1980). See also Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261 (358 SE2d 611) (1987). The language contained in the charge substantially sets forth the principle contained in State Farm &c. Ins., supra at 468 (4) and Sands, supra at 721. It was not error.

Decided June 23, 1989.

Glover & Blount, Percy J. Blount, for appellant.

Nixon, Yow, Waller & Capers, E. Freddie Sanders, John Claeys, for appellees.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1086.
    McCALL v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (384 SE2d 215)
   Sognier, Judge.

Rae McCall brought suit against Metropolitan Atlanta Rapid Transit Authority (MARTA) seeking damages for injuries she incurred when she fell at a MARTA station. The jury awarded her $5,500. McCall’s motion for judgment notwithstanding the verdict for damages or in the alternative a new trial was denied by the trial court and she appeals.

1. Appellant contends in two related enumerations that the trial court erred by admitting the personal notes of Dr. Knoxice Hunter, a psychologist called as a witness by appellant, because the witness did not use the notes to refresh her recollection during direct examination and the admission of the notes was highly prejudicial and inflamed the jury. The transcript reveals that at trial appellant’s objection to the introduction of these notes was based on the psychologist-patient privilege, not on the grounds raised on appeal. “ ‘Grounds which may be considered on appeal are limited to those which were urged before the trial court.’ [Cit.]” Long v. Marion, 182 Ga. App. 361, 362-363 (1) (355 SE2d 711) (1987). The transcript further reflects that when the notes were proffered into evidence, appellant’s counsel specifically stated he had “[n]o objection” to the admission thereof. Accordingly, we find no merit in appellant’s enumerations.

2. Appellant contends the trial court erred by denying her motion for a new trial because the jury verdict was clearly against the weight of the evidence, which appellant asserts indicates uncontrovertedly that she suffered damages far in excess of the $5,500 awarded. However, as appellee points out, there was testimony that appellant was in an automobile accident subsequent to her fall, and there was some evidence from which the jury could have found that the damages she sustained were not exclusively the result of her fall. Thus, we cannot say that the verdict was so inadequate as to require a new trial. See Palmer v. Farmer, 184 Ga. App. 753, 754 (2) (362 SE2d 453) (1987). “In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. J [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 676 (1) (2781 SE2d 100) (1981). We find no error in the trial court’s denial of appellant’s motion.

Decided June 23, 1989.

Albert A. Mitchell & Associates, Albert A. Mitchell, Janise L. Miller, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Eve A. Appelbaum, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Birdsong, Judge.

text:
    A89A0055.
    MARKS v. THE STATE.
    (384 SE2d 186)
   Birdsong, Judge.

In August 1986, Randolph Marks was arrested for several traffi< violations in the City of College Park. He was issued Uniform Traffic Violation Summons/Accusations and summoned to appear in the Cit} Court of College Park on September 22, 1986. Upon appearance ii that court on September 22, the cases were bound over to the State Court of Fulton County. On October 2, 1986, the State filed an accu sation in Fulton State Court.

The State Court of Fulton County operates upon two-montl terms; thus the cases were filed in the state court during the Septem ber Term of the state court. Marks filed his demand for jury trie pursuant to the provisions of OCGA § 17-7-170 (a) on December 1£ 1986, or during the November Term of the state court. It has bee: stipulated by the parties that there were juries impaneled and quali fied to try Marks during the November, January and succeeding terms until he finally came on for trial in November 1987. Whei called for trial, Marks moved for discharge and acquittal under thg provisions of OCGA § 17-7-170 (b). H

The trial court held that Marks did not timely file his demani for jury trial, concluding that the demand had to be filed in the term dating to the issuance of the Uniform Traffic Citations which was Aiffl gust. Marks brings this appeal. Held:

OCGA § 17-7-170 (a) provides the defendant “may enter a demand for trial at the [next] court term at which the indictment or accusation is found or at the next succeeding regular court term thereafter. . . .” This provision does not expressly or impliedly require a defendant who is issued a Uniform Traffic Summons (UTC/ Accusation) in a court that cannot impanel juries, to then and there make a demand for trial, or else be foreclosed from making one when he is bound over to a court that can give him a trial and another accusation is filed against him.

We have held that a UTC/Accusation filed in a traffic court is an “accusation” to which a demand for trial may be made within the meaning of § 17-7-170 (a) (State v. Spence, 179 Ga. App. 750 (347 SE2d 612)), but this is not to say he must do so. In fact, doing so would gain him nothing in terms of invoking any acquittal rights under the statute. A demand for trial made in a court where there are no regular terms and which cannot impanel jurors, will not per se invoke the right to acquittal and discharge within the language of the statute. See Ramsey v. State, 189 Ga. App. 91, 92 (375 SE2d 63). Rather a demand in such a lower court will of necessity require a transfer to a court which can impanel juries and has regular terms, and we have held this to be a “request” by the defendant to transfer, in which case the plain terms of OCGA § 17-7-170 (a) provide that his demand is not binding on the next court. See Adams v. State, 189 Ga. App. 345, 347 (375 SE2d 642). It seems clear, then, that logically a defendant whose demand for trial requires a transfer to another court must make a new demand in that second court.

This “Catch-22” has prompted some members of this court to wonder whether the statute contemplates that a demand for trial under § 17-7-170 in a court which cannot impanel juries and has no regular terms, should be effective in the first place. See Adams, p. 347 (special concurrence).

In other words, the code section at paragraph (a), as amended, provides that the demand shall be binding only in the court where it is filed, “except where the case is transferred from one court to another without a request from the defendant.” As we have noted, the result is that if he works his own transfer by making the demand, then the demand is not binding on the second court. Therefore, he must make a new demand. Moreover, the language just quoted does not make sense when applied to a transfer from a court which does not have regular terms and impanelled juries to a court that does, for the only way for the defendant to make a demand in the first court that is binding on the second is to refrain from requesting the transfer, that is, to refrain from making a demand that requires a transfer.

There is therefore not much point in suggesting that he can make a timely demand in the second court only if he has first filed a demand in the traffic or city court, for there the demand would not have done him any good. It would not have gained him a trial, but only a transfer which, because it was effected at his own “request,” rendered the demand not binding in the transferee court that could try him. Such a demand in the prior court would not be effective to win him a discharge and acquittal because that prior court cannot try him pursuant to § 17-7-170. He would have to make a new demand in any case. There is therefore no reason to suggest that, because he did not make a demand in a court which could not give him a trial in accordance with § 17-7-170, he cannot make a demand for trial after being bound over to the jurisdiction of another court, where a new accusation is filed and he makes his demand at that term or the next regular term.

The logic of our conclusion is well proved in this case. Appellant Marks did not make a demand for trial in the city court when the UTC was issued in September 1986, but if he had, it would not have gained him a trial but only a transfer, and would not have been binding in the next court. After the city court itself made the transfer by binding his cases over to the Fulton State Court, the prosecution, in October 1986, filed an accusation in Fulton State Court: “[A]t the next succeeding regular term of court,” he filed a demand for trial. He complied with the terms of the statute, as strictly construed (see Little v. State, 188 Ga. App. 410 (373 SE2d 260)). He was not called for trial when he made his demand, nor at the next succeeding regular term after that. When he was finally called for trial the following year, in November 1987, he was entitled to a full discharge and acquittal. The State has not been put out of any “rights” whatever by this result, since it had plenty of notice of the demand for trial and plenty of opportunity to try him.

The trial court erred in denying the discharge and acquittal in this case, but understandably; this code section has always been an awkward fit when applied to cases which are first prosecuted or filed in any court which, having no jury and perhaps no regular terms, cannot grant the defendant the trial he is demanding. This is the more true in view of the further complication that in binding over such e case, the State is not necessarily required to file a new accusation (see OCGA § 40-13-3; Collins v. State, 154 Ga. App. 651 (269 SE2d 509)) thus, if the State failed to file a new accusation, the defendant woulc have nothing to which to file a demand in a timely fashion. A nev accusation was filed in Fulton State Court and appellant timeb pleaded to it within the terms of the statute.

Judgment reversed.

Deen, P. J., and Benham, J., concur.

Decided April 12, 1989

Rehearing denied June 26, 1989

Daniel F. Byrne, for appellant.

James L, Webb, Solicitor, E. Duane Cooper, Suzanne Wynn, Helen A. Roan, Assistant Solicitors, for appellee.


author: Pope, Judge.

text:
    A89A0272.
    TOIRKENS v. WILLETT TOYOTA, INC.
    (384 SE2d 218)
   Pope, Judge.

Plaintiffs Alex and Jan Toirkens, husband and wife, negotiated a lease/pur chase agreement with defendant Willett Toyota, Inc., for a 1986 Toyota automobile. Plaintiffs were aware when they first examined the automobile that it had been driven approximately 1,600 miles. Defendant’s sales agent informed plaintiffs that the automobile had been used as a demonstrator. Defendant offered and plaintiffs purchased a new car warranty. However, the automobile was described as a “used demo” on the face of the lease/pur chase agreement signed by plaintiff Alex Toirkens. After plaintiffs took possession of the automobile they learned, in the course of registering it, that the automobile was previously titled to Kurt Williamson, the son-in-law of the owner of defendant Willett Toyota. Plaintiffs brought suit to rescind the contract, alleging fraud and, by amendment to their complaint, brought an action under the Fair Business Practices Act, OCGA § 10-1-390 et seq. Plaintiffs appeal the lower court’s grant of summary judgment to defendant.

1. In order to rescind the contract for fraud the plaintiff must show defendant made a misrepresentation of a material fact (OCGA § 23-2-52) or suppressed a material fact which it was under an obligation to communicate (OCGA § 23-2-53). Plaintiffs were fully aware that the automobile had been used as a demonstrator. Nevertheless, the automobile was arguably sold as a “new” car since no price allowance was made in consideration of the fact that it had been used as a demonstrator and since plaintiffs were offered and purchased a new car warranty. That the car had been previously titled would be a material fact only if it affected the status of the car as either “new” or a “used demo.”

According to the Used Car Dealers’ Registration Act, OCGA § 43-47-1 et seq., a “used car” is defined as “any motor vehicle or car other than [one] which has never been the subject of a retail sale ... to a consumer for his own use or for resale or to other licensed dealers.” OCGA § 43-47-2 (5). According to the statute governing identification and registration of automobiles, a “new passenger car” is defined as “any passenger car which has never been the subject of a sale at retail to the general public.” OCGA § 40-4-1 (2). The undisputed evidence in this case shows that plaintiffs’ automobile had been titled to the son-in-law of the owner of defendant car dealership solely for the convenience of the dealership. The title holder did not purchase the car at retail or otherwise but simply held title to the car until such time as the car could be sold. Because the car was never before subject to a retail sale it fit the statutory definition of a new car, not the statutory definition of a used car.

While the status of the title is apparently not an element of the statutory definitions of “new” versus “used” car, it nevertheless might affect whether the car was merely a “used demo” or was, in fact, a “used car” as those terms are commonly understood by consumers. The fact that a car is titled to a third party and not the dealership prior to retail sale raises the possibility that the car was used for a purpose other than a dealership demonstrator. However, the undisputed facts of this case show that the car was not driven for the personal use of the individual to whom it was titled but was used only for demonstration purposes. In fact, according to his undisputed and sworn answers to interrogatories, Kurt Williamson never operated the car. Thus, in this case, the fact that the car was previously titled to a third party and not the dealership does not create an issue of fraud and summary judgment was properly granted.

2. We reject plaintiffs’ argument that the lower court erred in granting summary judgment on plaintiffs’ “breach of warranty claim.” In fact, the record shows plaintiffs brought no claim for breach of warranty.

3. We find no error in granting summary judgment on plaintiffs’ claim for violation of OCGA § 10-1-393 (b) (6) contained within the Fair Business Practices Act. According to said statute, it is an unlawful act to represent “that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand . . . .” Plaintiffs knew the automobile had been driven approximately 1,600 miles. As discussed in Division 1, above, the automobile was, as a matter of law, not a “used” vehicle. The undisputed evidence shows the incident complained of by plaintiffs was not in violation of the Fair Business! Practices Act. I

4. Although he was subsequently dismissed, plaintiffs’ action was! originally brought not only against defendant Willett Toyota but also against Kurt Williamson, the person in whose name the automobile was originally titled. Both Williamson and Willett Toyota answered and counterclaimed for abusive litigation. In response, plaintiffs also raised a claim for abusive litigation, the sole ground for which was the refusal of “defendant and defendant’s attorney” to supply information about defendant Williamson which was requested informally by correspondence from plaintiffs’ attorney to the attorney representing both defendant Williamson and defendant Willett. We first note that the plaintiffs’ claim for abusive litigation repeatedly referred to a singular defendant, even though the complaint was brought against multiple defendants. While it is ambiguous, the Amended complaint attempting to add a claim for abusive litigation appears, when read in context, to have been brought only against defendant Williamson. Plaintiffs voluntarily dismissed all claims against defendant Williamson and thus the claim for abusive litigation was not pending at the time summary judgment was entered in Willett’s favor. Even if plaintiffs’ first amendment to the complaint alleged a claim for abusive litigation against defendant Willett, we find it stated no cause of action against defendant Willett and summary judgment was properly granted.

Decided June 26, 1989.

David S. Walker, Jr., for appellants.

Troutman Sanders, Lockerman & Ashmore, Stephen Riddell, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

       We reject plaintiffs’ argument that the definition of a new car is, according to OCGA § 10-1-622 (11), one for which a motor vehicle title has never been issued. Said statute is contained within the Georgia Motor Vehicle Franchise Practices Act, OCGA § 10-1-620 et seq.J and thus applies to transactions between automobile manufacturers and their franchisees, not to transactions between car dealers and their retail customers. |


text:
    77094.
    NEWSOME v. THE STATE.
    (384 SE2d 223)
   Beasley, Judge.

The Supreme Court in State v. Newsome, 259 Ga. 187 (378 SE2d 125) (1989), has reversed the decision in Newsome v. State, 189 Ga. App. 329 (1) (375 SE2d 621) (1988). The judgment is therefore vacated.

The basis for reversal of the trial court by this court was the violation of OCGA § 15-12-171. Because of our ruling we did not pass upon defendant’s enumeration of error regarding the failure to supply him with a copy of his statement pursuant to OCGA § 17-7-210. Nevertheless, we noted that the law requires production only of custodial statements, Johnson v. State, 177 Ga. App. 705 (1) (340 SE2d 662) (1986), and a defendant is not in custody at the time of his statement when he is out on bond. Martin v. State, 179 Ga. App. 551, 553 (5) (347 SE2d 247) (1986). That being the case here, the court did not err in this regard.

Decided June 27, 1989.

Frank G. Smith, August F. Siemon III, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The judgment of the court below is affirmed in conformity with the mandate of the Supreme Court.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.