text:
    A94A0410.
    BRIDGERS v. THE STATE.
    (444 SE2d 330)
   Pope, Chief Judge.

Defendant Roland Edward Bridgers appeals from his conviction for driving under the influence of alcohol. Defendant argues the trial court erred in denying his motion for a directed verdict of acquittal and in entering its verdict finding defendant guilty of driving under the influence.

Defendant argues because the vehicle he was steering was being towed, he cannot be convicted of driving under the influence of alcohol. A similar issue was raised in Harris v. State, 97 Ga. App. 495, 496 (103 SE2d 443) (1958), overruled on other grounds, Luke v. State, 177 Ga. App. 518 (340 SE2d 30) (1986). In Harris, this court held that a driver who was under the influence of alcohol while he was steering a vehicle that was not operating under its own power was guilty of violating the predecessor to OCGA § 40-6-391, Code Ann. § 68-1625, which made it unlawful for any person under the influence of intoxicating liquor to operate or drive a vehicle. In that case we noted that whether a defendant is in control is a question of fact. Id.

In this case defendant was tried before the court sitting without a jury. During the case evidence was presented that the vehicle in which defendant was traveling was being towed via a six to eight-foot-long steel cable attached to another vehicle. Certain wheels on the vehicle in which defendant was traveling were moving and others were locked. Defendant was steering the vehicle to keep it within the lanes of traffic. Defendant’s blood-alcohol level during this time was .11 grams and the two police officers on the scene testified that defendant was under the influence of alcohol to the extent that it was less safe for him to drive. Based on these facts, the trial court found that defendant was in control of the vehicle because it was necessary for him to steer the vehicle to keep it within the traffic lane. The evidence presented at trial was sufficient to support the trial court’s ruling. Accordingly, the trial court did not err in refusing to grant defendant’s motion for a directed verdict of acquittal or in finding defendant guilty of violating OCGA § 40-6-391.

Decided April 11, 1994

Reconsideration denied May 9, 1994

Thomas J. Hough, Jr., for appellant.

Ben F. Smith, Jr., Solicitor, Cindi Yeager, Barry E. Morgan, Assistant Solicitors, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A0624.
    HANIE et al. v. BARNETT.
    (444 SE2d 336)
   Birdsong, Presiding Judge.

This appeal follows a defense verdict in an action asserting claims for medical malpractice, fraud, and loss of consortium in which William W. Hánie and Jeanne Hanie sued Joseph C. Barnett, Jr., M.D., an orthopedic surgeon. The Hanies contended that Barnett negligently operated on Mr. Hanie’s back and committed fraud to cover up his actions.

The Hanies allege that although Dr. Barnett told Mr. Hanie that he had a problem with a disk at the L5-S1 level, Dr. Barnett actually operated at the L4-L5 level and never told them that he had done so. Dr. Barnett stated, in his defense, that he operated where he intended because he was referring to Mr. Hanie’s “functional” L5-S1 level and in Mr. Hanie’s case that was the L4-L5 level because Mr. Hanie’s L5-S1 level was fused. In the course of trial preparation, however, the Hanies found another malpractice case against Dr. Barnett alleging that he committed similar malpractice and his defense also was the functional level reason. When the Hanies sought to introduce evidence of Dr. Barnett’s actions in this other case, however, Dr. Barnett filed a motion in limine seeking to exclude this evidence or seeking bifurcation of the trial and exclusion of evidence concerning his prior acts of negligence and, in particular, evidence concerning this other case until the jury decided whether he committed medical malpractice.

Subsequently, the trial court issued the following order:

“First, the court orders that the trial be trifurcated pursuant to the statutory mandate of OCGA § 51-12-5.1 and under the Court’s discretionary power to sever issues to avoid possible prejudice. See OCGA § 9-11-42 (b). In the initial phase of the trial, all evidence relating to alleged acts of negligence committed by defendant Barnett in the care and treatment of patients other than the plaintiff in this case shall be withheld from the jury. This general prohibition against introducing prejudicial evidence in the liability phase of this trial specifically applies to the allegations of negligence in the Mullinax case.

“In this initial phase, the court will consider the admissibility of any specific notations or testimony relating to Doctor Barnett’s methodology for labeling or treating the spine in other cases, solely for the purpose of rebuttal or cross-examination. . In addressing this question, the court will consider the status of the record at the time the evidence is to be offered. The court shall consider the admissibility of such evidence only for this limited purpose and only upon the prior request of counsel outside the presence of the jury.

“If the jury determines after this first phase of the trial that there is liability on the part of Doctor Barnett for medical negligence in the treatment of plaintiff, then the court will recommence the trial in order to receive evidence on the issue of liability for punitive damages. In this second phase of the trial, evidence of Doctor Barnett’s past conduct, so long as such evidence is otherwise admissible, may be admitted for the purpose of determining whether his actions were sufficiently wanton, malicious, or fraudulent. Any such liability for punitive damages must be proven by clear and convincing evidence under OCGA § 51-12-5.1.

“If, after the second phase of the trial, the jury determines that Doctor Barnett’s conduct justifies an award of punitive damages, then the case shall proceed to the third stage for determination of the amount of any such award. During this final phase, evidence of the parties’ financial circumstances, so long as otherwise admissible, may be presented to the jury. The court will combine the second and third phases of the trial if both parties agree.”

The case was tried under these procedurés and the jury returned a defense verdict on the issue of medical malpractice. Therefore, trial of the other issues was unnecessary. After the trial court denied a motion for new trial, the Hanies filed this appeal. They contend the trial court’s order was erroneous, as a matter of law, because it prevented introduction evidence of Dr. Barnett’s prior acts on the issues of fraud and deceit, punitive damages, impeachment, and notice. The Hanies further allege that the trial court erred as a matter of law by granting a trifurcation of the trial and by denying their motion for a new trial. Held:

1. Considering first the Hanies’ contention that a trial court erred as a matter of law in severing the issue of professional negligence, we find no error. A trial court generally has broad authority in controlling the course of the trial (Gwinnett County v. Vaccaro, 259 Ga. 61, 64 (376 SE2d 680)) and OCGA § 9-11-42 (b) specifically authorizes the trial court to exercise its discretion in ordering severance of issues to avoid prejudice. Jackson v. Intl. Harvester Co., 190 Ga. App. 765 (380 SE2d 306). This argument is premised on the assertion that in punitive damages cases a trial court no longer has authority to sever issues to avoid possible prejudice under OCGA § 9-11-42 (b), because of OCGA § 51-12-5.1. Although the Hanies rely on City of Monroe v. Jordan, 201 Ga. App. 332 (411 SE2d 511) for this proposition, neither OCGA § 51-12-5.1 nor City of Monroe v. Jordan requires that result. Although severance of the issues of liability for punitive damages and the amount of punitive damages is now required by OCGA § 51-12-5.1, nothing in OCGA § 51-12-5.1 suggests the legislature intended any restriction on OCGA § 9-11-42 (b). Moreover, “[severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” (Citation and punctuation omitted.) Vitner v. Funk, 182 Ga. App. 39, 42 (354 SE2d 666). In view of the great possibility that evidence concerning the other issues might taint the trial of the professional negligence case, there was no abuse of discretion. Moreover, as discussed below, the Hanies were not prejudiced by the procedures employed by the trial court. This enumeration of error is without merit.

2. The Hanies also assert the trial court erroneously prevented them from using Barnett’s prior acts to impeach Dr. Barnett. Review of the trial court’s order shows that this allegation has no factual support. Under OCGA § 24-2-2, unless otherwise relevant, the trial court was required to exclude other acts of negligence. The order prohibited only “evidence relating to alleged acts of negligence committed,” and clearly provided that other evidence could be used in “rebuttal or cross-examination” by Barnett subject to the issue being first presented to the trial court for a ruling. Since the Hanies never sought such a ruling from the trial court on this issue, and even now have not identified any particular evidence they sought to introduce but were prevented from introducing by the trial court, we find no error. Further, as the issue of evidence to be used for impeachment was not raised in the trial court, we cannot consider an issue raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

3. The Hanies’ contentions that the trial court erred by preventing them from introducing evidence of Barnett’s prior acts on the issue of fraud and deceit, punitive damages, and notice are also without merit. Under the specific terms of the pretrial order severing the issues for trial, the trial court permitted introduction of evidence relevant to these issues in the second phase of the trial: “In this second phase of the trial, evidence of Doctor Barnett’s past conduct, so long as such evidence is otherwise admissible, may be admitted for the purpose of determining whether his actions were sufficiently wanton, malicious, or fraudulent.” Because the jury’s verdict on the issue of medical malpractice prevented the Hanies from presenting this evidence, there was no error. Moreover, because the Hanies made no offer of proof in the trial court showing the evidence they contend the trial court excluded, there is nothing for us to review. Anderson v. Jarriel, 224 Ga. 495, 496 (162 SE2d 322).

Decided April 18, 1994

Reconsideration denied May 9, 1994

Robert D. Brooks, Wilson, Strickland & Benson, Warner R. Wilson, Jr., for appellants.

Downey, Cleveland, Parker & Williams, Russell B. Davis, for appellee.

4. As the Hanies’ enumeration asserting that the trial court erred by denying their motion for a new trial was premised upon the errors rejected in this opinion, we find no error in the denial of new trial.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge. .

text:
    A94A0853.
    A94A0854.
    ARCHER et al. v. CARSON et al. DBL, INC. v. CARSON et al.
    (444 SE2d 82)
   Birdsong, Presiding Judge. .

As these appeals arise from the same action below and concern the same lease, they have been consolidated for disposition on appeal. Both appellants generally contend the trial court construed the contract improperly.

The record shows that in 1972 Edwin W. Carson and John A. G. Carson leased property known as Sail Harbor Marina to Baker Yachts, Inc., for a period of ten years. The lease also contained a provision granting the lessee two options for successive ten-year terms. The parties agree, however, that this provision was unenforceable because the option provision did not contain the terms of the options, and thus was merely an agreement to agree. In 1977, however, for $6,000 consideration the Carsons agreed to an amendment to the lease that, in effect, extended the lease from May 1982, through April 1992.

Thereafter, all the stock of Baker Yachts was sold to George Archer and Robert D. Noble, and Archer and Noble operated the Sail Harbor Marina under the lease. Subsequently, Archer and Noble as Baker Yachts assigned the lease to DBL, Inc., and DBL continued operation of the marina under the lease. After the death of their father John A. G. Carson, Sue Woodley, Brenda C. Rotureau and Carol C. Bauman inherited his share of the leased property.

The controversy giving rise to this litigation began in 1992 when DBL advised the lessors that it intended to exercise a second option that would extend the lease until 2002. At this point, the lessors advised DBL that there was no second option because the lease provision DBL relied upon was merely an unenforceable agreement to reach an agreement. Thereafter, DBL, Inc. filed a petition for specific performance of the option provision, and after the lessors answered the petition and filed a counterclaim for a declaratory judgment, Archer and Noble intervened in the action as defendants to the counterclaim.

Subsequently, DBL dismissed the specific performance claim and by agreement the declaratory judgment action was tried by the court without a jury. Thereafter, based upon the lease as amended and testimony of the parties, the trial court found that there was ho enforceable second option period. DBL, Inc. and Archer and Noble filed appeals.

Archer and Noble contend the trial court erred by assuming that an ambiguity existed in the lease as amended, erred by failing to apply appropriate rules of contract construction to the 1977 amendment to the lease, erred by failing to construe the lease against the lessor, erred by finding that Archer and Noble personally guaranteed the leasehold obligations of DBL, and erred by finding the 1977 amendment to the lease was not drafted on behalf of the Carsons.

The original 1972 contract clause on the option provides: “Lessors hereby grant to lessee options to renew this lease at separate times for two additional and successive ten (10) year periods beyond the 1st day of May, 1982, upon the same conditions as are set forth herein with the exception of the amount of rent to be paid, which amount shall be negotiable. PROVIDED HOWEVER, in order to exercise said options lessee shall be required to give lessors not less than ninety (90) days notice in writing prior to the end of the then current term of its desire to renew this lease, and if during said ninety (90) day period, or during any extension thereof, the lessors and the lessee have not agreed upon the rent to be paid, this lease shall automatically terminate.” The parties agree that, as written, this provision would have been unenforceable.

The 1977 “Amendment and Supplement to Lease Agreement,” however, amended paragraph 3 of the original lease by adding “commencing on the 1st day of May, 1982, the lessee shall pay to the lessors as rent, the sum of $1,600.00 per month for a period of 5 years from the date of commencement. It is further agreed commencing on the 1st day of May, 1987, the lessee shall pay to the lessors as rent, the sum of $1,800.00 per month for a period of 5 years, terminating April 30, 1992. . . .

“The parties hereto agree and declare that all provisions in the original lease that are in conflict with the provisions contained in this instrument to be null and void. All remaining parts and provisions of said original contract to remain in full force and effect.

“The parties further agree that the original lease is amended as follows: By adding a new paragraph after paragraph 23 on page 9, the new paragraph numbered 23-A to read as follows: ‘23-A. Lessors hereby grant to lessee an option to renew this lease for an additional ten (10) years beyond May 1, 1992, upon the same conditions as are set forth or amended. PROVIDED, HOWEVER in order to exercise said option, lessee shall be required to give lessors not less than ninety (90) days notice in writing, prior to May 1, 1992, of its desire to renew this lease.”

The trial court assumed, but did not decide, that the lease and amendment were ambiguous and applied the rule of contract construction that the intention of the parties was paramount. The trial court determined the intention of the parties by receiving parol evidence on this issue and found that the lessors’ evidence was more persuasive. Based upon this evidence, the trial court concluded there was no valid option to renew the lease and that the lease terminated on April 30, 1992. Held:

1. Whether a contract is ambiguous is a question of law for the court, but if the court determines that there is an ambiguity, this does not mean that a jury issue is present. It is only after the court finds an ambiguity and unsuccessfully attempts to resolve the ambiguity through application of the rules of contract construction (see OCGA § 13-2-2) that a question of fact exists. Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417-418 (349 SE2d 201). Accordingly, the trial court erred by “assuming” that an ambiguity existed.

2. Moreover, contrary to the allegations of the lessors and the conclusion of the trial court, the option provision in the 1977 amendment to the lease is not ambiguous. This paragraph states “lessors hereby grant to lessee an option to renew this lease for an additional ten (10) years beyond May 1, 1992, upon the same conditions as are set forth or amended.” Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298). Thus, a word or phrase is ambiguous “ ‘ “when it is of uncertain meaning and may be fairly understood in more ways than one.” ’ ” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (381 SE2d 322). Further, “[l]anguage which is unambiguous will not be construed as ambiguous based on extrinsic circumstances.” Walton v. Datry, 185 Ga. App. 88, 94 (363 SE2d 295). “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. Only one reasonable understanding arises from this paragraph in the amendment, and as the contract is not ambiguous as to this term, parol evidence cannot be admitted to aid in construing it. See generally Buice Grading &c. v. Bales, 187 Ga. App. 263, 265 (370 SE2d 26). “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). Moreover, the 1977 amendment to the lease provided that “the parties hereto agree and declare that all provisions in the original lease that are in conflict with the provisions contained in this instrument to be null and void.” Therefore, any argument that the original option provision somehow controls the amendment is without support. Accordingly, after examination of the lease and the amendment on their four corners, we find it was the intention of the parties to grant the lessees the option to renew the lease for an additional ten years commencing in May 1992, under the terms as then existed in the lease, i.e., for a monthly rent of $1,800.

Decided April 22, 1994

Reconsideration denied May 9, 1994

Adams & Ellis, David W. Adams, Thomas L. Cole, for Archer. H. Lehman Franklin, Jr., for DBL, Inc.

Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, Edwin R. Byck, Kathleen Aderhold, for appellees.

3. In view of our disposition in Divisions 1 and 2, appellants’ contentions regarding the trial court’s other errors in construction of the contract are moot.

4. Regarding the trial court’s conclusion that Archer and Noble orally personally guaranteed the lease obligations of DBL, Inc., such oral guaranties are unenforceable. OCGA § 13-5-30 (2).

Judgments reversed.

Cooper and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0865.
    DUNN v. THE STATE.
    (444 SE2d 812)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of burglary. This appeal followed the denial of his motion for new trial. Held:

1. Defendant contends the evidence was insufficient to support the jury’s verdict.

“The weight to be accorded the evidence is a task for the jury which determines the credibility of witnesses and resolves conflicts in the evidence. This Court does not reweigh the evidence, but determines if it is legally sufficient to enable a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Dobbs v. State, 199 Ga. App. 793, 795 (406 SE2d 252) (1991).” Davis v. State, 203 Ga. App. 227, 228 (2) (416 SE2d 771). In the case sub judice, the victim testified that he was awakened during the early morning hours of March 12, 1993, by a “flashlight, a light coming up underneath [his bedroom] door[; that he] got up and opened the door, and [observed a male intruder] standing at the top of the steps [; that he] kind of yelled, and [the intruder] yelled [and that he] chased [the intruder] down the steps through the living room, out the backdoor.” The victim testified that he then “shut the door and called 911 [and reported the crime and informed the police that the intruder was wearing a] light-colored jacket, and a toboggan [and] dark pants.” Lieutenant Roy Whitehead of the Athens-Clarke County Police Department testified that he observed defendant in the area of the burglary within less than five minutes after the crime was dispatched; that defendant matched the burglar’s reported description; that he called out to defendant and that defendant then “started sort of walking backwards [and] at that point [defendant] said they robbed me, they robbed me.” Lieutenant Whitehead testified that defendant was perspiring heavily despite a temperature of about 36 degrees and explained that defendant “got what I call happy feet[, i.e., he] looked like he was getting ready to leave, so I kind of moved on toward him very quickly [and] explained to him that we were there investigating a burglary, and that he matched the description, and would he mind going back ... for somebody to look at him to get the matter straightened out.” Lieutenant Whitehead testified that defendant agreed to return to the crime scene; that he searched defendant and found “a flat-head screwdriver . . .” and “a flashlight” in defendant’s pockets and that another officer drove defendant to the crime scene. The victim affirmed that “the person in the police car appear[ed] to be wearing clothing that matched what [he] saw [the burglar wearing earlier that evening]” and positively identified a watch found in the defendant’s pocket on the night of the burglary as an item taken during the burglary. This evidence, evidence that defendant attempted to alter his appearance before the show-up identification and evidence that a screwdriver was apparently used by the burglar to gain entry to the victim’s home was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Durden v. State, 209 Ga. App. 205 (433 SE2d 128).

2. Defendant contends the trial court’s charge on the doctrine of recent possession of stolen property was not authorized because it was not indisputably established that the watch found in defendant’s pocket on the night of the burglary was the victim’s property.

“ ‘[A] burglary prosecution where the state relies upon the defendant’s recent possession of allegedly stolen or feloniously taken goods for conviction, it is absolutely essential that the identity of stolen articles be indisputably established. Tommie v. State, 158 Ga. App. 216, 218 (4) (279 SE2d 510) (1981).’ (Emphasis supplied.) Collins v. State, 176 Ga. App. 634, 636 (337 SE2d 415). See also Chester v. State, 144 Ga. App. 717 (242 SE2d 356). [However, the] emphasized language does not impose any additional burden of proof upon the State but is merely an application of the State’s burden to prove defendants’ guilt beyond a reasonable doubt. See Rayfield v. State, 5 Ga. App. 816 (63 SE 920).” Rich v. State, 191 Ga. App. 312 (1), 314 (381 SE2d 567). In the case sub judice, the victim testified on direct examination that the wrist watch found in defendant’s pocket on the night of the burglary was his property and that the watch was taken during the burglary. Further, under pressing cross-examination regarding the generic appearance of the watch, the victim testified: “Oh, it’s my watch. [DEFENSE COUNSEL]. How can you be positive? A. If you let me put it on, I can — see, that hole right there. That’s my wrist. I mean, somebody could have a wrist my same size, but that’s my watch. Q. If I tried a watch on and it fit in the same notch there, would that mean that it was [my] watch, then? A. No, no. Q. You can’t be positive then it’s your watch, just very similar to it. Is that correct? A. Yeah. Q. It’s very similar to your watch? A. Yeah. Q. On the back of your window there, there was a screen. Has that screen ever been repaired? A. Not that I know of. Q. Now, what kind of marks are on that window screen that were removed? A. It was just kind of bent at the bottom, you know. Q. Is it still bent at the bottom? A. Yeah. Q. How tall is the bend in that screen? A. When I put it back, I pressed it down. I don’t know. It’s probably maybe half an inch, I guess, if that much. Q. If that much. Did you fix the screen yourself? A. I, you know, pushed it down as much as I could.” This evidence is sufficient to authorize a finding, beyond a reasonable doubt, that the watch taken from defendant’s pocket on the night of the burglary was the victim’s watch. See Rich v. State, 191 Ga. App. 312 (1), 314, supra. Consequently, the charge on the doctrine of recent possession of stolen property was adjusted to the evidence. The trial court therefore did not err in so charging the jury.

Decided May 9, 1994.

James D. Love, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1040.
    JAMES v. HARPER.
    (444 SE2d 587)
   Birdsong, Presiding Judge.

Bobby Lee James appeals from the order of the state court granting judgment n.o.v. to appellee/defendant James E. Harper. Appellant was shot by appellee and brought suit for damages; appellee defended, inter alia, on a self-defense claim.

In the July term of state court, the jury awarded a $9,000 verdict to appellant and appellee filed a motion for judgment n.o.v.; the order granting judgment n.o.v. was entered during the December term. The order pertinently states: “The hearing on [appellee’s] motion having been regularly scheduled . . . and with counsel for [appellant] having failed to appear at the appointed time of the hearing and within a reasonable period thereafter; and the court having reviewed the [appellee’s] motion and the evidence upon which the motion was based; and it appearing . . . that there is no conflict in the evidence and that the [appellee] is entitled to judgment as a matter of law, it is ordered . . . that judgment be entered for the [appellee].” Held:

Judgment n.o.v. may not be granted unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Three Notch EMC v. Simpson, 208 Ga. App. 227, 228 (1) (430 SE2d 52). “[J]udgment n.o.v. is not authorized when the evidence merely preponderates toward a certain verdict.” Id. at 230. In determining whether to grant judgment n.o.v. the trial court cannot weigh the credibility of the evidence. Austin v. Kaufman, 203 Ga. App. 704, 707 (1) (417 SE2d 660). Where there is conflicting evidence as to a material issue, or insufficient evidence to render a “one-way” verdict proper, judgment n.o.v. should not be awarded. Id. “ ‘In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict’ ”; this procedure has equal application to appellate courts. Id.

The conflicting evidence when viewed in favor of supporting the jury verdict, under the above legal guidelines, reveals the following: Appellant testified he had been dating Karen for approximately four years. Subsequently, appellant became suspicious that Karen was at appellee’s trailer home because he saw her car and appellee’s truck parked outside the premises. He knocked on the door but no one would answer; appellant hit the door real hard with his fist and it flew open. Appellant walked to the back of the trailer, saw appellee’s handgun lying on the bar, and then observed appellee jump out of bed “buck naked” and Karen standing in the corner of the bedroom area. Appellee came toward him and appellant slammed him against the wall because he thought appellee was going toward his gun. Appellant told appellee to leave Karen alone and he and Karen started to leave. When appellee followed them out, appellant grabbed the gun and put it behind the couch because he was scared. Appellant and Karen continued their relationship and went together on a week-long vacation in Florida; appellant, however, was suspicious that Karen was still seeing appellee. A month or more later, appellant learned Karen was not at work and, accompanied by a friend, he went looking for her. He found her car parked inside appellee’s closed garage doors. Appellant went to appellee’s trailer home; the screen door was closed but the door was open. Appellant “just opened the door and went in,” hollering Karen’s name. Appellant saw appellee at the end of the trailer with a gun in his hand; appellee’s roommate was sitting on the couch. Karen then exited the bathroom and appellant told her to leave; Karen went out the back door. At this point the appellee had the gun drawn and was advancing toward appellant. Appellant grabbed the roommate and told appellee that “ ‘if you shoot me, you’re going to have to shoot your roommate.’ ” Appellant began to creep out the door; walking backward holding the roommate. Several times, during the entire episode, appellee told appellant, “get out of my house, I’m going to blow your . . . head off.” The roommate told appellee to shoot appellant, struggled free, and ran out the back door; at the same time, appellant ran out the door he had entered. Appellant was in the house for about 45 seconds; he did not throw a hammer at appellee inside the house. As appellant fled the house, appellee followed and shot three times toward appellant. Appellee shot once from the deck of his home, firing down at appellant who had stopped to get Karen to her car after she fell on the ground. Appellee was 21 feet away from appellant at the time of the shot. Appellant walked with Karen toward her car and appellee fired a second shot from the top of his steps about 45 feet away. Appellant turned and told appellee “to just put the gun down, because I was leaving.” Appellant was going toward his car when appellee fired a third shot. (There also is evidence that these three shots were fired as warning shots at appellant’s feet.) Appellee again threatened to shoot appellant. Believing that appellee would shoot him in the back, appellant then got behind appellee’s truck for cover. Appellee was in the front of the truck and appellant was behind it. When he went around the truck, appellant was seeking cover; his mind “was going so fast, [he] really didn’t know,” but the truck was filled with trash and appellant, believing appellee had fired five shots at him, grabbed a bottle from the truck and threw it at appellee. Appellant was thinking “if [he] threw the bottle, [he could] get [appellee] to get that last shot off, [appellant] could take the gun away from [appellee].” As appellant threw the bottle, appellee pulled up the gun, pointed it at appellant’s head, and shot appellant in the chest from a distance of about 39 feet. At the time he was shot, appellant was not rushing or moving toward appellee; as appellant released the bottle, appellee “pulled the gun up and fired it.” Appellant did lunge forward simply because he was throwing the bottle, “but it was 35 [feet] away from [appellee].” Appellant denied walking toward appellee; he was going to go toward appellee to try to disarm him, but when appellant released the bottle he was shot and fell to the ground. Appellee then approached, cocked the gun again, and said to appellant who lay wounded on the ground, “get out of my yard. I’m going to blow your . . . head.” This remark was also directed toward a friend of appellant who had run over to help him. Appellee offered the wounded appellant no assistance. Appellant later told his friend that he did not believe the appellee would actually shoot him in the chest; he thought this because appellee had not shot him inside the trailer.

Appellant also introduced in evidence a series of photographs. Plaintiff’s Exhibit 10 was admitted without objection as a picture depicting the relative position in which appellant was standing when he was shot by appellee; the photograph was identified as being taken from the point where appellee was standing when he shot appellant. (This photograph being duly admitted in evidence was available to the jury for whatever weight they wished to give it in determining how far appellant was from appellee when he was shot.) Another photograph, Plaintiff’s Exhibit 11, also admitted without objection, was identified as depicting the shooting distance from the opposite direction.

The jury could judge witness credibility and elect to believe appellant’s testimony as follows: appellant was attempting to flee the premises when he was pursued by appellee who shot at appellant or his feet as he fled, appellant sought cover behind the truck, and threw a bottle at appellee for the purpose of getting appellee to fire his last shot so he could be disarmed before he could shoot appellant. The jury further could conclude that appellee was standing on the ground a substantial distance from appellant when he shot him. Appellee further threatened to shoot appellant with the cocked pistol after having wounded him, unless appellant immediately left his yard. Whether, under these circumstances, appellee used excessive force in self-defense and thereby became the aggressor was a question of fact for jury resolution. Compare McNatt v. McRae, 117 Ga. 898, hns. 2, 3 (45 SE 248).

Decided May 9, 1994.

Sorenson & Haskell, George 0. Haskell III, for appellant.

Lane & Jarriel, Thomas F. Jarriel, for appellee.

We decline to address appellee’s contentions as to the credibility of appellant’s testimony; it is not the function of this court to judge witness credibility or weigh the evidence. The conflicting testimony in this case warranted jury resolution, and the trial court erred in granting judgment n.o.v. in behalf of appellee.

Judgment reversed.

Cooper and Blackburn, JJ., concur.


text:
    A94A1076.
    JACKSON v. THE STATE.
    (444 SE2d 126)
   Birdsong, Presiding Judge.

Annie Lou Jackson appeals her conviction of sale of cocaine; she enumerates two errors. Held:

1. Appellant’s enumeration of error based on insufficiency of the evidence is without merit. The arresting officer testified it was appellant who had actually sold him the small rock of crack cocaine. When arrested both appellant and another person who had been present at the crime scene at the time of the sale were found in possession of some of the money which was paid by the arresting officer for the cocaine. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err, as enumerated, by declining to charge the jury as to the lesser included offense of possession of cocaine.

(a) A timely, written request to charge a lesser included offense must be made by application to the trial judge at or before the close of the evidence. OCGA § 5-5-24 (b); see State v. Alvarado, 260 Ga. 563 (397 SE2d 550).

Examination of appellant’s requests to charge, as contained in the trial record, reveals that no tailored written request for a charge as to the lesser included offense of possession of cocaine was submitted therewith. None of appellant’s submitted charge requests would be accurate or apt as a lesser included offense charge. Therefore, the trial court did not err in refusing to give a lesser included offense instruction using such language. James v. State, 210 Ga. App. 454 (2) (a) (436 SE2d 565). Further, only a portion of the charging conference was transcribed, and that transcribed portion does not reveal that appellant tendered any tailored written request for a lesser included offense at that time. The absence of a complete transcript of the charging conference leaves us in a position of presuming that no timely accurate written request for charging of a lesser included offense was made. See Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418); Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679). Additionally, the transcript reflects that only after the charge was given did appellant, citing State v. Alvarado, supra, tender an unequivocal request for a lesser included offense charge to the trial court. This transcript colloquy does not refer to any specific language of any written lesser included offense charge request that previously may have been timely submitted. Appellant has failed to establish that she tendered a timely written request for a lesser included offense charge or, assuming arguendo such a specific written request was tendered, that it was not confusing and was apt and accurate. An appellant must prove both error and harm to obtain case reversal (see Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281)); appellant has failed to carry her appellate burden.

(b) Additionally, “a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, supra at 564. However, contrary to appellant’s contention the evidence at trial does not reasonably raise the lesser included offense of possession of cocaine. The arresting officer’s direct testimony that appellant sold him drugs was not controverted. The transcript reveals that appellant had previously provided information about other drug users, that he was addicted to drugs, that other persons at the crime scene had police records for prior drug sales and that, at the time of arrest, one of these persons also was found in possession of some of the drug sale money. However, this evidence standing alone does not reasonably raise an issue that appellant was guilty of a lesser included offense of possession of rock cocaine, within the meaning of State v. Alvarado, supra. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229); James v. State, supra at 455 (2) (b); Scott v. State, 208 Ga. App. 561, 562 (2) (430 SE2d 879).

Decided May 9, 1994.

Robert F. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Appellant’s enumerations of error are without merit.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A1146.
    A94A1147, A94A1148.
    JACKSON et al. v. BEECH AIRCRAFT CORPORATION. BEECH AIRCRAFT CORPORATION v. JACKSON et al.
    (444 SE2d 359)
   Birdsong, Presiding Judge.

This litigation arose from an aircraft accident; the pilot Dr. Joseph Jackson and his son were injured in the crash; Dr. Jackson, his wife, and son brought suit against Beech Aircraft Corporation (Beech), the manufacturer of the plane alleging defects in the aircraft. The jury returned a verdict in favor of defendant. The Jacksons appeal this judgment and Beech cross-appeals; Beech also appeals the denial of its motion to dismiss the Jacksons’ appeal on grounds of delay in filing of transcript. Held:

Cross-appellant/appellee Beech contends the trial court erred in denying its motion to dismiss the cross-appellee/appellants Jacksons’ main appeal (Case No. A94A1146) on the grounds that the Jacksons had and were continuing to cause through their neglect an inexcusably unreasonable delay in the filing of the transcript of proceedings.

The trial court, after noting it previously had granted several time extensions for filing of transcript, concluded that if the Jacksons had not yet ordered the transcript (a fact conceded by the Jacksons) an unreasonable delay had occurred; thereafter, the trial court found no evidence of prejudice as to the parties and declined to dismiss the appeal. However, the trial court failed to rule affirmatively on the record whether the unreasonable delay was excusable or who was the cause of unreasonable delay.

“OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. OCGA § 5-6-48 provides that the trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to timely file a transcript if the delay was 1) unreasonable, 2) inexcusable, and 3) caused by such party.” Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576). A delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable; however, this inference “is not conclusive and may be rebutted by evidence presented by an opposing party.” Leonard v. Ognio, 201 Ga. App. 260, 261 (410 SE2d 814). Determination of relevant factual issues rests in the sound discretion of the trial court. Id.; see Gilman Paper Co. v. James, 235 Ga. 348 (219 SE2d 447). Thus, the cause of delay in the processing of an appeal is a fact issue for trial court determination and, in making that determination, the trial court exercises a broad legal discretion subject to appellate review only for abuse. Beavers v. Gilstrap, 210 Ga. App. 46, 47 (1) (435 SE2d 267); see Sellers v. Nodvin, 262 Ga. 205, 206 (1) (a), (b) (415 SE2d 908). Since the time requirements of OCGA § 5-6-42 are not jurisdictional, “ ‘the demand for punctuality should not be so strict as to defeat the very purpose of the requirement by preventing an appeal altogether, unless the delay is unreasonable so as to affect the appeal itself.’ ” Sellers, supra at 207 (1) (b). Delay, however, may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or, (b) causing the appeal to be stale (see, e.g., Cousins Mtg. &c. v. Hamilton, 147 Ga. App. 210 (248 SE2d 516)), such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court. See Sellers, supra at 207 (1) (b).

There exists a plethora of evidence to support the trial court’s finding that unreasonable delay has occurred. Compare Burton v. Hamilton, 204 Ga. App. 18 (418 SE2d 398). However, this case and the main and cross-appeal thereto must be remanded for finding of the trial court as to whether the delay was excusable and caused by the Jacksons. Compare Beavers, supra. To address adequately the issue of staleness of appeal in these cases, the trial court should enter findings of fact as to when the record was completed, when the Jack-sons were billed for the record, when they paid for the record, whether delay in ordering or preparation of the transcript contributed to any delay in the completion of the record, and how many days elapsed after the record was available for transmittal to this court before the transcript likewise was available. Further affirmative findings should be made as to the dates when the Jacksons ordered and paid for the trial transcript and whether any conduct of Beech’s counsel reasonably would excuse any unreasonable delay if caused by the Jacksons regarding the ordering and providing of the trial transcript. See generally Sellers, supra.

Decided May 9, 1994.

Bates, Kelehear, Starr & Toland, J. Raymond Bates, Jr., James Toland, Jr., Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellants.

Gray, Gilliland & Gold, T. Cullen Gilliland, Hugh B. McNatt, for appellee.

The clerk of this court will remove these appeals from the appellate docket and remand them to the Superior Court of Whitfield County together with a copy of this opinion. After the trial court has complied with the remand directions of this court, the parties may, within 30 days of the trial court’s ruling, petition the trial court to retransmit their appeals expeditiously to this court for appellate redocketing. Ga. Const. 1983, Art. VI, Sec. I, Par. IV.

Appeals remanded with direction.

Cooper and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A94A0240.
    HARRISON v. THE STATE.
    (444 SE2d 354)
   Beasley, Presiding Judge.

Harrison was charged with two counts of violation of the Georgia Controlled Substances Act by unlawful possession with intent to distribute methamphetamine and unlawful possession of diazepam. OCGA § 16-13-30 (a), (b). Pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991), she appeals the judgment of conviction and denial of her motion to suppress certain evidence.

The procedure established in Mims was discarded by this court in Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994). Because it was allowed in this case before Hooten was published and in advance of its effective date, it does not foreclose this review.

Agents of the Multi-Agency Narcotics Squad approached the house of John Franklin Bennett, a/k/a Butch, in order to conduct a search of his residence and person for drugs. This was pursuant to a waiver by him of his Fourth Amendment rights as a condition of probation. Bennett was outside and as the police approached he yelled toward an open door that “we have company.” Agent Neville testified as follows:

He saw Bennett’s wife Pam slam the door and run in a fast motion in the house. When he opened the door, he saw Harrison pick up a purse and go to the back of the house in a hurried fashion. She appeared very nervous. To assure the officers’ security from danger, he asked Pam to sit on the bed and place her hands in her lap. He asked Harrison, who was clutching the purse, to sit there also. Appellant was not free to leave until the premises were secured, for the officers’ safety; she was not detained because she was suspected of committing any crime.

Neville took the purse from Harrison and placed it on a table as a precaution in the event it contained a weapon or knife. He then asked both women for consent to search their persons. Both Bennett and Harrison consented, emptied their pockets, and pulled out their shirts and shook them. He asked Harrison if he could search her things and pointed to a cigarette pack and the purse he had placed on the table. She consented and handed the cigarette pack to him. After he searched it, he picked up the purse, which she said was not hers. He asked Bennett if it was hers and after she replied negatively, he searched it and found drugs, drug paraphernalia, and Harrison’s wallet inside. He advised Harrison she was under arrest.

Five to ten minutes later, after Bennett had been searched and the premises secured, Neville took Harrison into the rest room to talk to her in private. He informed her of her Miranda rights, and another investigator came to the rest room door and asked for the keys to her car, which was parked on the street in front of Bennett’s house. She consented to its search, according to two officers, and told the officers that the keys were in her purse. She was asked whether there were any drugs in the car, and she said there were “two eight balls in the dash.”

Six-and-one-half grams of methamphetamine powder were found inside the glove compartment. Based on this revelation, the officers asked for and obtained her consent to search her residence. Nothing was located there.

Harrison testified that the officers searched her purse and car without asking for or receiving her permission, although she acknowledged consenting to the search of her house.

The court denied the motion to suppress, finding that Harrison did consent to the search of her purse and automobile. Additionally, the court concluded that the officers had a right to search and temporarily detain anyone present in Bennett’s home in order to ensure their own safety and that of others present.

Harrison contends that the order should be reversed because any consent by her to search her purse and automobile was tainted by the fact that she was illegally seized under the Fourth Amendment. Although she also invoked Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution below, she makes no argument on that basis and hence we undertake no independent review of her state constitutional rights. See Merriman v. State, 201 Ga. App. 817, 818 (1) (412 SE2d 598) (1991).

Decided May 2, 1994

Reconsideration denied May 10, 1994.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia J. Sartain, District Attorney, Bernard E. Roberts III, Leonard C. Parks, Jr., Assistant District Attorneys, for appellee.

Her detention was lawful. To begin with a condition of probation requiring a person to submit to a warrantless search of his or her residence has been held valid. Luke v. State, 178 Ga. App. 614, 618 (2) (344 SE2d 452) (1986). Although lacking a warrant, the officers thus had lawful authority to enter Bennett’s residence to search for drugs. Such an undertaking is fraught with danger, particularly when other people are inside. It leaves the officers vulnerable to attack. For their safety’s sake in the conduct of a lawful search, they are authorized to detain occupants of the residence while the premises are being secured. Statutory law expressly allows this when there is a search warrant. OCGA § 17-5-28 (1). See also Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988). The need for detention is no less justified when the search is executed on the authority of a probation order. The ultimate standard of the Fourth Amendment is one of reasonableness. Michigan v. Summers, 452 U. S. 692, 699-700 (101 SC 2587, 69 LE2d 340) (1981). Harrison’s brief detention while the premises were being secured comports with this standard.

In this instance, the authority to search came from her consent. The trial court found that Harrison voluntarily consented to the search. Compare Hawkins v. State, 165 Ga. App. 278 (300 SE2d 224) (1983); Childers v. State, 158 Ga. App. 613 (281 SE2d 349) (1981). We accept the trial court’s decision on this question of fact and credibility at the suppression hearing since it is not clearly erroneous. Jordan v. State, 185 Ga. App. 670, 671 (365 SE2d 448) (1988).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Pope, Chief Judge.

text:
    A94A0392.
    SOUTHERN GENERAL INSURANCE COMPANY v. TIPPINS BANK & TRUST COMPANY et al.
    (444 SE2d 331)
   Pope, Chief Judge.

Defendant Southern General Insurance Company appeals from the trial court’s grant of summary judgment in favor of plaintiffs Tommy J. Dees, Jr. and Tippins Bank & Trust Company (“Tippins”) and denial of its motion for summary judgment.

The facts pertinent to this appeal are uncontroverted by the parties. In June 1990, Dees, through an insurance agency, purchased a standard fire insurance policy from the defendant which provided coverage of his residence and its contents from June 18,1990 through June 18, 1991. Tippins was listed in the “Mortgage Clause” as a loss payee or lienholder/mortgagor, and its mailing address was included on the insurance form.

On May 8, 1991, the defendant, via the insurance agent that sold the policy, sent a renewal premium notice to Dees informing him that the policy would expire on June 18,1991 unless the renewal premium was paid before that date. Although Dees does not deny this renewal notice was mailed, he denies receipt of the notice. Defendant did not send a similar notice to Tippins. Because the premium was not timely paid, a renewal policy was not issued and the policy expired on June 18, 1991. On July 5, 1991, Dees’ residence and contents were destroyed by fire. In July 1991, Dees requested payment on the policy and defendant refused. Dees and Tippins filed separate actions against defendant; later those actions were joined by consent order.

The sole issue on appeal is whether the trial court correctly granted summary judgment to the plaintiffs because defendant was required to notify plaintiffs of the nonrenewal of the policy in the specific manner required by OCGA § 33-24-46 (d). The history of OCGA §§ 33-24-46 and 33-24-47 and their predecessors is helpful in deciding the legislature’s intent concerning when insurers are required to give notice to policyholders and lienholders concerning non-renewal of policies. Prior to enacting the predecessor to OCGA § 33-24-46, our legislature passed an act, eventually codified as OCGA § 33-24-47, which provided for notice to lienholders in the event of cancellation or nonrenewal of an insurance policy. Ga. L. 1977, p. 877. That act provided in pertinent part: “No policy of insurance in which the interests of any lienholders named in the policy are protected by a loss payable clause may be cancelled or nonrenewed by an insurer so as to destroy the protection afforded by said policy for the interests possessed by the lienholders unless notice of such cancellation or non-renewal or a copy thereof is sent to the lienholders in the manner provided for in [OCGA §§ 33-24-44 and 33-24-45].” Id. at 878.

Effective January 1, 1979, the Code was amended to add § 56-2430.3, the predecessor to OCGA § 33-24-46, which required the insurer to send notice to the insured prior to cancellation or nonrenewal of certain standard fire insurance policies. Ga. L. 1978, p. 2017. In subsection (b) (3) of § 56-2430.3, “[n]onrenewal” was defined as the “failure or refusal by an insurer to renew.” (Emphasis supplied.) Id. at 2018. Additionally, subsection (d) of that statute specifically provided for nonrenewal due to failure to pay the premium: “Nonrenewal shall not be effective unless written notice is provided . . . with respect to the nonpayment of premium for the expiring policy or the failure of the insured to pay the premium as required by the insurer for renewal, in either of which case such effective date shall not be less than ten days after the date of notice.” Id. at 2018-2019.

In 1984, our legislature amended Chapter 24 of Title 33 by striking § 33-24-46 in its entirety and adopting a new § 33-24-46. In subsection (b) (1) of that Code section the definition of “nonrenewal” was defined as “a refusal by an insurer ... to renew.” OCGA § 33-24-46 (b) (1). The word “failure” was not included in the new definition. Subsection (d) in its new form provided in pertinent part: “No insurer shall refuse to renew a policy to which this Code section applies unless a written notice of nonrenewal is mailed or delivered in person to the named insured.” (Emphasis supplied.) Ga. L. 1984, p. 1357. As rewritten, that subsection did not contain a specific provision requiring notice by the insurer when nonrenewal was due to the insured’s failure to pay the premium required by the insurer for renewal. The 1984 act also struck OCGA § 33-24-47 in its entirety with no substitution. Ga. L. 1984, p. 1358.

Defendant argues that our legislature has evinced its intent not to require notice by an insurer under the circumstances here by: (1) deleting OCGA § 33-24-47 in its entirety; (2) removing the word failure from the definition of nonrenewal in § 33-24-46; (3) limiting the notice requirement to those situations in which the insurer “refused to renew” a covered policy; and (4) not providing specifically for nonrenewals caused by failure to pay premiums. We agree.

Contrary to the trial court’s holding, our review of the applicable statutes reveals that the content and substance of now repealed OCGA § 33-24-47 was not set forth in OCGA § 33-24-46 (d) when that statute was rewritten in 1984. Thus, to the extent the trial court’s judgment in favor of plaintiffs is based on our decision in WACO Fire &c. Ins. Co. v. Jones, 180 Ga. App. 26 (348 SE2d 547) (1986), which interpreted former OCGA § 33-24-47-, it is erroneous.

The legislature could have placed the same language contained in former § 33-24-47 in subsection (d) of § 33-24-46 when it rewrote that statute, but it chose to use the language “refuse to renew” instead. “Refuse” is defined in Webster’s Ninth New Collegiate Dictionary, p. 991 (1987) as “to express oneself as unwilling to accept” or “to show or express unwillingness to do or comply with.” Furthermore, the word “failure” was removed from the statutory definition of the term “nonrenewal” in OCGA § 33-24-46 (b) (1). By these changes it is clear to us that the legislature intended to remove from the insurer the duty to send notice to either the insured or any lienholders that a policy was about to terminate unless it was an unwillingness or refusal on the insurer’s part that resulted in termination or cancellation. We find nothing in revised OCGA § 33-24-46 to evidence the legislature’s intent to continue requiring an insurer to give notice to the insured or any lienholders when a party other than the insurer, by its actions or inaction, caused the policy to terminate. Cf. Protective Nat. Ins. Co. of Omaha v. Ashley, 182 Ga. App. 526 (356 SE2d 230) (1987) (interpreting pre-1984 amendment language of OCGA § 33-24-46) and Strickland Gen. Agency v. Puritan Ins. Co., 184 Ga. App. 286 (361 SE2d 186) (1987) (insurance policy required insurer to give insured at least 30 days notice of nonrenewal).

Decided April 13, 1994

Reconsideration denied May 10, 1994

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Groover & Childs, Denmark Groover, Jr., for appellant.

Due to the 1984 legislative changes to OCGA § 33-24-46 and the repeal of OCGA § 33-24-47, an insurer is now only required to give notice pursuant to OCGA § 33-24-46 (d) when it is unwilling (refuses), for whatever reason, to renew a policy. It is now incumbent upon insureds and lienholders to monitor the expiration terms of policies of insurance against loss of residential real estate. See Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277 (326 SE2d 7) (1985) (notice from insurer not required when group life insurance policy lapsed due to nonpayment of premium). Because the trial court’s grant of summary judgment in favor of plaintiffs was based on an erroneous interpretation of OCGA § 33-24-46 (d), the judgments in favor of plaintiffs are reversed. Furthermore, because all claims against the defendant concern the alleged duty of defendant to notify plaintiffs that the Dees’ policy was not renewed at the end of its term, the defendant is entitled to judgment in its favor.

Judgment reversed.

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

On Motion for Reconsideration.

On motion for reconsideration this court received an amicus curiae brief from the Georgia Bankers Association and the Mortgage Bankers Association of Georgia. They argue that the statutory provision governing whether the insurer must give notice to a lienholder when the insured fails to pay the insurance policy renewal premium and the policy lapses at the end of the policy period is OCGA § 33-24-44 (d) rather than OCGA § 33-24-46 (d). In Robertson v. Southland Life Ins. Co., 130 Ga. App. 807 (3) (204 SE2d 505) (1974), this court first held that OCGA § 33-24-44 is not applicable when the insurance policy in question lapses or expires because of nonpayment of the premium and distinguished such expirations from cancellations, which are covered by the statute. Several cases decided after Robertson have continued that distinction. See Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277 (1) (326 SE2d 7) (1985) and the cases cited therein. Accordingly, this argument is without merit.

Franklin, Taulbee, Rushing, Bunce & Brogdon, Wallace M. Brogdon, for appellees.

Long, Aldridge & Norman, W. Stell Huie, W. Scott Laseter, McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Richard E. Raymer, amici curiae.


text:
    A94A0592.
    DACUS v. THE STATE.
    (444 SE2d 110)
   McMurray, Presiding Judge.

Defendant Dacus was charged by indictment in Forsyth County with four counts of rape, and one count each of aggravated child molestation, aggravated sodomy, and child molestation. The alleged victim in each count was the same young woman, who was 15 years of age at the time of trial.

The jury returned a verdict of not guilty as to each of the rape charges and of guilty to each of the remaining charges. Defendant appeals his conviction of the offenses of aggravated child molestation, aggravated sodomy, and child molestation. Held:

1. Prior to trial, the State provided defendant notice of its intention to introduce evidence of certain similar transactions pursuant to Uniform Superior Court Rule 31.3. The notice, as to one such similar transaction, incorporated a copy of a Dawson County indictment charging defendant with the offense of rape during January 1991, and against the same victim as in these Forsyth County offenses on appeal.

A hearing was held pursuant to Uniform Superior Court Rule 31.3 (B) and the State was held to have made the three affirmative showings required under Williams v. State, 261 Ga. 640 (409 SE2d 649) as a prerequisite to the introduction of the similar transaction evidence. The State’s showing on the similarity issue was that the Dawson County offense was of the same nature, against the same victim, and in the same “time frame” as the offenses charged in the Forsyth County indictment.

The victim’s testimony was that the Dawson County rape had occurred in February 1991, on a Monday she had stayed home from school. Defendant moved for a mistrial arguing that he had received no notice of a February similar transaction and made an offer of proof that he was prepared to show by school system records that the victim was not absent from school on any Monday of January 1991. The motion for mistrial was denied and defendant enumerates as error the admission of the “unnoticed similar transaction” evidence.

The dates alleged in the Dawson County indictment were not essential averments and therefore that indictment covers any offense of the nature charged within the period of limitation. Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58). Defendant has assumed that this black letter principle is altered by the incorporation of the indictment into the similar transaction notice. We find no authority for this assumption and do not agree. The defendant is presumed to know the law and consequently must be charged with knowledge of the basic rules governing construction of indictments. We note that defendant, who was entitled under Uniform Superior Court Rule 31.3 (B) to notice of the date of the similar offense, made no objection to the form of the notice or lack of specificity concerning the date. There was no failure to provide defendant with notice as to the similar transaction at issue.

2. Defendant’s second enumeration of error contends that it was terror to permit witness Dorsey to testify regarding a similar transaction. The State notified defendant as to the existence of this witness in a notice of similar transactions on June 5,1992, or ten days prior to trial. This notice stated that the State was making every effort to locate the witnesses noted therein and would notify defendant of their addresses and telephone numbers immediately upon locating the witnesses. Defendant was provided an additional witness list containing the address and telephone number of witness Dorsey before voir dire on June 15, 1992. Defendant’s motion for a continuance based on this additional service relative to a similar transaction witness who had not previously been fully identified was denied. Dorsey was not called to testify until June 19, 1992, and defendant was granted an opportunity to interview the witness prior to her testimony.

On appeal, defendant’s argument is limited to the suggestion that the State violated OCGA § 17-7-110 and much reliance is placed on the recent decision of Bentley v. State, 210 Ga. App. 862 (438 SE2d 110). Defendant’s focus is directed entirely to the additional witness list provided on June 15, 1992, and does not acknowledge the effect of the June 5,1992, notice of similar transactions. The purpose of OCGA § 17-7-110 was satisfied by the service a reasonable time before trial of the notice of similar transactions which provided defendant with the identity of Dorsey and a brief synopsis of the testimony anticipated from this witness. Gossett v. State, 199 Ga. App. 286, 287 (2) (404 SE2d 595); Askew v. State, 192 Ga. App. 351 (1) (385 SE2d 21). The trial court did not err in denying defendant’s motion for continuance and in permitting Dorsey to testify at trial.

3. The remaining enumeration of error contends that there was a fatal variance between the allegata and probata in regard to the three counts of the indictment of which defendant was convicted. Defendant’s general contention is not supported by reference to any specific variance. After carefully examining the transcript and record, we find no factual support for defendant’s contention. The State has proven the crimes as alleged in the indictment and has proven that the crimes were committed within the time periods stated in the indictment. There being no variance between the allegata and probata, we hold that this enumeration of error is without merit.

Decided April 28, 1994

Reconsideration denied May 10, 1994

Banks & Stubbs, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A0071.
    In re PUROHIT et al.
    (444 SE2d 133)
   Smith, Judge.

Jugal and Chandra Purohit appeal from the trial court’s order holding them in civil contempt for violating a consent interlocutory injunction and requiring them to comply with various discovery requests. The appeal was filed in the Supreme Court, which transferred it to this court without opinion.

The record shows that Mestek, Inc., Jugal Purohit’s former employer, filed suit against him seeking recovery of approximately $800,000 it claimed Purohit had fraudulently acquired from it while employed with the company. Mestek alleged that Purohit, through various companies he or family members owned, had billed Mestek for supplies not furnished or greatly overbilled Mestek for supplies furnished. Mestek sought and obtained a temporary restraining order designed to maintain the status quo during the litigation by restraining Purohit from transferring more than $1,000 out of state and from transferring title to or encumbering real or personal property or other assets of more than $1,000. By consent of the parties, the TRO ripened into an interlocutory injunction binding upon Purohit and any others actively participating in the operation of the companies allegedly involved in the fraudulent scheme and named in the complaint.

After entry of the interlocutory injunction, Mestek deposed Purohit and his wife. On the advice of counsel, Purohit repeatedly invoked the privilege against self-incrimination in response to questions regarding the events upon which the suit was based. He also invoked the privilege in response to questions regarding whether.he had cashed any certificates of deposit or transferred title to any funds or property since the entry of the injunction. At her deposition, Purohit’s wife, Chandra, admitted she had attempted to cash one CD and had actually cashed two others. She objected to other questions regarding cashing CDs on relevancy grounds, and she either did not recall or refused to answer other questions.

Mestek then moved to attach the Purohits for civil contempt, alleging they had violated the terms of the injunction. Mestek sought an order requiring the Purohits to disclose whether property had been transferred in violation of the injunction and its whereabouts if transferred, as well as to return the property if it had been transferred. After a hearing, the trial court found both Purohits in contempt and entered an order requiring that Chandra produce documents concerning any CDs cashed by her since the date of entry of the consent injunction. The order also required that Jugal answer under oath all discovery questions pertaining to CDs in existence as of the date of the injunction in his name or purchased by him or with funds supplied by him or any of the companies named in the complaint, as well as . questions pertaining to any transfers of assets, including cash, since entry of the injunction.

1. Although the underlying case involves an injunction, the issues raised in this appeal involve no matter in equity. Jurisdiction is therefore in this court. Tenn. Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380 (1) (317 SE2d 269) (1984).

2. The Purohits contend the trial court erred in finding them in contempt and in requiring them to answer questions as to which the privilege against self-incrimination was invoked.

Citing Mallin v. Mallin, 227 Ga. 833 (183 SE2d 377) (1971) and Busby v. Citizens Bank of Hapeville, 131 Ga. App. 738 (206 SE2d 640) (1974), they first argue that their refusal to answer the questions posed was proper. They maintain they determined that the answers might incriminate them by disclosing financial information involving the three companies, thereby providing links in a chain tending to establish the criminal activity alleged in the complaint.

OCGA § 9-11-26 (b) (1) provides in pertinent part that “[pjarties may obtain discovery regarding any mátter, not privileged, which is relevant to the subject matter involved in the pending action.” (Emphasis supplied.) Clearly, the issue of whether funds were transferred in violation of the injunction is relevant to the litigation. Therefore, unless the privilege was properly invoked by the Purohits, the trial court correctly ordered them to divulge the information.

(a) The record reflects that Chandra never invoked her privilege against self-incrimination. She merely declined to answer on other grounds. She has therefore waived it and may not invoke it for the first time on appeal. See Cohran v. Carlin, 165 Ga. App. 141, 143-144 (297 SE2d 54) (1983). As to Chandra, this enumeration is without merit for this reason.

(b) As to Jugal, he invoked the privilege because he had determined that answering questions regarding the CDs might incriminate him. “However, the fact that a party raises the privilege ‘does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.’ [Cit.] . . . Where ‘questions are on their face innocent,’ the party raising the privilege ‘may be required to provide sufficient information on which the court may find that a real danger of incrimination exists.’ [Cit.] If the trial court determines the privilege has been properly raised, then the matter is not discoverable, OCGA § 9-11-26 (b) (1). If the trial court determines from all the circumstances that the danger of incrimination is not ‘real and appreciable,’ then the matter is subject to the attendant rules of discovery, including appropriate sanctions. ...” Axson v. Nat. Surety Corp., 254 Ga. 248, 250 (327 SE2d 732) (1985).

Here, the questions regarding the CDs were “on their face innocent” since they did not seek information regarding the source of Purohit’s funds, but rather the status and disposition of those funds covered by the injunction. The trial court made clear it would not compel testimony about the underlying allegations of criminal activity, but only about whether the status quo had been disturbed since entry of the injunction to which Purohit consented. Given the court’s, and Mestek’s, assurance that punishment would not be sought for violating the injunction if he disclosed the information, if Purohit still maintained that the questions posed a danger of incrimination, it was incumbent upon him to provide some indication to the court of why that was so. Axson, supra.

This is particularly true because of the nature of the questions involved. Every court possesses the power to compel obedience to its orders. OCGA § 15-1-3 (3). This must, of necessity, include contempt powers. OCGA § 15-1-4 (a) (3). Purohit consented to the terms of the injunction preserving the status quo pending litigation. He may not, by invoking his privilege against self-incrimination, prevent enforcement by the court of the very order to which he consented. Civil contempt is used to compel obedience to an order. Davis v. Davis, 138 Ga. 8 (hn. la) (74 SE 830) (1912). It is remedial in nature, and it was properly used here to compel Purohit to comply with discovery requests regarding possible violations of the injunction. The trial court did not err in holding Purohit in civil contempt.

3. Purohit contends that he properly invoked the privilege because answering the questions might show a violation of the injunction, thereby subjecting him to incarceration for contempt of that order. This contention is clearly without merit given his attachment for civil contempt and the clearly expressed intent not to punish.

Decided May 10, 1994.

Paine, McElreath, Rhodes & Hyder, Travers W. Paine III, James D. Hyder, Jr., for appellants.

Chilivis & Grindler, Anthony L. Cochran, Knox & Zacks, Ted H. Clarkson, Gary J. Toman, Joseph H. Huff, Mozley, Finlayson & Log-gins, C. David Hailey, for appellee.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A94A0143.
    QUINN v. THE STATE.
    (444 SE2d 132)
   Cooper, Judge.

Defendant was convicted by a jury of rape, kidnapping and battery. His motion for new trial was denied and a motion for out-of-time appeal was granted. He appeals from the judgment of conviction and sentence entered on the jury verdict, raising as his sole enumeration of error the sufficiency of the evidence.

The evidence reflects that the victim and defendant were married and had been separated for about one week at the time of the incident. Defendant wanted to reconcile with the victim, but the victim planned to file for divorce. When the victim left work one night, defendant approached her from behind as she walked to her car. Defendant grabbed the victim around the waist, placed a scarf over her mouth and threatened to kill her if she did not cooperate. Defendant forced the victim into his truck and drove around while expressing his desire to reconcile. Defendant struck the victim several times before taking her to the apartment where defendant and the victim lived before their separation. Once they were inside, the victim went to the bathroom, and when she came out, defendant kicked her in the face. Defendant made the victim call her parents and tell them she would not be home. Defendant then had sex with the victim against her will. Defendant allowed the victim to go to sleep but woke her up in the middle of the night after becoming upset about a telephone number he found in her purse. Defendant began hitting the victim in the head but finally calmed down and let the victim go to sleep again. The next day the victim convinced defendant that she was hungry, and defendant took her to a fast food restaurant where the victim was eventually able to escape from appellant. The victim’s face was noticeably bruised, and the physician who examined the victim testified that the bruises were caused by more than one blow. Defendant admitted hitting and kicking the victim and having sex with her but stated that the sex was initiated by the victim.

Decided May 10, 1994.

Bates, Kelehear, Starr & Toland, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Viewing the evidence in the light most favorable to the verdict, there was evidence from which the jury could conclude that the victim was forced to go with defendant against her will, that defendant hit and kicked the victim several times causing facial bruises and that the victim had sex with defendant because she was afraid that he would hurt her or kill her. Contrary to appellant’s argument, we conclude this evidence was sufficient for a rational trier of fact to find defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0213.
    MARSHALL v. THE STATE.
    (444 SE2d 130)
   Cooper, Judge.

Defendant was found guilty by a jury of selling cocaine in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction entered on the verdict and from the denial of his motion for new trial.

Sergeant Mike Deaver testified that after receiving information that a man fitting defendant’s description was selling illegal drugs, a confidential informant introduced Sergeant Deaver to defendant. The confidential informant told defendant that Sergeant Deaver was interested in purchasing crack cocaine, and defendant sold two small bags of suspected crack cocaine to Sergeant Deaver. The substance in both bags tested positive for cocaine. Sergeant Deaver positively identified defendant at trial as the person who sold him the cocaine. Defendant testified and denied that he was the one who sold Sergeant Deaver the drugs.

1. Defendant first argues that the evidence was insufficient to support his conviction. Based on the facts recited above, we conclude that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, defendant argues that the evidence relating to the scientific testing of the cocaine should not have been admitted because the State failed to establish a sufficient chain of custody as to one of the bags of cocaine, identified at trial as State’s Exhibit 1. Sergeant Deaver testified that he gave State’s Exhibit 1 to Officer Jim Freeland, who placed it in a sealed envelope and marked the outside of the envelope with his name, the case number, defendant’s name and the date. Officer Freeland locked the envelope in his desk, where it stayed until he took it to the State Crime Lab. Officer Freeland identified State’s Exhibit 1 as the bag he turned over to the State Crime Lab. The chemist from the Crime Lab identified it as the bag she received from Officer Freeland. “The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. The state met this burden, and it was not error to admit the [exhibit]. Any confusion about the [exhibit] goes to its weight, not its admissibility, as the Georgia rule is that if the admissibility of evidence is doubtful, it should be admitted and its weight and effect should be left to the jury.” (Citations and punctuation omitted.) Dean v. State, 211 Ga. App. 28, 30-31 (3) (438 SE2d 380) (1993). Accordingly, we find no error with the admission of the evidence.

Decided May 10, 1994.

John R. Greco, for appellant. •

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

3. Defendant argues that the trial court failed to fully advise him of his right to represent himself. After jury selection but before opening statements, defendant announced to the court that he wanted to discharge his court-appointed attorney. The judge asked defendant to explain, and defendant said he believed his attorney was not looking after his best interest and that there was a communication problem. The trial judge denied defendant’s request and stated that from his observation of the case to that point, he was satisfied that defendant’s counsel was providing excellent professional services. “An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. [Defendant] did not make an unequivocal assertion of his right to represent himself prior to the commencement of his trial. While his remarks may be construed as an expression of dissatisfaction with his attorney, they cannot be construed as an assertion, much less an unequivocal assertion, of his right to represent himself.” (Citations and punctuation omitted.) Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). Consequently, we find no merit to defendant’s argument.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0424.
    EARNHEART v. SCOTT et al.
    (444 SE2d 128)
   Beasley, Presiding Judge.

Earnheart brought this nuisance action against the City of Atlanta for injuries he sustained when his car allegedly struck a vehicle in the opposite lane. He appeals the trial court’s grant of summary judgment to the City.

The collision occurred on June 18, 1991, in front of 1699 Lenox Road, a quarter mile south of Wildwood Road. Earnheart testified by affidavit that it occurred at the bottom of a hill where there was excessive standing water which caused his car to hydroplane. He alleged the standing water resulted from a defective sewer drainage system and constituted a continuing nuisance. Among the City’s grounds for summary judgment was that it had no notice of a defect in the system or of standing water problems at that location. The affidavit of Street Operations Chief Georgia Scott stated that her office is in charge of receiving reports of street defects and had received no such reports for that part of Lenox Road. The affidavit of a dispatcher in the Sewer Division of the Public Works Department stated that her office’s records for the year preceding Earnheart’s collision indicated no complaints of sewer drainage problems at that location.

Earnheart’s opposing evidence was that six other accidents had recently occurred in the 1800 and 1900 blocks of Lenox Road during wet weather. He also presented a July 7, 1986 city work order for Lenox Road between Wildwood Road and Park Road which stated “Install S/W & D/W on Lenox Rd./ Drainage is involved.” The order stated that the work was completed September 15, 1986. Finally, Earnheart relied on the affidavit of a nearby homeowner (1737 Lenox Road) that water breaches the curb in front of his house when it rains. He stated that his house is close to the curve where the incident occurred, that numerous accidents have occurred there and that the area is dangerous when it rains. He telephoned the police several times about the problem but nothing was done until the City grooved the road in 1990, which somewhat reduced the number of accidents.

The trial court, noting that Earnheart had presented no evidence to show how close the homeowner’s property or the other incidents were to the location of Earnheart’s collision, granted summary judgment to the City.

1. Earnheart contends that a question of fact exists as to whether the City had notice of the standing water problem. This is crucial to the law of nuisance.

“The power to construct and maintain a sewer and drainage system is a governmental function. [Cits.]” City of Rome v. Turk, 235 Ga. 223, 224 (1) (219 SE2d 97) (1975). “While a municipality is not liable for negligence in the exercise of a governmental function, it may be liable for injury resulting from the maintenance of a nuisance regardless of whether it arises from the exercise of a governmental or a ministerial function.” Denson v. City of Atlanta, 202 Ga. App. 325, 327 (414 SE2d 312) (1991). The following factors must be present to show a nuisance: “(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance.) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious. (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition.” (Citations and indention omitted.) City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979). The latter factor requires either knowledge or notice of the dangerous condition. Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 531 (3) (307 SE2d 47) (1983). Although the question of whether a nuisance exists is normally one of fact, in some cases it can be held as a matter of law that no nuisance exists. City of Bowman, supra at 811.

Earnheart’s evidence failed to controvert the City’s evidence that it had no knowledge of the alleged defect. Although he presented accident reports from six other incidents in the 1800 and 1900 blocks of Lenox Road, all but one occurred after Earnheart’s collision. All five of the subsequent incidents were on a curve in the road and involved rain and a wet road surface, but none involved standing water. The sixth, which happened several months before Earnheart’s, involved standing water, but it occurred in the 1800 block and Earnheart’s was in the 1600 block. Even assuming this single accident was sufficient to put the City on notice of a standing water problem in the 1800 block, there was no evidence of its proximity to the site of Earnheart’s collision in the 1600 block.

The evidence is insufficient to raise a jury question as to whether the City had notice of a standing water problem at the subject site. The mere fact that a condition may exist on one portion of a road does not show that the same condition exists at another point on the road. The 1986 work order likewise does not establish the City had notice of a sewer drainage or standing water problem. The order makes no mention of standing water and does not show why it was issued. It could have been a request for routine maintenance. In any event, the work order also indicates that the requested drainage work on Lenox Road was performed far in advance of Barnheart’s collision.

Decided May 10, 1994.

Sonja L. Salo, for appellant.

Renata Turner, Sarah I. Mills, Joe M. Harris, Jr., for appellees.

Finally, the homeowner’s affidavit is insufficient to show the City had notice of the alleged standing water problem. He neither addresses the site of Earnheart’s incident nor indicates the distance between his house and the site. He does not say he ever notified the police of such a problem or that the other accidents were at sites of standing water. To the contrary, his affidavit indicates they were the result of curves and a wet road surface and decreased after the City grooved the road.

“When the moving party in summary judgment shows there is no evidence creating a jury issue and that [the] movant is entitled to judgment, the respondent may not rest on his pleading, but must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).” Banks v. Mayor &c. of Savannah, 210 Ga. App. 62, 63 (1) (435 SE2d 68) (1993).

Because Earnheart failed to produce evidence sufficient to controvert the City’s evidence that it had no notice or knowledge of the alleged defect, the trial court properly granted summary judgment to the City. See Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427 (349 SE2d 239) (1986).

2. In view of our decision in Division 1, we need not reach the remaining enumerations of error.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Earnheart also named as a defendant, but dismissed, Georgia Scott, Street Operations Division Chief with the Public Works Department.


text:
    A94A0605.
    CASEY v. NORTH DECATUR COURTYARDS CONDOMINIUM ASSOCIATION, INC.
    (444 SE2d 361)
   Beasley, Presiding Judge.

On March 22, 1990, Casey sold a condominium unit to Mitchell and Farrell. The deed was not recorded until October 7, 1991. North Decatur Courtyards Condominium Association (“Courtyards”) sued Casey and Mitchell for unpaid and accelerated assessments, late fees, and attorney fees. Courtyards moved for partial summary judgment as to all issues against Casey, and Casey appeals from the grant of the motion.

1. Casey contends he cannot be deemed liable for assessments for the period between March 22, 1990, when he sold the unit, and October 7,1991, when the deed was recorded. The court decided this issue in favor of Courtyards based on a provision in the by-laws of the condominium association that makes each owner liable for the assessments due while that person is an owner, and a provision that defines “owner” as “record title holder of a unit within the condominium, but shall not mean a mortgage holder.”

Casey argues that the definition of “owner” found in the by-laws conflicts with the definition of “unit owner” found in the Georgia Condominium Act, OCGA § 44-3-71 (29), and that under the conflict provisions of the by-laws, the Act controls. The court found the definition in the by-laws did not conflict with the Act but was merely a more precise definition used to facilitate the collection of assessments.

The by-laws are not necessarily in conflict with the Act simply because they include a different definition. See Langford v. Royal Indem. Co., 208 Ga. App. 128, 129-130 (3) (a) (430 SE2d 98) (1993). The Act defines “unit owner” but does not use that definition in its provisions on assessment and collection. OCGA §§ 44-3-80; 44-3-109. To the contrary, the Act addresses assessment and collection on a unit basis, not on an individual basis. OCGA §§ 44-3-80; 44-3-109. It is the by-laws, pursuant to the condominium declaration, that allow Courtyards to consider the record title holder the owner for purposes of assessment. It is undisputed that the declaration was properly recorded, and Casey does not claim any lack of notice of it or its provisions.

Additionally, public policy requires that condominium associations have sufficient power to enforce the collection of assessments. Forest Villas Condo. Assn. v. Camerio, 205 Ga. App. 617, 618-619 (1) (422 SE2d 884) (1992). As indicated by the trial court, the definition used in the by-laws facilitates fee collection. Although a condominium association has a lien against a unit for which assessments are unpaid, that lien is inferior to tax and mortgage liens, OCGA § 44-3-109 (a), and is not exercisable in a way that supplies the cash flow necessary to fulfill the obligations and functions of the association. Because of these policy concerns, associations must be able to rely on the public record to identify parties who are liable for the assessments. The definition of “owner” in the by-laws serves that policy and does not contravene the Act.

2. The only evidence before the court of the amount owed on the assessments was the affidavit of Robert Tuggle. It stated that he was “custodian of record” (sic) for Courtyards and that the assessment fees due prior to October 7, 1991 amounted to $4,048, but no records were attached.

Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient. Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160, 162-163 (2) (435 SE2d 520) (1993). Although the affidavit did not specify that the figure was derived from financial records, “it is clear from the context that the portion of the affidavit which set out the amount owed by defendant ] was based on [financial] records.” Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991). Although summary judgment was appropriate as to Casey’s liability for assessments, there was no competent evidence from which the court could determine the amount owed on those assessments, and the case must be remanded for that determination by a factfinder.

Decided May 10, 1994.

Storey & Obenschain, Stuart M. Neiman, for appellant.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, for appellee.

3. Casey finally contends that attorney fees should not have been awarded, claiming that the facts of this case do not warrant it. The Act provides that a lien for assessments “shall” include attorney fees, OCGA § 44-3-109 (b) (3), and the by-laws clearly designate them as personal obligations. The award of attorney fees was not error.

Judgment affirmed in part and reversed in part, with direction.

Andrews and Johnson, JJ., concur.


text:
    A94A0078.
    ARANZA v. THE STATE.
    (444 SE2d 349)
   Smith, Judge.

Anthony Aranza was charged by accusation on February 16,1993, with DUI, OCGA § 40-6-391 (a), and driving with a suspended license, OCGA § 40-5-121 (a). He filed numerous motions on March 1, 1993, including a “demand for trial by jury.” On July 23,1993, Aranza filed a motion for discharge and acquittal, asserting that the State had not complied with the speedy trial provisions of OCGA § 17-7-170. The trial court denied his motion.

When applicable, OCGA § 17-7-170 requires trial within the same term of court or the next succeeding term, or the defendant “shall be absolutely discharged and acquitted of the offense charged in the . . . accusation.” OCGA § 17-7-170 (b).

The State opposed Aranza’s motion on two grounds. First, relying on Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987), it argued that the motion was fatally defective because the caption “demand for jury trial” failed to afford the State notice that the motion sought a speedy trial under OCGA § 17-7-170. Second, it argued that the demand was legally insufficient under Ferris v. State, 172 Ga. App. 729 (324 SE2d 762) (1984) in that it failed to identify the pending charges or the case number. The trial court denied Aranza’s motion on the basis that the caption was “legally insufficient to place the State on notice of the statutory demand for a speedy trial within two terms under OCGA § 17-7-170.” Aranza contends this ruling was erroneous.

1. We agree with Aranza that the caption of the demand did not render it legally insufficient as a demand for speedy trial pursuant to OCGA § 17-7-170. The opinion in Kramer does not constitute binding precedent, as only two judges concurred fully, and it has been subsequently criticized and questioned. See State v. Allen, 192 Ga. App. 730, 733-734 (386 SE2d 394) (1989); Verscharen v. State, 188 Ga. App. 746, 747 (374 SE2d 349) (1988). Although a defendant must put the State on notice that he is demanding a speedy trial under the statute, we noted in Allen that “ ‘there is no magic in nomenclature’ and we will construe [a pleading] to serve the pleader’s best interests and ‘by its function rather than by its name.’ [Cits.]” 192 Ga. App. at 734. See also State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387) (1993). The body of Aranza’s demand stated clearly that “this is a request for speedy trial under OCGA § 17-7-170,” and unequivocally demanded a trial by the next succeeding term of court. We have no difficulty in finding that it provided a “reasonable reference” to the provisions of the statute, and thus was legally sufficient. Edwards v. State, 177 Ga. App. 557 (340 SE2d 229) (1986).

2. Nevertheless, we find that the demand was legally insufficient. Here, as in Ferris, the demand indicated clearly that it is a demand for a speedy trial. But the copy served upon the State failed to identify the charges upon which Aranza demanded a speedy trial by “ ‘name, date, term of court, or case number.’ [Cits.]” Cummins v. State, 202 Ga. App. 155 (413 SE2d 773) (1991). “Such a demand cannot reasonably be construed as sufficient to put the authorities on notice of a defendant’s intention to invoke the extreme sanction” of OCGA § 17-7-170. Ferris, supra at 731 (1).

A trial court’s ruling right for any reason will not be reversed. Pullen v. State, 208 Ga. App. 581, 585 (2) (431 SE2d 696) (1993). Since the trial court correctly ruled that the demand was legally insufficient, albeit for the wrong reason, the judgment below is affirmed.

Judgment affirmed.

Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.

Decided April 29, 1994

Reconsideration denied May 11, 1994

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Keith A. Carnesale, W. Cliff Howard, Assistant Solicitors, for appellee.

       Aranza relies exclusively upon OCGA § 17-7-170, and we therefore need not consider his right to a speedy trial under the State or U. S. Constitution.