author: Andrews, Presiding Judge.

text:
    A02A0073.
    RHEEM MANUFACTURING COMPANY v. JACKSON.
    (562 SE2d 524)
   Andrews, Presiding Judge.

We granted Rheem Manufacturing Company’s application for discretionary review of the superior court’s order affirming a decision of the appellate division of the State Board of Workers’ Compensation. This decision upheld a determination by the administrative law judge (ALJ) as to the amount of Nora Jackson’s average weekly wage for purposes of paying her workers’ compensation benefits. Because there was no evidence to support the ALJ’s finding that there were no “similar employees” in determining Jackson’s average weekly wage, the superior court erred in not remanding the case for an evi-dentiary hearing on this issue.

OCGA § 34-9-260 provides that:

the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to limitations as to the maximum and minimum amounts provided for in Code Sections 34-9-261 and 34-9-265, as follows: (1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks; (2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph; (3) If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used.

At the hearing before the ALJ, there was no evidence or testimony presented as to the average weekly wage. The ALJ stated at the close of the hearing that he was “going to leave the record open only for the submission of additional items to help us all determine what the average weekly wage is.” Thereafter, the record shows that Jackson submitted a schedule of weekly earnings and her payroll register and a letter brief to the ALJ stating that there were no similar employees and therefore Jackson was entitled to receive her average weekly wage.

The ALJ found that the evidence was clear that Jackson had not worked during substantially the whole of the 13 weeks prior to her injury. This finding was supported by the evidence and is not contested on appeal. However, the ALJ went on to state that “it is clear that there are no similar employees!; therefore,] the employee’s average weekly wage should be determined by using her hourly wage of $13.23 x 40 hours. . . .”

Rheem appealed, and the matter was considered by the appellate division of the State Board of Workers’ Compensation, which, after hearing argument, adopted the order of the ALJ. Rheem then appealed to the superior court which affirmed the decision of the appellate division. In affirming, the superior court found that Jackson met her burden under OCGA § 34-9-260 simply because she stated that her full-time weekly wage should be used. The superior court found this sufficient to transfer the burden to Rheem to refute Jackson’s contention as to the correct determination of average weekly wage. Rheem contends this was an improper shifting of the burden of proof as Jackson had the burden to establish the lack of similar employees under OCGA § 34-9-260 (2) before she can have her wages determined under OCGA § 34-9-260 (3).

Decided March 26, 2002.

Jones, Cork & Miller, Rufus D. Sams III, Sharon H. Reeves, for appellant.

Marcus & Jones, Steven E. Marcus, for appellee.

“[T]he burden of proof is on the claimant to establish by sufficient competent evidence the basis upon which [her] compensation is to be computed.” Hood v. Jackson, 81 Ga. App. 465 (3) (59 SE2d 45) (1950). Accord O’Kelley v. Hall County Bd. of Ed., 243 Ga. App. 522, 525 (532 SE2d 427) (2000); Richards v. Wilkinson Shaving Co., 198 Ga. App. 45, 47 (400 SE2d 344) (1990). Accordingly, under OCGA § 34-9-260, Jackson was first required to show whether a similar employee exists, and if there is no similar employee, then present evidence as to her full-time weekly wage. OCGA § 34-9-260 (2), (3). But, it is undisputed that Jackson failed to present any evidence at all as to whether a similar employee exists.

Although the superior court must affirm a finding of fact by the Workers’ Compensation Board if there is any evidence to support it, because there is no evidence to support the finding of fact in this case, the superior court erred in not remanding it to the appellate division for hearing further evidence. See Distrib. Concepts Co. v. Hunt, 221 Ga. App. 449, 451 (471 SE2d 539) (1996) (where award is unsupported by competent evidence in the record, superior court could remand to appellate division for evidentiary hearing); Hood, supra at 466 (superior court erred in not remanding case to Board to hear evidence and fix rate of compensation). Therefore, the judgment of the superior court is reversed with direction that the case be remanded to the appellate division to hear evidence and determine the amount of Jackson’s average weekly wage.

Judgment reversed and case remanded.

Phipps and Mikell, JJ, concur.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A02A0262.
    BUELL v. THE STATE.
    (562 SE2d 526)
   Barnes, Judge.

Colby Buell appeals his conviction of driving under the influence of alcohol, contending that the roadblock at which he was stopped and arrested was not established for a proper purpose, and thus his seizure violated the Fourth Amendment. Because the roadblock was proper, the trial court did not err in denying Buell’s motion to suppress, and we affirm his conviction.

Buell argues that the evidence shows that this roadblock was set up to uncover general criminal activity, an unconstitutional purpose according to the U. S. Supreme Court in City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000). In Edmond, the court found that a checkpoint to search for unlawful drug activity was not directly connected with a permissible interest in maintaining highway safety, but instead was impermissibly aimed at general crime control. The Fourth Amendment requires individualized suspicion of criminal activity to investigate general crimes, and therefore, the court held, the checkpoint in that case was unconstitutional.

In the case before us, the lieutenant testified that the officers at the roadblock were primarily focused on checking for safety violations. The protocol was for the officer to ask for the driver’s license and proof of insurance, observe his responses, speech, face, eyes, and clothes, check for seat belts and child restraints if applicable, and then walk around the vehicle and check the headlights, tires, windshield, taillights, and tag.

While Buell argues that the lieutenant testified that the roadblock’s purpose was general crime control, the lieutenant merely answered affirmatively when Buell asked on cross-examination: “So, and is it fair to say that a safety checkpoint is — the general interest in crime control?” Buell followed up with, ‘What we discussed as far as the purpose of the roadblock being the general interest in crime control, was that what was happening and that roadblock on that night when this Defendant was arrested?” On redirect, the lieutenant repeated his earlier testimony that the roadblock was primarily focused on traffic safety. Secondarily, the roadblock was conducted from midnight to 3:00 a.m. because more people drive under the influence at that time than earlier in the day.

“The use of a checkpoint for these purposes has been approved by the Supreme Court, which has acknowledged that these measures serve the states’ interest in roadway safety.” Wrigley v. State, 248 Ga. App. 387, 390 (2) (546 SE2d 794) (2001). The trial court did not err in denying Buell’s motion to suppress evidence obtained as a result of the roadblock.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided March 26, 2002.

Head, Thomas, Webb & Willis, Jerry L. Webb, Jr., for appellant.

Bárry E. Morgan, Solicitor-General, William R. Pardue, Assistant Solicitor-General, for appellee.

       Based on this argument, no issue concerning the authorization for the roadblock is before us. See Baker v. State, 252 Ga. App. 695 (556 SE2d 892) (2001).


author: Eldridge, Judge.

text:
    A02A1063.
    HARPE v. THE STATE.
    (562 SE2d 521)
   Eldridge, Judge.

Defendant Nathaniel A. Harpe entered nonnegotiated pleas of guilty under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), upon two indictments charging him with three counts of armed robbery, one count of kidnapping, and two counts of false imprisonment. As to a third nonnegotiated indictment, he entered routine guilty pleas upon single additional counts of each offense. The Gwinnett County Superior Court sentenced him concurrently to 40 years confinement to serve 25 years. The defendant, pro se, appeals from the superior court’s denial of his motion to withdraw his guilty pleas, contending that his guilty pleas were not voluntarily and intelligently entered for the ineffectiveness of appointed trial defense counsel in that counsel erroneously advised him that an Alford plea was an “innocent plea” and promised him a minimum sentence of ten years if he entered such pleas in lieu of demanding a jury trial. Further, the defendant contends that the superior court erred in advising him he could not withdraw his guilty pleas as a matter of right; erred by failing to reconcile his pleas of guilty under Alford and his claims of innocence; and abused its discretion by “question [ing]” him at its hearing upon his motions to withdraw his guilty pleas and, at the conclusion thereof, by “staffing] that [trial defense counsel] provided more than effective information.” Finding these claims of error to be without merit, we affirm. Held:

1. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), is applicable to guilty pleas challenged on the basis of ineffective assistance of counsel.

To prevail, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, in the absence of his attorney’s errors, he would not have pled guilty and would have insisted on going to trial. [Hill v. Lockhart, 474 U. S. 52, 57-59 (106 SC 366, 88 LE2d 203) (1985).]

Crabbe v. State, 248 Ga. App. 314, 315 (546 SE2d 65) (2001).

At the hearing on his motion to withdraw plea, trial defense counsel testified that he advised the defendant an Alford plea was a plea by which the defendant could plead guilty while maintaining his innocence in order to avoid what he believed might be a harsher sentence in the event of conviction at a jury trial. In further testimony, defendant’s claims to the contrary notwithstanding, trial counsel denied telling the defendant that an Alford plea was an “innocent plea,” that, in effect, it was a “not guilty” plea, and denied promising the defendant any minimum sentence upon the entry of such pleas. Moreover, the defendant’s testimony in support of his motion was not inconsistent with trial counsel's testimony as to the Alford rights advisement he had given the defendant and the nature of a guilty plea as nonnegotiated. In particular, after consulting with counsel, the defendant affirmatively stated on the record that he wished to enter a traditional guilty plea as to one of the indictments against him and Alford pleas as to the other two. Thereafter, the superior court asked the defendant:

Then as I understand it, Mr. Harpe, you understand what evidence the State could present to a jury, and you talked to [counsel] about that, and therefore you believe that there is some likelihood that a jury might convict you, you believe that it’s in your best interest to go ahead and plead pursuant to Alford ... on [indictment nos.] 2313 and 2314?

The defendant responded, ‘Yes, ma’am.” Further questioned by the superior court on his motion, the defendant testified that though he understood his Alford pleas to be pleas of innocence, he had not entered them upon the belief that a jury trial would follow. His testimony on direct examination indicated that he believed the outcome would be leniency as to sentence, i.e., “[a] reasonable sentence or, you know, probation or something.” In another exchange with the superior court, the defendant conceded that he knew there was no limitation on sentence, acknowledging that the superior court had told him that sentencing on his nonnegotiated pleas was “totally in [her] ballpark.”

Alford . . . permit [s] a criminal defendant to plead guilty while claiming to be innocent, where the defendant intelligently concludes that it is in his best interest to enter such a plea, but the plea is one of guilt and may be accepted only if the court determines there is a factual basis for a determination of guilt.

(Citations omitted.) Thompson v. State, 237 Ga. App. 466, 468 (2) (517 SE2d 339) (1999). Upon our review of the evidence, we find, as the superior court did, that the defendant was afforded effective assistance of counsel. The defendant failed to show that trial defense counsel provided him deficient advice as to his Alford pleas or that counsel provided him erroneous advice as to any limitation on sentence. Strickland v. Washington, supra; Crabbe v. State, supra. See Roberts v. State, 229 Ga. App. 783, 784 (494 SE2d 689) (1997) (“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]”) (punctuation omitted). See also Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 341 (2) (494 SE2d 38) (1997) (on appeal, questions of fact not clearly erroneous accepted but questions of law decided de novo). Accordingly, this claim of error is without merit.

2. Neither did the superior court err by advising the defendant that he could not withdraw his guilty pleas as a matter of right. The defendant’s statutory right to withdraw his guilty plea was lost when the superior court announced its sentence, the defendant having not sought to withdraw his guilty pleas before his sentence was pronounced. Bice v. State, 212 Ga. App. 184 (1) (441 SE2d 507) (1994) (nonnegotiated plea); Covington v. State, 196 Ga. App. 498 (396 SE2d 298) (1990) (negotiated plea). “After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.” (Citations and punctuation omitted.) Id. No abuse of discretion obtains in this case.

3. Defendant’s claim that the superior court erred in accepting his Alford pleas for its failure to resolve the conflict between such pleas of guilty and his protestations of innocence is likewise without merit. At defendant’s plea hearing, the prosecutor, without objection, summarized the indictments to provide the court with the factual basis for the defendant’s guilty pleas. As to his Alford pleas, the defendant affirmed that he was entering them upon charges as summarized by the prosecutor because it was in his best interest to do so.

The prosecutor’s summary of the indictments against the defendant “provided ample information from which the trial court could discern that the facts alleged by the [S]tate actually satisfied the elements of the charges to which [the defendant] was pleading guilty.” Green v. State, 265 Ga. 263, 265 (2) (454 SE2d 466) (1995). Consequently, the superior court did not err in accepting the defendant’s Alford pleas for want of a factual basis. Ellis v. State, 243 Ga. App. 431, 432 (533 SE2d 451) (2000). That the superior court otherwise properly determined that such pleas were voluntarily and intelligently entered, see Division 1, the superior court properly accepted them.

Decided March 26, 2002

Nathaniel A. Harpe, pro se.

Daniel J. Porter, District Attorney, Jennifer Kolman, Assistant District Attorney, for appellee.

4. Finally, the defendant claims the superior court erred in questioning him at its hearing on his motion to withdraw pleas and in finding that trial defense counsel “provided [him] more than ample information.” Having invoked the jurisdiction of the superior court by filing his motion to withdraw guilty pleas predicated upon his claim of ineffective assistance of counsel, the defendant cannot complain that the superior court erred by questioning him or by finding as fact that trial defense counsel provided him “ample” information upon which to enter his Alford pleas. “The judges of the superior courts have authority ... to exercise all. . . powers necessarily appertaining to their jurisdiction or which may be granted them by law.” OCGA § 15-6-9 (8). This claim of error is likewise without merit.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       The superior court further provided that its sentence was to run concurrent to the DeKalb County sentence the defendant was then serving on a robbery conviction and gave the defendant credit for time served.


text:
    A02A1078.
    STACEY v. THE STATE.
    (562 SE2d 806)
   Eldridge, Judge.

In 1997, then 18-year-old Rodney Lee Stacey was indicted in Newton County for burglary. He entered a plea of not guilty, and the case went to trial in superior court. Stacey was represented by counsel, and he and his attorney conducted voir dire. When the trial court adjourned the proceedings for the evening, a jury had been selected but not sworn. The record shows that “Mr. Stacey was sitting in court when [the judge] personally advised him, Mr. Kelly [defense counsel], and all persons involved to be back the next morning to commence the trial.”

Stacey did not return the next morning. Under the authority of Byrd v. Ricketts, however, the court ordered the trial to proceed on the ground that the accused had voluntarily absented himself from his trial. A bench warrant was issued, and the jury was then sworn. Defense counsel represented Stacey throughout the trial, and the jury returned a guilty verdict. The trial court then imposed sentence. Several days later, Stacey was apprehended in Newton County. Apparently, “Listening to [the advice] of some of his friends is the reason he didn’t show up.” Held:

1. Stacey contends that, by conducting the trial in his absence, the trial court violated his Sixth Amendment right to confront the witnesses against him. The State properly concedes this issue.

Unquestionably, the defendant’s conduct in absconding was reprehensible and showed a complete disrespect for the court and the administration of justice. However, . . . [disrespectful defendants are nothing new to those who administer justice daily. Therefore, we must develop a hard and fast rule for dealing with such situations. Prior to trial, a defendant’s failure to appear is handled with bench warrants and bond forfeitures. During trial, a voluntary absence is treated as a waiver of the right of confrontation. Therefore, we must determine at what point the trial begins and the waiver principles apply. The issue is best addressed by determining when jeopardy attaches. ... A defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn. . . . We here adopt the rule that for Sixth Amendment waiver purposes, trial begins when jeopardy attaches, and thereafter a defendant can waive his constitutional right of confrontation by voluntarily absenting himself from the proceedings. The record in the present case clearly shows that the jury had not been impaneled and sworn before defendant’s disappearance, so jeopardy had not attached and the trial had not begun. In the absence of jeopardy attaching, the waiver principles are inapplicable, and we must conclude that appellant is entitled to a new trial since his Sixth Amendment right to confrontation was violated by trial proceeding in his absence.

Decided March 26, 2002.

John T. Strauss, for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

2. Stacey’s remaining claims of error are either without merit or premised upon factual situations unlikely to occur upon retrial with Stacey present.

Judgment reversed and case remanded.

Smith, P. J., and Ellington, J., concur.

       233 Ga. 779, 780 (213 SE2d 610) (1975) (“the voluntary absence of the accused waives his right to be present when sentence is imposed”).

       (Citations and punctuation omitted; emphasis supplied.) Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152) (1985); accord Riley v. State, 252 Ga. App. 781 (1) (556 SE2d 917) (2001); Deal v. State, 213 Ga. App. 131 (443 SE2d 713) (1994); Loper v. State, 191 Ga. App. 515 (1) (382 SE2d 212) (1989).


author: Ruffin, Judge.

text:
    A01A1822.
    SUN v. MERCEDES BENZ CREDIT CORPORATION.
    (562 SE2d 714)
   Ruffin, Judge.

Mercedes Benz Credit Corporation (“MBCC”) sued Hong K. Sun after Sun breached his lease agreement for a 1996 Mercedes Benz automobile. Sun counterclaimed, alleging that MBCC libeled him in a report to credit reporting agencies and that MBCC’s failure to rectify the erroneous report violated 15 USC § 1666. The trial court granted summary judgment to MBCC on both its claim and Sun’s counterclaim. Sun appeals, asserting that the lease contained an unenforceable liquidated damages clause and that factual issues remain concerning his libel counterclaim. Sun also contends that the trial court erred by refusing to allow him to amend his counterclaim to add additional claims. For reasons that follow, we affirm in part and reverse in part.

1. In reviewing the trial court’s grant of summary judgment, we conduct a de novo review of the evidence. “To prevail at summary judgment under OCGA § 9-11-56, [MBCC] must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to [Sun], warrant judgment as a matter of law.”

Viewed in favor of Sun, the evidence shows that on May 11, 1996, Sun signed a five-year lease for a new Mercedes Benz automobile. The lease agreement required Sun to make monthly payments of $1,268.52. According to the lease, the monthly payment comprised a “Base Monthly Lease Payment” of $1,196.72, with the balance consisting of “Sales/Use Taxes.” The agreement further provided that the estimated end of term residual value for the car was $39,099.55. Under a liquidated damages clause, Sun agreed:

that upon my default I shall be liable for and shall pay to [MBCC] upon demand made by [MBCC] the sum of the following: i) any lease payments or other amounts due and owing under the lease at the time of default; plus ii) the balance of the lease payments which I would have made had the lease gone to term, less a deduction for the time-value of such payments computed in accordance with the Rule of 78’s; plus iii) the Estimated End of Term Residual Value . . . ; plus iv) an amount equal to one monthly lease payment; plus v) a disposition fee of $250.00; plus vi) any and all commissions, fees or other amounts paid by [MBCC] as consideration for the assignment of this lease.

Sun made payments under the lease through June 1997. In his affidavit, Sun stated that he stopped making payments after MBCC refused to provide him with roadside assistance following a collision. Sun apparently told MBCC where the car was being repaired and that he was terminating the lease. According to the affidavit of MBCC’s representative, it treated Sun’s failure to make further payments as a default, “repossessed” the car on September 25,1997, and thereafter sold it at auction for $47,250.

In calculating its damages, MBCC charged Sun the following: (1) $3,590.16 for three months of payments due at the time of default, plus taxes and late charges for those payments; (2) $51,458.96 for the accelerated balance of the remaining payments due under the lease, less a “time value discount” of $12,173.74; (3) $39,099.55 for the end of term residual value; (4) $1,196.72 for “One Monthly Lease Payment[ ]”; and (5) $1,235 in repossession and storage fees. MBCC then deducted the $47,250 in sales proceeds, less $325 in costs associated with preparing the car for sale and selling the car. According to the affidavit of MBCC’s representative, “[t]he time value discount was calculated using simple interest, which is slightly more advantageous to the customer as it results in more credit back for unearned interest than the discount method known as the Rule of 78’s.” After calculating its damages, MBCC sued Sun, seeking to recover an alleged deficiency of $38,487.63, plus attorney fees and accrued interest.

Sun asserts that the trial court erred in granting summary judgment for this amount, arguing that MBCC calculated its damages according to unenforceable provisions of the liquidated damages clause. In addressing Sun’s arguments, we note that

trial courts should not ordinarily submit the issue of whether a contract provides for liquidated damages or a penalty to the jury. This issue should be decided as a matter of law, unless after applying the usual rules of contract construction, an ambiguity remains warranting submitting a factual issue to the jury.

The lease agreement here should be construed under the Uniform Commercial Code’s lease provisions. Under the UCC,

[d]amages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.

To determine the legislature’s intent in enacting this provision, we consult the official comments accompanying the UCC, which state:

Many leasing transactions are predicated on the parties’ ability to agree to an appropriate amount of damages or formula for damages in the event of default or other act or omission. The rule with respect to sales of goods (Section 2-718) may not be sufficiently flexible to accommodate this practice. Thus, consistent with the common law emphasis upon freedom to contract with respect to bailments for hire, this section has created a revised rule that allows greater flexibility with respect to leases of goods.

Thus, with regard to leases, the legislature dispensed with two of the traditional “tests that under sales law determine enforceability of liquidated damages, i.e., difficulties of proof of loss and inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.” The drafters of the UCC reasoned:

The ability to liquidate damages is critical to modern leasing practice; given the parties’ freedom to contract at common law, the policy behind retaining these two additional requirements here was thought to be outweighed. Further, . . . the expansion of subsection (1) to enable the parties to liquidate the amount payable with respect to an indemnity for loss or diminution of anticipated tax benefits resulted in another change: the last sentence of Section 2-718 (1), providing that a term fixing unreasonably large liquidated damages is void as a penalty, was also not incorporated. The impact of local, state and federal tax laws on a leasing transaction can result in an amount payable with respect to the tax indemnity many times greater than the original purchase price of the goods. By deleting the reference to unreasonably large liquidated damages the parties are free to negotiate a formula, restrained by the rule of reasonableness in this section. These changes should invite the parties to liquidate damages.

The commentators also observed that

A liquidated damages formula that is common in leasing practice provides that the sum of lease payments past due, accelerated future lease payments, and the lessor’s estimated residual interest, less the net proceeds of disposition (whether by sale or re-lease) of the leased goods is the lessor’s damages. Tax indemnities, costs, interest and attorney’s fees are also added to determine the lessor’s damages. . . . Whether these formulae are enforceable will be determined in the context of each case by applying a standard of reasonableness in light of the harm anticipated when the formula was agreed to.

As the defaulting party, Sun has the burden of proving that the formula is unreasonable in light of the anticipated loss. In attempting to meet this burden, Sun challenges three provisions in the lease’s liquidated damages clause. First, Sun challenges the acceleration provision on the ground that it permits MBCC to recover all future lease payments, without properly accounting for the unearned interest that was included in those payments. But Sun has not pointed to any evidence showing how much interest was included in the “Base Monthly Lease Payment,” and the lease merely allowed MBCC to accelerate these base payments with a required deduction to account for the present value of the accelerated amount. The UCC commentators noted that such a formula is common in the industry, and we have previously found that a like provision “tends to establish a reasonable estimate of probable loss.” This is true here because Sun’s breach of the agreement deprived MBCC of the principal and interest, which is now discounted, that it could have earned under the lease.

This Court’s decision in Carter v. Tokai Financial Svcs., relied on by Sun, does not require a different result. In Carter, the liquidated damages clause permitted the lessor to not only recover the present value of all future rents, but also keep the proceeds from the sale of the repossessed merchandise. Thus, unlike the liquidated damages clause here, the one in Carter gave the lessor “the benefit of both the property and the value of all future rent payments,” placing the lessor in a far “superior position following default to that which it was in before such default occurred.” The facts in Carter show that the formula was patently unreasonable in light of the harm anticipated when the parties entered the agreement.

Sun’s second challenge, and what appears to be the real thrust of his argument, concerns MBCC’s method of discounting the accelerated lease payments to a present value. According to Sun, the lease provision allowing MBCC to accelerate payments using the “Rule of 78’s” renders the damages provision unreasonable as a matter of law. Again, we disagree.

Although Sun cites cases in which Georgia appellate courts have invalidated the Rule of 78’s method to discount future interest, he cites no cases in which we have concluded that the method is unreasonable per se. Instead, each of the cited cases involved circumstances where use of the rule rendered the finance charge usurious under the Georgia Motor Vehicle Sales Finance Act (“MVSFA”). But it is clear that the finance charge limitation at issue in these cases applied only to sales transactions involving a “buyer” and a “seller” under the MVSFA. Thus, even if Sun had presented any evidence showing the actual amount of interest that was included in the base payment due under his lease, that interest rate is not controlled by the MVSFA. Furthermore, without evidence of the amount of interest included in the accelerated amount, we have no way of determining whether the Rule of 78’s provision rendered the agreement unreasonable in light of MBCC’s anticipated damages. Considering that Sun has the burden of proving the provision is unreasonable and that the legislature intended to provide leasing parties the flexibility to create their own terms, we cannot conclude, under the circumstances of this case, that use of the Rule of 78’s in the liquidated damages clause was unreasonable as a matter of law.

Sun’s final challenge to the liquidated damages clause concerns the provision obligating him to pay “an amount equal to one monthly lease payment.” We agree with Sun that this is unreasonable. Because the other provisions in the liquidated damages clause compensate MBCC for every conceivable loss, we fail to see how an additional monthly lease payment can be considered reasonable in light of the anticipated harm caused by a default. Under these circumstances, the additional lease payment merely provided MBCC with a windfall, and the trial court erred in granting MBCC summary judgment for the additional lease payment. This single deficiency, however, does not render the entire clause unreasonable, and because the parties expressly agreed that the contract was severable, the remaining provisions of the liquidated damages clause remain enforceable.

2. Sun next asserts that the trial court erred in granting summary judgment to MBCC on his libel counterclaim. In the counterclaim, Sun alleged that MBCC falsely reported to credit agencies that it recovered the vehicle in a “repossession” and that the balance due was “$38,337.00, when in fact[, it] . . . is much less than that.” We find no error.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” Here, we already addressed the propriety of MBCC’s claim against Sun for the deficiency. Although we found that the provision obligating Sun to pay an additional lease payment was unenforceable, inasmuch as the damages provision was included in the lease, we find nothing false or malicious about the amount claimed by MBCC in the credit report.

Similarly, the fact that MBCC stated that it had repossessed the car does not render the report libelous. Although Sun told MBCC where it could find the car, he does not. dispute that he was three months in arrears at the time MBCC recovered the vehicle, and the evidence shows that the company expended $1,235 to take the vehicle back. Black’s Law Dictionary defines “repossession” as “[t]o take back — as when a seller repossesses or takes back an item if the buyer misses an installment payment.” That is exactly what occurred here, and MBCC’s report was thus neither false nor malicious. Accordingly, the trial court did not err in granting summary judgment to the company on Sun’s libel counterclaim.

3. Finally, Sun asserts that the trial court erred in denying his motion to add an additional counterclaim that matured after he answered the complaint. In the proposed counterclaim, Sun alleges that MBCC’s refusal to correct the credit report after written demand gave rise to a cause of .action under 15 USC § 1681n and that its attempt to collect usurious interest entitles him to recovery under the MVSFA. The decision whether to grant Sun’s motion was “totally within the trial court’s discretion.” In light of our discussion above rejecting Sun’s arguments about the credit report and the purported usurious interest charges under the MVSFA, we conclude that the trial court did not abuse its discretion in denying Sun’s motion.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J, concur.

Decided March 1, 2002

Reconsideration denied March 27, 2002

Freed & Berman, Robert H. McKnight, Jr., for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, Shawn M. Winterich, for appellee.

       See Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       (Citation and punctuation omitted.) Id.

       The leased vehicle was a Mercedes Benz model SL320 coupe/roadster with a retail sticker price of $78,895.

       Although the lease agreement designates Regal Nissan as the lessor, it was subsequently assigned to MBCC.

       Although MBCC’s complaint seeks a principal sum of $38,787.63, the evidence it presented in support of its motion for summary judgment indicates the amount of the deficiency was $38,487.63, the amount awarded by the court on summary judgment.

       (Citation omitted.) Roswell Properties v. Salle, 208 Ga. App. 202, 205 (3) (c) (430 SE2d 404) (1993).

       See Summerhill Neighborhood Dev. Corp. v. Telerent Leasing Corp., 242 Ga. App. 142, 144 (2) (528 SE2d 889) (2000); Carter, supra at 757 (2); OCGA §§ 11-2A-102 (applicability to lease transactions); 11-2A-103 (1) (e) (defining a “consumer lease”).

       OCGA § 11-2A-504 (1).

       See OCGA § 1-3-1 (a); Summerhill, supra at 145, n. 2.

       UCC § 2A-504 (Official Comments 1998).

       Id. Compare OCGA § 11-2-718 (1); Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 644 (4) (507 SE2d 823) (1998). But see Carter, supra at 758 (interpreting lease under UCC, but applying three-part test).

       UCC § 2A-504 (Official Comments 1998).

       Id.

       See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808-809 (375 SE2d 222) (1989).

       Although Sun, in his appellate brief, presents a calculation that purports to establish the amount of interest included in the payment, he presents no evidence establishing that MBCC used the same calculation in determining the amount of his payment. Our research suggests that the formula used to compute monthly lease payments is far more complex than Sun has indicated in his brief. See, e.g., Miller v. Nissan Motor Acceptance Corp., 2000 U. S. Dist. LEXIS 15645, *10-23 (E.D. Pa.) (discussing evidence showing how monthly lease payment calculated).

       UCC § 2A-504 (Official Comments 1998).

        Jamsky v. HPSC, Inc., 238 Ga. App. 447, 449 (519 SE2d 246) (1999). See also OCGA § 11-2A-504 (1); Summerhill, supra at 145; Carter, supra at 759; In re Baldwin Rental Centers, 228 Bankr. 504 (S.D. Ga. 1998).

       231 Ga. App. at 755.

       Id. at 759 (2).

       OCGA § 10-1-30 et seq.; Carter v. First Fed. Sav. &c., 179 Ga. App. 532, 535 (2) (347 SE2d 264) (1986) (citing Cook v. First Nat. Bank &c., 130 Ga. App. 587, 588 (2) (203 SE2d 870) (1974), where we recognized that the Rule of 78’s method resulted in interest that exceeded the finance charges permitted by the Act). See also Bozeman v. Tifton Fed. Sav. &c. Assn., 164 Ga. App. 260, 261 (1) (247 SE2d 49) (1982).

       See OCGA § 10-1-31 (a) (2) (defining “Finance Charge” as “amount agreed upon between the buyer and the seller ... to be added to the cash sale price”) (emphasis supplied). See also OCGA § 10-1-33 (establishing finance charge limitations under the MVSFA).

       See UCC § 2A-504 (Official Comments 1998).

       See OCGA § 11-2A-504 (1); Carter, 231 Ga. App. at 759.

       See Bulloch South, Inc. v. Gosai, 250 Ga. App. 170, 175 (1) (b) (550 SE2d 750) (2001).

       OCGA § 51-5-1 (a).

       Black’s Law Dictionary (5th ed. 1979), p. 1169.

        See Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620 (2) (510 SE2d 337) (1998).

       (Punctuation omitted.) Feifer v. Reliance Kitchens, USA, 189 Ga. App. 653, 655 (4) (377 SE2d 28) (1988).

       See id.


author: Mikell, Judge.

text:
    A01A1898.
    AINSWORTH et al. v. PERREAULT et al.
    (563 SE2d 135)
   Mikell, Judge.

Scott and Lori Ainsworth (“plaintiffs”) filed this action against William and Barbara Perreault (“defendants”) alleging fraud and breach of contract claims. The case arose from plaintiffs’ purchase of defendants’ home in January 1996. Plaintiffs claim that defendants misrepresented material facts about the swimming pool, concealed material defects of the pool, and breached the contract by failing to transfer the warranty on the pool. The court granted defendants’ motion for summary judgment, concluding that the alleged misrepresentations were made outside the contract; that defendants had no affirmative duty to disclose prior repairs to the pool, as the defects did not exist at the time of the closing; and that defendants did not breach the contract by failing to transfer a nontransferable warranty on the pool. This appeal followed. We affirm.

The record shows that defendants hired Atlas Pools (“Atlas”) to construct a vinyl liner swimming pool at their home in 1989. The contract between defendants and Atlas contained a limited warranty provision in which Atlas warranted that the pool would remain structurally sound for the period of time the pool was owned by defendants. The contract further stated that the warranty would become void “if there was a transfer or change of ownership of the real property on which the pool is located.”

In 1994, there was a rupture in the bottom of the pool. Atlas performed the necessary repairs, after defendants hired a structural engineer to make recommendations. For the purpose of providing additional support, rebar was placed in the deep end, and concrete pillars were constructed under the floor of the pool. After the repairs were completed, defendants had no further problems with the pool.

Plaintiffs contracted with defendants to purchase the home in December 1995, and the sale closed on January 16, 1996. The Purchase and Sale Agreement (the “Agreement”) provided that certain transferable warranties on the home would be transferred to plaintiffs. The Agreement also contained a merger clause that provided that “[n]o representation, promise or inducement not included in this Agreement shall be binding upon any party hereto.”

A pool inspector hired by plaintiffs concluded that the pool was in good condition prior to the closing. In the spring of 1996, several months after the closing, plaintiffs learned of the past repairs to the pool through conversation with a landscape professional. Defendants and Atlas later confirmed that the repairs had been made. Atlas also informed plaintiffs that the lifetime warranty on the pool had not been transferred after the sale of the home.

A year and one-half later, in the fall of 1997, plaintiffs observed that the northwest corner of the pool was settling. Plaintiffs hired a geotechnical engineer who concluded in June 1998 that the pool was constructed on weak, uncompacted fill with significant organic content, that the northwest corner had settled approximately two to three inches, and that a quarter-inch-wide crack had developed. The engineer further reported that the soil under the pool’s retaining wall foundation had been disturbed by the large volume of water that escaped from the pool in the past, creating a subsurface cavity and resulting in settlement and cracking of the structure. Plaintiffs did not undertake any repair work on the pool.

In September 1998, plaintiffs sent a letter to defendants offering to rescind the sale of the home. Defendants refused, and plaintiffs filed the present action on March 5, 1999, seeking damages for fraud and breach of contract. The court granted defendants’ motion for summary judgment, and this appeal followed.

It is well settled that summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. Plaintiffs first argue that the court erred in granting summary judgment to defendants on the fraud claim based on wilful misrepresentations by the defendants. We disagree.

In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud. Paden v. Murray, 240 Ga. App. 487, 488 (1) (523 SE2d 75) (1999); Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 117 (1) (517 SE2d 826) (1999); Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74 (441 SE2d 421) (1994). In this case, plaintiffs offered to rescind the Agreement in September 1998, and defendants refused. The complaint subsequently filed by plaintiffs alleges fraud and breach of contract, but it does not include a claim for rescission. Therefore, it is apparent that plaintiffs have elected to affirm the Agreement and seek damages arising from the alleged fraud and breach of contract. See Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 145-147 (3) (524 SE2d 790) (1999).

However, plaintiffs’ fraud claim alleging wilful misrepresentation must fail. “[W]hen a home buyer elects to affirm a purchase agreement which contains a merger or entire agreement clause, he or she is precluded from recovering for the seller’s alleged fraudulent inducement based on misrepresentations made outside the contract.” Herman Homes, Inc. v. Smith, 249 Ga. App. 131, 132 (1) (547 SE2d 591) (2001). It is undisputed that the contract at issue contained a merger or “entire agreement” clause, which provided: “This Agreement constitutes the sole and entire agreement between the parties hereto and no modification of this Agreement shall be binding unless signed by all parties to this Agreement. No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto.” Therefore, the plaintiffs are estopped from arguing that they relied on representations other than those contained in the contract. See Clark, supra at 118 (1). Stated another way, the entire agreement clause “operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement.” (Punctuation omitted.) Herman Homes, Inc., supra at 133 (1), citing Clark, supra at 118.

Plaintiffs argue that defendants committed fraud by failing to disclose the rupture in the bottom of the pool and the subsequent repairs to the pool in the property disclosure statement on which plaintiffs relied in deciding to purchase the home. However, contrary to plaintiffs’ argument, there is no evidence that the property disclosure statement was incorporated into the Agreement. Compare Paden, supra at 490-491 (seller’s property disclosure statement was attached to the sales agreement and made a part thereof).

As in Paden, there is some evidence in this record from which it might be inferred that the disclosure statement was attached to the Agreement. The plaintiffs point to deposition testimony to argue that one of the two sellers, Mr. Perreault, admitted that the disclosure statement was “part of the contract.” The precise testimony was as follows:

Q: I’m going to hand you Plaintiffs’ Exhibit P-30 and ask if this is the contract and the signatures on the contract which represent some of the signatures are yours and initials are yours on this contract document?
A: I would say so.
Q: Now, going back seven pages into that document, if you will, there’s a seller’s property disclosure statement. Can you turn to that document. This is titled a seller’s property disclosure statement, is it not?
A: (Witness nods head affirmatively.)

Plaintiffs’ Exhibit P-30 to the Perreault deposition was filed with this Court as a supplemental record. It contains 17 pages including some duplicate pages and a photocopy of the check for the earnest money. Assuming that these were the pieces of paper handed by the attorney to the witness, and giving the party opposed to the motion for summary judgment the benefit of every reasonáble inference, the witness’s condition answer (i.e., “I would say so”) to the attorney’s question is enough to raise an issue of fact as to whether the disclosure agreement was attached to the Agreement.

But the Paden, supra, precedent and other cases involving merger clauses require not merely that the disclosure statement be attached to the contract but that it be “made a part thereof,” i.e., incorporated into the contract. The plaintiffs argue that Paragraph 4 of the Agreement supports an inference that the disclosure statement was part of the contract. Paragraph 4 states, inter alia:

4. Condition of Property
D. Seller’s Disclosure: [Buyer must initial either subpara-graph (1) or (2) below; the uninitialed subparagraph is not part of this Agreement.] The Seller’s Property Disclosure Statement:
(1) Has not been received by Buyer. . . .
— OR —
(2) Has been received by Buyer.

The initials of the buyers appear in the box next to the second option, providing that the seller’s disclosure statement had been received by the buyers. This evidence at most supports an inference that the second subparagraph is an enforceable part of the Agreement. But the thing that is thus made a part of the contract is the acknowledgment of receipt, not the document received. An intention by the parties to incorporate the disclosure statement into the Agreement would have been manifest if the scrivener had listed the disclosure statement in Paragraph 22. That paragraph, entitled “Exhibits and Addenda,” says that “the following exhibits and/or addenda are attached hereto and by reference made a part hereof.” Paragraph 22 then expressly lists the Agency Agreement and Bill of Sale. The paragraph does not list the disclosure statement.

Plaintiffs also contend that defendants made certain oral misrepresentations concerning the condition of the pool; however, reliance on those alleged misrepresentations is barred by the merger clause as well. Clark, supra.

The plaintiffs’ reliance on Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977), in connection with their allegations of fraudulent misrepresentation is misplaced. As we recently noted in Herman Homes, Inc., supra, the Supreme Court’s holding in Wilhite does not affect the outcome of cases involving purchase agreements that contain merger clauses.

[In Wilhite, supra,] the Supreme Court affirmed the rule that [when] a seller passively conceals a latent defect in the property, and the buyer is induced to enter the purchase agreement by such fraud, the buyer is not bound by the general rule of caveat emptor, but may instead elect to rescind the contract or affirm the contract and sue for damages resulting from the fraud. The issue of whether a merger clause in the purchase agreement would prevent such recovery for fraud was not before the Court, and the Court’s opinion did not purport to address this issue.

(Footnote omitted.) Herman Homes, Inc., supra at 133 (1).

Furthermore, recent decisions of this Court mandate that a merger or entire agreement clause bars purchasers “from asserting reliance on the alleged misrepresentation not contained within the contract.” (Punctuation omitted.) Pennington v. Braxley, 224 Ga. App. 344, 346 (1) (480 SE2d 357) (1997), citing Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (448 SE2d 271) (1994). See also Herman Homes, Inc., supra at 132 (1). “Therefore, any fraud claim the purchaser might assert would be barred because reliance is an element essential to establishing fraud.” Clark, supra at 118 (1).

Accordingly, the trial court did not err in granting summary judgment to the defendants on plaintiffs’ fraud claim.

2. Plaintiffs also contend that the trial court erred in rejecting their allegations of active and passive concealment of material defects in the pool as a basis for their fraud claim. Again, we disagree and affirm the trial court’s grant of summary judgment to the defendants.

In addition to wilful misrepresentation,

[flraud in the sale of real estate may be predicated upon . . . active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and . . . passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller.

Holloman, supra at 143 (2).

We conclude that the trial court properly found that plaintiffs could not maintain their fraud claim based on active or passive concealment of defects in the pool. In both active and passive concealment, the seller must know of the defect the buyer claims was concealed. Hoffman v. Fletcher, 244 Ga. App. 506, 508 (2) (535 SE2d 849) (2000). Mr. Perreault testified that in his opinion Atlas adequately repaired the defects in the pool; that he was “extremely pleased” with the repair work; and that his family enjoyed the pool without problems during the time between the completion of the repairs in 1994 and the sale of the home in 1996. “There [was] no evidence to suggest that the [defendants] had any knowledge that repairs had been ineffectual, and, thus, they did not knowingly conceal any defects from [the plaintiffs].” Id. at 509 (2).

Plaintiffs’ reliance on Southern v. Floyd, 89 Ga. App. 602 (80 SE2d 490) (1954), is misplaced. Plaintiffs are correct that Southern, supra, requires a seller to reveal concealed defects in property being sold; however, that case is factually distinguishable from the case sub judice. In Southern, the buyers alleged that the seller of a house actively concealed a broken component in the furnace that rendered it unable to heat the home at all. Id. at 603 (3). In this case, the plaintiffs allege that the defendants did not inform them of past problems with the pool that were repaired prior to the sale of the property.

The law does not require sellers to disclose every past repair made to their homes; rather, they must inform potential buyers of current defects of which they are aware. Hoffman, supra. See also Paden, supra at 491 (3) (sellers cannot be held liable for failing to disclose termite infestation of which they were unaware); Quill v. Newberry, 238 Ga. App. 184, 190 (1) (518 SE2d 189) (1999) (court erred in granting summary judgment when evidence showed that seller knowingly concealed extensive termite damage).

Therefore, because the record shows that there was no defect known to the sellers at the time of the alleged concealment, the trial court properly granted summary judgment on the fraud claim.

3. In a separate error, plaintiffs contend that the trial court erred in concluding that they failed to rescind the contract in a timely manner because they were on notice of the defects in the pool in 1996 but did not offer to rescind the contract until 1998. Although plaintiffs initially offered to rescind the contract, they did not seek rescission as a remedy in the underlying action; rather, as noted in Division 1, they elected to affirm the contract and sue for fraud and breach of contract. See Holloman, supra at 146-147. Therefore, we need not consider this issue, because even if the court erred in concluding that plaintiffs were not entitled to rescind the contract, it would be harmless error, because there was no claim for rescission included in the complaint. Furthermore, a grant of summary judgment must be affirmed if it is right for any reason. Ben Farmer Realty Co., supra at 78.

4. Next, plaintiffs assign error to the court’s grant of summary judgment to the defendants on the breach of contract claim. In their complaint, plaintiffs allege that the defendants breached the Agreement by failing to transfer the lifetime warranty on the pool. The trial court concluded that because the pool warranty was not transferable, there was no jury issue regarding breach of contract. We agree.

The Agreement provided in pertinent part that “Seller agrees to transfer to Buyer, at closing, Seller’s interest in any manufacturer’s warranties, service contracts, termite bond or treatment guarantee, and/or other similar warranties which by their terms may be trans-ferrable to Buyer.”

The record shows that in connection with construction of the pool on the defendants’ property in 1989, Atlas warranted that the pool would remain structurally sound for the period of time it was owned by defendants. The contract between defendants and Atlas further provided that Atlas may issue a new warranty to a second owner after a complete inspection by Atlas, instructions to the new owner, and payment of an inspection fee. Finally, the contract expressly stated that the pool warranty would become void “if there was a transfer or change of ownership of the real property on which the pool is located.”

Based on the contract between defendants and Atlas, the trial court properly concluded that because the pool warranty was not transferable by its terms, the defendants did not breach their agreement with plaintiffs by failing to transfer it. It is well settled that “[t]he construction of a contract is a question of law for the court.” OCGA § 13-2-1. “However, where the language of a contract is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible by the trial court.” (Citations and punctuation omitted.) Clark, supra at 119-120 (2). The Agreement was clear and certain in its terms that the defendants were required to transfer warranties “which by their terms may be transferrable.” The warranty provision in the contract between Atlas and the defendants clearly provided that the pool warranty was not transferable; therefore, there was no jury issue regarding the breach of contract claim. The trial court did not err in granting summary judgment to the defendants.

Decided January 25, 2002

Reconsideration denied March 27, 2002

Burr & Forman, John A. Howard, Wasson, Sours & Harris, Mark D. Gropp, for appellants.

Proctor & Chambers, Robert J. Proctor, Bradley A. Hutchins, for appellees.

Judgment affirmed.

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

       The initials of the buyers and sellers also appear at the bottom of the page.


text:
    A01A1955.
    DEKALB COLLISION CENTER, INC. et al. v. FOSTER et al.
    (562 SE2d 740)
   Ruffin, Judge.

Henry Foster was killed at his workplace, DeKalb Collision Center, Inc. (“DeKalb Collision”), during a fight involving several DeKalb Collision employees and some contractors. Foster’s daughters sued DeKalb Collision and the employees involved in the fight (collectively “DeKalb Collision Defendants”), as well as the contractors, alleging that their negligent and wilful actions caused his death. The plaintiffs settled their claims against the contractors prior to trial, and following trial, a jury returned a verdict against the DeKalb Collision Defendants. The DeKalb Collision Defendants appeal, asserting that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiffs’ tort claims were barred by the exclusive remedy provision of Georgia’s Workers’ Compensation Act. Because the evidence shows that Foster’s death arose out of and in the course of his employment, we agree that the trial court erred in denying the motions.

1. In making this inquiry on appeal,

we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments [notwithstanding the verdict] are not proper 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. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a one-way verdict proper, judgment n.o.v. should not be granted.

Viewed in favor of the verdict, the evidence shows that DeKalb Collision is an automobile paint and body repair shop. The building where the shop is located consists of six service bays with garage doors that open to a parking area and an office situated between the bays. About two or three weeks before the incident, the owner of DeKalb Collision, Mark Watkins, orally contracted with a brick mason, James Lamar Powell, for construction of a brick facade and some planters on the front of the building. When the work was completed, a dispute erupted over the contract price. Powell insisted that he had agreed to do the work for $3,000, and his brother, David, gave Watkins an invoice for that amount. Watkins, however, insisted that Powell had agreed to do the job for $1,500, and when Watkins reported that to David, David responded that he would let Powell collect the money.

The next morning, while Watkins was pressure washing the newly laid brick, Powell, accompanied by his father and another individual, came to the business and asked Watkins why he was refusing to pay the $3,000. Watkins responded that it was too much money, and a more heated argument ensued. Powell told Watkins that if Watkins would not pay him, he was going to tear the brick down. Powell then went to his truck and retrieved a sledgehammer and a pickax.

It appears that Powell returned to the area with the sledgehammer and that his father accompanied him with the pickax. It is, however, almost impossible to precisely report what occurred next, except to say that a fight broke out. Apparently, several DeKalb Collision employees came out of the repair shop and surrounded Powell. Powell testified that Watkins and another individual punched him, and numerous other individuals “just piled on [him] . . . like [they] were playing rugby.” Watkins, who thought he was the intended victim of the sledgehammer, testified that he wrestled it away from Powell and stowed it inside the shop. Meanwhile, other employees engaged Powell’s father, who was knocking bricks off the top of the planter with the pickax. At some point during this altercation, a DeKalb Collision employee attempted to subdue Powell’s father with the pressure washer.

Foster was employed by DeKalb Collision as a paint preparation man and was one of the employees that left his work area and became involved in the scuffle. At the time, Foster was working next to an open bay door located near the brick planter. According to Frank Hawk, who was working with Foster, Foster was sanding a car when he stated: “[they are] going after Mark [Watkins] with the sledgehammer.” It appears that Foster left the bay, went toward the brick planter, and started to break up the fight involving Powell’s father. Powell’s father testified that, during the altercation, Foster was struck in the eye with the pressure washer wand. A bicycle rider who witnessed the fight from the street testified that he thought Foster was struck with a “wooden handle instrument.” That is all we know about Foster’s actions that morning, but when the melee ended, he lay unconscious near the brick planter. Foster died from his injuries at the hospital later that evening. The chief forensic investigator for the DeKalb Medical Examiner attributed the cause of death to Foster being struck with the butt end of the pickax handle.

The exclusive remedy provision of the Workers’ Compensation Act provides in part that

[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer.

For an injury or death to be covered under the Act, however, it must “aris[e] out of and in the course of the employment.” As a general matter, “[a]n injury or death arises out of employment when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” The DeKalb Collision Defendants argue that Foster’s death was causally connected to his employment, under what is called the positional risk doctrine, because his job subjected him to the risk by placing him in the position where he received the fatal injury.

The positional risk doctrine was adopted by the Court of Appeals of Georgia in 1979. Before that time, many cases required the risk to “be peculiar to the work and not common to the neighborhood.” In Nat. Fire Ins. Co. v. Edwards, we changed that rule and adopted the positional risk doctrine to determine whether injuries from job-neutral perils arose out of the employment. The positional risk doctrine provides that, for an “injury to be compensable [,] it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.”

Notwithstanding our unanimous whole Court decision in Edwards, the positional risk doctrine has been inconsistently applied, and many subsequent decisions have held that the risk must be peculiar to the work. While the inconsistent use of these two tests is disturbing, and must certainly confase the bench and bar, this is not an appropriate case to resolve that conflict because Foster’s death would be covered by the Act under either test.

The risk arose out of Foster’s job because it was peculiarly related to his employment and his job brought him within the range of danger when the peril struck. Though it is undisputed that Foster’s job description required him to sand cars, apply primer, and wash the vehicles in preparation for paint jobs, these were not the strict and absolute limits of his occupation with DeKalb Collision. Indeed, our case law often allows coverage under the Act for injuries sustained when an employee is not actually performing a task that is part of his job description. For instance, although walking back and forth to one’s car parked in an employer’s parking lot is not part of most job descriptions, the ingress and egress rule generally covers injuries suffered while an employee is engaged in such action. More on point, although being assaulted is not an obtpous part of most jobs, the Act compensates for injuries in cases where an employee is assaulted or killed if there is a nonpersonal, causal connection to the work.

In this case, there is no evidence that Foster’s death was causally connected to any personal matters. Though there are widely varying accounts about the fight itself, it is clear that it was rooted, at least initially, in a simple contract dispute involving Foster’s workplace. The escalation of that dispute, caused by Powell’s resort to self-help, did not make it any more personal to Foster. Instead, from Foster’s perspective, the conduct of Powell and his father related to either destroying part of the very building in which Foster was working or attacking Foster’s employer with a sledgehammer. Foster’s reaction to either event was peculiarly related to his job as a DeKalb Collision employee and resulted in his being in the place where he was struck.

Under Georgia law, “an employee owes a duty of loyalty, faithful service and regard for an employer’s interest.” In the workers’ compensation context, we have similarly recognized that “[a] servant’s occupation is in law the occupation of the master, and he would be entitled to do whatever the master might do in the protection of his master’s property.” Thus, we held that where an employee is injured doing what he reasonably thinks is necessary to protect his employer’s property, if the employee has not used excessive force the injury arises out of his employment and is, therefore, covered by the Act.

We see no reason why the result should be different if Foster’s intent was to safeguard his employer. Considering Foster’s general duty of faithful service to his employer’s interests and that his occupation was that of his employer, his scope of employment permitted him to protect his employer, Watkins, from being pummeled by a sledgehammer and to attempt to quell the violence that disrupted Watkins’ business. Certainly the law does not contemplate that an employee should be forced to stand idle, watching such an affray in his employer’s business, for fear that, if injured, he will not be compensated. Thus, we conclude that the risks confronting Foster that day were peculiar to his employment and caused him to be where he received the fatal injury.

Given the facts of this case, we also easily conclude that Foster’s death arose in the course of his employment.

In the course of employment refers to time, place and circumstances under which the accident took place. An accident arises in the course of the employment within the meaning of the compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties while he is fulfilling his duties or engaged in doing something incidental thereto. The courts of this state, in effectuating the humane purposes for which the Workers’ Compensation Act was enacted, have taken a broad view in evaluating those activities which are incidental to employment. . . .

The above discussion clearly shows that Foster was on the clock, at a place that he could reasonably be expected to be, performing duties incidental to his job at DeKalb Collision. Accordingly, we find that Foster’s death arose out of and in the course of his employment and that his survivors’ exclusive remedy is under the Workers’ Compensation Act. The trial court erred in ruling otherwise, and its judgment is reversed.

Decided March 11, 2002

Reconsideration denied March 27, 2002

Saveli & Williams, William E. Turnipseed, for appellants.

Joe A. Weeks, for appellees.

Although we realize that the results here seem particularly harsh, considering that a loyal employee lost his life serving the interests of his employer,

[t]he Workers’ Compensation Act is to be liberally construed in determining whether an injury is compensable under it. It must be viewed in this manner both when an employee has made a claim and is seeking coverage under it and when an employer has sought its protection as a defense to a tort action. One of the purposes of the Act is surely the humanitarian one of providing relief to injured employees, but another purpose is to protect employers against excessive recoveries of damages. We are to interpret the Act, if its language will permit, so as not to deny its benefits to either employee or employer. If the damages in this case or in death cases generally are inadequate, it is the legislature which must effectuate a change, not the court by way of excluding such cases from workers’ compensation coverage.

2. Our decision in Division 1 renders it unnecessary to address the remaining enumerations of error.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       Foster’s daughters, Erica Foster and Melissa Brown, both sued in their individual capacity, and Erica also sued as the administrator of his estate.

       See OCGA § 34-9-11 (a).

        American Global Dev. Group v. Sasser & Weatherford, Inc., 249 Ga. App. 479 (548 SE2d 465) (2001).

       The other individual, Michael Pate, was natned as a defendant in the complaint, but on appeal, nobody claims that he participated in the events that morning.

       OCGA § 34-9-11 (a).

       OCGA § 34-9-1 (4).

       (Punctuation omitted.) Williams v. Atlanta Family Restaurants, 204 Ga. App. 343, 344 (419 SE2d 328) (1992).

       See Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (1) (263 SE2d 455) (1979).

       (Punctuation omitted.) Id. at 567 (1).

       See id. at 567-568; see also Booth v. Essex Ins. Co., 231 Ga. App. 542, 544-545 (498 SE2d 528) (1998) (applying positional risk doctrine to determine if killing arose out of employment).

        Edwards, supra at 567 (1); see also Booth, supra.

       See, e.g., Prudential Bank v. Moore, 219 Ga. App. 847, 848 (1) (467 SE2d 7) (1996) (“causative danger must be peculiar to the work”) (punctuation omitted); A & P Transp. v. Warren, 213 Ga. App. 60, 62-63 (443 SE2d 857) (1994) (physical precedent only) (same); Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 880 (1) (c) (354 SE2d 204) (1987) (same); see also, e.g., SCI Liquidating Corp. v. Hartford Fire Ins. Co., 272 Ga. 293, 294 (526 SE2d 555) (2000) (interpreting insurance policy exclusion pertaining to injuries that arise out of employment to mean that injury must “arise as a proximate result of the peculiar nature of the employment”); but see Hulbert v. Domino’s Pizza, 239 Ga. App. 370, 373 (2) (521 SE2d 43) (1999) (injuries “need not arise from something peculiar to the employment”); Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662) (1997) (same); Macy’s South, Inc. v. Clark, 215 Ga. App. 661, 663 (1) (452 SE2d 530) (1994) (same).

        See Rockwell v. Lockheed Martin Corp., 248 Ga. App. 73 (545 SE2d 121) (2001).

       See, e.g., Heard v. Mitchell’s Formal Wear, 249 Ga. App. 492, 493-494 (1) (549 SE2d 149) (2001) (employee of formal wear shop assaulted during work-related argument); Handcrafted Furniture v. Black, 182 Ga. App. 115, 116 (1) (354 SE2d 696) (1987) (co-owner of furniture business murdered because of business-related dispute); Swanson, supra (angry student hit instructor in the face after classroom confrontation); see also Fidelity &c. Co. of N.Y. v. Barden, 79 Ga. App. 260, 262 (54 SE2d 443) (1949) (observing that, it is only “[a]fter the event, [that] it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury”). In his treatise on workers’ compensation law, Professor Arthur Larson observes that although there are cases that preclude coverage because the employee’s presence at the place of fighting was not, strictly speaking, demanded by his employer,
      [t]he cases taking this position, which are mostly quite old, are subject to the criticism that the compensation-law conception of “arising out of the employment” should not be at the mercy of hairsplitting distinctions about the precise limits of an employee’s duties. If the employment in fact causes the employees to get into arguments, even about matters which on paper are none of their business, it is still possible to say, in a broader sense, that the argument arose out of the employment.
      1 Larson, Larson’s Workers’ Compensation Law, § 8.01[4] (2001).

       In their brief, appellees claim there is evidence showing that, at the time he was injured, Foster was actually defending Powell’s father from being savagely beaten. But appellees provide no citation to such evidence of Foster’s motivation, and we are thus limited by Hawk’s testimony showing that Foster was prompted to action by Powell going after Watkins with a sledgehammer.

       (Punctuation omitted.) Crews v. Roger Wahl, C.P.A., P.C., 238 Ga. App. 892, 901 (4) (d) (520 SE2d 727) (1999).

       (Emphasis in original.) Scott v. Travelers Ins. Co., 49 Ga. App. 157, 169 (174 SE 629) (1934) (physical precedent only).

       See id. at 161, 170.

       See Crews, supra.

       See Scott, supra.

       (Citations, punctuation and emphasis omitted.) Williams, supra at 344-345.

       See OCGA §§ 34-9-1 (4); 34-9-11 (a).

       (Citations omitted.) Hadsock v. J. H. Harvey Co., 212 Ga. App. 782, 784 (442 SE2d 892) (1994).


author: Pope, Presiding Judge.

text:
    A01A1988.
    MIMMS v. THE STATE.
    (562 SE2d 754)
   Pope, Presiding Judge.

Daisy L. Mimms was arrested on May 27, 1999, and charged with DUI, criminal trespass, simple assault and interference with government property arising from an incident at a City of Atlanta restaurant. A jury trial was held in the City Court of Atlanta on October 13-14, 1999, and the jury found her guilty of DUI and trespass, but acquitted her on the remaining counts. Mimms filed a motion for new trial on October 15, 1999, asserting the general grounds, and further asserting that the trial court erred in excluding the testimony of her proffered expert witness.

Mimms was represented at trial by attorney George Stein, and he filed the motion for new trial on her behalf. The trial court issued a rule nisi setting a hearing on the motion for February 24, 2000. On February 16, 2000, attorney Monte Kevin Davis entered an appearance as counsel for Mimms “for the purposes of the Motion for New Trial and any Appeal.” Nothing in Davis’ notice of appearance indicates that he was substituting for Stein as counsel of record. Nor is there anything in the record indicating that Stein ever withdrew as Mimms’ counsel, and, in fact, he represents Mimms, along with Davis, on appeal.

The hearing on Mimms’ motion for new trial was reset eight different times between February and October 2000. Six of these times were due to a lack of transcript. There is some evidence in the record to indicate that the delay in preparing the transcript was occasioned, at least in part, by the failure of Mimms’ attorney to pay the appropriate fees and deposits.

On September 28, 2000, the hearing was postponed to October 19 to allow Mimms’ attorneys time to review the transcript. On October 19, Davis was unavailable due to a conflict in another court, and attorney Dawn Davis, his wife, appeared in his stead. She announced that the motion hearing would require five hours because the transcript was “huge.” The trial court rescheduled the hearing for October 26, 2000. Davis’ wife did not mention any conflict and raised no objection to the scheduled date.

On October 26, however, no counsel appeared on Mimms’ behalf, but Mimms appeared herself to inform the trial court that Davis had filed a leave of absence. The record reflects that a specific notice of leave of absence addressed to the new trial hearing was received by the trial court on the day of the hearing. Mimms tried four different telephone numbers — Davis’ office number, his home number, his pager number and his wife’s pager number — in order to resolve the matter, but was unable to reach Davis or his wife. The trial court denied Mimms’ motion for new trial.

1. Mimms argues that it was error for the trial court to deny her motion without a hearing because her counsel had previously filed a “valid” leave of absence covering the date of the hearing. She asserts that her counsel had filed notices for leave of absence on July 18, 2000, September 19, 2000, and October 9, 2000, covering the period from October 23 through November 5, 2000. She contends that these notices requested less than 30 days leave and thus should have been automatically granted under Uniform Superior Court Rule 16.1.

As an initial matter, we note that attorney Stein never requested a leave of absence during the pertinent time period, yet he also failed to appear at the new trial hearing. With regard to Davis, the record shows that he filed the first in a series of notices of leave of absence on the day he entered his appearance in the case. In that notice, he requested a series of leave dates, requesting one week in February, two weeks in March, one week in April and three weeks beginning in December, for a total of fifty-two calendar days. He followed the same pattern of leave requests throughout the year, but began including his notices of leave of absence as discrete paragraphs in conflict letters otherwise addressing a particular week. For example, in his July 18 letter informing the court of trial conflicts during the week of July 24, he also includes a paragraph requesting leave for the periods August 21 through September 3, October 23 through November 5 and December 11, 2000, through January 7, 2001, for a total of 56 calendar days. In the same fashion, his September 19 notice covers a total of 60 calendar days, and his October 10 notice covers 46 calendar days.

Mimms asserts that these notices were covered under USCR 16.1 which, in the absence of an objection, automatically grants leave requests of 30 calendar days or less. She asserts, therefore, that an automatic leave was in place at the time of the new trial hearing on October 26. But a notice of leave of absence covering more than 30 calendar days, whether all at the same time or over several time periods, falls under USCR 16.2, not USCR 16.1. State v. Dodge, 251 Ga. App. 361, 363 (1) (553 SE2d 831) (2001); Linkous v. State, 254 Ga. App. 43, 46 (561 SE2d 128) (2002). Under USCR 16.2, a leave of absence requesting in excess of 30 days is not automatically granted, but rather is left to the trial court’s discretion.

Therefore, at the time of the hearing on the motion for new trial, no valid leave of absence was in place. And Mimms’ attorneys were put on notice of this fact on October 19 when the trial court scheduled the hearing date for October 26 in Dawn Davis’ presence.

A defendant is generally entitled to a hearing on her motion for new trial, Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973), but the right to a hearing can be waived. See, e.g., Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996). The'trial court in this case had already reset the hearing eight times over a period of almost one year. While much of this delay was attributable to the failure of the court reporter to prepare a transcript, there is at least some question as to whether Mimms’ counsel contributed to this delay. Moreover, Mimms’ counsel were aware on October 19 that the hearing date was scheduled during Davis’ purported leave of absence, but they did not inform the trial court of the supposed conflict until the date of the hearing. Under these circumstances, we hold that the trial court did not err in dismissing Mimms’ motion. See Dunn v. State, 172 Ga. App. 146 (1) (322 SE2d 349) (1984); Scott v. State, 121 Ga. App. 458, 461 (6) (174 SE2d 243) (1970); Moody v. State, 14 Ga. App. 523, 526 (2) (81 SE 588) (1914). Moreover, Mimms has failed to assert how she has been injured by the failure to have a hearing. Dunn, 172 Ga. App. at 146 (1).

2. Mimms also argues that she should have been granted a new trial because the trial court prevented her from presenting the testimony of Dr. Joe Citron, an ophthalmologist, as an expert on alcohol consumption physiology and on drug interactions. Mimms based her claim that Dr. Citron was an expert in these areas on his general medical school training and the fact that he had taken a course on the Intoxilyzer 5000. She asserts on appeal that the doctor’s testimony would have shown that her behavior on the night she was arrested was due to the medication she was taking, and not due to alcohol consumption. Because she was charged with DUI based upon only alcohol consumption, and not upon the consumption of prescription drugs or a combination of the two, she argues that the doctor’s testimony would have allowed the jury to consider acquitting her on what she terms a technical ground. She now asserts that this was her sole defense at trial.

The state contends that Mimms failed to present sufficient evidence of Dr. Citron’s qualification to testify as an expert in the areas of alcohol consumption physiology and on drug interactions. Moreover, the state argues that Mimms failed to demonstrate the relevance of such testimony at trial. Although she now contends that her sole defense at trial was that her behavior on the night of her arrest could be explained by medication or other disorders, there was no proffer at trial that Dr. Citron would testify as to such issues. The closest reference was Mimms’ trial attorney’s statement that his testimony would “explain her behavior.” Moreover, at trial Mimms denied that her behavior was inappropriate or that there was any impairment in behavior from any source.

The decision whether to admit or exclude expert testimony “lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Punctuation omitted.) Johnson v. State, 272 Ga. 254, 257 (1) (526 SE2d 549) (2000). See also O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). Here, the trial court ruled that Dr. Citron’s proffered testimony regarding the effects of alcohol on Mimms’ system was not relevant because there was no blood or breath test administered in her case. In fact, the Intoxilyzer 5000 machine was not functioning at the time of her arrest. Therefore, there was no evidence of the amount of alcohol in her system. Further, because Dr. Citron was not Mimms’ prescribing physician, the trial court found that he was not competent to testify as to the purposes for which those drugs were prescribed, because he would be relying upon hearsay.

Decided March 13, 2002

Reconsideration denied March 27, 2002

Monte K. Davis, George A. Stein, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

Based upon our review of the record, we find that Mimms has failed to demonstrate a manifest abuse of discretion in the trial court’s decision not to qualify Dr. Citron as an expert under the circumstances and to exclude his testimony. See Carlson v. State, 240 Ga. App. 589 (1) (524 SE2d 283) (1999).

3. In her remaining enumerations of error, Mimms asserts that the city court lacks constitutional existence and jurisdiction under the 1983 Georgia Constitution. The state correctly notes that this issue was not raised in the court below and thus cannot be considered by this Court on appeal. See Pogany v. State, 249 Ga. App. 212, 213 (547 SE2d 780) (2001). Moreover, our Supreme Court has already decided these issues adversely to Mimms in Wickham v. State, 273 Ga. 563 (544 SE2d 439) (2001).

Judgment affirmed.

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

       The actual transcript covers two volumes and 367 pages.

       Overall, Davis requested eleven weeks and four days of leave between February 16, 2000, and November 5, 2000, and an additional four weeks of leave between December 11, 2000, and January 7, 2001.


text:
    A01A2024.
    GRAY v. THE STATE.
    (562 SE2d 712)
   Mikell, Judge.

Anthony Gray was convicted of violating the Georgia Controlled Substances Act. On appeal, he claims the trial court improperly sentenced him and erred in dismissing his motion to suppress. For the reasons set forth below, we disagree and affirm.

1. A motion to suppress must be in writing and state facts showing that the challenged search and seizure were unlawful. Gray’s motion to suppress shows that shortly after midnight on February 13, 1999, he was riding as a passenger in his Nissan Maxima, which a woman was driving. Police officers observed a male prowling around some abandoned houses before getting into Gray’s car, which sped off. An officer advised a nearby police unit to stop the Nissan, and the patrol car activated its blue lights as Gray’s vehicle approached. As soon as the patrol car turned on its blue lights, Gray jumped out of the Nissan and ran. Police saw Gray throw down a paper bag containing marijuana and cocaine.

The trial court dismissed Gray’s motion to suppress on the grounds that he lacked the standing to assert a privacy interest in the discarded bag. Citing Migliore v. State of Ga., Gray argues that when the police stopped the car it constituted a violation of his Fourth Amendment right against unreasonable seizure of his person, and that he has standing to challenge the introduction of all evidence obtained after the car was stopped.

We conclude that Gray’s motion to suppress shows on its face that it should not be granted, and so the trial court did not err in dismissing it. Our analysis is governed by California v. Hodari D., in which the United States Supreme Court held that a suspect who discarded cocaine while fleeing the police had not been seized according to the Fourth Amendment. “An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority.” Although Gray’s vehicle was signaled to stop in a police show of authority, Gray immediately fled the car. Gray had not submitted to authority, nor was he in physical custody, when his car was stopped or when he discarded the paper bag containing the illegal drugs. And because Gray discarded the bag, he had no expectation of privacy with regard to its contents. Although Gray contends that his car was stopped without reasonable suspicion, stopping the car did not amount to the seizure of his person under the facts presented, and the bag of drugs was not found in the car. Accordingly, Gray’s motion to suppress is without merit even if police stopped Gray’s car without reasonable suspicion of criminal activity.

2. Gray claims the trial court erred in sentencing him as a recidivist by (a) considering his prior disposition under the First Offender Act, (b) counting his conviction for possession of a firearm, which he contended was void on its face, and (c) failing to specify whether he was sentenced under OCGA § 17-10-7 (a) or (c). We disagree.

Gray contends that one of the four convictions presented for the trial court’s consideration was a first offender disposition, and there is no evidence that the first offender treatment was revoked and a conviction entered. The status of Gray’s first offender disposition was irrelevant, however, because three other felony convictions were presented to the trial court, which is all that is required for recidivist treatment under the applicable statutes. Gray contends that the reference in his sentence for possession of a firearm to his first offender sentence shows that his first offender status must have been revoked in order for his conviction for possession of a firearm to be valid. However, possession of a firearm within a first offender probationary period is a felony under OCGA § 16-11-131. This argument is without merit.

Gray also claims the trial court erred in applying the recidivist statutes to his sentence. The trial court sentenced Gray to 30 years to serve for possession of cocaine. The sentence was entered “considering the prior criminal history of the defendant.” The final disposition indicates Gray was sentenced “pursuant to recidivist punishment three or more prior felony convictions.”

It is apparent from the record that Gray had three prior felony convictions, including two prior convictions for possession of cocaine. Thirty years is the maximum sentence under OCGA § 16-13-30 (c) for a subsequent conviction of possession of cocaine. OCGA § 17-10-7 (a) applies to sentencing for possession of cocaine where there have been three prior felony convictions, and the trial court imposed the maximum sentence as required thereunder and chose not to suspend or probate the sentence. Gray will be required to serve the entire sentence received as he is a recidivist offender under OCGA § 17-10-7 (c). The trial court was not required to “choose” to sentence Gray under either subsection (a) or (c) of OCGA § 17-10-7, as Gray contends. We can see no basis for requiring the trial court to write or orally state that a sentence is subject to “OCGA § 17-10-7 (c),” as Gray urges, when a felony sentence indicates it is made based on three prior felony convictions. We find no error by the trial court in sentencing.

Decided January 25, 2002

Reconsideration denied March 27, 2002

Steven E. Lister, for appellant.

Anthony Gray, pro se.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 17-5-30 (b).

       240 Ga. App. 783, 787 (525 SE2d 166) (1999). See also United States v. Dumas, 94 F3d 286, 290 (7th Cir. 1996).

       499 U. S. 621 (111 SC 1547, 113 LE2d 690) (1991).

       (Emphasis in original.) Id., 499 U. S. at 626.

       See Brown v. State, 239 Ga. App. 674, 676 (1) (522 SE2d 41) (1999); Molaro v. State, 236 Ga. App. 35, 37 (1) (510 SE2d 886) (1999); Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997); Mann v. State, 196 Ga. App. 730, 731 (1) (397 SE2d 17) (1990).

        Brown, supra, 239 Ga. App. at 676. For purposes of the United States Supreme Court’s analysis in Hodari D., the Court assumed the police did not have sufficient reasonable suspicion to stop the suspect under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Hodari D., supra, 499 U. S. at 624, n. 1.

       OCGA § 42-8-60.

       OCGA § 17-10-7 (a), (c).

       See Papadoupalos v. State, 249 Ga. App. 300, 301 (1) (548 SE2d 59) (2001) (OCGA § 17-10-7 (a) is not applicable to sentencing for possession with intent to distribute, but does apply to possession).

       See generally Scott v. State, 248 Ga. App. 542, 545-546 (2) (545 SE2d 709) (2001).