author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    75154.
    Del MAZO et al. v. SANCHEZ.
    (366 SE2d 333)
   Birdsong, Chief Judge.

Jacinto del Mazo, appellant/defendant, brings this appeal from the grant of summary judgment to appellee/plaintiff Fred H. Sanchez. Dr. del Mazo heard that Dr. Sanchez was interested in selling his medical practice. At that time Dr. del Mazo was associated with another physician who was involved in a billing problem with Medicare and was desirous of disengaging himself from that type of conflict. Dr. del Mazo spoke with Sanchez concerning the type of practice he had, number of patients, income, and whether he had any problems with insurance, Medicare, Medicaid or malpractice claims. Sanchez informed him there were no problems and that his practice generally brought in $200,000 per year.

Dr. del Mazo said they negotiated a price for the sale of the medical practice. It was a percentage of the last year’s income, and del Mazo’s accountant, John Duggan, examined the books and confirmed the annual income was approximately $200,000. Duggan said Sanchez led him to believe his records were accurate and told him “he was going to Brazil or somewhere in South America and he was selling his practice. . . .” It was his understanding “the purchase price for Dr. Sanchez’ medical practice was a percentage of the practice’s annual collections.” Dr. del Mazo said that Dr. Sanchez assured him “his collections were for legitimate services rendered.” Dr. del Mazo questioned Dr. Sanchez again after he heard rumors that there might be a problem and Sanchez was asked “if he had engaged in any improper practices or had submitted any improper claims to Medicaid or Medicare. ... He assured me on each of those occasions that all of his Medicaid and Medicare claims and practices were entirely legitimate and proper.”

On July 16, 1982, del Mazo and Sanchez executed an agreement whereby Sanchez agreed to sell del Mazo his “patient files” for $10,000 and included a covenant not to compete for $40,000 to be paid in monthly increments. A first payment of $5,000 was made to Sanchez, and he departed for Bolivia. The agreement provided that the seller retained the rights to his accounts receivable and that del Mazo upon receipt of those checks would deposit them in the seller’s checking account in the National Bank of Georgia.

When del Mazo received checks from Medicare and Medicaid for services billed by Dr. Sanchez, he “saw documents from those entities showing that [Sanchez] had repeatedly submitted claims for and was now being paid for procedures he could not have performed, both because . . . Sanchez did not have the skill, training or equipment required to perform colonoscopies, colposcopies, sigmoidoscopies with flexible fiberoptic, cardiac catherizations, or endoscopies.” Alma Mc-Cauley, Dr. Sanchez’ medical assistant from September 1981 until his departure for South America, is familiar with these procedures and in her affidavit stated: “At no time after I came to work for Sanchez [in 1981] did Sanchez ever perform any of the procedures [listed above]. Furthermore, at no time after I came to work for Sanchez did Sanchez have the equipment required to perform any of the procedures identified [above].” McCauley said she was instructed by Dr. Sanchez to post a list of diagnostic codes, and that some diagnostic codes included several types of procedures. After Dr. Sanchez saw a patient, he would give her a diagnostic code and she was directed to bill Medicare and Medicaid for all of the procedures whether they had been performed or not. Between September 1981 and January 1982, Sanchez billed Medicaid and Medicare for procedures he did not perform, including “CBC’s and urinalyses that were never performed ... for other laboratory work and office visits that were never performed, and . . . twice for tests only performed once.” The doctor’s staff “were giving approximately 12 out of every 14 of his patients injections of B12, iron, or B&B (a combination of B12 and iron).”

McCauley’s duties included posting the patient’s files. Copies of Medicaid and Medicare claim forms were kept in and were a part of the patient files from the time she started working there in 1981 until May or June of 1982. At that time Dr. Sanchez “personally instructed [her] to destroy those claim forms from that day forward and not to put those forms in the patient files.” “In May or June of 1982, the copies of those claim forms formerly kept and included in and comprising part of the patient files disappeared.”

Arlene del Mazo, a Registered Nurse, and formerly head nurse at Crawford W. Long Hospital, is familiar with patients’ files. After she took over Dr. Sanchez’ files, she reviewed the files and compared them with insurance claims (private, Medicaid and Medicare), with information provided del Mazo by his patients and the insurers, and found “[i]n at least a majority of the files I reviewed, the patient files were grossly incomplete.” Services paid for by insurers had no corresponding entry in the appropriate patient file. “Because of the lack of information in the patient files del Mazo was severely hampered in [his] efforts to treat patients, not knowing what tests or lab work or procedures had been performed previously and not knowing the results of those tests, lab work or procedures that had in fact been performed.” Under regulations of Medicare and Medicaid, when Dr. Sanchez qualified as a provider of medical services, he agreed to make and maintain those records for at least three years. Dr. del Mazo, without “that historical information, or comparable information . . . would have no way of knowing what tests or lab work . . . had previously been performed for a patient, thereby increasing the risk that they would be duplicated and . . . unnecessary tests, lab work or procedures would be performed, thereby needlessly increasing the cost, and sometimes the discomfort and risk to life and well being, to a patient.”

Immediately upon learning of the missing contents of the files and the apparent fraudulent billing practices of Dr. Sanchez, Dr. del Mazo, through his attorney on July 29, 1982, notified Dr. Sanchez he rescinded the contract for “the medical practice ... I was buying from you” alleging Sanchez “seriously misrepresented certain material facts. . . .’’He tendered to Sanchez “everything I thought I was purchasing from you.” Dr. del Mazo’s attorney notified Medicare and Medicaid of the possible fraud, and they investigated Dr. Sanchez’ billing practices. An affidavit of Richard Rapa, Manager of Medical Administration for Prudential Life Insurance, notified Dr. Sanchez that he had been suspended from the Medicare program on August 12,1982 pending investigation and the result of that investigation was that he had billed Medicare for procedures not performed, and for which he did not have the equipment, and his billings for 1981 and 1982 “resulted] in an overpayment of $8,372.89” which was deducted from his escrow account.

Investigation by the Georgia Department of Medical Assistance, which administers the Medicaid program in Georgia resulted in a finding that Dr. Sanchez had been overpaid $19,687.58. The investigators concluded that Dr. Sanchez “engaged in a pattern or an abusive scheme of fraud . . .” and that his patients’ files “lacked proper documentation to support” his claims. As a Medicaid provider he was bound by regulations to maintain those records. The regional supervisor concluded that Dr. Sanchez “did not have the skill, training or equipment ... to perform colonoscopies, sigmoidoscopies with flexible fiberoptic and endoscopies outside of a hospital. . . . Sanchez had none of that equipment in his office and did not have access to that equipment in a hospital.” The Department also concluded that the B-12 and iron injections of Sanchez’ patients were “entirely unwarranted in the majority of those cases” because they were given to patients whose “laboratory tests were normal. . . .”

The person who investigated Dr. Sanchez for the Medicaid program found that his overpayment resulted from “a pattern of fraud.” In one instance, Dr. Sanchez treated a mother and billed the Department for $171, then submitted five additional billings for the same day for a total of $1,941 for treating the mother’s five children and the mother. The investigator concluded that Dr. Sanchez did not treat any of the five children. Dr. Sanchez’ medical assistant confirmed that he did not treat any of the children on the day he billed Medicaid for such services.

Dr. Sanchez filed this action, admitting he was “planning to leave the country” and “was negotiating with various parties for the sale of certain assets associated with [his] medical practice” and that Dr. del Mazo “agreed to purchase certain assets associated with Plaintiff’s medical practice for the sum of $50,000.00. ...” The agreement contained a clause which Sanchez alleged “purportedly [superceded] all prior contracts. ...” Sanchez prayed for actual and punitive damages, costs and attorney fees. A second count asked for specific performance and Count 3 alleged a violation of privacy when Dr. del Mazo opened his mail to retrieve his checks before depositing them. Sanchez refused to return to Georgia to be deposed on the basis of the expense and the court agreed that defendant could submit written interrogatories to him. Sanchez submitted an affidavit in which he denied any intent to sell his medical practice but only sold his patient’s files and agreed not to compete. He said he had fully performed the agreement and the files were delivered to del Mazo “containing all necessary and relevant information in them which was in my possession.”

Dr. del Mazo answered and filed a counterclaim alleging fraud and deceit in inducing him to enter into the agreement to purchase Sanchez’ medical practice, a failure of consideration in the failure of Sanchez to deliver the complete patients’ files, and a third count alleged a violation of Chapter 14 of Title 16, Racketeer Influenced and Corrupt Organizations (RICO), through Sanchez’ criminal and fraudulent activities in charging and collecting from Medicare and Medicaid for services never rendered, and that such “racketeering activity” injured Dr. del Mazo entitling him to triple damages. See OCGA § 16-14-6 (c).

The trial court granted Sanchez’ “Motion for Summary Judgment” on “the Complaint and Counterclaim,” but gave judgment for only $45,000 plus interest and costs. Dr. del Mazo brings this appeal. Held:

Appellants’ defense and counterclaim are based on fraud and deceit in the inducement of the agreement. Appellee contends that the contract itself contains a provision that it represents the “ ‘entire agreement’ . . . and, as this Court has held, when a contract contains such a clause, a fraud-in-the-inducement defense cannot be maintained unless it can be shown that the party claiming fraud lacked knowledge of the contents of the contract. McGuire v. Winkler, 167 Ga. App. 104 [306 SE2d 70] (1983); Spires v. Relco, Inc., 165 Ga. App. 4 [299 SE2d 58] (1983).” Hence appellee argues parol evidence extraneous to the contract cannot be utilized to avoid the agreement, and this provision is a “waiver of any right to rely on oral misrepresentations . . . [and] expressly merged all previous representations into the four corners of the written agreement.”

We do not agree. Our Code provides that “[f]raud renders contracts voidable at the election of the injured party.” OCGA § 13-5-5. And, “[p]arol evidence shall be admissible to show that a writing either was originally void or subsequently became so.” OCGA § 24-6-8. Further, “[f]raud, accompanied by damage to the party defrauded, always gives a right of action to the injured party.” OCGA § 51-6-1. “Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. ... In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood. . . .” OCGA § 51-6-2. Thus, if Sanchez made a wilful misrepresentation of the amount of his legitimate income for the preceding year, upon which Dr. del Mazo and his accountant said the purchase price was based, then there was evidence supporting an issue of fraud in the inducement. There was evidence that Dr. Sanchez had not performed all the services for which he billed Medicaid and Medicare, and that Medicaid and Medicare recouped respectively, $19,687.58 and $8,372.89, previously paid to Dr. Sanchez apparently included in the computation of the legitimate income of the medical practice, upon which the sale price was based. If such evidence is admissible, it raises an issue of fraud in the inducement to vitiate the contract and of fraud and deceit as alleged in the counterclaim.

We must concede that Spires v. Relco and McGuire v. Winkler, supra, support appellee’s contention that “a party cannot allege fraud in the inducement to avoid a written agreement containing a ‘merger’ or ‘entire agreement’ clause,” McGuire, supra at 104. Further, Spires holds that “ ‘even assuming that the evidence would otherwise authorize a finding of fact that the agent’s statement was an actionable misrepresentation, it is clear that under the terms of the “ENTIRE AGREEMENT” provision of the subsequently executed . . . agreement, appellants are “precluded from setting up fraud in the contract through such misrepresentations.” ’ ” 165 Ga. App. at 6.

However, contrary to Spires and McGuire, supra, our earlier case law followed the statutes cited above. And, in Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 729 (16 SE2d 176), where a material misrepresentation was made, we quoted the foregoing statute that fraud, by which consent of a party is obtained to a contract of sale renders that sale voidable at the election of the injured party. Code Ann. § 20-502, now OCGA § 13-5-5. “Fraud ordinarily gives the injured party the right either to rescind the contract, or, by affirming the same, to claim damages.” (Emphasis supplied.) Brown, supra at 730.

The critical question as to which statute should be applied is based upon which course of action is selected by the defrauded party. If the party elects to rescind the contract as voidable, he is not bound by the provisions of the rescinded contract. Brown, supra at 730. If the defrauded party elects to affirm the contract and sue for damages for fraud and deceit he is bound by the contract provisions. Id. This distinction was made clear in Eastern Motor Co. v. Lavender, 69 Ga. App. 48 (1) (24 SE2d 840), wherein a buyer sought to repudiate a contract containing a merger of prior oral promises into a written contract by a claim of fraud in the procurement “ [Defendant contends that on account of said clause in the written contract parol evidence was inadmissible to contradict or vary this provision of the contract. The defendant’s contention would be correct if the jury had found that the written contract was valid. However, the plaintiff contended that he had repudiated the contract on the ground of actual fraud consisting of material and fraudulent misrepresentations which induced him to enter into the agreement.” Id. at 51. We held that “[t]he plaintiff was not seeking to recover on the contract, for he had rescinded it, and after such rescission he had no contract on which he could sue.” Id. “The written contract [being rescinded] . . . stands as if it had never been made, and none of its terms or conditions are binding ... for in the eyes of the law the written contract is nothing when it has been voided by a rescission on account of actual fraud; and parol evidence is admissible to show that the writing was either originally void or has subsequently become so. Code § 38-503 [now OCGA § 24-6-8].” Id. at 52.

In a similar action, in City Dodge v. Gardner, 130 Ga. App. 502 (203 SE2d 729), where a buyer rescinded a contract of sale for a car on the grounds of fraud and deceit, we held: “ ‘Where the purchaser . . . has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek demages [sic] resulting from the fraudulent misrepresentation.’ ” Id. at 503. On certiorari, the Supreme Court affirmed, and decided the issue of whether the language of a merger clause that “ ‘no other agreement, promise, or understanding of any kind — pertaining to this purchase will be recognized,’ was legally effective to prevent the buyer from claiming that he relied on the seller’s misrepresentation,” i.e., fraud in the inducement. City Dodge v. Gardner, 232 Ga. 766, 767 (208 SE2d 794). The Supreme Court sanctioned the choice of the defrauded buyer who had been induced to enter a contract by fraud and deceit to affirm and sue in contract for breach, or rescind and sue in tort for fraud and deceit. Id. at 768. On the issue of whether the merger or disclaimer provision prevents evidence of prior parol deception when the party attempts to rescind the contract, they held “the better view is that the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury. It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, then the disclaimer provision therein is ineffectual since, in legal contemplation, there is no contract between the parties. In this case, parol evidence' of the alleged misrepresentation was admissible on the question of fraud and deceit. As the antecedent fraud was proven to the satisfaction of the jury, it vitiated the contract.” (Emphasis supplied.) Id. at 770.

In another contract issue involving a claim of fraud in the inducement and a clause in the contract that the entire contract is set forth in the document and that the buyer cannot rely upon prior representations, the Court held that “we do not agree that this particular integration clause can be regarded as a relinquishment or waiver of the purchaser’s rights. ... We consider this clause as merely having evidentiary value on the question of whether representations were made to the purchaser inducing [the sale] other than those contained in the prospectus. This provision in the contract states there were no such representations but the purchaser now says there were representations outside the prospectus which induced the purchase. This creates an issue of fact that cannot be resolved as a matter of law. We also reject the seller’s contention that the clause . . . estops the purchaser from raising any alleged oral misrepresentations.” (Emphasis supplied.) Meason v. Gilbert, 236 Ga. 862, 863-864 (226 SE2d 49). If there were any doubts remaining as to whether a “merger” or “integration” clause in the signed contract of sale precluded evidence of oral representations as to a claim of fraud in the procurement, they were dispelled in Brown v. Techdata Corp., 238 Ga. 622, 627 (234 SE2d 787): “This court’s decision in City Dodge v. Gardner, 232 Ga. 766 . . . laid to rest the argument that a merger or integration clause contained in a contract being attacked for fraud precludes the introduction of parol evidence to show that the contract was indeed fraudulently induced.”

Our more recent cases have also followed our earlier cases rather than McGuire and Spires, supra. In Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883 (354 SE2d 210), we reaffirmed our earlier authorities by emphasizing that “two actions are equally available to one who was fraudulently induced by misrepresentations into entering a contract. The defrauded party can ‘affirm the contract and sue in contract for breach or he [can] seek to rescind the contract and sue in tort for alleged fraud and deceit.’ [Cit.] However, depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. [Cit.] If, on the •other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory. ‘[T]he question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury.’ [Cit.] . . . ‘The rule that parol agreements shall not be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud.’ ” Id. at 886-887.

In the instant appeal, the buyer offered parol evidence he was induced to enter the agreement through fraudulent misrepresentation of the legitimate income of the medical practice upon which the purchase price was based. Parol evidence showing fraud in the inducement is admissible even though the written contract says the entire agreement of the parties is contained therein. Brown, supra; City Dodge, supra. This evidence is sufficient to raise an issue, thereby precluding summary judgment on the issue of fraud. Gibbs v. Jim Wilson Chevrolet Co., 161 Ga. App. 171, 172 (288 SE2d 264). “ ‘Questions of fraud, the truth and materiality of representations made by a [seller], and whether the [buyer] could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.’ ” Thomson v. Walter, 160 Ga. App. 542, 543 (287 SE2d 562). The evidence in the case at the bar is not “plain and indisputable.”

In the event of a conflict between decisions of this court (McGuire and Spires, supra) and the Supreme Court {Brown, Meason, and City Dodge, supra), we are bound to follow decisions of the Supreme Court (Art. VI, Sec. VI, Par. VI, 1983 Const, of Ga.), and to the extent that McGuire and Spires are in conflict with Brown, Meason and City Dodge, they no longer will be followed. The trial court erred in granting summary judgment to appellee when there was evidence of fraud in the inducement, rescission of the contract, and tender to the seller of the property purchased. Further, since there was evidence of rescission and tender, and the buyer had counterclaimed for fraud and deceit, it was error for the trial court to grant summary judgment for appellee on the counterclaim. We specifically do not reach any issue regarding a violation of the Georgia “little RICO act,” but note only that “racketeering activity” is limited to designated Articles of the Georgia Code, and “fraud” is not one of those listed. See OCGA § 16-14-3 (3) (A). “Theft” of the type listed as “racketeering activity,” “Article 1 of Chapter 8,” is “theft by taking.” However, “theft by deception” is proscribed by OCGA § 16-8-3.

Judgment reversed.

McMurray, P. J., Carley, Pope, and Ben-ham, JJ., concur. Deen, P. J., Banke, P. J., and Sognier, J., concur specially. Beasley, J., concurs in judgment only.

Addendum.

With reference to the special concurrence, we wish to state that no attempt is made to overrule McGuire or Spires, supra. Our holding is that “to the extent that [they] are in conflict with Brown, Meason and City Dodge, they no longer will be followed.” The reason for this limitation is as follows: In contracts which include a “merger” or “entire agreement” clause, the admissibility of parol evidence on a claim of fraud in the inducement is controlled by the type of action followed by the purchaser/plaintiff. Potomac Leasing Co. v. Thrasher, supra at 886. If the purchaser/plaintiff “rescinds” the contract, “parol evidence of the alleged misrepresentation was admissible on the question of fraud and deceit.” City Dodge v. Gardner, 232 Ga. 766, 770, supra; accord Brown v. Techdata Corp., supra at 627. If the purchaser/plaintiff “affirms” the contract, “he is relegated to a recovery in contract and the merger [or “entire agreement”] clause will prevent” reliance upon a claim of fraud in the inducement. Thrasher, supra at 886. Because McGuire and Spires forbid the use of parol evidence in the support of a claim of fraud in the inducement, regardless of whether the plaintiff has rescinded or is affirming the contract, it is misleading and incorrect if applied to an action where the purchaser has rescinded the contract. It is a correct statement of law when applied to contracts affirmed by the purchaser. “[T]o the extent that McGuire and Spires are in conflict with Brown, Meason, and City Dodge, they no longer will be followed” because this court is bound by decisions of the Supreme Court. Art. VI, Sec. VI, Par. VI, 1983 Ga. Const.

Deen, Presiding Judge,

concurring specially.

While fully concurring in the result reached in the majority opinion, I do not feel that it is necessary to overrule Spires v. Relco, 165 Ga. App. 4 (299 SE2d 58) (1983); and McGuire v. Winkler, 167 Ga. App. 104 (306 SE2d 70) (1983), as that line of cases is readily distinguishable from those relied upon in the majority opinion. In Spires there was a failure to pay under a lease agreement, and appellant contended that certain promises of service, training, etc., were offered as an inducement to enter into the contract. McGuire involved a contract of sale to purchase welding equipment. The purchaser claimed that he was fraudulently induced to enter into the contract by an oral promise to sell him the business and its goodwill. The oral promise was not written into the contract. Both cases were correctly decided by this court, as the oral promises were precluded by a merger clause in the contract. In Charter Med. Mgt. Co. v. Ware Manor, 159 Ga. App. 378, 383 (283 SE2d 330) (1981), Judge Carley, writing the majority opinion, quoted the rule from Wilkinson v. Walker, 143 Ga. App. 838, 839 (240 SE2d 210) (1977), which states: “Fraud cannot consist of mere broken promises, unfulfilled predictions or erroneous conjecture as to future events.” (Emphasis supplied.) Neither can fraud consist of oral misrepresentations which could have been ascertained by careful physical examination or reasonable diligence to discover the truthfulness of the allegations. See Alpha Kappa Psi Bldg. Corp. v. Kennedy, 90 Ga. App. 587 (83 SE2d 580) (1954), where the purchaser could have discovered by diligence the lake. depth at the boundary line to be 11 to 12 feet rather than two feet as orally represented. He could also have had the lake surveyed and discovered it to be I-V2 acres rather than 10 acres. See also Levine v. Peachtree-Twin Towers Co., 161 Ga. App. 103 (289 SE2d 306) (1982) (oral representation that storeroom lay behind locked door when it was actually a very noisy elevator control room).

The cases relied upon by the majority opinion, as in the instant case under review, all involve actual fraudulent concealment of present or past facts which were not readily discernible through the use of reasonable diligence. In Brown v. Ragsdale Mtr. Co., 65 Ga. App. of reasonable diligence. In Brown v. Ragsdale Mtr. Co., 65 Ga. App. 727 (16 SE2d 176) (1941), a speedometer was rolled back and the car represented to the purchaser as new. A similar situation occurred in Eastern Motor Co. v. Lavender, 69 Ga. App. 48 (24 SE2d 840) (1943), and City Dodge v. Gardner, 130 Ga. App. 502 (203 SE2d 729) (1974); 232 Ga. 766 (208 SE2d 794) (1974). In both of those cases representations were made that the automobile the buyer wanted to purchase had never been wrecked or damaged. Brown v. Techdata Corp., 238 Ga. 622 (234 SE2d 787) (1977), was similar in that it involved certain nondisclosures in the sale of business assets. While Meason v. Gilbert, 236 Ga. 862 (226 SE2d 49) (1976), is similar in that it concerns representations made to a purchaser of securities and the contract contained a merger clause, it also dealt with other statutory provisions pertaining to the sale of securities. The rule applied to these cases is long-standing: If there is actual fraud, the buyer is not affected by any of the provisions of the contract because the fraud rescinds the contract. In City Dodge, 232 Ga. 766, the court found that reliance upon the misrepresentation is a jury question, and, if the contract is invalid because of fraud, the disclaimer provision is ineffectual, as there is no contract between the parties. This line of cases therefore presents a different situation from those in the cases sought to be overruled. In the latter, there can be no finding of fraud where there are only future promises which are not incorporated into the contract, or where the erroneous nature of the representation is readily discoverable. The two differing lines of cases need to be preserved as standing for two distinct principles and positions.

Decided February 4, 1988

Rehearing denied March 1, 1988

Randall A. Constantine, for appellants.

John P. MacNaughton, Jane C. Barwick, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this special concurrence.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    75167.
    SAVANNAH LAUNDRY & MACHINERY COMPANY, INC. et al. v. OWENBY.
    (366 SE2d 787)
   Carley, Judge.

Appellee-plaintiff filed this personal injury action against appellant-defendant, a dissolved Georgia corporation, and also against two non-resident corporations. Appellee brought his action in Effingham County, the county wherein he had been injured, and also in Chat-ham County, the county wherein appellant had maintained its last registered office prior to its dissolution. Appellant filed a timely answer in the Effingham County proceedings and raised, among its other defenses, improper venue. Appellant subsequently filed a motion to dismiss the Effingham County action for improper venue or, in the alternative, to transfer the action to Chatham County pursuant to Uniform Superior Court Rule 19.1. Following a hearing, the trial court denied appellant’s motion but granted a certificate for immediate review. This court granted appellant’s petition for an interlocutory appeal in order to address an issue of apparent first impression to wit: What is the proper venue as to an action which is commenced against a Georgia corporation subsequent to its dissolution?

“[V]enue as to corporations, foreign and domestic, shall be as provided by law. . . .” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. Although OCGA § 14-2-293 provides for the post-dissolution survival of pre-dissolution claims against a corporation, that statute does not specifically address the issue of venue of such a survival action against a dissolved corporation. However, as a survival action, a suit which proceeds under OCGA § 14-2-293 is deemed to “proceed as if the dissolution . . . had never taken place.” Rosing v. Dwoskin Decorating Co., 141 Ga. App. 617, 618 (1) (234 SE2d 128) (1977). Had appellant’s dissolution never taken place, the proper venue of a tort action against it would be determined under the general corporate venue provisions of OCGA § 14-2-63. Accordingly, the ultimate issue to be resolved in this case is which of the venue provisions of OCGA § 14-2-63 would be applicable to appellee’s action on his pre-dissolution tort claim which he did not initiate against appellant until after its dissolution.

The determination of venue must be based upon the facts as they exist at the time that suit is initiated, not as the facts may have existed at some previous point in time. See generally Hagood v. Garner, 159 Ga. App. 289 (1) (283 SE2d 355) (1981); Jernigan v. Patterson Contracting Co., 169 Ga. App. 963 (315 SE2d 679) (1984). It is clear that, based upon the facts as they existed at the time the present tort action was filed, venue would be proper in Chatham County. Subsection (b) of OCGA § 14-2-63 provides, in relevant part, that a corporation which fails to maintain a registered office may be sued in the county wherein “its last name registered office or principal office, as shown by the records of the Secretary of State, was maintained.” Prior to appellant’s dissolution, it maintained its registered office in Chatham County and venue of this action would, therefore, be proper in Chatham County if, as the result of appellant’s dissolution, it was no longer maintaining that registered office at the time that appellee filed his complaint.

It is also clear, however, that the venue provisions of OCGA § 14-2-63 are cumulative and that subsection (b) of that statute is not necessarily the exclusive provision for establishing the proper venue of this action. Appellant urges that the trial court apparently found that venue of this action would also be proper in Effingham County pursuant to OCGA § 14-2-63 (d). That provision provides, in relevant part: “For the purpose of determining venue, each domestic corporation . . . shall be deemed to reside and may be sued for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county.” (Emphasis supplied.)

At no time prior to the filing of this action did appellant have an office and transact business in Effingham County. After its dissolution, appellant was dissolved as a corporate entity and was not transacting any business whatsoever. OCGA § 14-2-293 merely provides for the post-dissolution survival of pre-dissolution claims against a corporation and that statute does not purport to confer any authority upon a dissolved corporation to engage in the transaction of any post-dissolution business. “While the phrase ‘transacts any business’ is not free of all ambiguity, the term ‘business’ is commonly understood as applying to dealings of a commercial, industrial, or professional nature.” Warren v. Warren, 249 Ga. 130, 131 (287 SE2d 524) (1982). Prior to its dissolution, appellant did not engage in the initiation and defense of lawsuits as its authorized business activity. Appellant did so only by virtue of its general power as a corporate entity to initiate and defend legal claims which did arise out of the conduct of its authorized business. OCGA § 14-2-293 merely provides that appellant will still retain this general corporate power for a period after its dissolution and will for that period bear, in its corporate capacity, the legal consequences of the business that it had transacted prior to its dissolution. Thus, the obvious intent of OCGA § 14-2-293 is only to provide that dissolution will not abate legal claims by and against a corporation, just as death will not abate personal claims by and against an individual. See generally OCGA § 9-2-40 et seq. Accordingly, the trial court erred in construing the statute as authority for appellant to transact post-dissolution business. It necessarily follows that appellant also had no “office” in Effingham County at the time that this suit was filed even though certain former officer and shareholders of appellant may have had their residence in that county.

Pursuant to no provision of OCGA § 14-2-63 would venue of this tort action against appellant be proper in Effingham County. The trial court erred in denying appellant’s motion to transfer this case to the appropriate court of Chatham County, the only county wherein venue of a tort action against appellant as a dissolved corporation would be proper. See generally Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 898 (4) (354 SE2d 632) (1987).

Decided February 16, 1988

Rehearing denied March 1, 1988

Noble L. Boykin, Jr., for appellants.

Roy E. Paul, Walter C. Hartridge, Edwin D. Robb, Jr., for appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


text:
    75183.
    BOSCAINO v. THE STATE.
    (366 SE2d 789)
   Carley, Judge.

Appellant was tried before a jury on an indictment which charged him with robbery by use of force. The jury returned a verdict of guilty. Appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates the general grounds. A photographic lineup was conducted three days after the incident occurred. At that time, the victim positively identified appellant as a perpetrator. The victim could not, however, subsequently make a positive in-court identification of appellant. The victim stated: “Visualizing the way [appellant] appeared that night and the way [appellant] looked in the lineup, [he doesn’t] look anything like [he] did.” This lack of positive in-court identification testimony does not require the reversal of appellant’s conviction. “The [victim’s] failure positively to identify appellant in court did not invalidate [his] earlier unequivocal identification. ‘That a witness is somewhat hesitant of an identification on one occasion is not contradictory to a firm identification upon another. . . .’ [Cit.]” Hatcher v. State, 175 Ga. App. 768, 769 (334 SE2d 709) (1985).

After reviewing all of the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence from which a rational trior of fact could reasonably have found appellant guilty of robbery by force beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Although appellant had been indicted only for robbery by force, the trial court included in its charge to the jury the entirety of the general definition of the crime of robbery as provided in OCGA § 16-8-40. Appellant enumerates the giving of the general definition of robbery as error, urging that it was only the crime of robbery by force that was at issue.

“The well established rule is that a charge on a code section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict. [Cits.]” Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621) (1983). We find that the trial court’s charge could not have confused or misled the jury in its determination of whether appellant had committed robbery by force, which was the offense charged in the indictment. See Searcy v. State, supra; Chambers v. State, 183 Ga. App. 874, 875 (1) (360 SE2d 438) (1987).

3. The trial court granted the State’s request to reopen its case in order to call a witness whose name did not appear on the list that had previously been provided to appellant. This ruling gives rise to several enumerations of error.

The trial court did not err in its initial decision to allow the State to reopen its case. “It is always within the sole discretion of the trial court to permit either the State or the defense in criminal cases to reopen the case after the close of the evidence. [Cits.]” Morris v. State, 170 Ga. App. 849, 850 (2) (318 SE2d 517) (1984).

Although the witness’ name did not appear on the list previously furnished to appellant, the trial court did allow appellant to conduct an interview before the witness was permitted to testify. Accordingly, there was no violation of OCGA § 17-7-110. “The purpose of OCGA § 17-7-110 is to afford the defendant a reasonable opportunity to interview witnesses before trial so as to avoid being surprised by testimony at trial. [Cit.] [T]he testimony of a witness whose name was not supplied to the defendant does not have to be excluded if other means of protecting the defendant and effectuating the intent of the statute can be found. [Cits.] And, in instances when the trial court has allowed the defendant an opportunity to interview ‘unlisted’ witnesses, it has been held that the purpose of the statute has been satisfied, and that the trial court properly allowed the witnesses to testify. [Cits.] In the instant case the trial court permitted the appellant to interview [the witness] before he testified. We thus find that the purpose of OCGA § 17-7-110 was satisfied, and that the trial court properly allowed [the witness] to testify. [Cits.]” White v. State, 253 Ga. 106, 109-110 (3) (317 SE2d 196) (1984).

The trial court did not err in denying appellant’s motion for a mistrial, which motion was based upon a portion of the witness’ direct examination. The motion was not made until long after the witness had been excused. “[A] motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it. [Cits.]” Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986). See also Garner v. State, 180 Ga. App. 146, 147 (1) (348 SE2d 690) (1986).

4. Appellant enumerates various instances of alleged prosecutorial misconduct as error. As to most of the cited instances, however, appellant did not preserve his right to urge error on appeal. See generally Cochran v. State, 213 Ga. 706 (2) (100 SE2d 919) (1957); Mayfield v. State, 153 Ga. App. 459, 460 (2) (265 SE2d 366) (1980); Whitley v. State, 158 Ga. App. 618, 619 (3) (281 SE2d 637) (1981); Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986).

Decided February 16, 1988

Rehearing denied March 1, 1988

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, Linda Hunter, Fran Shoenthal, Assistant District Attorneys, for appellee.

Only one instance was preserved for review and merits discussion. Appellant objected to a portion of the State’s closing argument and the trial court allowed the argument to continue over objection. Although appellant made no motion for mistrial, he “is entitled to urge on appeal that. . . the trial court erred in failing to sustain the objection and thereby require the State’s counsel to desist from improper argument.” Hall v. State, supra at 883-884 (3). However, we find that the State’s argument was not improper. “Closing arguments by the district attorney which appeal to the safety of the community and general prevention of crime are proper. [Cit.]” Burke v. State, 153 Ga. App. 769, 771 (8) (266 SE2d 549) (1980).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    75114.
    TAMPA MOTEL MANAGEMENT COMPANY et al. v. STRATTON OF FLORIDA, INC.
    (366 SE2d 804)
   Benham, Judge.

This appeal follows the trial court’s grant of a motion to confirm and enforce an arbitration award, made by appellee Stratton of Florida (“Stratton”), and the denial of appellant Roberts’ motion to dismiss for lack of personal jurisdiction and venue.

Appellant Tampa Motel Management Company (“TMMC”) owned five sites under construction in Oklahoma and Florida. Appellant Roberts served as president, chairman of the board, and a director of TMMC. Appellee Stratton was the general contractor on the five TMMC construction projects. In an effort to resolve Stratton’s claims of nonpayment by TMMC, the parties entered into an agreement on November 29, 1984, in which they agreed to submit to arbitration in Atlanta, Georgia, all claims and disputes concerning the five construction projects. Disputes again arose and in June 1985, Stratton filed a demand for arbitration. After conducting a five-day hearing in Atlanta, attended by Roberts and representatives of TMMC and Stratton, the arbitrators entered an award on May 27, 1986, requiring TMMC and Roberts to pay Stratton $927,250. Four months after the award in its favor, Stratton filed its motion to confirm and enforce the arbitration award in the Superior Court of DeKalb County. TMMC and Roberts filed separate responses in which they claimed that the arbitration award was unenforceable for a number of reasons. Asserting that the trial court did not have personal jurisdiction over him and that venue in DeKalb County was improper, Roberts also filed a motion to dismiss Stratton’s motion to confirm and enforce. The trial court denied Roberts’ motion and granted Stratton’s motion to confirm and enforce the arbitration award.

1. We initially address Roberts’ assertions that he was not subject to the personal jurisdiction of the trial court, and that venue as to him was improper in DeKalb County.

In an affidavit filed in support of his motion to dismiss, appellant Roberts averred that the November 1984 agreement was signed in Fulton County, Georgia, after “minor negotiations in Fulton County.” He swore that the agreement was “negotiated primarily” in Florida, and that no “negotiations, executions or other actions with regard to the Agreement” took place in DeKalb County, Georgia. Attorneys for appellee Stratton filed affidavits in which they chronicled the Atlanta negotiations of the agreement with appellant Roberts and his attorney, as well as the signing of the agreement in Atlanta. Paragraph 27 of the agreement states that the “Agreement and its performance shall be interpreted and construed in accordance with the laws of the State of Georgia.” It is undisputed that Roberts attended the five-day arbitration hearing which was held in 1986 in the Colony Square complex located in Atlanta, Fulton County.

“ ‘ “Jurisdiction of the person is the power of a court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by it in such a case, . . .” ’ Basically jurisdiction means the power of a court to render a binding judgment in the case, ...” Williams v. Fuller, 244 Ga. 846 (3) (262 SE2d 135) (1979). “A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) [transacts any business within this state. . . .” OCGA § 9-10-91. “Under our Long Arm Statute [OCGA § 9-10-91] jurisdiction over a nonresident exists on the basis of transacting business in this state [1] if the nonresident has purposefully done some act or consummated some transaction in this state, [2] if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.” Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285) (1973). “If . . . the requirements of Rules (1) and (2) are (met, there must also exist) a ‘minimum contact’ between the nonresident and the forum. . . . (Lastly,) the assumption of jurisdiction (by the forum) must be . . . consonant with . . . due process notions of ‘fair play’ and ‘substantial justice.’ [Cit] . . . [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. [Cits.]” Girard v. Weiss, 160 Ga. App. 295 (1) (287 SE2d 301) (1981).

The execution of the agreement in Georgia is a sufficient purposeful transaction of business within the forum (Bloise v. Trust Co. Bank of Savannah, 170 Ga. App. 405 (1) (317 SE2d 249) (1984)), and the cause of action arises from and is connected with the consummation of the agreement. See Davis Metals, supra. By negotiating and signing within the geographic boundaries of Georgia an agreement which provided the protection of the laws of Georgia to the parties, appellant Roberts established a sufficient “minimum contact” with the State of Georgia to enable the courts of this state to exercise personal jurisdiction over him.

2. “[Vjenue means the place of trial.” Williams v. Fuller, supra, 849. When personal jurisdiction of a nonresident is acquired under the provisions of the Long Arm Statute (OCGA § 9-10-91), venue as to the nonresident is determined by OCGA § 9-10-93, which states that “[v]enue in cases under this article shall lie in any county wherein the business was transacted. . . .” Thus, venue as to nonresident Roberts, due to his transaction of business in Fulton County, was in Fulton County. See Gowdey v. Rem Assoc., 176 Ga. App. 83 (2) (335 SE2d 309) (1985). Roberts’ motion to dismiss due to improper venue should have been treated as a motion to transfer to the proper venue, and granted by the trial court. See 1983 Ga. Const., Art. VI, Sec. I, Par. VIII; Uniform Superior Court Rule 19.1, 253 Ga. 829 (1985).

Appellee Stratton contends that venue was proper in DeKalb County under the Georgia Arbitration Code for Construction Contracts (“Georgia arbitration code”) (OCGA § 9-9-80 et seq.). OCGA § 9-9-84 (b) provides that “[v]enue for applications to the court shall lie: (1) In the county where the agreement provides for the arbitration hearing to be held or (2) If the hearing has already been held, in the county where it was held or (3) In the county where any party resides or does business.” Stratton points out that TMMC is incorporated under the laws of Georgia with its registered office located in DeKalb County, and argues that TMMC’s residency in DeKalb County, coupled with OCGA § 9-9-84 (b) (3), makes venue as to both TMMC and Roberts proper in DeKalb County.

Stratton’s argument and the facts of this case place in conflict the venue provision of the Long Arm Statute and subsection (b) (3) of the arbitration code venue provision. Stratton’s position is premised on the applicability of the Georgia arbitration code to the case at bar. Appellants, on the other hand, maintain that the interstate nature of this case requires application of the Federal Arbitration Act (9 USCA § 1 et seq.), which provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid . . .”9 USCA § 2. Commerce is statutorily defined as, among other things, “commerce among the several States.” 9 USCA § 1. The Georgia arbitration code provides that it is applicable “only to construction contracts, contracts of warranty on construction, and contracts involving the architectural or engineering design of any building or the design of alterations or additions thereto . . . .” OCGA § 9-9-81 (b). The Georgia statute evidences a legislative intent to give effect to arbitration provisions contained in construction contracts. OCGA § 9-9-82. The involvement of a Florida resident, a Georgia corporation, and a Florida corporation in a dispute concerning sites in Oklahoma and Florida constitutes interstate commerce. See Hilton Constr. Co. v. Martin &c. Contractors, 251 Ga. 701 (308 SE2d 830) (1983); McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 12 (345 SE2d 53) (1986); ADC Constr. Co. v. McDaniel Grading Co., 177 Ga. App. 223 (1) (338 SE2d 733) (1985).

While the federal and state arbitration codes are very similar and embody their respective legislature’s intent to enforce commercial arbitration agreements, this court, in the only case in which there might have been presented a choice between applying state law or federal law, held that state law and policy must yield to the federal statute if interstate commerce is involved. ADC Constr. Co. v. McDaniel Grading, supra. Since the federal statute is applicable, Stratton’s venue argument, premised on application of the state statute, must fail. Even if the Georgia arbitration code, complete with its venue provision, were applicable, its conflict with the venue provision of the Long Arm statute would result in the enforcement of the long arm venue provision since it rests upon notions of due process, fair play, and substantial justice (see Shellenberger v. Tanner, 138 Ga. App. 399, 402 (227 SE2d 266) (1976)), and the venue provision of the arbitration code is not based upon similar constitutional ideals. In actuality, the two venue provisions will be only facially conflicting since the conflict arises only when one party is not from Georgia, and the state arbitration law, due to preemption by the federal arbitration code when interstate commerce is involved, will never be applicable where one party is not from Georgia.

3. While venue as to appellant Roberts was improper in DeKalb County, that site was proper as far as TMMC was concerned. See 1983 Ga. Const., Art. VI, Sec. IV, Par. II. Therefore, we address the merits of TMMC’s appeal.

The trial court’s order confirming and enforcing the arbitration award is based upon the Georgia arbitration code. However, as we have pointed out, the federal arbitration law supplanted the Georgia statute due to the presence of interstate commerce. While it may have been error to apply the Georgia statute to the facts of this case, we must determine whether that error resulted in harm to appellant TMMC. Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651 (2) (334 SE2d 188) (1985).

In its sole non-jurisdictional enumeration of error, appellant TMMC contends that the trial court erred in confirming the award of the arbitrators because the arbitrators exceeded the scope of their authority. TMMC pleaded this allegation as a “defense” in its response to Stratton’s motion to confirm and enforce the arbitration award. The trial court treated appellant’s objections to the confirmation and enforcement of the award as an application to vacate or modify the award, permitted under the Georgia arbitration code in OCGA §§ 9-9-93 and 94, and concluded that appellant’s application was time-barred under the statutory scheme.

Under the federal statute, both state and federal courts have subject-matter jurisdiction to give force and effect to the federal arbitration code. See Hilton Constr. Co. v. Martin &c. Contractors, supra. Upon application to the court for confirmation of the arbitration award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in [9 USCA §§ 10 and 11].” 9 USCA § 9. The court may vacate, modify, or correct an award if a party makes such an application and cites one of the statutory grounds found in 9 USCA §§ 10 and 11 for the application. However, “[n]otice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 USCA § 12. The award in the case at bar stated it was “in full settlement of all claims submitted to this arbitration,” was dated May 27, 1986, and was alleged to have been delivered on May 29, 1986. For purposes of the three-month statute of limitation, the award was made final by May 29, 1986. See Colavito v. Hockmeyer Equip. Corp., 605 FSupp. 1482 (S.D., N.Y. 1985). TMMC filed its response to the motion to confirm, citing statutory grounds for vacation of the award, on November 17, 1986, nearly six months after the date of the arbitration award. Even applying the federal statute to the case at bar, the trial court was correct in ruling that the substance of TMMC’s response to the motion to confirm was time-barred.

Decided March 1, 1988.

Celeste McCollough, John L. Taylor, Jr., for appellants.

Bryan M. Cavan, C. Walker Ingraham, for appellee.

TMMC, citing a treatise on commercial arbitration, maintains that it was entitled to raise as defenses to Stratton’s motion to confirm those issues it might earlier have raised in a motion to vacate, modify, or correct. Inasmuch as a motion to confirm may be made within one year of the arbitration award (9 USCA § 9), TMMC’s position flies in the face of the clear statutory time limitations of 9 USCA § 12, as well as the established case law. Once the three-month period following the filing or delivery of the arbitration award has expired, any attempt to vacate or modify the award including opposition to a motion to confirm, cannot be made. Taylor v. Nelson, 788 F2d 220 (4th Cir. 1986); Florasynth, Inc. v. Pickholz, 750 F2d 171 (2nd Cir. 1984); Brotherhood of Teamsters &c. v. Celotex Corp., 708 F2d 488 (9th Cir. 1983).

Since under the applicable federal statute appellant’s objections to the motion to confirm were time-barred and the trial court was required to enter an order confirming the award, we find that no harm resulted from the trial court’s application of the similar Georgia statutory scheme. Accordingly, we affirm the trial court’s confirmation of the arbitration award as against TMMC, and reverse and remand that portion of the case involving Roberts, with direction that it be transferred to the proper venue, Fulton County.

4. Stratton’s motion for the assessment of damages for frivolous appeal is denied.

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

Banke, P. J., concurs. Carley, J., concurs in judgment only.


text:
    75450, 75687.
    GRAVES v. GRAVES (two cases).
    (366 SE2d 809)
   Carley, Judge.

Appellant is a resident of Putnam County. In his capacity as the custodial parent of two minor children, appellant instituted an action against appellee, his former wife, seeking an award of child support from her and a modification of her visitation rights. Appellant filed his action in the Superior Court of Bibb County, the county of appellee’s residence. Appellee answered appellant’s complaint and counterclaimed to have custody of the minor children changed from appellant to herself. In her counterclaim, appellee alleged that appellant had voluntarily submitted himself to the jurisdiction of Bibb County by filing his complaint for modification. The Superior Court of Bibb County transferred the issue of child custody and visitation rights for determination by the Juvenile Court of Bibb County. In the juvenile court, appellant moved to dismiss appellee’s counterclaim for a change of custody, contending that venue was improper in Bibb County. The juvenile court denied appellant’s motion and entered an order awarding custody of the minor children to appellee. After the juvenile court awarded custody to appellee, the superior court entered an order granting child support to appellee. Appellant subsequently filed a motion pursuant to OCGA § 9-11-60 (d), wherein he sought to have the superior court set aside its child support order. Appellant’s motion was denied.

In case number 75687, this court granted appellant’s application for a discretionary appeal from the juvenile court’s order awarding child custody to appellee. In case number 75450, appellant brings a direct appeal from the superior court’s order denying his motion to set aside its award of child support to appellee. The two cases are hereby consolidated for disposition in this single opinion.

Case No. 75687

1. Appellant enumerates as error the failure of the juvenile court to grant the motion to dismiss appellee’s counterclaim for child custody. This enumeration is controlled by our decision in Jones v. Jones, 178 Ga. App. 794 (344 SE2d 677) (1986), aff'd 256 Ga. 742 (352 SE2d 754) (1987). In Jones, this court held that where the custodial parent seeks the modification of the visitation rights of the noncustodial parent and has filed his petition in the county of the residence of the noncustodial parent, the noncustodial parent cannot seek a change of custody by filing a counterclaim but, instead, must file a separate action in the county of residence of the custodial parent. Jones v. Jones, 178 Ga. App., supra at 796. Accordingly, appellee’s counterclaim was improper and the juvenile court erred in denying appellant’s motion to dismiss the counterclaim.

2. Appellant has moved this court for attorney’s fees and expenses of litigation under § 9-15-14. “We do not address the merits of appell[ant]’s motion for attorney fees [and expenses of litigation] under OCGA § 9-15-14 for such a motion properly addresses itself to the trial court for disposition.” Chrysler Corp. v. Marinari, 182 Ga. App. 399, 403 (4) (355 SE2d 719) (1987).

Case No. 75450

3. Appellant enumerates as error the superior court’s denial of the motion to set aside its award of child support to appellee. However, appellee has moved to dismiss this appeal for appellant’s failure to follow the discretionary appeal requirements of OCGA § 5-6-35.

Decided March 1, 1988.

Charles V. Choyce, Jr., for appellant.

William J. Self II, for appellee.

“Under the provisions of OCGA § 5-6-35 (a) (2), appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases must be taken by application. Matters of child support fall into the category of ‘other domestic relations’ and are therefore within the purview of OCGA § 5-6-35 (a) (2). [Cit.]” Roach v. Roach, 182 Ga. App. 122-123 (354 SE2d 877) (1987). Additionally, OCGA § 5-6-35 (a) (8) requires that an appeal from an order denying a motion to set aside a judgment is discretionary and must be taken by application. “Appeals from the denial of [a motion to set aside a judgment] are discretionary and appellant did not follow the applicable procedure to secure appellate review of the denial of his motion. [Cits.]” Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987). See also Goodwin v. Richmond, 182 Ga. App. 745 (1) (356 SE2d 888) (1987). Since appellant has failed to comply with the provisions of OCGA § 5-6-35, his appeal must be dismissed.

However, the superior court’s award of child support to appellee states on its face that it is based upon the juvenile court’s erroneous award of child custody to appellee, which erroneous award we have reversed in case number 75687. Under these circumstances, we see no reason why appellant would not now be entitled to move the superior court to set aside its award of child support. “A motion to set aside may be brought to set aside a judgment based upon: A nonamendable defect which appears upon the face of the records or pleadings.” OCGA § 9-11-60 (d) (3).

Judgment reversed in case number 75687. Appeal dismissed in case number 75450.

Banke, P. J., and Benham, J., concur.


text:
    75759.
    BRYANT v. THE STATE.
    (366 SE2d 810)
   Carley, Judge.

Appellant was indicted on twelve counts arising from four separate incidents. After the trial court granted his motion for severance of offenses, appellant was tried on charges of burglary, rape, and armed robbery stemming from one of the incidents. The jury returned verdicts of guilty as to each count. Following the trial court’s denial of his motion for new trial, appellant appeals from the judgments of conviction and sentences entered on the verdicts.

The sole enumeration of error urges that the trial court erroneously admitted into evidence the inculpatory statement that appellant gave to the police. The contention is that the inculpatory statement was taken in violation of appellant’s Fifth Amendment rights, in that he had invoked his right to counsel prior to questioning.

The trial court did not admit appellant’s inculpatory statement until it had first conducted a Jackson-Denno hearing outside of the presence of the jury. At that hearing, the following was shown: After his arrest, appellant was fully informed of his Miranda rights and acknowledged that he understood those rights. Appellant was then asked if he wished to waive his rights and talk to the police. Appellant responded by asking: “Is it possible that the lawyer that will be appointed for me could be here at this time[?]” The officers then truthfully told appellant that counsel could not be appointed until his arraignment and that, if he did not wish to talk with them until that time, he would be returned to jail pending appointment of counsel. Appellant did not then indicate his desire to give a statement only after he had conferred with counsel. Instead, appellant indicated his desire to continue the dialogue. He immediately inquired whether he could ask questions of the police and gave an affirmative answer when he was then specifically asked if he wanted to talk to the officer at that time. The officers further established that appellant understood that he had the right “to stop any time” and the right to confer with an attorney. Only then did the officers secure appellant’s execution of a waiver of his Miranda rights. Appellant gave his inculpatory statement during the subsequent interview.

The issue before us is the effect that appellant’s initial question concerning his court-appointed counsel has upon the admissibility of his subsequent inculpatory statement. At the time that appellant posited his question, it was not clear whether his intent was actually to request counsel or was merely to request additional information concerning his right to counsel before he made a final decision as to whether to give a statement to the officers. Thus, appellant’s question “was not a clear invocation of his Fifth Amendment right to the presence of counsel, but it was at [most] an arguably ambiguous or in-artful request of that type.” Hall v. State, 255 Ga. 267, 271 (1) (336 SE2d 812) (1985). “Where a suspect’s desires are expressed in an equivocal fashion, ‘it is sound and fully constitutional police practice to clarify the course the suspect elects to choose.’ [Cit.] . . . [Accordingly,] the scope of any subsequent interrogation should [be] narrowed to an attempt to clarify the nature of [appellant’s] question. [Cit.]” Hall v. State, supra at 273 (2). In the present case, the investigators correctly attempted to secure a clarification of the nature of appellant’s question. They truthfully informed appellant that appointed counsel could not then be present, and that he would not be questioned pending appointment by counsel. Thereafter, appellant, not the officers, continued the dialogue. Appellant never invoked his right to deal with the officers only through counsel and the officers established that appellant was fully cognizant of his right to counsel. Thus, the officers’ “efforts at clarification showed that [appellant] did not intend to invoke his Fifth Amendment right to counsel by virtue of [his] equivocal request. Accordingly, we hold that the trial court did not err by admitting appellant’s . . . statement into evidence.” Hall v. State, supra at 275 (3).

Decided March 1, 1988.

Kenneth Kondritzer, for appellant.

Spencer Lawton, Jr., District Attorney, Suzanne P. Craig, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75777.
    BEMBRY v. PUGH.
    (366 SE2d 812)
    Decided March 1, 1988.
   Carley, Judge.

Appellee-plaintiff initiated this dispossessory action against appellant-defendant. Appellant was not present at the trial of the action due to his incarceration on unrelated criminal charges. Appellant’s counsel, however, elected to proceed without him. Appellant appeals from the trial court’s denial of his motion for new trial.

Appellant’s sole enumeration is that his absence from the trial of the action necessitates that a new trial be conducted. Where, as here, “[c]ounsel goes to trial without the presence of the defendant, but makes no motion for a continuance and does not suggest [her] desire to have [her] client present at the trial, it will not require the granting of a new trial. This is true even though the defendant contends he possesses evidence which would have brought the trial to a different conclusion. . . . The trial judge did not err in overruling the motion for a new trial. [Cits.]” Burkhalter v. Durrence, 93 Ga. App. 374, 374-375 (91 SE2d 774) (1956).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Sidney L. Moore, Jr., for appellant.

William F. C. Skinner, Jr., for appellee.


author: Deen, Presiding Judge.

text:
    76096.
    CARROLL v. THE STATE.
    (367 SE2d 81)
   Deen, Presiding Judge.

Steven Michael Carroll appeals from his conviction of violating the Georgia Controlled Substances Act, contending the trial court erred in denying his motion to suppress. The evidence showed that the seventeen-year-old defendant and his cousin disembarked from a Delta Airlines flight at Atlanta’s Hartsfield International Airport from a flight originating in Fort Lauderdale, Florida. The young men attracted the attention of DEA agents because they deplaned after all the passengers and flight crew. They were poorly dressed, carried no baggage and appeared to be shocked when they noticed the officers’ presence. The officers noticed that appellant had a large, abnormal bulge under his jacket, which he was attempting to conceal. As the young men walked down the concourse they appeared to be very nervous and repeatedly turned to watch the plain-clothes officers who were following them. One of the police officers approached, identified himself as a police officer and asked to speak with them. The appellant agreed to talk to him. The officer asked to see their airline tickets and Carroll’s cousin handed him the tickets. The officer noted that they were one-way cash tickets from Fort Lauderdale, that no baggage claim checks were attached, and that the tickets were issued in the names of “Don and Jim Yates.” When asked his name, the defendant responded, “Jim Yates.” The officer returned the tickets and asked Carroll for identification. He then said his name was Michael Carroll. When the officer asked him if it was Jim Yates or Michael Carroll, the defendant began stuttering and said, “Oh, my name is Jim Yates.” The officer believed that Carroll was attempting to mislead him as to his true identity, placed him under arrest, and conducted a pat-down search incident to the arrest. When the officer felt the suspicious bulge under Carroll’s jacket, he asked what it was and Carroll admitted that it was narcotics. (It was later determined to be 168 grams of 82% pure cocaine.) In a post-arrest interview Carroll admitted that he had carried cocaine on several other occasions and that he used a false name so that he would not get caught. Held:

It is a misdemeanor to give “a false name ... to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity.” OCGA § 16-10-25. As there was probable cause for the officer to arrest Carroll for the offense of giving a false name to a police officer, we find that the subsequent search of his person was permissible as a search incident to a valid arrest. Taylor v. State, 181 Ga. App. 703 (353 SE2d 619) (1987). Accordingly, we find that the trial court did not err in denying Carroll’s motion to suppress.

Decided March 1, 1988.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75466.
    THE STATE v. LeMAY.
    (367 SE2d 61)
   Benham, Judge.

Appellee LeMay was indicted for vehicular homicide, driving under the influence of alcohol, and speeding. A jury found appellee guilty of DUI and speeding, but was unable to reach a verdict on the vehicular homicide charge. After the trial court declared a mistrial as to that count, the State initiated proceedings to re-try appellee on the vehicular homicide charge. Appellee then filed a plea in bar, contending that a retrial would violate the statutory as well as the federal and state constitutional proscriptions against double jeopardy. The trial court granted appellee’s motion, causing the State to file this appeal. See OCGA § 5-7-1 (3); State v. Stowe, 167 Ga. App. 65 (1) (306 SE2d 663) (1983).

1. The Supreme Court of the United States has held that the double jeopardy provision contained in the Fifth Amendment to the United States Constitution does not prohibit a second trial of an accused when the accused’s first trial ended in a mistrial due to the jury’s inability to reach a verdict. Illinois v. Somerville, 410 U. S. 458 (93 SC 1066, 35 LE2d 425) (1973); Cameron v. Caldwell, 232 Ga. 611, 612 (208 SE2d 441) (1974). Similarly, the Supreme Court of Georgia has ruled that the state constitutional double jeopardy provision, now found in Art. I, Sec. I, Par. XVIII of the 1983 Georgia Constitution, does not prohibit the second trial of an accused when the first trial ended in a mistrial due to a deadlocked jury. Cameron, supra. Therefore, the grant of appellee’s plea in bar must rest upon the statutory prohibitions against double jeopardy (OCGA §§ 16-1-7 and 16-1-8), which afford an accused more protection than the “minimum standards” contained in the constitutional bars. State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974); State v. Warren, 133 Ga. App. 793, 795 (213 SE2d 53) (1975).

2. OCGA § 16-1-8 (a) bars a prosecution “if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal; or (2) Was terminated improperly after the jury was impaneled and sworn . . It is not improper to terminate a prosecution when the jury is unable to reach a verdict. OCGA § 16-1-8 (e) (2) (C). Since appellee, now facing a charge of vehicular homicide, was formerly tried for the same crime based upon the same facts, and the prosecution resulted in neither conviction nor acquittal but was properly terminated, OCGA § 16-1-8 (a) does not bar this prosecution of appellee for vehicular homicide.

3. Pointing out that he was convicted of driving under the influence, appellee contends that the second prosecution is barred under OCGA § 16-1-8 (b) (1). That subsection bars prosecution if the accused “was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution . . . , or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution . . .” Making the argument raised but the merits of which were not addressed in Bell v. State, 249 Ga. 644 (2) (292 SE2d 402) (1982), appellee asserts that he may not now be prosecuted for vehicular homicide because the same evidence used to convict him of the DUI charge would be needed to convict him of vehicular homicide. In making his argument, appellee is apparently relying upon that portion of OCGA § 16-1-8 (b) (1) that was designated (iii) (A) by the Supreme Court in McCannon v. State, 252 Ga. 515, 518 (315 SE2d 413) (1984). However, any reliance upon OCGA § 16-1-8 (b) in a case where an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in OCGA § 16-1-8 (e), is misplaced. OCGA § 16-1-8 (a) governs in such a case, since it is a situation in which the accused was formerly prosecuted for the same crime based upon the same material facts. Subsection (b) governs if the accused was formerly prosecuted for a different crime or the same crime based upon different facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. Subsection (b) governs cases in which the State brought separate prosecutions for a greater and included offense, in violation of OCGA § 16-1-7 (b). If subsection (b) is applicable to a case such as the one at bar, one in which an accused is tried for multiple offenses, several of which are offenses included in ones of the other charges, and is convicted of the lesser offenses but suffers a mistrial with regard to the greater offense, then the State would only be able to retry the accused on the greater offense if an evidentiary quirk arose. See, e.g., Bell v. State, supra, Division 2. In the vast majority of cases, the portion of OCGA § 16-1-8 (b) (1) that calls for each prosecution to require proof of a fact not required in the other prosecution would bar retrial since cases involving included offenses, by their very definition, preclude proof of a fact in the included offense that is not required to be proved in proving the greater offense. Such an application of the statute would also fly in the face of the Supreme Court’s holding in Bell, supra: “[W]here the State sought to prosecute a defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense.” Id. at Division 3.

Decided February 15, 1988

Rehearing denied March 2, 1988

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellant.

Ray C. Smith, for appellee.

Appellee’s prior trial on the vehicular homicide charge did not end in conviction, acquittal, or improper termination. Therefore, retrial on that same charge is not barred by either the constitutional or statutory prohibitions against double jeopardy. Of course, as was noted in Bell, should appellee be convicted of vehicular homicide on retrial, the trial court must set aside the conviction of driving under the influence since it is an offense included in vehicular homicide (see OCGA § 40-6-393; Rank v. State, 179 Ga. App. 28 (2) (345 SE2d 75) (1986)), and OCGA § 16-1-7 (a) (1) prohibits conviction of both offenses.

Judgment reversed.

Banke, P. J., and Corley, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75637.
    NATIONWIDE MUTUAL INSURANCE COMPANY v. GLACCUM.
    (366 SE2d 772)
   McMurray, Presiding Judge.

This discretionary appeal is an offshoot of an automobile negligence action which appeared in this court previously. See Nationwide Mut. Ins. Co. v. Whiten, 179 Ga. App. 544 (346 SE2d 914). We granted this appeal to determine whether a subpoenaed witness was entitled to additional compensation for his testimony.

Robert Whiten brought suit against Larry Miller seeking damages for injuries sustained in an automobile collision. Nationwide Mutual Insurance Company (“Nationwide”), Whiten’s uninsured motorist carrier, defended the lawsuit in its own name. As the case proceeded to trial, Nationwide served a subpoena upon Dr. John C. Glaccum, a chiropractor who treated Whiten for his injuries. Contemporaneously, Nationwide tendered to Dr. Glaccum the witness fee and mileage for travelling expenses. See OCGA § 24-10-24.

Thereafter, in a letter dated April 26, 1984, Dr. Glaccum notified Nationwide that his fee for attending court would be $2,000 and that Nationwide would have to agree to pay that fee if he was to make an appearance. Nationwide did not agree to pay Dr. Glaccum any additional compensation. Nevertheless, Dr. Glaccum appeared in court upon the trial of the case. He was called to the witness stand by Whiten and Nationwide cross-examined him. After the trial, Dr. Glaccum sent Nationwide a “final bill” demanding payment of $1,932.

Relying upon OCGA § 24-10-4, Nationwide moved for an order requiring Dr. Glaccum to pay Nationwide the sum of $8,000 (four times the amount initially claimed by Dr. Glaccum). The motion was accompanied by the affidavit of Malcolm S. Murray, Sr., counsel for Nationwide. In his affidavit, Murray deposed that as counsel for Nationwide he caused a subpoena to be served on Dr. Glaccum; that Dr. Glaccum was not asked by Nationwide to examine Whiten or review Whiten’s records “or do anything else in preparation for testifying at the trial of [the] case”; that Dr. Glaccum was paid $40 (representing the statutory fee for one day in court plus mileage); that Dr. Glaccum demanded $2,000 “in advance from the law firm of Murray and Temple as a condition to his appearing as a witness”; that after appearing as a witness in the case, Dr. Glaccum demanded payment of $1,932; and that “if sworn as a witness . . . [Murray] could and would competently testify to the facts set out in the foregoing affidavit from personal knowledge.”

Dr. Glaccum moved to disqualify Murray as counsel for Nationwide. In this regard, he asserted that Murray could not be both advocate and witness.

Opposing Nationwide’s motion under OCGA § 24-10-4, Dr. Glaccum submitted his own affidavit. Therein, he deposed that he is a licensed Georgia chiropractor; that chiropractors charge a witness fee “based on an hourly rate of income”; that he charges $200 for the first hour of testimony and $100 for each succeeding hour; and that because he was subpoenaed by Nationwide, he was forced to close his office for a total of 13.5 hours on four different days (March 12, 1984, September 13, 1984, January 14, 1985, and January 17, 1985).

The trial court denied Nationwide’s motion under OCGA § 24-10-4. It ruled that Dr. Glaccum appeared at trial as an expert witness and that, therefore, he was entitled to be compensated as an expert. In light of its ruling, the trial court determined that Dr. Glaccum’s motion to disqualify counsel was moot. Held:

1. In view of the fact Dr. Glaccum was not asked to conduct any preliminary examination or review of his records in order to better give his opinion as an expert, he was not entitled to demand extra compensation for attendance in court pursuant to the subpoena. See Schofield v. Little, 2 Ga. App. 286, 287 (9) (58 SE 666); Dixon v. State, 12 Ga. App. 17 (2) (76 SE 794). Compare Logan v. Chatham County, 113 Ga. App. 491 (1) (148 SE2d 471), with Polston v. Levine, 171 Ga. App. 893 (1) (321 SE2d 350). As it is said, “[A]n expert cannot refuse to testify and be qualified as an expert witness because he has not been and will not be compensated as an expert. He must obey a subpoena just as any other witness. However, if an expert is required to testify for the usual witness fee of $10.00 a day, you are likely to get about $10.00 worth of testimony.” Agnor’s Ga. Evidence 195, § 9-5.

2. In view of our ruling in Division 1, we reverse and remand this appeal to the trial court for reconsideration of Nationwide’s motion made pursuant to OCGA § 24-10-4. We note that in order to reconsider Nationwide’s motion the trial court should of necessity first reconsider Dr. Glaccum’s motion to disqualify counsel which the trial court previously ruled as moot.

Judgment reversed and case remanded.

Birdsong, C. J., Banke, P. J., Carley and Sognier, JJ., concur. Deen, P. J., Pope, Benham and Beasley, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in Division 1. Dr. Glaccum was subpoenaed by defendant not to give opinion testimony as an expert witness to assist the jury in understanding of matters outside common knowledge, but as a physician who had rendered medical treatment to plaintiff for injuries for which he claimed damages in this personal injury suit. Neither did defendant call him to the witness stand to testify as an expert witness; instead, plaintiffs called him, apparently to testify about the treatment and also to give his opinion as an expert. Since he did not fill any expert witness role for defendant, such as reviewing plaintiff’s medical records as an independent practitioner, or providing discovery so as to be entitled under OCGA § 9-11-26 (b) (4) (C), he was not entitled to compensation from defendant for fulfilling such a role. Schofield v. Little, 2 Ga. App. 286, 287 (9) (58 SE 666) (1907).

He was, of course, entitled to the statutory witness fees, which defendant paid. OCGA § 24-10-24.

2. I respectfully depart from the majority opinion with respect to the remand on the trial court’s ruling denying defendant Nationwide’s motion for fees pursuant to OCGA § 24-10-4. The trial court was correct, but for a different reason, and there is thus no necessity for a further hearing. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2c) (307 SE2d 914) (1983); Farmer v. Argenta, 174 Ga. App. 682, 684 (331 SE2d 60) (1985).

Decided February 15, 1988

Rehearing denied March 2, 1988

Malcolm S. Murray, William A. Dinges, for appellant.

The basis for the trial court’s denial was that the witness was entitled to the fees claimed, so obviously the penalty provided by OCGA § 24-10-4 would not apply. The reason it does not apply, however, given our ruling in Division 1, is that the witness did not make an “unjust” claim.

There was a legal issue, based on a good faith argument, as to whether the physician-witness was entitled to expert witness fees from the party who subpoenaed him. The trial court concluded that he was, and we conclude that as a matter of law he was not. This itself illustrates the legitimacy of the good faith characterization of the claim. How could the trial court on remand, then, find that his claim was “unjust?” The primary question was whether he was due any expert witness fee from the party from which he sought it, and only if that were answered affirmatively, then how much he was due.

Nothing in the plain language of OCGA § 24-10-4 indicates an intention to penalize a witness who asserts a fee claim about which there is a legitimate legal dispute of his entitlement vel non. Moreover, since it does more than compensate “the injured party” and in fact provides it with a bonus or windfall, this civil statute should be strictly construed against the penalty. Moore v. Beneficial Fin. Co., 158 Ga. App. 535, 537 (1) (281 SE2d 293) (1981). Additionally, in fairness, the penalty of OCGA § 24-10-5 should be imposed only where a witness has no valid or good faith legal argument why additional fees should be paid. Only in those instances can it be said that the claim was made “unjustly.” Otherwise, the penalties imposed by this statute present an unfair and costly gamble for one who asserts a claim in good faith but who ultimately loses that claim.

Consequently, there is no further necessity to consider the motion. This renders moot Dr. Glaccum’s motion to disqualify counsel from testifying as to the facts surrounding the fee claim, as it was held to be by the trial court.

I am authorized to state that Presiding Judge Deen, Judge Pope, and Judge Benham join in this opinion.

Robert A. Falanga, Edward J. Walsh, for appellee.


author: McMurray, Presiding Judge. Carley, Judge,

text:
    73594.
    DAVENPORT v. KUTNER.
    (366 SE2d 813)
   McMurray, Presiding Judge.

Our judgment in Davenport v. Kutner, 182 Ga. App. 467 (356 SE2d 67), has been reversed by the Supreme Court of Georgia on certiorari in Kutner v. Davenport, 257 Ga. 456 (360 SE2d 586), and has been remanded to this court for consideration of issues not reached. In accordance with the opinion of the Supreme Court, our prior judgment is hereby vacated and the judgment of the Supreme Court is made our own. We now consider those issues not reached by this court in Davenport v. Kutner, 182 Ga. App. 467, supra. Held:

1. Plaintiff’s first and second enumerations of error are controlled by the Supreme Court’s decision in Kutner v. Davenport, 257 Ga. 456, supra.

2. In her third enumeration of error, plaintiff contends the trial court erred in failing to remove a prospective juror for cause after the juror responded affirmatively on voir dire that the juror’s past employment relationship with defendant would “affect [the juror’s] ability to serve and fairly try a case that’s proceeding against [defendant].” However, the record indicates that plaintiff made no objection to the juror’s qualifications.

“The acceptance of the juror with knowledge of any alleged disqualification was a waiver of such disqualification. Bitting v. State, 165 Ga. 55, 82 (139 SE 877); Anthony v. State, 112 Ga. App. 444 (1) (145 SE2d 657).” Brown v. Holland, 228 Ga. 628, 629 (2) (187 SE2d 246). This enumeration of error is without merit.

3. Next, plaintiff contends that the trial court erroneously prevented her attorney from asking the following question on voir dire: “Does anyone have any scruples against, or qualms about, awarding a very large amount of money if justified under the evidence?”

While questions to prospective jurors seeking to pledge jurors to a specific verdict are improper, questions seeking to probe jurors’ minds, in an abstract sense, with respect to their present convictions concerning the amount of a potential verdict are appropriate to qualify them as to any preconceived prejudice against awarding large sums of money to a prevailing party. Atlanta Joint Terminals v. Knight, 98 Ga. App. 482 (4), 487, 490 (106 SE2d 417). Although the question asserted by plaintiff’s counsel on voir dire was appropriate, the jury’s verdict in favor of defendant as to liability indicates no harm to plaintiff as the issue of damages was not considered by the jury.

4. In her fifth enumeration of error, plaintiff contends the trial court erred in denying her motion for mistrial after the court prohibited her attorney from asking a compound and repetitive question on voir dire. “Motions for a mistrial are largely in the discretion of the trial judge and will not be disturbed unless manifestly abused. Barrow v. State, 235 Ga. 635 (8) (221 SE2d 416) (1975); McCorquodale v. State, 233 Ga. 369 (12) (211 SE2d 577) (1974); Roberts v. State, 242 Ga. 634, 636 (250 SE2d 482) (1978).” Bullock v. Bullock, 244 Ga. 538 (1), 540 (261 SE2d 331).

An examination of the record in the case sub judice reveals that plaintiff’s attorney asked the prospective jurors on voir dire a compound question which included inquiry in an area of juror qualification already covered by the trial court. The trial court sua sponte directed plaintiff’s counsel to refrain from asking compound questions and limit his voir dire to areas not already covered by the trial court. Plaintiff’s attorney objected, moved for a mistrial and requested the trial judge to disqualify himself. Under these circumstances, we find no manifest abuse of discretion by the trial court in overruling plaintiff’s motion for mistrial.

5. Plaintiff’s sixth enumeration of error relates to the denial of her second motion for mistrial raised during voir dire. In this regard, plaintiff contends that a mistrial was demanded because the trial court displayed “hostility toward [her] attorney to a degree that discredited and unfairly prejudiced [her] in the eyes of the bury] panel . . .” We find no support for this contention. The trial court properly denied plaintiff’s motion for mistrial. Bullock v. Bullock, 244 Ga. 538, 539 (1), supra.

6. In her seventh and eighth enumerations of error, plaintiff contends the trial court erred in denying her motion for new trial based on arguments asserted in her preceding enumerations of error. These enumerations of error are without merit for the reasons stated above.

Judgment affirmed.

Carley and Pope, JJ., concur. Carley, J., also concurs specially.

Carley, Judge,

concurring specially.

I concur fully in the majority opinion and all that is said therein. However, with regard to Divisions 4 and 5, I want to point out that even had appellant’s contentions as to error during the voir dire proceedings been viable, a motion for mistrial would not have been a proper procedural vehicle. “ ‘The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn. ... A motion for postponement of the case until new jurors who had not heard the question asked were selected would have been the proper motion here. [Cit.] Since the motion for mistrial was made before the jury was impan eled and sworn, the trial court did not err in overruling it.’ [Cit.]” (Emphasis supplied.) Mize v. State, 173 Ga. App. 368 (326 SE2d 785) (1985).

Decided March 2, 1988.

Olin Rambo, for appellant.

Sidney F. Wheeler, Stephen H. Sparwath, for appellee.


author: Benham, Judge. Banke, Presiding Judge,

text:
    75072.
    COOPER v. STATE OF GEORGIA.
    (366 SE2d 815)
   Benham, Judge.

Appellant appeals from the denial of his motion for new trial on the condemnation of $68,500 pursuant to OCGA § 16-13-49 (a) (6), which allows seizure and forfeiture of “[a] 11 moneys . . . furnished or intended to be furnished by any person in exchange for a controlled substance or marijuana . . . [and] all proceeds traceable to such an exchange . . .” He contends that the money in question was seized without probable cause and in violation of the statute.

On May 9, 1986, appellant was stopped for speeding by a police officer in Whitfield County, Georgia. He gave the officer oral consent to search his vehicle, and the officer found $68,500 in cash wrapped in duct tape. Appellant was arrested for speeding and driving without a license, and was read his Miranda rights. The officer then asked him about the money, and appellant denied knowing anything about it. Appellant was taken to the sheriff’s department, where he signed a statement that the money was not his and that he knew nothing about it. He also gave written consent for a search of the vehicle. When appellant made bond and was released later that day, he did not ask for the vehicle or the money. On May 19, 1986, the State filed a condemnation petition with regard to the money, to which appellant responded, claiming that the funds were his, denying that they were used in violation of the Georgia Controlled Substances Act, and asserting that the funds were seized in violation of his Fourth Amendment rights under the State and Federal Constitutions. Appellant also filed motions to suppress, which the trial court denied. After the condemnation hearing, appellant filed a motion for new trial, which was also denied. Appellant contends that the trial court erred in failing to grant his motions because the seizure was made without probable cause and not pursuant to the statute. Our review of the record reveals that the statute subsection about which appellant complains, OCGA § 16-13-49 (a) (1), does not apply here. In this case, the money was taken and retained by the authorities only after appellant denied knowledge and ownership of the funds. The testimony offered at the condemnation hearing showed that the money was held because appellant denied that it belonged to him. Under these circumstances, no “seizure incident to an arrest” occurred; at the time of the initial taking, about which appellant complains, the authorities merely took possession of property that had no apparent or admitted owner. “[T]he constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned. [Cit.]” Williams v. State, 171 Ga. App. 546 (2) (320 SE2d 389) (1984).

Decided March 2, 1988.

Stephen A. Williams, James T. Fordham, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Appellant also argues that the money was seized without probable cause, and again we need not decide the exact issue raised. Assuming arguendo that the seizure did take place at the time of his arrest as appellant contends, it is axiomatic that he had no standing to contest the seizure since he consented to the search and disavowed ownership of the money. Ramsey v. State, 183 Ga. App. 48 (1) (357 SE2d 869) (1987). The trial court did not err in making its rulings.

Judgment affirmed.

Banke, P. J., and Carley, J., concur specially.

Banke, Presiding Judge,

concurring specially.

An undercover agent from Michigan testified that in July of 1986, some two months after the seizure occurred, the appellant confided to him that, “several months earlier,” the police in Dalton, Georgia, had seized $68,500 in funds which he had obtained from the sale of some “bales of marijuana.” Thus, there was evidence to support the trial court’s conclusion that the funds were subject to forfeiture pursuant to OCGA § 16-13-49. The seizure itself having been proper for the reasons stated in the majority decision, I therefore concur in the affirmance of the trial court’s judgment.

I am authorized to state that Judge Carley joins in this special concurrence.