text:
    A94A1564.
    WHITE COUNTY BANK v. NOLAND COMPANY.
    (449 SE2d 325)
   Andrews, Judge.

Defendant White County Bank (“WCB”) appeals the trial court’i grant of plaintiff Noland Company’s motion for directed verdict and the denied of WCB’s motion for same in this suit for conversion of a check paid on a missing endorsement.

In 1987, Noland supplied materials to Bourrie, Inc., the plumbing subcontractor on a school construction project. Noland submitted a $26,422.97 invoice to Bourrie in May 1987 for materials furnished through that time on the project. Bourrie likewise submitted a monthly billing statement to Charles Black Construction Company (“Black”), the general contractor on the project, which included the amount Bourrie owed Noland for materials. On May 18, 1987, Black drew a check on its account with WCB for $47,022.86 made payable to both Bourrie and Noland and sent the check to Bourrie. This was the first check Black had paid Bourrie on the project and included the amount Bourrie owed Noland for materials. There was no agreement or understanding that Black would also make the check payable to Noland. Bourrie deposited the check in its account with Bank South, the depository bank, without obtaining Noland’s endorsement. Bank South credited the check to Bourrie’s account and presented it to WCB, the drawee bank, which in turn paid the check and debited Black’s account. In July, Bourrie delivered a $36,923.91 check to No-land, $26,422.97 of which represented payment through May for materials supplied on the school project. Noland credited Bourrie’s account on the project for this amount and its July 1987 invoice to Bourrie reflects such a credit. At trial, Noland’s credit manager acknowledged that all amounts Bourrie owed Noland for 1987 including the school project or any other projects had been paid.

Noland furnished materials to Bourrie on credit until 1989 when Bourrie went out of business and is currently owed approximately $60,000. Upon learning of the existence of the jointly payable check in 1990, Noland made demand on both banks for the full amount of the check. When the banks refused, to pay, Noland brought the instant action against them. At trial, both banks moved for directed verdict on the ground Noland suffered no damages because it received payment for the obligation for which the joint check was issued to pay and that the debt Noland is currently owed by Bourrie was incurred after the check was issued. Noland moved for directed verdict against WCB, the drawee bank, on the ground it was absolutely liable under OCGA § 11-3-419 (2) for the face amount of the check. The trial court denied the banks’ motions and granted Noland’s motion for directed verdict against WCB for the face amount of the check plus interest. The jury subsequently returned a verdict in favor of Bank South, the depository bank.

WCB contends the trial court erred in granting Noland’s motion for directed verdict because the absolute presumption of damages contained in OCGA § 11-3-419 (2) applies only to forged endorse-merits, not missing endorsements. It also contends the court erred in denying its own motion for directed verdict because the test is one of actual damages as to missing endorsements and the evidence established that Noland suffered no damages as a result of WCB’s paying over the missing endorsement because it was ultimately paid the amount for which the check was issued.

OCGA § 11-3-419 (1) (c) provides in pertinent part: “An instrument is converted when: . . . [i]t is paid on a forged indorsement.” Section 11-3-419 (2) provides: “In an action against a drawee under subsection (1) of this Code section the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) of this Code section the measure of liability is presumed to be the face amount of the instrument.” WCB argues the Supreme Court’s decision in Trust Co. of Columbus v. Refrigeration Supplies, 241 Ga. 406, 409 (246 SE2d 282) (1978), effectively holds that the absolute presumption of damages in OCGA § 11-3-419 (2) does not apply to missing endorsement cases because the Court held therein that the nonendorsing payee was limited to recovering from both the drawee bank and the collecting bank “no more than the actual damages sustained.” In Trust Co., the issue was whether the nonendorsing payee could recover against the drawee and collecting banks for paying the check without his endorsement even though the drawer of the joint check was under no legal obligation to pay the nonendorsing payee. The court noted that payment of the check without the endorsement of the joint payee was analogous to payment of a check on a forged endorsement, which former Ga. Code § 109A-3-419 (1) (c) acknowledges to be a conversion, and that inclusion of the plaintiff as a joint payee on the check gave him a right to possession of the check and thus the right to sue in conversion. Id. at 408-409 The Court further noted that no unjust enrichment would result since the nonendorsing payee would recover no more than actual damages sustained and that issues of fact remained as to both the collecting and drawee banks on the issue of damages. Id. at 409-410.

While we recognize that some courts have found OCGA § 11-3 419 (1) (c) concerning forged endorsements applicable to missing en dorsements, we agree with the dissent in Trust Co. that it is implicii in the majority’s holding that former Ga. Code § 109A-3-419 (1) (c and (2) do not apply to missing endorsements since the plain meaning of section (1) (c) restricts its scope to forged endorsements and th< majority did not apply the measure of recovery for a conversion unde § 109A-3-419 (2) but instead stated that the measure of damages i “the actual damages sustained.” Id. at 411. In any event, it is clear t( us that Trust Co. stands for the proposition that as to collecting oi drawee banks the measure of damages with respect to missing en dorsements is one of actual damages.

Decided October 5, 1994.

Kilpatrick & Cody, Thomas C. Harney, Timothy H. Kratz, for appellant.

Bisbee, Rickertson & Herzog, William A. Dupre IV, for appellee.

We further note that, even assuming OCGA § 11-3-419 (1) (c) does apply to missing endorsements, we would not construe § 11-3-419 (2) as providing a rule of absolute liability against the drawee bank for the face amount of the check where application of such provision would allow a payee, who suffered no actual damage, to be unjustly enriched. OCGA § 11-1-106 (1) provides that “[t]he remedies provided by this title shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special or penal damages may be had except as specifically provided in this title or by other rule of law.” “The implication of 1-106 is that the plaintiff should not receive more than his actual harm as damages. In many cases, despite a technical breach of warranty or act of conversion, the plaintiff has suffered no damages or damages substantially less than the amount of the check.” White & Summers, Uniform Commercial Code, § 15-7 (1988). Thus, “there should be no recovery in a case in which check proceeds come into the hands of the person for whom they are intended. Id.; see also Ambassador Financial Svcs. v. Indiana Nat. Bank, 605 NE2d 746 (Ind. 1992).

A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a certain verdict. OCGA § 9-11-50; Shaw v. Ruiz, 207 Ga. App. 299, 303 (10) (428 SE2d 98) (1993). As noted above, the test is one of actual damages with respect to missing endorsements and the evidence established that Noland was due $26,422.97 of the $47,022.86 check made payable to both it and Bour-rie and that Bourrie subsequently paid that amount to Noland for which Noland credited Bourrie’s account. Although the evidence further established that Bourrie subsequently incurred additional debt to Noland for which it is still owed, it is clear that Bourrie has paid Noland any and all amounts due on the school project for which the joint check was issued to pay and that Noland has suffered no actual damages as a result of WCB’s payment over the missing endorsement. Accordingly, the trial court erred in granting Noland’s motion for directed verdict and denying WCB’s motion for directed verdict.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1589.
    WILLIAMS v. THE STATE.
    (449 SE2d 333)
    Decided October 5, 1994.

      Jennifer B. Mann, for appellant.

      J. Tom Morgan, District Attorney, Robert M. Coker, Thomas S. Clegg, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault as a lesser included offense of murder (while in the commission of an aggravated assault) (Count 1), possession of a firearm during the commission of a crime (murder alleged in Count 1) (Count 2) and possession of a firearm while on probation (as a first offender) for committing burglary (Count 3). This appeal followed the denial of defendant’s motion for new trial. Held:

In his sole enumeration, defendant contends the trial court erred in failing to grant his motion “to bifurcate the possession of a firearm by a first offender probationer count from the other unrelated counts in the indictment.”

Even though defendant was indicted in Count 1 for murder (while in the commission of an aggravated assault), “[t]he possession [of a firearm while on probation (as a first offender) for committing burglary] charge was material to the felony murder charge since it could have served as the underlying felony for a felony murder conviction. Williams v. State, 263 Ga. 135 (429 SE2d 512) (1993); Cauley v. State, 260 Ga. 324, 325 (1) (393 SE2d 246) (1990). See also Iona v. State, 260 Ga. 83, 85 (4) (389 SE2d 754) (1990). Thus, the trial court was not required to bifurcate the charges as [defendant] requested. Williams v. State, supra; Cauley v. State, supra; see also Brown v. State, 263 Ga. 89, 90 (2) (428 SE2d 78) (1993).” (Emphasis supplied.) Robinson v. State, 263 Ga. 424, 425 (2) (a) (435 SE2d 207). See Harris v. State, 263 Ga. 526, 527 (3) (435 SE2d 669). Consequently, the trial court did not abuse its discretion in refusing defendant’s motion to bifurcate. Appling v. State, 256 Ga. 36, 37 (1) (343 SE2d 684) (1986).

Judgment affirmed.

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


text:
    A94A1846.
    SLOAN v. THE STATE.
    (449 SE2d 328)
   McMurray, Presiding Judge.

Defendant was charged via indictment with aggravated assault possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The evidence adduced at a jury trial shows that defendant shot Clifton Thomas with a handgun, wounding him in the head and shoulder. Defendant’s request for an out-of-time appeal was granted and defendant appeals from the judgment of conviction and sentences. Held:

1. In his first and second enumerations, defendant contends the trial court erred in allowing the victim’s brother, Antoine Thomas, and the witness Jonathan Brown, to relate evidence of prior difficulties with defendant, arguing that the State failed to establish the necessary elements of “perpetrator identity, and permissible purpose, and relevancy, and similarity of the acts.”

According to the State’s pretrial notice of intent to introduce evidence of prior incidents, there were four instances of prior difficulties between the witness Antoine Thomas and the defendant, each occurring in April 1993. Two of these prior instances also involved Clifton Thomas, the aggravated assault victim in this case. In two of those prior difficulties, defendant had allegedly brandished a gun. After a hearing, the trial court allowed the proffered evidence to be admitted.

“[0]ur courts have long held that evidence of prior difficulties between an accused and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim. Rainwater [v. State, 256 Ga. 271 (1) (347 SE2d 586) (1986)]; Cooper v. State, 256 Ga. 234, 235 (1) (347 SE2d 553) (1986); Roberts v. State, 123 Ga. 146, 156-160 (5) (51 SE2d 374). Evidence of similar violent or hostile acts against others likewise may be admitted to show bent of mind or course of conduct. Norton v. State, 199 Ga. App. 27 (403 SE2d 884) (1991); Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989).” Bohannon v. State, 208 Ga. App. 576, 578 (2), 580 (2) (b) (431 SE2d 149). In the case sub judice, defendant’s previous difficulties with the victim “and his family were admitted properly to show [defendant’s] bent of mind toward them. Wright v. State, 184 Ga. 62 (8) (190 SE 663) (1937). These difficulties were connected logically to the crime on trial. Hall v. State, 261 Ga. [778, 781 (6) (415 SE2d 158)].” Tharpe v. State, 262 Ga. 110,112 (7) (416 SE2d 78). The trial court did not abuse its discretion in admitting this evidence of prior difficulties. Bohannon v. State, 208 Ga. App. 576, 580 (2) (b), supra. Consequently, defendant’s first two enumerations are without merit.

2. Defendant contends in his third enumeration the trial court erred in “failing to instruct the jury to limit its consideration of evidence of prior incidents to the purpose for which such evidence was admitted. . . .” However, defendant made no oral or written request for such limiting instruction before the case went to the jury. “ ‘It is axiomatic that where evidence has been admitted for a limited pur-Jpose, “it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.” (Cits.)’ Rayner v. State, 190 Ga. App. 746 (380 SE2d 342) (1989).” (Emphasis in original.) Thomas v. State, 199 Ga. App. 49, 50 (4) (404 SE2d 315). In the case sub judice, we cannot say that the failure of the trial court to give, sua sponte, a limiting instruction on the purposes for which the prior difficulties’ evidence was admitted “was ‘clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.’ Laney v. State, 184 Ga. App. 463 (2) (361 SE2d 841) (1987).” Thomas v. State, 199 Ga. App. 49, 50 (4), 51, supra.

Decided October 5, 1994.

Stanley C. House, for appellant.

Carl L. Sloan, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. In his fourth enumeration, defendant contends the trial court erred in failing to give his written request to charge on the “mere presence” of the accused at the scene of a crime. Defendant concedes that “mere presence” was not raised by his own evidence of alibi but nevertheless argues that his requested charge should have been given because two witnesses for the State placed him at the scene but were unable to state that they saw defendant shoot the victim. However, “[t]he issue raised by [defendant’s] final enumeration of error is controlled adversely to him by Muhammad v. State, 243 Ga. 404 (1) (254 SE2d 356) (1979) and Tullis v. State, 161 Ga. App. 106 (1) (289 SE2d 310) (1982).” Loggins v. State, 169 Ga. App. 511, 513 (4) (313 SE2d 769).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A94A1932.
    CHIVES v. THE STATE.
    (449 SE2d 152)
   Birdsong, Presiding Judge.

Appellant Claude Lee Chives, an indigent, appeals his judgmen of conviction and sentence. Appellant was indicted for one count o burglary, five counts of entering a motor vehicle, and five counts o theft by taking. The assistant district attorney filed a motion to noli» prosequi one count of entering a motor vehicle for reason of insuffi cient evidence; subsequently, he filed a motion to nolle prosequi th< five counts of theft by taking “per plea agreement with defendant.’ The motions were granted on December 28, 1993 and January 12, 1994, respectively. On January 12, 1994 (during the January Term of court; OCGA § 15-6-3 (15)), appellant entered a plea of guilty to one count of burglary and four counts of entering a motor vehicle. Sentencing was scheduled for April 1, 1994. On March 30, 1994 (during the March Term of court; OCGA § 15-6-3 (15)), appellant filed a notice of withdrawal of plea prior to sentencing, pursuant to OCGA § 17-7-93. Appellant was compelled to appear before the superior court on April 5, 1994, and sentence was orally imposed for the charges to which he had pled guilty; judgment of conviction and sentence were “pronounced” when the trial court orally announced sentence. See generally State v. Germany, 246 Ga. 455 (271 SE2d 851). Final disposition was not filed until April 20, 1994. Appellant’s sole enumeration is that the trial court erred in derogation of OCGA § 17-7-93 (b) by sentencing him after his notice of withdrawal of plea. Held:

“ ‘ “OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced.” ’ ” (Emphasis supplied.) Kimbril v. State, 197 Ga. App. 341 (398 SE2d 416). OCGA § 17-7-93 (b) is clear and unambiguous on its face. This is a long-standing statutory right. See, e.g., State v. Germany, supra; Ware v. State, 128 Ga. App. 407 (196 SE2d 896). When, as here, the plain language of the statute is susceptible of only one meaning, courts must follow that meaning unless to do so would produce contradiction or absurdity. Sizemore v. State, 262 Ga. 214, 216 (416 SE2d 500). The record before us reveals that appellant filed written notice of his withdrawal of the guilty plea before judgment of conviction and sentence were pronounced. Accordingly, appellant had a statutory right to withdraw his guilty plea at any time before sentence was pronounced. OCGA § 17-7-93 (b).

The State correctly concedes that its reliance at trial on Stuckey v. State, 204 Ga. App. 793 (420 SE2d 655) is misplaced; appellant, unlike defendant Stuckey, gave notice of his withdrawal of guilty plea before judgment of conviction and sentence were pronounced. Compare Conlogue v. State, 243 Ga. 141 (1, 6) (253 SE2d 168), rev’d on other grounds, Smith v. State, 253 Ga. 169 (316 SE2d 757). However, the State contends the judgment in this case must be affirmed, as the trial court’s ruling was correct, and that appellate courts will not reverse a correct judgment or decision of a trial court regardless of the reason given therefor. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557); Dorminey v. State, 205 Ga. App. 806, 807 (1) (423 SE2d 698). In support of this contention the State, citing Martin v. State, 207 Ga. App. 861 (429 SE2d 332) and King v. State, 91 Ga. App. 388 (85 SE2d 637), asserts that appellant was precluded from withdrawing from his agreement because he had entered a negotiated plea agreement with the State and had received certain benefits by virtue of that agreement. Both Martin, supra, and King, supra, are inapposite and are not controlling. Martin, supra, does not address the issue of the withdrawal of a guilty plea prior to sentencing. It is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529). In King, supra, appellant did not attempt to withdraw his guilty plea until after sentencing was pronounced; in fact, the court in King, supra at 389, reaffirms that “[b]efore sentence is pronounced a plea of guilty may be withdrawn as a matter of right.”

Decided October 5, 1994.

Betty S. Frazer, for appellant.

Britt R. Priddy, District Attorney, Kenneth B. Hodges III, Assis tant District Attorney, for appellee.

Additionally, examination of the sentencing hearing reveals that the State, citing Stuckey, supra, informed the trial judge, regarding appellant’s withdrawal of guilty plea, that “the superior court does not have any discretion in the matter and it simply cannot be done.’ The trial court, after acknowledging its familiarity with the Stuckey decision, stated: “I feel constrained to sentence you today.” (Emphasis supplied.) Thus, a fair risk exists that the trial court was laboring under the impression that it was precluded by the Stuckey decisior from allowing appellant to withdraw his guilty plea when, in fact, appellant had a statutory right to do so. “The right for any reason rult does not apply when the court acts upon an erroneous legal premise.’ (Punctuation omitted.) State v. Roe, 211 Ga. App. 129, 130 (2) (438 SE2d 186) and cases cited therein.

In view of the posture of the record, we are compelled to con elude that appellant had an unqualified statutory right to withdrav his guilty plea at any time before judgment was pronounced by ora announcement of sentence by the trial court. OCGA § 17-7-93 (b). I a modification is desired as to this unambiguous and long-standinj statute, it is a matter for legislative rather than judicial relief.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


author: Blackburn, Judge.

text:
    A94A2043.
    JONES v. THE STATE.
    (449 SE2d 330)
   Blackburn, Judge.

Following a trial by jury, the appellant, Charles Edward Jonel was found guilty of one count of robbery by sudden snatching and not guilty of one count of misdemeanor theft by taking a bicycle. On appeal, the appellant asserts that the evidence was insufficient to support his conviction of robbery by snatching the purse in that: (1) the jury could not find the appellant guilty of the robbery without finding him guilty of stealing the bicycle, and (2) certain eyewitness identification evidence was weak. We disagree.

Decided October 5, 1994.

Jesse W. Owen, L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

Jones was identified by the victim, Odene Hand, as the person who snatched her purse while she sat on a bench outside a car wash. The car wash manager identified Jones as the man having a purse in his hand that he chased to a nearby trailer court. Jones was further identified by a neighbor in the trailer park as the individual he had seen run into a vacant trailer, emerge in different clothes, and go to his own trailer. Upon investigating, the neighbor found a purse, its contents, and clothing scattered on the floor of the empty trailer. He then called police.

We do not determine the credibility of eyewitness identification testimony. Rather “[t]he determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). Moreover, on appeal, we must view the evidence in the light most favorable to the verdict; the appellant no longer enjoys the presumption of innocence; and, rather than weighing the evidence or determining the credibility of witnesses, this court determines evidentiary sufficiency. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Further, inasmuch as the inconsistent verdict rule has been abolished, Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), we do not reach appellant’s argument urging the insufficiency of the evidence for inconsistent verdicts. Neither do we reach Jones’ argument asserting insufficiency of the evidence as a result of a “suspect” out-of-court identification not objected to at trial. Where error is raised for the first time before this court, nothing is presented for review, for this court is a court for correction of error and no issue was ever raised during the trial calling for a ruling. Leonard v. State, 146 Ga. App. 439, 440 (1) (246 SE2d 450) (1978). We have reviewed all evidence of record and conclude that the jury was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find the appellant guilty beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2286.
    GOODRICH v. SOUTHLAND HOMES CORPORATION.
    (449 SE2d 154)
   Blackburn, Judge.

Appellant, Amy Goodrich (Goodrich), brings this appeal from th< trial court’s confirmation of an arbitration award against her in at action initiated by Southland Homes Corporation (Southland) to en force a construction contract between the parties.

1. Goodrich initially asserts that the trial court erred by confirm ing the award granting construction costs to Southland without con temporaneously requiring Southland to convey title to the property on which the house was built. In this regard, she argues that th< award, as thus structured, evidenced an imperfect execution of arbi tration authority requiring that the award be vacated under provi sions of OCGA § 9-9-13 (c) (3). We disagree.

“The standard of review of the trial court of an application t< vacate an arbitrator’s award made in the case of a construction con tract is governed by statute. OCGA § [9-9-13] reads in pertinent pari ‘The award shall be vacated on the application of a party who eithe participated in the arbitration or was served with a demand for arbi tration if the court finds that the rights of that party were prejudice! by: (1) (c)orruption, fraud, or misconduct in procuring the award; (2 (p)artiality of an arbitrator appointed as a neutral; (3) (a)n overstep ping by the arbitrators of their authority or such imperfect executio: of it that a final and definite award upon the subject matter submit ted was not made; or (4) (a) failure to follow the procedure of thi part, unless the party applying to vacate the award continued wit' the arbitration with notice of this failure and without objection.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 235 236 (4) (335 SE2d 708) (1985). Moreover, “proceedings to confirm c vacate an arbitration award should be severely limited in order not t frustrate the purpose of avoiding litigation by resorting to arbitratioi Where no ground exists for vacating or modifying the award, it is th duty of the court to confirm it, and proper for it to do so.” Id. Consquently, in order to reverse the decision of the trial court, this couil must find that its findings were clearly erroneous. Id. at 237. I

Goodrich’s initials opposite paragraph 30 of the agreement aJ knowledged that each paragraph or special stipulation of the agreJ ment had been explained to her and that she accepted the saml Among these was the stipulation by which she agreed to submit 11 arbitration any dispute relating to the construction of a home. Signi» cantly, however, neither the disputes stipulation nor the remainder of the agreement, purported to extend to matters pertaining to the conveyance of property. As a result, Goodrich did not agree to submit more than construction disputes to the arbitrator. Inasmuch as the Georgia Arbitration Code is, in general, limited to “all disputes in which the parties thereto have agreed in writing to arbitrate,” OCGA § 9-9-2 (c), the arbitrator here was without authority to arbitrate any issue relating to the conveyance of property. Therefore, the award, limited to resolving the construction disputes before him, was proper.

2. Goodrich next argues that the trial court wrongly failed to vacate the award because the arbitrator overstepped his authority by arbitrating a “residential real estate contract.” Such a contract is not subject to the Georgia Arbitration Code “unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.” OCGA § 9-9-2 (c) (8).

A review of the contract in the instant action satisfies us that it was a construction contract rather than a residential real estate contract. The agreement is styled as a “Home Building Agreement”; its subject matter concerns the construction of a dwelling; its disputes stipulation is limited to construction disputes. Accordingly, this enumeration is without merit.

3. Goodrich next contends that the award should be vacated because the arbitrator overstepped his authority by arbitrating a contract in the nature of “consumer transactions” as defined in paragraphs (2) and (3) of subsection (a) of OCGA § 10-1-392, relating ;o definitions in the “Fair Business Practices Act” in violation of DCGA § 9-9-2 (c) (8).

OCGA § 10-1-392 (a) (3) defines “consumer transactions” as “the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family or household purposes.” As ve indicated in Division 2, the subject agreement is a construction contract and is expressly within the bounds of the Georgia Arbitra-ron Code. OCGA § 9-9-2 (c). To construe it otherwise would be to leny the parties, in part, the benefit on which the contract was based. This we decline to do.

4. Goodrich further argues that the award was imperfect in that 10 final and definite award upon the subject matter was made and the :ourt erred in confirming same, as the underlying contract was not ¡nforceable due to a lack of mutuality and a want of consideration. This argument likewise is without merit. The agreement provided hat Southland would build a home, in exchange for which, Goodrich rould pay the contract price. See Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404, 407 (1) (381 SE2d 605) (1989).

5. Finally, Goodrich argues that the trial court’s confirmation of he award was improper because Southland’s demand for arbitration failed to notify Goodrich of her right to seek a stay of arbitration as required by OCGA § 9-9-6 (c) (3).

Decided October 5, 1994.

Campbell & Dreger, Richard J. Dreger, for appellant.

Barnes, Browning, Tanksley & Casurella, Jeffrey G. CasurelU for appellee.

An arbitrator’s award may be vacated ‘‘if the court finds that thi rights of that party were prejudiced by ... . failure [of any party] U follow the procedure of [Part I of the Georgia Arbitration Code], un less the party applying to vacate the award continued with the arbi tration with notice of this failure and without objection.” (Emphasis supplied.) OCGA § 9-9-13 (b) (4).

It is uncontroverted that Goodrich had notice of the arbitratioi hearing and that she participated therein without objection. The rec ord does not reflect however at the time of the hearing Goodrich ha< notice of Southland’s failure to meet the requirements of OCGA § 9 9-6 (c) (3) in its demand for arbitration. OCGA § 9-9-6 (c) (3) pro vides: “That the party served with the demand shall be precludei from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court unless he make application to the court within 30 days for an order to stay arbitra tion.” Inasmuch as Goodrich makes no “limitation of time” argumen and both the “validity” and “compliance” issues were, in fact, deal with by the arbitrator, no harm has resulted to her from her failure t make application for an order to stay arbitration.

We thus find no prejudice resulting to Goodrich from Southland’ failure to give proper notice. The error, if any, is harmless under th facts of this case.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1574.
    FABIAN v. DYKES.
    (449 SE2d 305)
   Birdsong, Presiding Judge.

Bobby J. Fabian appeals a judgment n.o.v., following a jury ve diet in his favor. See Fabian v. Dykes, 210 Ga. App. 703 (436 SES 819). The case arises out of a note for $75,194.40 which Fabian ar his partner, William Woodall, executed to Coastal Bank of Hinesvil in September 1982, for a loan made to a corporation, “Fabian ar Woodall, Inc.” The note was signed by Bobby Fabian and Willia Woodall. Carl R. Dykes (now deceased) executed a personal guara tee. In November 1982, all assets of Fabian and Woodall, Inc., were transferred to William Woodall, and a document of that date on Coastal Bank stationery provides: “Be it . . . further resolved that Bobby Fabian has relinquished all interest in [Fabian and Woodall, nc.] and has no obligations. It is understood that William L. Woodall vill be responsible for all indebtedness. . . . These above terms have jeen agreed upon by all three parties signing below.” The “three par-ies signing below” were Fabian, Woodall, and a Coastal Bank vice president.

In 1985, the note was in default and Dykes paid the amount of lefault, $39,592.03. Dykes filed this suit to collect that money from i'abian. Fabian contends, and the jury found, that in November 1982, he bank fully released him from any liability on the note. Following he appeal reported at 210 Ga. App. 703, supra, the trial court entered udgment for Fabian and then granted judgment n.o.v. to Dykes, ¡’abian contends that as he was not liable to the bank on the note, iny payment by Dykes was not made on his behalf and was volun-ary. Held:

The grant of judgment n.o.v. is proper. OCGA § 10-7-41 pro-ides: “Payment by a surety or endorser of a debt past due shall enti-le him to proceed immediately against his principal for the sum paid, iith interest thereon, and all legal costs to which he may have been ubjected by the default of his principal.” Even a voluntary payment ly the guarantor entitles him to proceed against the principal. Shatles v. Baker, 18 Ga. App. 300 (89 SE 373). The trial court held that )ykes has an “independent equitable right to collect from his principal [Fabian].” However, the Dykes’ right to collect from Fabian is an dependent legal right under the statute.

Dykes was not a party to the bank’s release of Fabian. Fabian’s tatutory liability to the guarantor under OCGA § 10-7-41 was fixed dien Dykes guaranteed the note, and it was not removed by Fabian’s elease from the creditor to which Dykes was not a party. Although 'abian was not liable to the bank he was still liable to the guarantor, I: the guarantor was still liable on the note. Dykes’ payment, if not Fabian’s behalf, was on behalf of the guarantee Dykes had signed Fabian’s behalf. To say Fabian was released from his statutory ob-ation to pay the guarantor because he had removed himself as prinal obligor would allow Fabian to induce Dykes to guarantee a loan, jeive the benefits of the loan and then secure his own release from e debt, thereby ensuring that the guarantor will have to pay it. bian benefited from the loan, he benefited from Dykes’ agreement stand for the debt, and he benefited from being released from the bt. Moreover, Fabian’s release was a direct detriment to Dykes; ice Fabian was relieved of a debt to the bank, Dykes had to pay it. ) reason appears to release Fabian from his statutory obligation to the guarantor, Dykes.

Decided August 22, 1994

Reconsideration denied October 6, 1994.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellant.

Jones, Osteen, Jones & Arnold, G. Brinson Williams, Jr., for a pellee.

Fabian suggests the equities are altered because Dykes was a director of the bank, but this does not prove Dykes knew about tht release or that he intended to release Fabian from Fabian’s statutorj liability to him. Dykes’ guarantee was as an individual, not as representative of the bank. Nor does the fact that Dykes received $5,000 t( guarantee the loan change the equities or the law. This was considera tion to guarantee the loan; it is not consideration to release Fabiai from his liability to the guarantor.

The trial court’s judgment was correct.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judgi Harold R. Banke concur.

On Motion for Reconsideration.

Fabian contends that under OCGA § 10-7-56 (“A surety who ha paid the debt of his principal shall be subrogated ... to all the right of the creditor”), when the bank released him it retained no right oi which Dykes can sue. This converse inference is not authorized by th statute. Moreover, subrogation by which a guarantor (see OCGi § 10-7-1) takes rights of the creditor is not the same thing as a guar antor’s right to recoup payment of a debt from his principal unde § 10-7-41. See Erwin v. Brooke, 159 Ga. 683, 685 (126 SE 777 Fabian contends his release was an impairment of risk which release the guarantor, under OCGA §§ 11-3-606 (1) (a) and 10-7-22; however those statutes address liability of a guarantor to a creditor, not th liability of a debtor to his guarantor. Further, citing Hiers v. Exun 158 Ga. 19, 30 (122 SE 784), Fabian contends subrogation is neve enforced in favor of a volunteer. This is not a subrogation claim, an Hiers is distinguished on its facts. The debt was in default, Dykes we not a party to the release, and the bank accepted payment from hin

The issue on appeal is solely that of recoupment of a debt whic a guarantor paid without evidence of wrongdoing. OCGA § 10-7-4 gives him the right of recoupment as a matter of law without limits tion and no evidence is cited to us which would authorize a contrai verdict. See Frye v. Sims, 144 Ga. 74 (3), (4) (86 SE 249).

Motion for reconsideration denied.


text:
    A94A1860.
    MEDLEY v. BOOMERSHINE PONTIAC-GMC TRUCK, INC.
    (449 SE2d 128)
   Birdsong, Presiding Judge.

Carwyn L. Medley appeals the order of the trial court granting partial summary judgment in favor of appellee Boomershine Pontiac-jMC Truck, Inc. (Boomershine).

Appellant Medley purchased a Grand Am automobile from ap-sellee Boomershine; appellee admits this fact in its brief. Throughout ;he sales transaction, appellant dealt with Bobby Billings, a salesman employed by Boomershine. Appellant testified, without contradiction iy non-hearsay evidence, that in exchange for appellant’s trade-in ve-íicle (a Ford Escort) and a cash down payment of $1,000, Billings stated that appellant would qualify for financing to purchase a certain Boomershine demonstrator car; based on these representations, ap-jellant bought the car. The demonstrator car, however, subsequently vas discovered to have been a program rental vehicle — a car previ-msly owned and used as a fleet car by a car rental agency. Appellant endered two checks of $500 each as down payment on the Boomer-hine car; he was taken by Billings to a finance company and his loan >apers were processed. Appellant left his keys, vehicle registration md trade-in vehicle with Billings on the Boomershine premises; when ie took possession of the program rental vehicle he still believed it to >e a demonstrator. Billings signed and tendered appellant receipts for he two $500 checks. These receipts did not bear any form of logo or otherwise identify Boomershine; rather, they had the words “Rent )f ’ scratched through after the word “For,” so as to assert the two hecks had been received for “Auto Down pmt” and “Deposit . . . Vehicle Purchase,” respectively. Subsequently appellant, upon mak-ig an inquiry of a Boomershine manager, learned he had been redited by Boomershine with only $800 of the $1,000 down payment, t was later determined that Billings had tendered to Boomershine an ffer of purchase and bill of sale bearing appellant’s forged signature, ’he documents reflected, inter alia, a certain sales price for the pro-ram rental vehicle; they did not reveal that any trade-in was being sceived, and recorded only an $800 down payment as having been sndered and accepted. Thereafter Billings’ supervisor terminated the itter’s employment, citing the following reason in the separation no-ce: “Failure to comply with company procedures, e.g. took unautho-zed hold check and did not disclose trade-in from customer to deal-w-ship.” (Emphasis supplied.) Neither appellant nor Boomershine paid the installments due on the trade-in vehicle; Boomershine consistently maintained that the vehicle merely had been given to Billings on a side deal to see if he could sell it for appellant. The trade-in vehicle ultimately was repossessed by the lending company.

Appellant brought suit against Boomershine asserting claims for breach of contract, fraud, conversion, violations of the Georgia Fair Business Practices Act (FBPA) of 1975 (OCGA § 10-1-390 et seq.), punitive damages, attorney fees and litigation expenses. Boomershine filed a motion for partial summary judgment which was granted as to Counts 2 and 3 (fraud and conversion), Count 4 (FBPA), punitive damages, attorney fees and litigation expenses. Held:

1. The appropriate summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal we cannot consider facts asserted in briefs which are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). Further, evidentiary rules as to admissibility of evidence are applicable in summary judgment proceedings; therefore, hearsay evidence is without probative value and cannot be considered unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576).

2. The trial court did not err in granting summary judgment as to appellant’s claim that Boomershine violated the FBPA. “[E]ven though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the FBPA, that act does not apply t suits based upon deceptive practices which occur in transactions tha1 are essentially private. In other words, unless it can be said that th< defendant’s actions had or has potential harm for the consumer pub lie the act or practice cannot be said to have impact on the consume-] marketplace and any act or practice which is outside that context, nc matter how unfair or deceptive, is not directly regulated by th< FBPA.” (Citations and punctuation omitted.) Borden v. Pope Jeep Eagle, 200 Ga. App. 176, 178 (1) (407 SE2d 128). Appellant asserts ii his reply brief that Boomershine engaged in certain advertising tha its cars were not program rental cars and contends that this act, cou pled with the acts of Billings, would have potential harm on the con sumer public. Appellant however has failed to cite any place in th record where evidence of such advertising exists; our review of th record discloses no evidence of this advertising. We will not accepfl mere assertions of fact in briefs (Behar, supra), or cull the record ill search of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251). Moreover, we review the grant of summary judment by the trial court in light of the record as it existed at the timH of the court’s ruling and not on the basis of how the record appeaiil after supplementation or amendment. See Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443); Nowell v. Fain, 174 Ga. App. 592, 59 (330 SE2d 741).

3. The trial court did not err in holding that the acts of Billings, with regard to Count 2 (conversion) and Count 3 (fraud) were personal to him and outside the scope of his employment. Compare Wittig v. Spa Lady of Marietta, 182 Ga. App. 689 (356 SE2d 665). As a general rule, “[w]here the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.” Id. at 690. However, under certain circumstances, an employer can ratify the tortious conduct of an employee, even though it falls outside the scope of employment, and become liable therefor.

4. “[T]he mere fact that a tortious act of an employee amounts to a crime does not, per se, relieve his employer from liability. The test of liability is the same as in cases where a non-criminal act is involved; the act must have been one authorized by the employer prior to its commission, ratified after its commission, or committed within the scope of the employment.” Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 414 (265 SE2d 335). “Where the principal ratifies the tort of the agent after its commission, the liability of the principal is the same as if he had commanded it, provided the ratification is had with full knowledge on the part of the principal of the manner in which the tort was committed.” Stinespring v. Fields, 139 Ga. App. 715, 717 (1) (229 SE2d 495).

“A principal may by ratification or by failure to repudiate acts of lis alleged agent become bound.” (Emphasis supplied.) Klingbeil v. Renbaum, 146 Ga. App. 591, 592 (1) (246 SE2d 698); Wielgorecki v. White, 133 Ga. App. 834, 838 (1) (212 SE2d 480); see OCGA § 10-6-1. but, “[a]n act can not be subject to ratification unless done in behalf if the person adopting it and attempting to ratify it.” Lemmons v. City of Decatur, 215 Ga. 647, 648 (112 SE2d 597). Thus, where an employee is acting exclusively for himself and is not acting at all for ;he employer, and does not profess to be acting for the employer, ;here is no such thing as a master assuming by ratification liability for ;he personal act of his employee. See Parry v. Davison-Paxon Co., 87 Ga. App. 51, 56 (2) (73 SE2d 59). “ ‘ “There can . . . be no ratification mless the act was done for the master, or at least purported to be lone for him.” ’ ” Id. In this case, although Billings was acting on his >wn personal venture primarily for his own personal gain, so as to be >utside the scope of his employment within the meaning of Wittig, supra, he unequivocally was purporting at all times to be acting in behalf of Boomershine in the sale of the car. Further, Boomershine received some benefit from Billings’ sale of their program rental vehi-le. Thus, the personal acts of Billings inextricably resulted in and vere intended by him tangentially to benefit Boomershine as well. In hese circumstances it cannot be held, as a matter of law, that Billtigs’ tortious acts were of a type immune from ratification.

Ratification can be express or implied from the acts or silence of the principal. OCGA § 10-6-52. Whether ratification occurred is usually a question for the jury (Wielgorecki, supra at 838) “and not a question of law for the court.” Coursey v. Consolidated Naval Stores Co., 22 Ga. App. 538 (3) (96 SE 397) and cases cited therein.

Construing the evidence and all reasonable inferences and conclusions in favor of the non-movant appellant, as we are required to do (Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)), we find that a genuine issue of material fact exists whether Boomershine ratified Billings’ tortious conduct. For example, the record reveals that Boomershine did not refund the $200 taken from Medley’s down payment by its agent and continues to assert by way of pleadings the viability of the terms contained in the forged offer of purchase and bill of sale. Although the general manager of Boomer-shine testified by way of deposition that he immediately offered to refund $200 to appellant because it “was apparent” that Billings had taken $1,000 of appellant’s money and Boomershine had only received $800, appellant’s alleged declination of this offer is disputed. Appellant, when deposed, testified the general manager said “he was going to try to reimburse me my two hundred dollars. That’s the last I heard of that topic.” While it was beyond the scope of employment for the agent to engage in fraud or conversion as averred, a genuine issue of material fact exists whether it was within the scope of employment and authority of the agent to collect down payments on Boomershine vehicles and to tender all or part of that down payment to its employer Boomershine. Further, the record is uncontroverted that Boomershine did receive from its agent the sum of $800; a genuine issue of material fact also exists whether this $800 was a part of a $1,000 down payment and whether the $800 was retained for Boomer-shine’s ,use or benefit for any material period and in ratification of its agent’s conduct after it became aware of the nature of its agent’s activities. “Where a corporation knowing, all of the facts accepts anc uses the proceeds of an unauthorized contract executed in its behali without authority, the corporation may be bound because of ratification.” Western American Life Ins. Co. v. Hicks, 135 Ga. App. 90, 91 (3) (217 SE2d 323). “An unauthorized act or transaction by an ageni in excess of his authority becomes binding and obligatory upon hii principal, if the latter, with knowledge of the facts, receives and re tains the benefit [in whole or in part] thereof, since such acceptanc< of the benefit amounts to an implied ratification of such act, whethe the principal intends thereby to ratify it or not.” Kelley v. Caroline Life Ins. Co., 48 Ga. App. 106 (1) (171 SE 847). “While ratification o an unauthorized act of an agent is not to be presumed, the acts of ffl principal are to be liberally construed in favor of an adoption of thfl acts of the agent, and when the unauthorized act of the agent is donl in the execution of power conferred, but in excess or misuse thereof, a presumption of ratification readily arises from slight acts of confirmation, or from mere silence or acquiescence, or where the principal receives and holds the fruits of the agent’s act.” Id. at 107 (3). Boomer-shine’s conduct gives rise to a jury question as to their ratification of Billings’ tortious acts. The trial court erred in granting summary judgment as to Count 2 (conversion) and Count 3 (fraud).

Decided September 13, 1994

Reconsideration denied October 6, 1994 —

Lynch & Powell, Gene E. Massafra, for appellant.

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Dennis A. Brown, for appellee.

5. The trial court predicated its grant of summary judgment as to appellant’s claims for punitive damages, attorney fees and litigation expenses on its finding that there had been no tort of conversion or fraud committed by Boomershine and that Boomershine had never ratified the improper conduct by Billings. In view of our holding that a genuine issue of material fact exists as to Boomershine’s ratification of the intentionally tortious conduct of Billings, we find that the trial court erred in granting summary judgment in favor of Boomershine as to appellant’s claims for punitive damages (see Rustin Oldsmobile v. Kendricks, 123 Ga. App. 679 (3) (182 SE2d 178)) and attorney fees and litigation expenses. See Wisenbaker v. Warren, 196 Ga. App. 551, 552 (2) (396 SE2d 528).

Judgment affirmed in part and reversed in part.

Pope, C. J., and Ruffin, J., concur. Blackburn, J., disqualified.


text:
    A94A1169.
    COTTON STATES MUTUAL INSURANCE COMPANY v. HAIRE et al.
    (449 SE2d 161)
   McMurray, Presiding Judge.

Pamela M. Haire and James E. Haire (plaintiffs) initiated this iction on a homeowners’ insurance policy issued by defendant Cotton States Mutual Insurance Company (“Cotton States”), alleging that ;hey were the “owners of the [residential] property insured[; that on] December 2, 1990, while said policy was in force and effect, said property was totally destroyed by fire[;. . . and that while] Defendant paid $26,888.39] to mortgagees of said property, Defendant has failed to ay for Plaintiffs’ loss . . . [in] the sum of $32,611.61 as provided for n said policy[.]” Cotton States answered and defended in part on the ¡round that “Plaintiff, James E. Haire, did not have a contract of insurance with the Defendant and Plaintiff, James E. Haire, is not an insured under the terms of the policy issued to [Plaintiff] Pamela M. Haire. . . .” By way of further response, Cotton States claimed that “Plaintiff, Pamela M. Haire, was not an owner of the property at the time of the loss,... and that Plaintiff, James E. Haire, did not have a policy of insurance on said property and was not an insured under the terms of [Cotton States’] policy.”

After discovery, Cotton States moved for summary judgment, supporting its contention that no coverage was afforded to plaintiff James E. Haire with the following undisputed facts: On August 2, 1986, Cotton States issued a property insurance policy covering plaintiffs’ marital residence, which was jointly titled in plaintiffs’ names. Although only Pamela M. Haire was a named insured, the policy definition of an “ ‘insured’ means [the named insured] and residents of your household who are . . . your relatives[.]” The policy further provided: “Assignment of this policy will not be valid unless [Cotton States gives] written consent.” The Haires were divorced on June 21, 1990. Incorporated into their divorce decree was a settlement agreement which provided in part that they “shall continue to live separate and apart.” Pursuant to the settlement agreement, Pamela M. Haire conveyed to James E. Haire “all her right, title, and interest in the property known as the marital residence, . . . [and in return, James E. Haire agreed] that if and when the house is sold, [Pamela M. Haire' shall receive one-half (Vfe) of the net equity not to exceed $1,500.00.’ James E. Haire affirmed that before the divorce, he and Pamela “sep arated in [December of] ‘89 . . . [and he] moved out... to a separate location.” After the divorce, he “moved back [to the insured property in the first week of July.” Pamela M. Haire affirmed that “after July 1st, 1990 [she] never lived in that house again[.]” The fire occurred or December 2, 1990. Pamela M. Haire accepted and cashed “a checl from Cotton States ... for $1,500[,]” containing “a full and complete release by payee of any claims against the payor insurance company for which it is contractually liable under the policy. . . .” Cottoi States agreed to pay Pamela M. Haire that amount “due to the fac that she was entitled to it under the divorce decree.” After the di vorce, neither plaintiff sought to change the name of the policy owne from Pamela M. Haire to James E. Haire. Pamela M. Haire “did no see a need to . . .” request any kind of policy change. James E. Hair “never saw the policy . . . [and] just took for granted that [he] was o: the policy.” In opposition, plaintiffs contended that the controllin issue as to plaintiff James E. Haire’s entitlement to any remainin proceeds under the policy was whether he “had an insurable interes above and beyond the amounts paid by the insurer. . ..” In support c this proposition, plaintiff relied on the authority of Republic Ins. Co. v. Martin, 182 Ga. App. 390 (355 SE2d 694).

The trial court granted Cotton States’ motion for summary judgment as to plaintiff Pamela M. Haire but denied the motion as to plaintiff James E. Haire, concluding that the “record contains sufficient evidence for a jury to find an insurable interest in Plaintiff, JAMES E. HAIRE.” Cotton States’ application for interlocutory appeal from the partial denial of its motion for summary judgment was granted by this Court and this appeal followed. Held:

Cotton States contends the trial court erred in denying its motion as to plaintiff James E. Haire, arguing that there is no contract of insurance as to James E. Haire’s interest in the property because the plaintiffs failed to obtain written consent to change the named insured on the policy from Pamela M. Haire to James E. Haire after their divorce.

“ ‘The insured may not unilaterally substitute another party to become insured excepting under the provisions of the contract, even if he wished to do so. The insured alone may sue on a policy of insurance. (Cits.) . . . [T]ransfer of the policy of insurance without the consent of the insurer voids the policy. (Cits.)’ Langley v. Pacific Indent. Co., 135 Ga. App. 29, 31 (4) (217 SE2d 369) (1975).” Higdon v. Ga. Farm &c. Ins. Co., 204 Ga. App. 192/194 (419 SE2d 80). In the case mb judice, it is undisputed that James E. Haire is not the named nsured on the policy, nor is he any longer a relative in the household )f the named insured. Plaintiffs admit that they did not seek the in-mrer’s written consent to substitute James E. Haire as the named

Isured on the policy in accordance with the contractual provisions, insequently, James E. Haire is not a beneficiary of this policy of surance and may not sue on it. The fact that he has an insurable terest in the realty specified in the policy is a necessary precondi-m to recovery under any policy of insurance but is not in itself suffi-snt to authorize a recovery under this specific policy. In this regard, e trial court misapprehended the pertinent inquiry and erred in de-dng Cotton States’ motion for summary judgment as to plaintiff unes E. Haire. Plaintiff’s reliance upon Republic Ins. Co. v. Martin, 182 Ga. App. 390 (1), supra, is misplaced. That case is not binding ecedent but is physical precedent only. Georgia Court of Appeals Rule 35 (b). Moreover, in Martin, an effort was made to direct the surer “to endorse the fire insurance policy on the property to reflect he assignee ex-spouse] as the named insured. ...” 182 Ga. App. 390 ), 391, supra. That attempt in Martin to change the named insured compliance with the contractual requirements is sufficient to dis-iguish that case from the case sub judice.

Judgment reversed.

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

Decided October 6, 1994.

Bowles & Bowles, Jesse G. Bowles III, for appellant.

Frank T. Bell, for appellees.


text:
    A94A1513.
    In the Interest of S. L. B., a child.
    (449 SE2d 334)
   McMurray, Presiding Judge.

Appellant appeals the order of the juvenile court terminating her parental rights in her two-year-old son, S. L. B. Held:

“Pursuant to OCGA § 15-11-81 (a) there exists a two-step process in considering the propriety of termination of parental rights. First, the court shall determine whether there exists clear and con vincing evidence of parental misconduct or inability; secondly, if such clear and convincing evidence exists, the court shall then considei whether termination of parental rights is in the best interest of the child, ‘after considering the physical, mental, emotional, and mora condition and needs of the child . . . including the need for a secure and stable home.’ . . . OCGA § 15-11-81 (a). With certain exceptions not here applicable, the court may terminate parental rights if the court determines parental misconduct or inability by finding that: the child is a deprived child within the meaning of OCGA § 15-11-2 . . . the lack of proper parental care or control by the parents in questior is the cause of the child’s status as deprived; such cause of depriva tion is likely to continue or will not likely be remedied; and the ‘con tinued deprivation will cause or is likely to cause serious physical mental, emotional, or moral harm to the child.’ [Emphasis omitted. OCGA § 15-11-81 (b) (4) (A) (iv). OCGA § 15-11-81 (b) (4) (B) provides, inter alia, that in determining whether the child is withou proper parental care and control, the court shall consider, without be ing limited to, the following: a medically verifiable deficiency of th parent’s physical, mental, or emotional health of such duration or na ture as to render the parent unable to provide adequately forth physical, mental, emotional, or moral condition and needs of th child; conviction of the parent of a felony and imprisonment therefc which has a demonstrated negative effect on the quality of the pai ent-child relationship; and, egregious conduct or evidence of pas egregious conduct of the parent toward the child or toward anothe child of a physically, emotionally, or sexually cruel or abusive ns ture.” In the Interest of S. H., 204 Ga. App. 135, 138 (418 SE2d 454

The child had been continuously in the custody of the Depar ment of Human Resources since he was five days old. He has sped health problems, including heart and respiratory difficulties, and developmentally delayed. The child has been. hospitalized several times, has received treatment and therapy most of his life, and continues to receive treatment from each of three therapists on a weekly basis. Additionally, the therapy routine must be continued at home on a daily basis. The termination hearing was held shortly before the child’s second birthday.

The juvenile court found that clear and convincing evidence established that: “the mother maintained stable housing for a period of at least one year prior to being evicted from her home approximately three weeks before this hearing; that the mother now lives in a mobile home that is neat and clean although roaches and ants have been observed in the kitchen and on the beds; that the mother maintained telephone, utilities and cable tv service for at least six months prior to this hearing; that the mother was ordered to pay child support of $5 per week and paid $130 from June 30,1992 until January of 1993, and that she has made no child support payments since February, 1993; that the mother’s food stamps have been discontinued due to false itatements made by the mother; that the mother had little food in he house at the time of the hearing and no money to purchase food ntil her check arrives on the first of the month; that the mother has oor money management skills and refused to accept home based ser-/ices which included instruction in budgeting; that there is no evi-lence that the mother’s money management skills will improve; that he mother has a functional IQ of 67; that the mother has speech lommunication problems which make it difficult to understand her at imes; that there is no question of the mother’s love and concern for he child; that the mother is self-focused and has a very limited un-lerstanding of the child’s physical problems and learning disabilities; hat the mother’s attendance at the child’s therapy sessions has been nconsistent; that the mother has exhibited a limited ability to provide for the child’s physical safety; that the mother abuses alcohol in hat she drinks on weekends and sometimes during the week until she ‘eels good’, which is usually about a twelve pack of beer; that when he drinks she often becomes loud and boisterous; that the mother >led guilty to public drunkenness in an incident which occurred in qpril, 1993; that the mother has been observed through the open door f her residence having sex with men, some of whom take advantage f her when she is drunk; that the mother has never addressed her lcohol problem; that there is no evidence that the mother’s alcohol buse will be controlled; that the mother frequently reacts to stress or lustration by becoming loud and angry and profane; that the mother as consistently refused to attend mental health counseling as retired by this Court; that the mother refused to complete a court-dered job training evaluation, attending only six of a thirty day pro-am; that the mother has failed to complete classes in parenting skills and refused home based services which included parenting skills instruction; that the mother has not demonstrated her understanding of the needs of the child or her ability to meet the child’s needs. . . Based upon these findings of fact the juvenile court determined that the child was deprived, that the deprivation was due to “the action and inaction and inabilities of the parents” and that based upon the mother’s capabilities, continuing alcohol abuse, and rejection of treatment or assistance, that the causes of the deprivation were not likely to be remedied, and that continuation in foster care without a hope of permanency is likely to cause serious harm to the emotional, physical, and moral well being of the child.

Appellant contends that the juvenile court’s findings that the child was deprived, that the deprivation was caused by lack of proper care by the mother, that the deprivation was likely to cause serious harm, and that continued deprivation was likely to cause serious harm were not supported by clear and convincing evidence. Indeed, the sole enumeration of error addresses the sufficiency of the evidence to authorize the termination of appellant’s parental rights in S. L. B.

“ ‘The standard of appellate review where a parent’s rights to his child have been severed is “ ‘whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982).’ In the Interest of B. J. H., 194 Ga. App. 282 (390 SE2d 427) (1990). ‘The factfinding and weighing of evidence is to be done in the trial court under the clear and! convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate! standard of review ... is not met.’ In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986).” In the Interest of B. P., 207 Ga. App. 242 244 (427 SE2d 593). In this connection, we note that while appellanl points out a number of conflicts in the evidence, such conflicts do no necessarily preclude satisfaction of the appellate standard of review Furthermore, appellant’s reliance upon Hooks v. Baldwin County Dept. of Family &c. Svcs., 162 Ga. App. 142 (290 SE2d 356) is mis placed since the mother in that case had successfully demonstratec her ability to care for her child, while appellant has not.

“Once explicit findings, supported by clear and convincing evi dence, have been made as to the existence of a statutory ground o parental default or inability, the juvenile court must give its consider ation to the best interest of the child. However, the statute does no narrowly define those essential factors which must enter into the juj venile court’s consideration of the child’s best interest. The statutl specifies only that the child’s best interest must necessarily encorcj pass a broad consideration of his ‘physical, mental, emotional, anl moral condition . . . , including the need for a secure and stable home.’ Thus, entirely unlike the juvenile court’s determination of parental default or inability which is narrowly limited to the objective grounds enumerated in OCGA § 15-11-81 (b), the inquiry into the best interest of the child is necessarily a broader and somewhat more subjective one. Those broad factors which are enumerated as relevant to the juvenile court’s consideration of the child’s best interest are precisely the sort of subjective factors which must not enter into its initial determination of the existence of a statutory ground of parental default or inability. Crook v. Ga. Dept. of Human Resources, [137 Ga. App. 817 (224 SE2d 806)]. Thus, in the second stage of the juvenile court’s consideration of a petition to terminate parental rights, it must make a subjective finding as to the best interest of the child, which finding, by its terms and nature, cannot be confined to any set of objective standards and which is not readily amenable to appellate review other than for a manifest abuse of discretion. See generally In re H. B. & K. B., [174 Ga. App. 435 (330 SE2d 173)].” In the Interest of G. K. J., 187 Ga. App. 443, 444 (3), 445 (370 SE2d 490). “Moreover, ‘those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. (Cits.) In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of (appellant’s) parental rights . . . would be in [the child’s] best interest.’ In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). See also In the Interest of S. K. L., 199 Ga. App. 731 (1) (405 SE2d 903) (1991).” (Emphasis omitted.) In the Interest of B. P., 207 Ga. App. 242, 245, supra. The judgment of the juvenile court terminating the parental rights of appellant is affirmed.

Decided October 6, 1994.

Summer & Summer, Chandelle T. Summer, for appellant.

I Michael J. Bowers, Attorney General, William C. Joy, Senior IAssistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Charles W. Smith, Jr., for appellee.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A94A1828.
    NORTHSIDE CORPORATION et al. v. MOSBY et al.
    (449 SE2d 6)
   Beasley, Presiding Judge.

Mosby was arrested for issuing a bad check based on the testimony of Frankie Lee. The criminal charge against Mosby was later dismissed and Mosby sued Lee for malicious prosecution.

On December 17,1992, Lee died. Lee’s attorney filed a statement of the fact of Lee’s death with the clerk of superior court on January 13, 1993, which was served on Mosby’s counsel on January 11, 1993. On July 29, 1993, Lee’s attorney filed a motion to dismiss the complaint as to Lee on the ground that Mosby had failed to substitute the proper party defendant within 180 days after the death of Lee was suggested upon the record, as required by OCGA § 9-11-25 (a) (1).

Mosby opposed the motion to dismiss on the ground that the suggestion of Lee’s death was not served on the non-party representative of Lee’s estate. Lee’s attorney then filed a supplemental brief in support of the motion to dismiss. Attached to the brief was an acknowledgment of service, executed on September 24, 1993, in which the executrix of Lee’s estate stated that she had been served with the suggestion of death on or about January 13, 1993 (prior to her appointment) and on February 26, 1993 (at the time of her appointment). The executrix also waived any further service. Neither the January nor February service of the suggestion of death was reflected in the record prior to the acknowledgment of service being filed in September.

The trial court denied the motion to dismiss on November 1, 1993. Subsequently, the trial court granted Mosby’s motion for substitution of party by order filed February 18, 1994, for which a certificate of immediate review was issued. We granted defendants’ application for interlocutory review.

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representative of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Code Section 9-11-5 and upon persons not parties in the manner provided in Code Section 9-11-4 for the service of a summons. Unless the motion ... is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.” (Emphasis supplied.) OCGA § 9-11-25 (a) (1). Mosby does not argue that he failed to timely file because of excusable neglect, see King v. Green, 189 Ga. App. 105 (375 SE2d 53) (1988), and the only issue is whether OCGA § 9-11-25 (a) (1) required dismissal.

Defendants contend that the 180-day limitation provided in OCGA § 9-11-25 (a) (1) commenced on February 26,1993, the date of service of the statement of death upon the executrix, as reflected in the acknowledgment of service. Mosby counters that the 180-day limitation period does not commence until personal service of the statement of death upon the non-party representative of the decedent’s estate is reflected on the record. Otherwise the plaintiff has no notice that the estate’s representative has been served with the statement and that plaintiff must move to substitute that person within 180 days.

By the language of OCGA § 9-11-25 (a) (1), the 180-day limitation period commences when the suggestion of death is made “upon the record by service of a statement of the fact of the death.” Service of the suggestion of death must be made not only upon the parties to the suit but also upon the non-party representative of the decedent’s estate. The record as to the suggestion of death is not complete until the non-party representative is served with the suggestion, and the 180-day limitation is not triggered until the representative is served. Binns v. Binns, 193 Ga. App. 554 (388 SE2d 385) (1989); Bledsoe v. Sutton, 174 Ga. App. 248 (329 SE2d 589) (1985); Ridley v. Polk Bros. Constr. Co., 170 Ga. App. 349 (317 SE2d 326) (1984); Dubberly v. Nail, 166 Ga. App. 378, 380-381 (4) (304 SE2d 504) (1983); see also Ludy v. Giddens, 182 Ga. App. 111 (354 SE2d 703) (1987) (physical precedent only).

The requirement that substitution of a party be effected within the limitation period is to protect the executor by “enabling this prospective respondent to place a limitation upon the period of time during which the movant may seek substitution of parties. [Cit.] . . . The burden is upon the executrix, not upon the movant, to invoke the limitation. [Cit.]” Anderson v. Southeastern Capital Corp., 243 Ga. 498, 499 (255 SE2d 12) (1979); see also King v. Green, supra. As said in Dubberly, supra at 380-381 (4): “While ‘ “(i)t seems quite basic and reasonable that a plaintiff’s attorney who receives notification of the defendant’s death has the responsibility to promptly initiate the necessary inquiries to determine the identity of a person to be substituted for the deceased defendant, and to file a motion for substitution in accordance with our Rules of Civil Procedure” ’ [cit.], that burden does not fall on the plaintiff until a proper notification is received through the filing and service of a suggestion of death in accordance with OCGA § 9-11-25 (a) (1). ... If the executor had desired the protection of the 180-day limitation period, [s]he could have filed a suggestion on the record and served it on appellant’s counsel. [Cits.] Having failed to so act, [s]he cannot complain of lack of diligence on the part of appellant.”

Decided October 6, 1994.

Fine & Block, Paul R. Jordan, for appellants.

Thomas & McDonald, Diana McDonald, for appellees.

It follows that service upon that person must appear in the record before it can be determined that “the death is suggested upon the record by service of a statement of the fact of the death” as required by OCGA § 9-11-25 (a) (1). The burden to substitute cannot be placed upon the movant without notice that the limitation period has begun to run.

Between February, when service was performed on Lee’s executrix, and September, when Mosby was informed that service had been performed, the record showed no service on her. During those seven months, Mosby had no way of knowing that the 180-day limitation had, according to the interpretation defendants advance, commenced because of the February service. For those seven months, the record appeared exactly as it did in cases such as Binns and Bledsoe, supra; there was no recorded indication of service on the estate’s representative. The law does not require the result sought by defendants that it was too late for plaintiff to react to the service of the executrix and preserve the suit.

OCGA § 9-11-25 (a) (1) requires that the record reflect that the suggestion of death has been served upon all necessary parties, including the non-party representative of the estate, before the 180-day limitation begins to run. Until the record as to service is perfected, there is no duty to substitute; an acknowledgment of service for this purpose does not relate back to the day of service but starts the limitation period when the acknowledgment is filed.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Judge Harold R. Banke.

text:
    A94A1086.
    SIMS v. THE STATE.
    (448 SE2d 258)
   Judge Harold R. Banke.

The appellant, David Sims, was convicted of possession of cocaine with the intent to distribute. On appeal, he contends that the trial court erred in denying his motion to suppress and that the evidence was insufficient to support the conviction.

On October 4, 1991, an ambulance driver with the Whitfield Emergency Medical Services observed a black male passing something through the driver’s side window of a pickup truck occupied by two other black males. Suspicious that it may have been a drug deal, the driver reported the matter to the Dalton Police Department, and a police officer drove to the scene minutes later to investigate.

Decided August 22, 1994

Reconsideration dismissed October 7, 1994 —

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

The police officer observed the appellant standing up from a pile of wood debris approximately ten yards from where two other black males stood. The appellant wore a tan shirt and pants that matched the ambulance driver’s description of the clothing worn by the individual he saw. As the officer stopped and asked the appellant for identification, another police officer arrived and inspected the wood debris, where he found a plastic bag that contained approximately 20 pieces of crack cocaine. The officers then placed the appellant under arrest, at which time they found $654 on the appellant.

1. “That police receive information which does not amount to probable cause does not require them to shrug their shoulders and make no inquiry, but rather the circumstances may justify investigation. [Cit.]” State v. Smalls, 203 Ga. App. 283, 286 (416 SE2d 531) (1992). In the instant case, the police officers were justified in driving to the location in response to the ambulance driver’s report of a possible drug transaction.

Upon arriving at the scene, the first officer observed the appellant, who matched the description provided by the ambulance driver, getting up from a pile of wood debris to which the appellant had no proprietary interest or legitimate expectation of privacy. Under these circumstances, the search of that wood pile did not infringe any of the appellant’s Fourth Amendment rights, and the trial court properly denied his motion to suppress. See Keishian v. State, 202 Ga. App. 718 (415 SE2d 324) (1992).

2. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of possession of cocaine with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A93A1452.
    FREEMAN v. THE STATE.
    (450 SE2d 461)
    Decided October 7, 1994.

      Frank T. Bell, for appellant.

      Charles M. Ferguson, District Attorney, for appellee.
   McMurray, Presiding Judge.

Our prior judgment in Freeman v. State, 210 Ga. App. 183 (435 SE2d 461), having been reversed by the Supreme Court of Georgia in State v. Freeman, 264 Ga. 276 (444 SE2d 80), our judgment is vacated and the judgment of the Supreme Court of Georgia is made the judgment of this court.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A94A1109.
    MADDOX v. PRESCOTT.
    (449 SE2d 163)
   McMurray, Presiding Judge.

Sylvia Maddox, as next of kin and guardian of the property of the minor child, Chasity Rayon Heard, filed an action against L. Gwen Prescott, individually and in his capacity as Judge of the Probate Court of Troup County, Georgia, to recover $62,399.20 in attorney fees she allegedly paid an attorney to recover $450,000 wrongfully retained by an attorney (Gordon) for settling a wrongful death action on behalf of the minor child. Specifically, Ms. Maddox alleges that Judge Prescott entered an order entitled, “ORDER ON PETITION TO SETTLE AND COMPROMISE CLAIM,” approving settlement of the child’s wrongful death action and that Judge Prescott therein authorized Ms. Maddox’s execution of a “GENERAL RELEASE” which provides (in pertinent part) that “[attorney’s fees and expenses advanced will be paid to [attorney] Ken Gordon from the settlement proceeds pursuant to the agreement of the plaintiffs [in the wrongful death action], Ken Gordon and the Probate Court.” Ms. Maddox also alleges that Judge Prescott failed to approve payment of any such attorney fees and expenses of litigation and that “irrespective of the laws of the State of Georgia [imposing a duty upon the Probate Court to protect the assets of the child’s estate] Judge L. Gwen Prescott, did permit and allow [attorney Gordon] to appropriate to his own use and benefit, funds in the amount of $450,000.00 at the time of the initial settlement with there being no petition to allow said encroachment and no order permitting said encroachment, although it was well known to the said L. Gwen Prescott that the attorney, would be paid from said funds, and the said L. Gwen Prescott did thereby cause to be inflicted great and grievous damage against your petitioner as has been brought to light.” Ms. Maddox further alleges that Judge Prescott failed to make sure that Ms. Maddox complied with her accounting duties as guardian of the child’s assets; that Judge Prescott conducted a “speedy, hasty, and quiet proceeding [that] was deliberate, calculated, and intended to cover up, conceal, and hide the improper handling of the matter”!;] that Judge Prescott failed to disqualify himself from presiding over the administration of the child’s affairs (inferring that the judge had “financial or other interest” in the proceeding); that “[t]he actions of [Judge] Prescott as set forth in this petition were wilful and intended to protect the selfish interests of [Judge] Prescott at the expense and detriment of your petitioner [; that the] actions of [Judge] Prescott. . . were corrupt and intended to protect his own pocketbook at the expense and detriment of your petitioner” and that Judge Prescott violated the Official Code of Judicial Conduct and refused to otherwise carry out his duties as a Judge of the Probate Court of Troup County.

Judge Prescott denied the material allegations of the complaint and asserted the defense of judicial immunity. The judge later filed a motion for summary judgment and his supporting affidavit. Ms. Maddox filed her affidavit which provides, in pertinent part, as follows: “I am the duly appointed guardian of Chasity Rayon Heard, and this action was filed in her behalf. ... I am a layperson, unskilled in court proceedings, and have no legal training whatsoever. ... At the proceedings in the Probate Court of Troup County, Georgia, L. Gwen Prescott held himself out to be a judge and skilled in law. The said L. Gwen Prescott held himself out to possess a superior knowledge of the law that I possessed. . . . L. Gwen Prescott, as Judge of the Probate Court of Troup County, Georgia, knew that Ken Gordon, my attorney at that time, would be paid from the proceeds to be received under the order of the compromise of the claim which he was to approve. . . . L. Gwen Prescott, to my knowledge, made no inquiry as to the payments to be made to Ken Gordon. ... I have reviewed the pleadings filed in this case, and they accurately reflect the copies of the papers obtained by my attorney from the Probate Court of Troup County, Georgia. . . . There does not exist a copy of any contract I entered into with Ken Gordon on behalf of Chasity Rayon Heard in the office of the Probate Court of Troup County, Georgia, or in the office of Beauchamp and Associates, my second attorneys, or in the office of H. J. Thomas, Jr., upon which L. Gwen Prescott, as Judge of the Probate Court of Troup County, Georgia, could have passed any order. ... At no time do I recall signing any papers to be presented to [for] Judge Prescott to authorize the payment of any fees to Mr. Gordon. I did sign papers to buy a car and a house for the benefit of Chasity Rayon Heard, but that is all. ... At no time have I received any notice from the Probate Court or Ken Gordon or Beauchamp and Associates, to file any return to the Probate Court to show how the money that was received in the settlement was invested or spent. H. J. Thomas, Jr., my present attorney, did in fact advise of this requirement and I have made a return to the court. . . . That at no time has the Probate Court of Troup County, Georgia, questioned the amount of any payment to be made to Ken Gordon, even when the matter was brought to the direct attention of L. Gwen Prescott, the Judge of said Court. . . . That L. Gwen Prescott did fail to comply with the oath of his office, to wit: I do swear that I will well and faithfully discharge the duties of judge of the probate court for the County of Troup during my continuance in office, according to law, to the best of my knowledge and ability, without favor or affection to any party, and that I will only receive my legal fees. So help me God ... in that he did fail to ‘well and faithfully discharge the duties’ imposed upon him as regards making full inquiry into the matters relating to the matter of the compromise and settlement of the claim of Chasity Rayon Heard, and the manner, method and amount of payment to be made Kenneth Lamar Gordon. . . . That Judge Prescott acted improperly when he acted upon the settlement of the case against Ken Gordon for the withholding of $450,000 by him, as Judge Prescott knew or should have known that he had failed to perform his ministerial duties in the case until that date in failing to inquire as to the payment of any fees at all to him, and then trying to cover up the issue from me, an unskilled, untrained in the law, black woman. . . , That Judge Prescott acted improperly in failing to examine any fee contract of Ken Gordon with me at any time. ... That Judge Prescott acted improperly in failing to require the filing of any return by me as guardian of the property of Chasity Rayon Heard. . . . That the actions of Judge Prescott in this matter were intended to cover up the errors he had made at the expense of Chasity Rayon Heard and t( protect his own selfish interest and finances. . . . That I have beer manifestly abused by the selfish interest of L. Gwen Prescott, who bj his actions show[s] a total disregard for the interest of Chasity Rayor Heard.”

This appeal followed entry of summary judgment in favor o Judge Prescott. Held:

1. “Our courts have consistently held that judges are immuni from liability in civil actions for acts performed in their judicial capacity. Upshaw v. Oliver, 1 Dud. 241 (1832); Gault v. Wallis, 53 Ga 675 (1875); Calhoun v. Little, 106 Ga. 336 (32 SE 86) (1897); Peacod v. National Bank & Trust Co. of Columbus, Ga., 241 Ga. 280 (244 SE2d 816) (1978); West End Warehouses, Inc. v. Dunlap, 141 Ga App. 333 (233 SE2d 284) (1977).

_

Decided October 7, 1994.

H. J. Thomas, Jr., for appellant.

Willis, McKenzie & Long, Edward L. Long, for appellee.

“ ‘(I)t is ultra-important in our democracy to preserve the doctrine of judicial immunity to enable our judges to exercise within their lawful jurisdiction untrammeled determination without apprehension of subsequent damage suits.’ Hill v. Bartlett, 126 Ga. App. 833, 840 (192 SE2d 427) (1972).

“The Supreme Court of the United States in discussing the rationale for judicial immunity has observed ‘(t)his immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” ’ Pierson v. Ray, 386 U. S. 547, 554 (87 SC 1213, 18 LE2d 288) (1967).” Smith v. Hancock, 150 Ga. App. 80 (256 SE2d 627). In the case sub judice, all of the allegations asserted against Judge Prescott by Ms. Maddox were acts or omissions performed while he was acting within his authority and in his capacity as Judge of the Probate Court of Troup County, Georgia. Moreover, Ms. Maddox failed to submit any evidence supporting the claims in her complaint and affidavit. Evans v. City of Atlanta, 199 Ga. App. 878 (2) (406 SE2d 530). In fact, the “ORDER ON PETITION TO SETTLE AND COMPROMISE CLAIM” does not authorize an award of attorney fees to attorney Gordon and the “GENERAL RELEASE” provides only that “[a]ttorney fees and expenses advanced will be paid to Ken Gordon from the settlement proceeds pursuant to the agreement of the plaintiffs, Ken Gordon and the Probate Court.” Under these circumstances, the trial court did not err in granting Judge Prescott’s motion for summary judgment.

2. We decline to impose a penalty for frivolous appeal pursuant to Court of Appeals Rule 26 (b).

Judgment affirmed.

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


text:
    A94A1138.
    GRIFFIN v. THE STATE.
    (449 SE2d 341)
   McMurray, Presiding Judge.

Defendant Griffin was indicted along with co-defendants Bell, Ford, Lowe and Thomas for the murder of Dexter Harper (Count 1), the aggravated assault of Dexter Harper by shooting him with a handgun (Count 2), the aggravated assault of Henrico Morant by shooting him with a handgun (Count 3) and felony murder of Dexter Harper during the commission of aggravated assaults upon Harper and Morant and the murder of Harper (Count 4). The evidence adduced at a joint jury trial reveals that defendant Griffin ganged with at least four others outside a bar in Southwest Atlanta and mercilessly beat Dexter Harper. Specifically, the evidence reveals that co-defendant Lowe disabled Harper with a blast from a handgun; that defendant Griffin and others then surrounded Harper and began beating him; that co-defendant Lowe stood back and directed the assailants to kill Harper; that co-defendant Lowe then discharged another bullet at Harper; and that defendant Griffin struck Harper with an object he retrieved from a nearby trash can.

The jury found defendant Griffin guilty under Count 2 of the indictment for the aggravated assault of Dexter Harper and not guilty on the remaining counts of the indictment. This appeal followed the denial of defendant Griffin’s motion for new trial. Held:

1. Defendant Griffin contends there is a fatal variance between the allegata and the probata, arguing that the State’s proof that he struck Dexter Harper with his feet and fists is insufficient to support his conviction for aggravated assault by shooting Dexter Harper with a handgun as alleged in Count 2 of the indictment.

“ ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intern may be inferred.’ (Citations and punctuation omitted.) Griggs v. State, 208 Ga. App. 768, 769 (1) (432 SE2d 591) (1993); Tucker v State, 205 Ga. App. 683, 684 (423 SE2d 422) (1992). Further, a persox is a party to a crime and may be charged with and convicted of com mission of the crime if he intentionally aids or abets in the commis sion of the crime. OCGA § 16-2-20.” Grace v. State, 210 Ga. App. 71( (1), 719 (437 SE2d 485). In the case sub judice, Terry Michael Askev testified that he witnessed the gang-beating of Dexter Harper; tha defendant Griffin was an active participant in the attack upox Harper; that the gang of men stood over Harper’s body “swinging kicking and stuff” and that he heard co-defendant Lowe order hi confederates to “kill [Dexter Harper].” Askew testified that he thei witnessed co-defendant Lowe shoot the victim with a handgun an< that after the shooting he witnessed defendant Griffin strike Harper with an object he retrieved from a nearby trash can. This evidence is sufficient to authorize a finding that defendant Griffin is guilty, beyond a reasonable doubt, of aiding and abetting in the shooting assault of Dexter Harper as alleged in Count 2 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cargill v. State, 256 Ga. 252 (1), 253 (347 SE2d 559); Johnson v. State, 188 Ga. App. 411, 412 (2) (373 SE2d 93). Enumerations of error 1 and 3 (a) are without merit.

2. In his second enumeration, defendant contends the trial court erred in charging the jury that aggravated assault may be accomplished in a manner other than the manner alleged in Counts 2 and 3 of the indictment, i.e., by shooting Henrico Morant and Dexter Harper with a handgun.

“[I]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner. See Walker v. State, 146 Ga. App. 237 (2, 3) (246 SE2d 206) (1978); Perkins v. State, 151 Ga. App. 199 (2) (259 SE2d 193) (1979); Robinson v. State, 152 Ga. App. 296 (262 SE2d 577) (1979). Accord Sarnie v. State, 247 Ga. 414 (276 SE2d 589) (1981).” Owens v. State, 173 Ga. App. 309, 312 (4) (326 SE2d 509). In the case sub judice, defendant Griffin was charged (along with his co-defendants) for separate acts of aggravated assault in that he (along with his co-defendants) did shoot Henrico Morant and Dexter Harper with a handgun. However, the trial court charged the jury that aggravated assault could be committed in a manner other than shooting, i.e., “with any object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.” The trial court then informed the jury that “the State contends that shoe-clad feet and fists were weapons used by one or more of the defendants in commission of aggravated assault.” This charge was inaccurate as neither defendant Griffin nor any other co-defendant was charged for committing aggravated assault via use of shoe-clad feet or fists. Nonetheless, the State argues that these instructions did not result in a conviction against defendant Griffin for committing aggravated assault in a manner not charged in the indictment because the trial court’s “charging shoe-clad feet and fists, . . . was, at worst, mere surplusage, and could apply only to the felony murder charge, of which [defendant Griffin] was acquitted." This argument is without merit.

Although the above instruction on aggravated assault via use of shoe-clad feet and fists was given immediately before (and apparently in context with) the trial court’s charge on felony murder, there were no remedial instructions that convictions for aggravated assault would only be authorized upon proof, beyond a reasonable doubt, that defendants committed aggravated assault by shooting Dexter Harper or Henrico Morant with a handgun as alleged in the indictment. Further, we cannot say that the trial court’s charge on aggravated assault did not result in a conviction based on an act of aggravated assault other than the specific act charged in the indictment (i.e., aggravated assault by shooting Dexter Harper with a handgun) as there is more than ample evidence to support a finding that defendant Griffin committed aggravated assault in a manner other than the manner charged in the indictment. In fact, it is conceivable that the jury justified its finding that defendant Griffin is guilty under Count 2 of the indictment based on the trial court’s instruction that “the State contends that shoe-clad feet and fists were weapons used by one or more of the defendants in commission of aggravated assault.” Compare Davis v. State, 184 Ga. App. 230, 231 (2) (361 SE2d 229). See Smith v. State. 202 Ga. App. 664 (415 SE2d 481). Consequently, the trial court erred in denying defendant’s motion for new trial.

3. In his final enumeration, defendant Griffin contends the trial court erred in allowing Terry Michael Askew’s testimony that defendant Griffin was a member of the group that assaulted Dexter Harper arguing that Askew’s identification testimony was tainted by his presence at a pre-trial hearing conducted pursuant to Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401). This contention is without merit

The controlling issue is whether Askew’s presence at a pretria hearing conducted pursuant to Neil v. Biggers, supra, “resulted ‘in e very substantial likelihood of irreparable misidentification.’ The factors to be considered in evaluating whether a very substantial likelihood. of irreparable misidentification exists, under the totality of th< circumstances include: ‘(a) the opportunity of the witness to view th< criminal at the time of the crime, (b) the witness’ degree of attention (c) the accuracy of the witness’ prior description of the criminal, (d the level of certainty demonstrated by the witness at the confronta tion, and (e) the length of time between the crime and the confronta tion. Neil v. Biggers, [supra].’ (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).” Montgomery v. State 210 Ga. App. 147, 148 (3a) (435 SE2d 510). In the case sub judice Askew positively identified defendant Griffin as one of the men whJ beat Dexter Harper on the night Harper was killed. Askew testifies that he was involved in the street fight which led to Dexter Harper’i death; that he fled to a nearby vantage point after co-defendant Lowl shot at him with a handgun; that he then observed defendant Griffiil and others beat Dexter Harper; that he observed co-defendant LowH shoot Harper during this beating and that he watched defendanll Griffin walk to a nearby trash can, retrieve an object and strikil Harper with the object. Askew explained that he recognized defendí! ant Griffin by his height, haircut and clothing. Under these circumstances, we cannot say the trial court erred in allowing Askew’s trial testimony that defendant Griffin was a member of the gang that assaulted Dexter Harper. There exists no substantial likelihood of mis-identification caused by Askew’s presence at a pretrial hearing conducted pursuant to Neil v. Biggers, supra. See Montgomery v. State, 210 Ga. App. 147, 148 (3a), supra.

Decided October 7, 1994.

Raoul Lerow, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Herman L. Sloan, Suzanne Wynn, Assistant District Attorneys, for appellee.

Judgment reversed.

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

       Co-defendant Bell did not appear at trial and a verdict was not entered against hin Co-defendant Ford was found guilty of the aggravated assault of Dexter Harper (Count 2 guilty of the aggravated assault of Henrico Morant (Count 3) and guilty of felony murdel (Count 4). Co-defendant Lowe was found guilty of malice murder (Count 1), guilty of tn aggravated assault of Dexter Harper (Count 2) and guilty of aggravated assault of Henrid Morant (Count 3). Co-defendant Thomas was found not guilty on all counts of the indicj ment.