author: Eldridge, Judge.

text:
    A99A2273.
    FLEMING v. THE STATE.
    (526 SE2d 91)
   Eldridge, Judge.

On February 26, 1998, a DeKalb County grand jury returned an indictment against defendant, Eric Darnell Fleming, charging him with aggravated assault with the intent to murder (Count 1), aggravated assault with a deadly weapon (Count 2), and aggravated battery (Count 3). Following a jury trial, defendant was found guilty on Counts 2 and 3. The jury was unable to reach a unanimous verdict with respect to the charge of aggravated assault with the intent to murder, and the trial court entered an order of nolle prosequi on such count. Defendant was sentenced to 20 years to serve on Count 3. Defendant appeals from the denial of his motion for new trial. We affirm.

In the light most favorable to the verdict, the evidence shows the following: In December 1997, Ledbetter Industrial Construction (“Ledbetter”) was involved in the construction of a parking deck at Perimeter Mall. Defendant was employed by Ledbetter as a welder. The victim was also employed by Ledbetter as the superintendent for this construction job and was responsible for paperwork, ensuring there were enough men to complete the work, hiring, and firing. At approximately 6:30 or 7:00 a.m. on December 15, 1997, the victim fired defendant because of the defendant’s poor job performance and his failure to show up for work. When the victim informed defendant that he was fired, defendant became angry and demanded that he receive his last paycheck immediately. The victim explained to defendant that the paychecks were written in Alabama; that he had to fax the necessary paperwork to the Alabama office; and that defendant’s check would be ready for him to pick up on Friday. Defendant demanded that the victim pay him the salary he was due from the victim’s own money. When the victim told defendant he did not have that kind of cash, the defendant replied that he would “get [his] money one way or another today.”

Defendant left, but returned in a few minutes and demanded to talk with Tim Garrison, who was the victim’s supervisor. Garrison confirmed that defendant would have to wait until Friday to receive his check. In order to try and appease defendant, the victim took defendant to the office, faxed the paperwork to Alabama, and called the company’s owner to see if there was any way the defendant could be paid earlier than Friday. After receiving a negative reply from the owner, defendant left, stating again that “I’ll get my money today.”

Around 1:00 p.m. on the same day, defendant returned to the work site, approached the victim, and demanded his money. After the victim told him that his check would not be ready until Friday, defendant stated “Pay me. One way or another I am going to get my money.” Defendant then pulled out a silver pistol and shot the victim. The defendant fled the scene.

The defendant was apprehended shortly thereafter by Metropolitan Atlanta Rapid Transit Authority (“MARTA”) police near Perimeter Mall at the 1500 block of Hammond Drive. At the time of his arrest, defendant had a silver-colored, semi-automatic gun wrapped in his jacket. The gun had an empty shell in the chamber that had not been ejected. MARTA police placed defendant in handcuffs and held defendant at gunpoint until DeKalb County police arrived. Defendant was very excited, talkative, and was perspiring very heavily. Initially, while defendant was lying on the ground, he voluntarily and spontaneously and not in response to any questioning, stated several times “I did it.” Defendant made further statements about how he was not respected, that derogatory racial references had been made toward him, and that he should not have been fired on his day off.

When DeKalb County police arrived, defendant was placed in Officer Thomas Moore’s patrol car. For safety purposes, Officer Moore initially transported defendant to the North Precinct, which was approximately four blocks away. As they were en route to the North Precinct, defendant voluntarily and spontaneously and not in response to any questioning kept repeating ‘Yeah, I did it.” He continued to talk about the racial epithet he had been called and stated that he should not have been fired on his day off. Officer Moore advised defendant that he should not make any more statements, but defendant continued to repeat the same statements until they reached the North Precinct. Shortly thereafter, Officer Moore transported defendant from the North Precinct to the DeKalb County Criminal Invéstigative Division (“CID”) on Memorial Drive. At the CID, Officer Moore escorted defendant to the bathroom, and defendant voluntarily and spontaneously and not in response to any questioning stated that “Even if they give me life, I hope he pays.”

Detective Sam Buice, who was assigned to the case, interviewed defendant after giving him his Miranda rights. During such interview, defendant admitted to shooting the victim. Detective Buice’s written version of defendant’s statement, along with a recorded statement, was admitted into evidence over objection. Held:

1. Defendant argues that the admission of his custodial statement was error due to an insufficient showing of voluntariness.

At an admissibility hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), and again at trial, Detective Buice testified that he met with defendant in an interrogation room at the CID at about 3:00 p.m. on the day of defendant’s arrest; that he advised defendant that he intended to interview him about the case; and that immediately thereafter he advised defendant of his Miranda rights. Detective Buice further testified that, when he advised defendant of his Miranda rights, he placed the waiver of rights form in a position so that defendant could read along. Defendant indicated to Detective Buice that he understood his Miranda rights and signed a form acknowledging his understanding. Detective Buice went on to testify that he did not offer defendant any hope of reward or benefit for his statement.

Detective Buice then asked defendant to recount what had transpired. Initially, Detective Buice just took brief notes as defendant talked. Then, at Detective Buice’s request, defendant repeated what had occurred so that Detective Buice could write down his statement as he was telling it. When Detective Buice completed the written statement, he gave it to defendant to review. After reviewing the statement, defendant refused to sign it. Thereafter, at Detective Buice’s request, defendant agreed to give a tape-recorded statement. The tape-recorded statement was identical to the written statement as to the events that occurred all the way up to the point that defendant approached the victim with a gun. At that point, defendant indicated he did not want to talk any more, and the tape recorder was turned off.

Defendant testified at the Jackson-Denno hearing that Detective Buice showed him the waiver of rights form, but did not read the Miranda rights to him. Defendant also testified that, even though he had graduated from high school, he could not read well enough to understand those rights. Defendant further testified that he did not sign the waiver of rights form until the following morning as he was being taken to court.

In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.

(Citation and punctuation omitted.) Dasher v. State, 229 Ga. App. 41, 43 (2) (494 SE2d 192) (1997). Here, the trial court found that defendant was informed of his rights, that defendant made an intelligent waiver of those rights, and that both the written and the tape-recorded statements were freely and voluntarily given, without any threat, duress, or fear of harm and without any offer of benefit or reward. As these findings are supported by the evidence, the trial court did not err in admitting the statements.

2. Appellant contends that his trial counsel was ineffective.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

To establish a claim of ineffective assistance of counsel, [defendant] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Defendant] must establish both the performance and the prejudice components of the Strickland test.

Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). “A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citation and punctuation omitted.) Cunningham v. State, 222 Ga. App. 740, 743-744 (2) (475 SE2d 924) (1996); Strickland v. Washington, supra at 669.

Defendant urges that his counsel was ineffective because he had met with counsel for a total of ten minutes prior to trial and that, rather than prepare for trial, trial counsel pushed defendant to enter a plea because he did not believe defendant’s version of what happened. However, the record does not support defendant’s assertion, and, “[i]n any event, the amount of time trial counsel spent with [defendant] is not determinative of whether counsel rendered ineffective assistance.” (Citations and punctuation omitted.) Elrod v. State, 222 Ga. App. 704, 708 (3) (b) (475 SE2d 710) (1996).

Decided November 22, 1999.

Elliott A. Shoenthal, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Trial counsel testified that he met with defendant on numerous occasions. The first time he met with defendant was prior to the preliminary hearing when he took a copy of the incident report to him and went over the facts of the case with him. Prior to arraignment, counsel filed a motion for bond reduction. Trial counsel testified that, prior to trial, he visited the defendant at the jail between five and ten times. Each of these visits lasted between 15 and 30 minutes. Trial counsel further testified that he reviewed the district attorney’s file and made a copy of the file for himself and defendant; that he went over the list of witnesses with defendant; that he contacted members of defendant’s family by telephone; that he attempted to contact all the witnesses on the district attorney’s witness list; and that he attempted to locate additional witnesses who could substantiate defendant’s version of the facts. Accordingly, the trial court’s finding that counsel was not ineffective is not clearly erroneous.

On appeal!,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

3. In his final enumeration of error, defendant asserts that the evidence presented at trial was insufficient to support his conviction.

Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, supra. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses for which he was convicted. Id.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       For purpose of sentencing, Count 2 merged with Count 3.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,16 LE2d 694) (1966).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0820.
    A99A0821.
    A99A0822.
    TELECASH INVESTMENTS, INC. v. LAGRONE et al. LAGRONE v. TELECASH INVESTMENTS, INC. STACY v. TELECASH INVESTMENTS, INC.
    (525 SE2d 112)
   Ruffin, Judge.

Telecash Investments, Inc. sued Glenn Lagrone and Gilbert Thomas Stacy to recover on a guaranty agreement. Following a bench trial, the trial court found in favor of the defendants, and Tele-cash appeals. Both Lagrone and Stacy filed cross-appeals. As all three appeals involve the same operative facts, we have consolidated them in this opinion. For reasons that follow, we reverse.

The relevant facts follow. Lagrone and Stacy were officers and shareholders of Seabrook Publications, Inc. In July 1992, Telecash loaned Seabrook $30,000 to be used in operating a telemarketing facility. In return, Seabrook executed a promissory note agreeing to repay the principal and accrued interest on July 22, 1993. The promissory note also contained what was described as an “Equity Participation” clause, under which Seabrook agreed to pay Telecash, as “additional consideration” for the loan, ten percent of the monthly net profits from the telemarketing facility for the next ten years. Lagrone and Stacy personally guaranteed payment under the note.

In March 1994, after receiving only one payment of $6,200, Tele-cash sued Lagrone and Stacy under their personal guaranty. Lagrone contended that Telecash was barred from recovery under OCGA § 48-6-32 because it had failed to pay intangibles tax on the promissory note, which Lagrone asserted was actually a corporate debenture rather than a true promissory note. The trial court granted Tele-cash’s motion for summary judgment against Lagrone, and Lagrone appealed.

In Lagrone v. Telecash Investments, we noted that

[ijntangible property that is subject to taxation includes “notes not representing credits secured by real estate” and “debentures of all corporations.” OCGA § 48-6-21 (4) and (5), respectively. Here, there is no evidence that the note was secured by real property. Consequently, the instrument, as it relates to Telecash, is a note not representing credits secured by real estate, which under OCGA § 48-6-21 (4) is subject to the intangibles tax.

We reversed the trial court’s grant of summary judgment, holding that “genuine issues of material fact remain to be tried on Telecash’s failure to pay intangibles tax on the note.”

After our decision, and prior to trial, Telecash retained a certified public accountant to determine the amount of intangibles tax due. The accountant concluded that Telecash owed $10.13, including interest and penalties for the tax year 1992. In calculating this amount, the accountant used a tax rate of ten cents per $1,000 of indebtedness, the rate applicable for “notes not representing credits secured by real estate.” The accountant advised Telecash that no tax return was required because the amount of the tax was less than $20. But Telecash filed an intangibles tax return for the year 1992 and forwarded a check for $10.13 to the Georgia Department of Revenue. Telecash did not file intangibles tax returns for any subsequent years.

At trial, defendants admitted that they had not paid the outstanding indebtedness. But they asserted that Telecash was still barred from recovery because it had not paid the proper amount of intangibles tax. According to defendants, the indebtedness should be taxed at a rate of $1 per $1,000, the rate applicable to “bonds and debentures of all corporations,” rather than at the lower rate for notes. The trial court agreed and entered judgment for the defendants, holding that Telecash was precluded from recovery because of its failure to pay intangibles tax in 1993, 1994, and 1995.

Case No. A99A0820

1. In Case No. A99A0820, Telecash asserts that, even if it failed to pay the proper amount of intangibles tax, the trial court erred in characterizing its failure as “wilful.” Accordingly, Telecash argues that it should not be barred from recovery. We agree.

OCGA § 48-6-32 provides that “[w]illful failure to return any property to the commissioner for taxation as required by this article shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action.” Because this is an affirmative defense, the defendants bear the burden of proving that Telecash wilfully failed to return property to the commissioner.

We know of no cases construing the term “wilful” in the context of OCGA § 48-6-32. But Georgia courts have defined “wilful” in the context of other statutory enactments, and the definitions are essentially consistent. To constitute wilfulness, defendants must show more than mere or even gross negligence — they must show that Telecash’s failure to pay taxes or file a return constituted “conduct of a criminal or quasi-criminal nature.”* Defendants must demonstrate that Telecash’s failure was “a conscious or intentional failure ... as distinguished from an accidental or involuntary non-compliance.” Telecash’s acts did not rise to this level as a matter of law.

The evidence shows without dispute that, prior to trial, Telecash retained an accountant for the purpose of calculating intangibles tax due. Telecash then remitted payment in the amount specified by the accountant for the tax year 1992. Although Telecash did not pay taxes for 1993 through 1995, no payment was required if the tax was less than $20, which Telecash believed to be the case.

The trial court apparently penalized Telecash for mischaracter-izing the debt instrument as a promissory note rather than a bond or debenture. But there is no evidence to suggest that Telecash intentionally misrepresented the nature of the instrument. The instrument is labeled a promissory note and has many of the characteristics of a note as it represents an unconditional written promise to pay a specified sum of money at a specified date. The equity participation clause, however, arguably makes the instrument seem more like an investment instrument rather than a simple promissory note. Given the ambiguous nature of the instrument, we fail to see how Telecash’s characterization of the contract as a promissory note evinced any wilful conduct.

Moreover, we note that in our prior decision in this case, we expressly referred to the instrument as a “note not representing credits secured by real estate.” Regardless of whether this statement constitutes the law of the case, it was not unreasonable for Telecash to assume that we had properly characterized the instrument as a note rather than a bond or debenture.

Decided November 9, 1999

Reconsiderations denied November 23, 1999

Freedman & Sinowski, Thomas C. Sinowski, John M. Foy, for Telecash Investments, Inc.

Maurice J. Bernard III, for Lagrone.

Thomas C. Blaska, for Stacy.

Under these circumstances, we see no evidence supporting the trial court’s determination that Telecash wilfully failed to pay taxes or file a return. Accordingly, the trial court erred in finding that OCGA § 48-6-32 barred Telecash from collecting on the contract. In view of this holding, we need not address Telecash’s remaining enumerations of error.

Case Nos. A99A0821 & A99A0822

2. Lagrone contends that the trial court erred: (1) in failing to exclude an affidavit submitted by Telecash in opposition to defendants’ motion for summary judgment; and (2) in denying his motion for summary judgment. As the case went to trial and the court rendered judgment, however, these claims of error are moot.

3. Both Lagrone and Stacy assert that the trial court erred in concluding that the promissory note in question was not usurious. We note, however, that in its judgment the trial court made no ruling regarding whether the promissory note was usurious, and both Lagrone and Stacy have failed to show by the record that the usury issue was raised below. Accordingly, we do not address this claim of error on appeal.

Judgment reversed.

McMurray, P. J., and Andrews, P. J., concur.

       At the time, OCGA § 48-6-32 provided, in pertinent part, that [w]illful failure to return any property to the commissioner for taxation as required by this article shall be a bar to any action upon the property ... and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes.... Payment in full shall relieve the holder from the penalty provided in this Code section.
      As of March 21, 1996, OCGA §§ 48-6-20 through 48-6-44 were repealed by Ga. L. 1996, pp. 117, 130.

       A default judgment had been entered against Stacy, although it was later set aside.

       220 Ga. App. 876 (470 SE2d 445) (1996).

       Id. at 877.

       Id. at 878.

       See OCGA §§ 48-6-21 (4); 48-6-23 (a) (1).

       OCGA § 48-6-27 (e) (2) provided that “[n]o return need be filed ... nor tax paid ... if the amount of tax due on all intangible property owned in whole or in part by the person liable for the tax is less than $20.00.” There was no evidence that Telecash owed intangibles tax on any property other than the note.

       See OCGA § 48-6-23 (4).

       See Lewis v. Smith, 238 Ga. App. 6, 7 (517 SE2d 538) (1999) (act of God); Payne v. Kanes, 234 Ga. App. 524, 527 (2) (507 SE2d 266) (1998) (good faith); Bell v. Smith, 227 Ga. App. 17, 18 (488 SE2d 91) (1997) (justification).

       See Muller v. English, 221 Ga. App. 672, 676 (2) (c) (472 SE2d 448) (1996).

       Id.

       (Punctuation omitted.) Bells Ferry Landing v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

       See Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (2) (426 SE2d 645) (1992) (“promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor”) (punctuation omitted).

       See Lagrone, supra.

       The rule applies “to any statement in the opinion as to a matter on which the decision is predicated.” (Punctuation omitted.) South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998). In Lagrone, our decision was predicated upon the conclusion that the instrument was subject to an intangibles tax. As both promissory notes and corporate bonds and debentures are subject to an intangibles tax, our conclusion did not rest upon the characterization of the instrument as either a bond or a promissory note.

        Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61) (1978) (“[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment”) (punctuation omitted).

       See Fisher v. Marvin Reese Cos., 231 Ga. App. 487 (1) (499 SE2d 411) (1998).


author: Phipps, Judge.

text:
    A99A1241.
    CHILDERS et al. v. MONSON.
    (524 SE2d 326)
   Phipps, Judge.

While a guest in the home of John Monson in 1996, Patricia Childers rode in an elevator installed by Jack Reeves no earlier than 1994. The elevator crashed, causing Childers serious injuries. As a result, she and her husband sued Monson and Reeves for personal injuries and loss of consortium. The case against Reeves went into default. The jury awarded Childers damages against Reeves, awarded her husband no damages against Reeves, but found in favor of Monson against both plaintiffs. Following the denial of their motion for new trial, plaintiffs appeal, claiming the trial court erred in denying their motion for directed verdict on the issue of liability, in charging the jury on the issue of the differences in the duty of care owed to invitees and licensees, and in denying their motion for new trial. Because we find no error, we affirm.

OCGA § 8-2-101 (a) states that all elevators erected or placed in service after January 1,1986, shall be inspected beforehand and registered afterward. Under OCGA § 8-2-100 (5) (B), this includes private residence elevators. Under OCGA § 8-2-101 (b), every elevator must also be maintained in safe operating condition and in conformity with rules and regulations of the State Department of Labor. As provided in OCGA § 8-2-104 (c), such rules and regulations include the American National Standard Safety Code for elevators, dumbwaiters, escalators, and moving walks. American National Standards Institute A17.1-1984. Under OCGA § 8-2-107 (a), violations of these rules and regulations are deemed a public nuisance. A public nuisance gives any member of the public who has sustained special damages a right of action, irrespective of the degree of care exercised by the defendant. In addition, violation of a statute constitutes negligence per se if the injured person falls within the class of persons intended to be protected by the statute and the harm complained of was the harm the statute was intended to guard against.

Except insofar as he may be chargeable with operation of a nuisance, Monson would owe Childers a duty of care based on her status as a business invitee or social guest at the time of her injury. A property owner owes a business invitee the duty of exercising ordinary care in keeping the premises safe and is thus liable for negligence. But a property owner is liable only for wilfulness or wantonness in causing injury to a social guest or licensee.

Plaintiffs charged Monson and Reeves with negligence per se because the elevator was installed and put into service in violation of Georgia statutory law and the safety code. But the complaint did not contain any allegations concerning maintenance of a nuisance.

The evidence at trial showed that Monson did not have any prior difficulties with the elevator. He had used it extensively and allowed his grandchildren to ride on it, without incident. But it is undisputed that the elevator was never licensed or inspected by the State, and a number of code violations caused or contributed to the elevator crash. Monson testified that he was not aware of state regulatory requirements concerning the operation of elevators. The evidence was in conflict on whether Childers was a social guest or business invitee in Monson’s home when she was injured.

Plaintiffs moved for a directed verdict on the issue of liability on the ground that operation of the elevator in violation of the safety code constituted a public nuisance. But they never sought to amend their pleadings to allege nuisance. The question thus becomes whether the nuisance issue was tried by either the express or implied consent of the parties. We hold that it was not.

Although it would appear that Monson’s operation of his elevator in violation of departmental rules and regulations gave rise to a public nuisance under OCGA § 8-1-107 (a), plaintiffs did not inform Monson that they were relying on a nuisance theory until they moved for a directed verdict at the close of the evidence. In fact, they requested jury instructions on issues of negligence and negligence per se as well as the duty owed by a property owner to invitees and licensees, but not on the issue of nuisance. Had Monson been apprised of a nuisance claim, he might have defended the case differently. Therefore, the court did not err in denying Childers’s motion for directed verdict on a ground not timely asserted.

Nor did it err in submitting the case to the jury to determine the duty of care owed to Childers based on her status as a social or business guest.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided November 2, 1999

Reconsideration denied November 23, 1999

Robert H. McDonnell, for appellants.

Forrester & Brim, Weymon H. Forrester, for appellee.

       OCGA § 41-1-3.

        Cannon v. City of Macon, 81 Ga. App. 310, 318-319 (1) (58 SE2d 563) (1950).

       See Horney v. Panter, 204 Ga. App. 474, 476 (2) (420 SE2d 8) (1992).

       OCGA § 51-3-1; Jones v. Interstate North Assoc., 145 Ga. App. 366 (243 SE2d 737) (1978).

       OCGA § 51-3-2 (b); Davis v. Scott, 232 Ga. App. 493, 494 (502 SE2d 332) (1998).

       See OCGA § 9-11-15 (a); Black v. Lowry, 159 Ga. App. 57, 58 (1) (282 SE2d 700) (1981).

       See OCGA § 9-11-15 (b); Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 20 (477 SE2d 141) (1996).

       But compare Cox v. DeJarnette, 104 Ga. App. 664, 676 (2) (C) (123 SE2d 16) (1961) (showing that under OCGA § 41-1-2 operation of an elevator in a private residence would at most constitute a private nuisance).


text:
    A99A1058.
    PARKS et al. v. BREEDLOVE.
    (526 SE2d 137)
   Phipps, Judge.

Preston Breedlove obtained a jury verdict against Wayne and Sandra Parks for expenses he incurred in the construction of their home. The Parkses filed a motion for new trial, claiming that the verdict is contrary to the law and to the evidence, that there are inconsistencies in the jury’s verdict, and that the trial court erred in refusing to allow them to call additional witnesses. They appeal the trial court’s denial of their motion. Because we find that the Parkses’ post-trial claims are without merit, we affirm.

In 1995, Breedlove, a general contractor, entered into a contract to build a custom home for Mr. and Ms. Parks. The parties dispute the actual terms of the contract, but agree that the Parkses had the right to submit changes to the contract and that Breedlove was entitled to be paid for any additional expenses associated with performing those requested changes. Problems arose as the construction progressed, and Breedlove ultimately withdrew from the project before the house was completed. When the Parkses repeatedly refused to pay expenses associated with changes they had requested, Breedlove brought suit for all of his unpaid construction expenses, his contractor’s fee, interest, and litigation expenses, including attorney fees. The Parkses counterclaimed for breach of contract based on Breed-love’s abandonment of the project and defective and negligent construction, for fraud and deceit based on Breedlove’s representations regarding his ability to construct the roof and a concrete deck, and for litigation expenses.

1. The Parkses claim the trial court erred by denying their motion for new trial based on their assertion that the jury’s award of attorney fees and expenses to Breedlove was contrary to law and to the evidence.

The parties agree that the award was made pursuant to OCGA § 13-6-11, which allows the jury to award the plaintiff litigation expenses where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. The question of whether attorney fees are appropriate under this Code section is for the jury. The standard of review of an award under OCGA § 13-6-11 is whether there is any evidence to support the award.

The Parkses contend Breedlove waived his right to seek litigation expenses for bad faith because he failed to include a request for fees and expenses on that basis in the pretrial order. A pretrial order limits the issues for trial and controls the subsequent course of the action unless modified at trial to prevent manifest injustice. An issue is waived if not included in the pretrial order. Nonetheless, a pretrial order “should be liberally construed to allow the consideration of all questions fairly within the ambit of the contested issues.” Breedlove preserved the issue of litigation expenses by including in his proposed verdict form (which was part of the pretrial order) a finding of attorney fees based on stubborn litigiousness.

The jury was charged that litigation expenses could be awarded to Breedlove “if you find that the Parks [es] have acted in bad faith or have been stubbornly litigious or have caused Mr. Breedlove unnecessary trouble and expense.” Any complaint regarding the charge had to be made before the jury returned its verdict. Because their counsel made no objection to the charge at any time, the Parkses have waived their right to object. Therefore we must uphold the jury’s verdict on litigation expenses if there is evidence to support any of the three grounds set forth in OCGA § 13-6-11.

To determine whether any evidence exists to support an award of litigation expenses based on bad faith, we look to the Parkses’ conduct in entering into the contract with Breedlove and to the dealings between the parties prior to the filing of the lawsuit. If there is bad faith in the making or performance of the contract, “attorney fees are authorized regardless of whether a bona fide controversy otherwise existed between the parties.”

There is some evidence from which the jury could have found that the Parkses acted in bad faith in performing their contract with Breedlove. Breedlove testified that he presented Ms. Parks with an invoice related to several changes she and her husband had suggested be made to the original construction plans and met with Mr. Parks on four occasions to request payment. After the fourth visit, Mr. Parks responded that he was still reviewing the invoice and had some questions, but did not have those questions with him. Breed-love became concerned about whether he would be paid for the entire project when the Parkses would not pay him $3,030 for the changes they had specifically requested. He suggested the parties meet with their attorneys to try to resolve these issues.

Breedlove testified that the parties met, with their attorneys present, and that he agreed to withdraw from the project, waive his contractor’s fee, ensure that the house passed rough inspection, and provide the Parkses with a list of all subcontractors and suppliers who had provided work or materials for the project. In exchange, the Parkses agreed to pay Breedlove $26,169.82 for outstanding construction expenses.

According to Breedlove, he did everything required of him under that agreement. The Parkses did not pay Breedlove for any of his expenses, but did hire an engineer to review what they thought might be problems with the construction. Although the engineer noted some problems with the roof supports that could have been fixed at the time, the Parkses did not have the repair work done or request that the county inspectors come back to review these potential problems. Instead, they paid the engineer to redesign their deck, largely for aesthetic reasons.

Thus there is evidence to support an inference by the jury that the Parkses’ refusal to pay Breedlove’s expenses was not based on an honest belief that the expenses were not actually or necessarily incurred or that they had been defrauded. The jury could have inferred that the Parkses refused to pay Breedlove because they believed it was in their best financial interest not to pay him. Because there was evidence sufficient to authorize these inferences, the jury was justified in awarding litigation expenses based on bad faith. We must therefore affirm the jury’s award of litigation expenses to Breedlove.

Because we find there was evidence that authorized the jury to award Breedlove his litigation expenses based on a finding of bad faith, we do not address whether an award also would be authorized based on a finding of stubborn litigiousness or causing unnecessary trouble and expense.

2. The Parkses contend the trial court erred by denying their motion for new trial because the verdict was inherently inconsistent and ambiguous.

The verdict form at issue provided spaces for the jury to indicate a finding in favor of Breedlove or the Parkses. Under the heading for each party, the form included an itemization of potential categories of damages. For Breedlove, the form provided for a potential award of building and supply costs, contractor’s fee, interest, and attorney fees and expenses. For the Parkses, the categories included general damages, litigation expenses, and attorney fees and expenses. The verdict form also included a separate question, to be answered only if an award was made in favor of the Parkses, of whether they were entitled to damages based on their fraud counterclaim.

The jury found for Breedlove in the following amounts: building and supply costs $26,169.82; contractor’s fee $10,000; interest $0; and attorney fees and expenses $10,717.21. They also included a handwritten notation regarding the contractor’s fee award, indicating that the $10,000 “represents one-half of total fee less compensation to complete work at Parks’ home.” The Parkses contend that the notation could indicate the jury intended to award them some money to complete work at their house, and, if so, that intention would contradict the award of attorney fees and expenses to Breedlove. They also claim that it is impossible to determine whether the jury intended to award them compensation based on their claim of negligent construction or their claim of fraud because the jury failed to answer the question regarding intentional conduct.

We hold that the Parkses waived any objection to the form and consistency of the jury’s verdict. The verdict form was reviewed and approved by counsel for both parties before the jury began its deliberations and after the verdict was returned. “If either party felt the verdict was vague and ambiguous, objection should have been made when the verdict was returned so that the jury could clarify its meaning.”

3. The Parkses claim the trial court abused its discretion in refusing to allow additional witnesses on the last day of trial.

The issue arose during the second day of Mr. Parks’s direct examination, which took place on a Monday. When the Parkses’ counsel made reference to a witness to follow Mr. Parks, the judge told him that Mr. Parks would be the last witness. The judge reminded counsel of an agreement made the previous Friday that if he allowed Mr. Parks’s testimony to be interrupted and continued after the weekend, because Parks was unable to provide details regarding certain amounts spent to complete his house, the Parkses would have to present the rest of their case on that Friday. The judge also recounted counsel’s response that he would not have any additional witnesses. Although counsel agreed that the judge had accurately described their agreement and conceded that the evidence he wanted the additional witnesses to present was going to be admitted during Mr. Parks’s testimony, he noted his objection to the judge’s action on the record.

Decided November 23, 1999.

Dickinson, Mixson & Willis, David F. Dickinson, for appellants.

Dietrick, Evans, Scholz & Williams, Paul A. Dietrick, for appel-lee.

The trial court has the authority to control the course of the trial, and the parties are not entitled to present their cases without limit. But the trial court cannot “impose limits on the trial of the case which have the effect of excluding relevant, non-cumulative evidence simply because it delays the conclusion of the trial.” That was not the case here. The judge excluded the Parkses’ additional witnesses based on an agreement between counsel and the court that Mr. Parks would be the last witness prior to rebuttal. Given these facts, we find no abuse of discretion in the judge’s refusal to allow additional witnesses.

Moreover, the Parkses have not demonstrated harm resulting from the judge’s action. Their counsel conceded that the reason he wanted to call additional witnesses was to introduce evidence to which Breedlove’s counsel had objected during Mr. Parks’s testimony on Friday. That evidence was introduced and admitted during Mr. Parks’s testimony on Monday.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

        Spring Lake Property Owners &c. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990).

       Id.

       OCGA § 9-11-16.

        Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522 (1) (a) (428 SE2d 426) (1993).

       (Citations and punctuation omitted.) Id. at 522-523 (1) (b); Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 822 (2) (476 SE2d 22) (1996); Ackley v. Strickland, 173 Ga. App. 784, 787 (328 SE2d 549) (1985).

       OCGA § 5-5-24 (a).

        Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 200 (3) (450 SE2d 427) (1994).

        McDonald v. Winn, 194 Ga. App. 459, 460 (2) (390 SE2d 890) (1990).

       See Glenn v. Fourteen West Realty, 169 Ga. App. 549, 551 (2) (313 SE2d 730) (1984).

       (Citations and punctuation omitted.) Tucker v. Love, 200 Ga. App. 408, 410 (3) (408 SE2d 182) (1991); see also KDS Properties v. Sims, 234 Ga. App. 395, 399 (4) (506 SE2d 903) (1998) (to preserve challenge to verdict form, issue must be raised and ruled upon by judge before jury is dismissed).

        CRS Sirrine v. Dravo Corp., 213 Ga. App. 710, 714 (1) (445 SE2d 782) (1994).

       Id. at 715.


text:
    A99A1105.
    GARY v. THE STATE.
    (526 SE2d 148)
   Phipps, Judge.

Vincent Gary was charged by accusation with reckless conduct and simple battery. The court convicted Gary of the former offense at an unreported bench trial where Gary was represented by retained counsel. Through a new attorney, Gary filed a motion for new trial grounded largely on claims of ineffective assistance of counsel. Following the denial of the motion, Gary appeals.

1. First, Gary claims his trial counsel was ineffective in failing to request that the bench trial be reported and transcribed for appellate purposes. This issue has not been preserved for appellate review as it was not raised before the trial court. “ ‘[E]numerations of error which raise questions for the first time on appeal present nothing for decision.’ [Cit.]”

2. Gary challenges the validity of his waiver of the constitutional right to a jury trial based on assertions that his trial counsel did not advise him of this right or consult with him before deciding to proceed with a bench trial.

The record belies these assertions. At the hearing on the motion for new trial, Gary testified that he met with defense counsel prior to trial, that counsel explained to him “everything about what a bench trial is and what a jury trial is,” and that he agreed to let counsel decide whether to try the case before a judge or jury. In Gary’s own words, “I left that in [counsel’s] hands. . . .” Counsel testified that he determined that a bench trial would be preferable because he previously had met with success in bench trials, he felt comfortable with the judge who had been selected to try this case, and “the judge would be insulated . . . from a lot of the things I knew the victim would do [and had done] at the preliminary hearing.” In a not-guilty plea signed by Gary, he attested that he had voluntarily, knowingly, and intelligently waived his right to trial by jury and was requesting a bench trial.

“A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing [that] the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.’ ” [Cit.]

Here, the State has filled an incomplete record with extrinsic evidence adequate to show that its burden was met.

3. Gary claims that counsel was ineffective in not informing him of plea discussions with the prosecuting attorney.

Decided November 23, 1999.

Dwight L. Thomas, Caprice J. Small, for appellant.

Carmen Smith, Solicitor, Cynthia Strong-McCarthy, Jody L. Pes-kin, Assistant Solicitors, for appellee.

Counsel testified that he did not inform Gary of plea discussions with the prosecutor because he was unable to negotiate a plea that did not include a sentence of imprisonment, and Gary had said he would not plead guilty under any circumstances, especially if it required him to spend time in jail. Counsel additionally testified that he informed Gary that if he were found guilty at trial, he would probably be sentenced to a term of confinement. Under the circumstances, the court was authorized to find that counsel’s decision to proceed to trial without informing Gary of the plea discussions “was not the result of any ineffective assistance on the part of [Gary’s] trial counsel.”

4. We are unable to review Gary’s final enumeration, because it is based on the evidence. The trial was not reported, nor was a transcript prepared from recollection pursuant to OCGA § 5-6-41 (g).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

        Wiggins v. State, 208 Ga. App. 757, 759 (3) (432 SE2d 113) (1993).

        Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994).

       See Payne v. State, 219 Ga. App. 439 (465 SE2d 724) (1995); Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) (1995); compare McCormick v. State, 222 Ga. App. 753, 754 (1) (476 SE2d 271) (1996).

        Louis v. State, 202 Ga. App. 681, 682 (3) (415 SE2d 289) (1992); see also Larochelle v. State, 231 Ga. App. 736, 738 (4) (499 SE2d 371) (1998).

        Sizemore v. State, 195 Ga. App. 548 (395 SE2d 669) (1990).


author: Pope, Presiding Judge.

text:
    A99A1357.
    GALINDO v. LANIER WORLDWIDE, INC.
    (526 SE2d 141)
   Pope, Presiding Judge.

Alexis Galindo, d/b/a Law Offices of A. Galindo, appeals the decision of the Superior Court of DeKalb County confirming an arbitration award in favor of Lanier Worldwide, Inc. Galindo’s primary argument is that the arbitrator exceeded her authority because he never agreed to arbitrate in the first place. Galindo also raises several procedural issues that are interrelated with this question. We conclude that the trial court used the wrong standard to review the arbitrator’s decision finding that there was an agreement between the parties, and therefore we remand the case to the DeKalb Superior Court.

Lanier alleged that the “Law Office of A. Galindo” of Downey, California (“Law Office”) entered into two agreements to lease copier equipment and that the agreements included an arbitration clause and an agreement to arbitrate in “Atlanta, Georgia.” Lanier filed a petition with the American Arbitration Association (“AAA”) claiming that the Law Office breached the leases. Galindo responded on behalf of the Law Office, denied that there was an agreement between the parties, and suggested that an unauthorized person signed the agreements and that Lanier had already recovered from another company.

A hearing was held in Atlanta, but Galindo did not attend. Two days later, Galindo sent the arbitrator a letter and three affidavits. In his letter, the full body of which is quoted here, Galindo disputed the entire arbitration clause:

The Law Office of A. Galindo contends that the Lanier lease agreement was never authorized by Alexis Galindo, the owner. The Lanier agreement requires that any dispute be resolved by way of arbitration. Since the Respondent disputes the validity of the lease agreement the entire arbitration clause is in dispute. However, should AAA wish to proceed and render a decision then I must ask that the attached declarations be admitted into evidence.

(Emphasis supplied.) In his attached affidavit, Galindo swore that his Law Office had never entered into the agreements or agreed to purchase any equipment and that he did not sign the agreements. In the other two affidavits, third parties stated that a different company located at the same address as Galindo’s Law Office had entered into the copier lease agreements with Lanier and that they knew where the copiers were.

Shortly thereafter, the arbitrator entered an award entitled “Ex Parte Award of Arbitrator.” The arbitrator began the award by saying, “having duly heard the proofs and allegations of [Lanier] and Law Office of A. Galindo having failed to appear after due notice by mail. . . .” She awarded Lanier all requested damages.

Lanier then filed a petition in DeKalb Superior Court to confirm the award. Galindo answered, raised several defenses, including lack of personal jurisdiction, and moved the court to either dismiss the case or vacate the arbitration award. The court held a hearing and eventually entered an order confirming the arbitrator’s award, awarding attorney fees in Lanier’s favor, and substituting Galindo as the proper party in place of his trade name.

1. Standard of Review. The trial court found that the transaction at issue involved interstate commerce and that therefore the arbitration was governed by the Federal Arbitration Act (“FAA”), 9 USC § 1 et seq. Galindo does not challenge this ruling, and therefore we will apply the federal substantive law of arbitrability to the agreement. Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983), following Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24 (103 SC 927, 74 LE2d 765) (1983). And under that body of law, an appellate court reviewing a lower court’s decision confirming an arbitration award should accept findings of fact that are not “clearly erroneous” but decide questions of law de novo. First Options of Chicago v. Kaplan, 514 U. S. 938, 947948 (III) (115 SC 1920, 131 LE2d 985) (1995).

2. Motion to Dismiss. Before reaching the validity of the arbitrator’s award, we must first address several procedural grounds which Galindo argues compelled the dismissal of Lanier’s confirmation action.

(a) Service of Process. Galindo first challenges service of process in the superior court action. He raised this defense in his answer and motion to dismiss. Lanier filed the petition on January 14, 1998, and Galindo received a copy via regular mail. On February 3, a deputy sheriff of Los Angeles County, California, served a secretary at Galindo’s office who claimed she was authorized to accept process on behalf of “Law Office of A. Galindo” and routinely had done so. It is this service that Galindo challenges. But on June 24, Galindo was served personally, and he has not challenged this service on appeal. Therefore the issue is abandoned. Court of Appeals Rule 27 (c) (2).

(b) Personal Jurisdiction. Galindo contends that DeKalb Superior Court did not have personal jurisdiction over him. He does not challenge subject matter jurisdiction of the DeKalb court. We note that state courts have subject matter jurisdiction over confirmation of arbitration awards. Hilton Constr. Co., 251 Ga. at 702-703.

Jurisdiction of the person is the power of a court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by it in such a case, and is obtained by appearance or by serving the proper process in the manner required by law on persons or parties subject to be sued in a particular action.

(Citations and punctuation omitted.) Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979). The Georgia Long Arm Statute provides in part: “A court of this state may exercise personal jurisdiction over any nonresident ... if in person or through an agent, he[] transacts any business within this state. . . .” OCGA § 9-10-91. “[T]he policy of our Long Arm Statute is to exercise jurisdiction over nonresident defendants to the maximum extent permitted by procedural due process.” (Citation omitted.) Bradlee Mgmt. Svcs. v. Cas-sells, 249 Ga. 614, 617 (292 SE2d 717) (1982).

For the purposes of the Long Arm Statute, someone transacts business within the state,

if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.

Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285) (1973). Thus, we must examine Galindo’s actions vis-a-vis Georgia.

There are only three actions allegedly taken by Galindo that could confer personal jurisdiction: (i) mailing a response to the notice of arbitration and a letter to the arbitrator in Georgia, (ii) allegedly agreeing to arbitrate before a Georgia arbitrator even though he disputed that he entered into the agreements, and (iii) allegedly entering into agreements that contained a Georgia choice of forum and arbitration clause.

It is well settled under Georgia law that Galindo’s actions in mailing a response to the arbitration notice and a letter to the arbitrator, standing alone, are not sufficient to confer personal jurisdiction. See ETS Payphone v. TK Indus., 236 Ga. App. 713, 715 (1) (513 SE2d 257) (1999) and cases cited therein (“an out-of-state defendant will not be deemed to have engaged in purposeful business activity in this state on the basis of telephone or mail contact”).

We turn therefore to a consideration of whether the DeKalb court has personal jurisdiction over Galindo as a result of the arbitration agreements themselves or as a result of Galindo’s alleged agreement to arbitrate the issue of whether he ever entered into an arbitration agreement in the first place.

The agreements specify that the parties agreed to arbitrate any disputes in Atlanta. And, under the FAA, a confirmation hearing on an arbitration award is held in the district or jurisdiction where the arbitration was held. 9 USC § 9. If Galindo entered into the agree-merits, then he consented to arbitrate in Atlanta, and he further consented to personal jurisdiction in a state or federal court in the same district reviewing the arbitrator’s decision. See 9 USC § 9; see also Weststar Assoc. v. Tin Metals Co., 752 F2d 5, 7 (1st Cir. 1985) (Section 9 enables court for the district within which the award was made to exercise personal jurisdiction over the parties to the award). If Galindo never entered into the leases, then the DeKalb court had personal jurisdiction only if Galindo waived objection to it. OCGA § 15-1-2 (a party may waive personal jurisdiction). Based on the facts of this case, he waived personal jurisdiction only if he agreed to allow the arbitrator to decide whether he entered into the leases in the first place.

In awarding Lanier damages, the arbitrator necessarily decided the arbitration issues in favor of Lanier, i.e., (1) Galindo agreed to allow the arbitrator to decide whether he entered into arbitration agreements, and (2) Galindo entered into the arbitration agreements. Reviewing the arbitrator’s decision under these circumstances requires application of a special standard of review.

As explained by the U. S. Supreme Court, the answer of who was authorized to decide the question of arbitrability determines what standard of review applies to the arbitrator’s decision about arbi-trability. First Options, 514 U. S. at 942-945 (II). If the parties agreed that the arbitrator should decide the issue, the reviewing court “should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances.” Id. at 943. If the parties did not agree that the arbitrator should decide arbi-trability, then the reviewing court should address the matter independently. Id.

The answer to the “who” question depends on the intent of the parties. As stated by the Supreme Court,

Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question who has the primary power to decide arbi-trability turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration?

(Citations and punctuation omitted.) First Options, 514 U. S. at 943 (II). The Court then explained that ordinary state law principles governing the formation of contracts should be applied when resolving the issue, with one important qualification: “Courts should not assume that-the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.” (Citations and punctuation omitted.) Id. at 944 (II); see also North Augusta Assoc. v. 1815 Exchange, 220 Ga. App. 790, 793 (2) (469 SE2d 759) (1996). Any silence or ambiguity on this narrow issue should not be construed in favor of arbitration because “a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration.” First Options, 514 U. S. at 945 (II). Thus, for this issue the normal presumption in favor of arbitration is reversed. Id. at 944-945 (II). Applying the normal presumption “might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” (Citations omitted.) Id. at 945 (II).

Here, it cannot be said that Galindo clearly and unmistakably agreed to submit the issue of arbitrability to the arbitrator. First, he consistently denied entering into the contract that included the arbitration clause. His letter could be read as an assertion that the arbitrator did not have authority and as a reservation of his rights. He did not attend the arbitration hearing. Galindo’s letter and actions are consistent with the conclusion that he thought he could not stop the arbitration from proceeding but knew he needed to object.

In First Options, the Kaplans, who claimed to have never agreed to arbitration, appeared at the arbitration hearing and submitted a written memorandum objecting to the arbitrators’ jurisdiction. The Supreme Court held that, under the circumstances of that case, appearing and arguing that the arbitrator did not have authority were not the same as agreeing to be bound by the decision: “merely arguing the arbitrability issue to an arbitrator does not indicate a clear willingness to arbitrate that issue, i.e., a willingness to be effectively bound by the arbitrator’s decision on that point.” First Options, 514 U. S. at 946 (II). The high court noted that the Kaplans could have used other means to get a court decision on the question without arguing the point to the arbitrators, “e.g., by trying to enjoin the arbitration, or by refusing to participate . . . and then defending against a court petition ... to compel arbitration.” Id. But nevertheless, this “simply does not say anything about whether the Kaplans intended to be bound by the arbitrators’ decision.” Id.

The DeKalb court applied the presumption in favor of arbitration. Because we conclude that Galindo did not submit the issue of whether he agreed to arbitrate to the arbitrator, we find that the trial court should have performed a de novo review of whether Galindo, through his Law Office, entered into the lease agreements with Lanier. And under First Options, the trial court must apply state law principles of contract formation. First Options, 514 U. S. at 944 (II). We remand the case for this purpose. If the court determines that Galindo did enter into the agreements, then personal jurisdiction and venue were proper in the DeKalb court under the parties’ agreement, the arbitration clause, and the FAA. See 9 USC § 9; see also Weststar Assoc., 752 F2d at 7. If he did not enter into the lease agreements, then the trial court’s confirmation order should be vacated and the confirmation action dismissed for lack of personal jurisdiction.

While we express no opinion on the answer to this question, we will address issues that may occur on remand should the court uphold the lease agreements and determine that it has jurisdiction.

3. Improper Party. Galindo contends the trial court erred when it granted Lanier’s motion to change the name of the defendant from “Law Office of A. Galindo” to Alexis Galindo because the arbitration award is only against the “Law Office of A. Galindo.”

Lanier sought arbitration of a dispute arising under two copier lease agreements. The agreements list the purchaser as “Law Office of A. Galindo.” Galindo admits that this was a trade name for his sole proprietorship, i.e., his law practice in California. The use of a trade name does not create a separate legal entity, and “[i]f one undertakes an obligation in a fictitious or trade name, the obligation is his own individually.” (Citations and punctuation omitted.) American Express &c. Co. v. Berlye, 202 Ga. App. 358, 360 (1) (414 SE2d 499) (1991). Therefore, if “Law Office of A. Galindo” entered into the contract, Galindo would be the responsible party.

4. Motion to Vacate. The FAA provides that a motion to vacate an award “must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 USC § 12. And, the appellant may not simply wait and raise the same defenses in response to a motion to confirm the award. Cullen v. Paine, Webber &c., 863 F2d 851, 854 (II) (A) (11th Cir. 1989); Professional Administrators, Ltd. v. Kopper-Glo Fuel, 819 F2d 639, 642 (6th Cir. 1987); compare MCI Telecommunications Corp. v. Exalon Indus., 138 F3d 426, 430 (1st Cir. 1998) (a person who has not been a party to the arbitration is not bound by section 12 from arguing that there was no agreement to arbitrate). Therefore, if Galindo’s Law Office entered into the lease agreements, he was subject to section 12 of the FAA, and his motion to vacate was properly denied.

. In summary, the superior court should not have given deference to the arbitrator’s decision that there was a contract between the parties. We reverse and remand for a de novo review of that question and further proceedings consistent with this opinion. Lanier’s motion for damages for a frivolous appeal is denied.

Judgment reversed and remanded.

Smith and Eldridge, JJ., concur.

Decided November 23, 1999.

Lamar, Archer & Cofrin, David W. Davenport, Richard W. Feeley, for appellant.

Altman, Kritzer & Levick, Joseph D. Wargo, Jeanine L. Gibbs, for appellee.

       The arbitration provision in the lease agreement provided:
      Any controversy or claim arising out of or relating to this Agreement or the breach hereof... shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof....

       Galindo also contends that even if he agreed to arbitrate in Atlanta, venue is not proper in DeKalb Superior Court because the FAA provides that the confirmation award must be held in the appropriate federal district court. But, whether the matter may be brought in state versus federal court is a question of subject matter jurisdiction, and state courts have subject matter jurisdiction to confirm awards. Hilton Constr. Co., 251 Ga. at 702-703. Venue is a different question, and Galindo has not shown that the arbitration did not occur in that part of Atlanta located in DeKalb County.


author: Smith, Judge.

text:
    A99A1505.
    COWETA COUNTY BOARD OF TAX ASSESSORS v. EGO PRODUCTS, INC.
    (526 SE2d 133)
   Smith, Judge.

The Coweta County Board of Tax Assessors appeals an order affirming a decision by the Coweta County Board of Equalization valuing certain personal property of a taxpayer, EGO Products, Inc., at 50 percent of the property’s fair market value for ad valorem tax purposes. Because we find no constitutional or statutory authority that permits the award of this tax advantage to EGO Products, we reverse.

EGO, a supplier of component parts to the makers of large appliances, has maintained a facility in Coweta County since 1982. In 1995, when EGO was contemplating relocating its production line from Coweta County, it contacted the Georgia Department of Industry, Trade & Tourism, which arranged a meeting involving EGO, the Georgia Department of Labor, and the Coweta County Development Authority. The development authority proposed funding an expansion and modernization of EGO’s facility through industrial revenue bonds.

Ultimately, industrial revenue bonds were issued to fund a project worth approximately $7 million, of which about $6.6 million was used to fund EGO’s highly automated production line and the balance to fund real property improvements and other expenses. Under the terms of the financing agreement, EGO deeded its real property and sold its equipment to the authority. The authority then leased both the real and personal property to EGO for the life of the bonds, 15 years. Under the terms of the leasing agreement, the authority pledged to provide a 50 percent reduction in EGO’s property taxes.

EGO’s new assembly line opened officially in May 1996, and the company received its first tax notice in 1997. The board of tax assessors, however, provided a 50 percent tax abatement only as to EGO’s real property and not as to the personal property that was the bulk of the expansion project. After EGO appealed, the board of equalization ordered that the tax abatement be applied to the entire project, finding the personal property “to be taxable only to the extent of the leaseholder agreement.”

Under OCGA § 48-5-311 (g), the board of assessors appealed this decision to superior court. After a bench trial, the court found that EGO’s personal property purchased through industrial revenue bonds was entitled to a leasehold interest value of 50 percent of its fair market value. The board of assessors appeals that ruling.

1. The board of assessors contends the trial court erred in finding the value of EGO’s leasehold interest in its personal property at 50 percent of its actual fair market value, since no evidence supporting such a valuation was presented to the court for consideration. The board claims that neither the leasing agreement nor any representations purportedly made by the authority obligated the board to reduce EGO’s tax burden on this personal property. The board further asserts that such a reduction violates the uniformity requirements of the state constitution. We agree.

The value of EGO’s leasehold interest in the personal property is not in dispute. In fact, the board and EGO stipulated to its value as being $6,182,393. Consequently, at issue is whether the trial court erred as a matter of law in finding that EGO was entitled to receive a tax reduction for the personal property being leased from the authority under an industrial revenue bond agreement. See Leverett v. Jasper County Bd. of Tax Assessors, 233 Ga. App. 470, 471, n. 1 (504 SE2d 559) (1998) (“any evidence” rule does not apply to review of legal errors).

For ad valorem tax purposes “[a] 11 property shall be returned for taxation at its fair market value. . . .” OCGA § 48-5-6. A board of assessors incurs a statutory duty to ensure that all taxable property within a county is assessed and returned at its fair market value and that such fair market values as between individual taxpayers are fair and justly equalized. J.C. Penney Co. v. Richmond County Bd. of Tax Assessors, 233 Ga. App. 399, 401 (504 SE2d 201) (1998). This board therefore had an obligation to ensure that the assessment and valuation of EGO’s personal property was fair, uniform, and justly equalized. See Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 728 (2) (279 SE2d 223) (1981).

Unquestionably, the personal property that EGO leases from the authority is not tax-exempt. Part of the local amendment that created the Coweta County Development Authority provides in pertinent part, “[t]he exemption from taxation herein provided shall not extend to tenants nor lessees of the Authority.” Ga. L. 1966, p. 1102, § 1, subpart C. Compare Hart County Bd. of Tax Assessors v. Dunlop Tire &c. Corp., 252 Ga. 479, 480 (314 SE2d 188) (1984) (local amendment exempted from ad valorem taxation property owned by the Hart County Industrial Development Authority and leased by a private corporation). Although the authority was exempt from taxes, EGO as “a business which takes a leasehold from the Authority is subject to ad valorem taxation on the fair market value of the posses-sory interest held. [Cit.]” DeKalb County Bd. of Tax Assessors v. W. C. Harris & Co., 248 Ga. 277, 279 (2) (282 SE2d 880) (1981).

Despite EGO’s claim to the contrary, the provisions of the lease do not resolve the tax valuation issue. Section 6.7 of the leasing agreement entitled, “Special Covenants Related to Ad Valorem Taxation” provides: “(a) The Company’s leasehold interest in the project shall be valued at 50 percent of the fee simple valuation of the project for ad valorem tax purposes, for a period of fifteen years from the date of the certificate of compliance of the project.” The agreement further states:

(b) The Company and the Issuer acknowledge that the leasehold valuation formula described above takes into account the fair market value of similarly leased property and the prevailing rents charged in the geographic area of the project. The Coweta County Board of Assessors and the County believe that this method is fair, equitable and uniform treatment under the provisions of O.C.G.A. section 48-5-3.

But this special covenant makes no mention of personal property. By using such terms as “fee simple valuation,” “fair market value of similarly leased property,” and “prevailing rents charged in the geographic area,” section 6.7 appears to apply to real property. It cannot fairly be concluded that this language would have put the board on notice at the bond validation proceeding that the lease contained a covenant applicable to EGO’s personal property. Compare Miller v. Columbus, 229 Ga. 234, 236 (2) (190 SE2d 535) (1972) (unappealed judgment of bond validation was conclusive on question of the validity of the bonds and the underlying security).

For nearly 30 years, the board had subjected leasehold interests in real property to a 50 percent tax abatement, in part, to simplify its own record keeping. The board’s evidence demonstrated the board’s long-standing policy of taxing leasehold interests in real property that are the subject to a financing agreement like the one here at 50 percent of the appraised value for the term of the lease. See W. C. Harris & Co., supra at 281 (3) (method of valuation of leasehold interest must not be arbitrary or unreasonable). But no evidence showed that any other taxpayer who leased personal property financed by industrial revenue bonds from the authority sought and obtained a similar reduction in the value of such personalty. See generally Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 95 (1) (491 SE2d 173) (1997) (assessment and taxation of real and tangible property differ procedurally).

The board’s chief personal property appraiser, Beverly Ward, explained that the fair market value of the personal property at issue here was determined by taking the value of the fixed assets, machinery, equipment, furniture, and fixtures and grouping them into classifications based on the economic life of the equipment. The analysis considered the original cost, appreciation, and year of purchase of the personalty. According to Ward, she had never known of any other entity that obtained financing with the authority and then received a 50 percent reduction on the valuation of personal property.

Former board chairman Theron Gay, who had been affiliated with the tax office since 1981, also testified that he could not recall any occasion on which the 50 percent reduction had been applied to personal property. According to Gay, the policy “we always followed was to allow the reduction of 50 percent of all the land and buildings to the real property portion of those properties financed under IRB’s and titled to the Development Authority.” Similarly, board member Michael Márchese, who had been associated with the tax office since 1985, testified that while he agreed that the real property was entitled to the 50 percent reduction, he was aware of no personal property that had been classified as real property to obtain the 50 percent reduction.

Theron Gay testified that while real property in Coweta County generally appreciates in value over time, personal property is different. According to Gay, some personal property such as computer equipment becomes obsolete and “depreciates very rapidly.” Consequently, such property may have little value by the end of a long-term lease.

To permit a 50 percent reduction of the value of such personal property over an extended period could allow a significant portion of the value of that personal property to elude taxation or to be taxed at far less than its actual value. The bulk of EGO’s production line equipment that EGO has regularly used since 1996, and in which it plainly holds a possessory interest, would not be subject to taxation on the basis of its actual fair market value. See W. C. Harris & Co., supra at 279 (2) (business with leasehold interest obtained from authority is subject to ad valorem taxation on the fair market value of that possessory interest). To treat EGO’s personal property in this fashion would violate the requirement that taxable property in the same class within a county be assessed justly and with uniformity among similarly situated taxpayers. See Rogers, supra at 728 (2) (same standard or system must be used in calculating the taxable value of all property within the same class).

The record belies EGO’s assertion that other taxpayers were afforded similar treatment or that the board had such a policy. Even assuming without deciding that section 6.7 was intended by the parties to apply to personal property as well as real property, EGO cites no authority that would permit a lease to circumvent the state constitutional requirement of uniform taxation or the statutory requirement that all property be returned for taxation at its fair market value. Ga. Const., Art. VII, Sec. I, Par. III; OCGA § 48-5-6. Compare Dunlop Tire, supra at 481.

Despite EGO’s claim to the contrary, Charlton Dev. Auth. v. Charlton County, 253 Ga. 208, 209 (317 SE2d 204) (1984) neither requires nor authorizes a different result. In Charlton, unlike here, the superior court in a bond validation proceeding specifically determined that a certain “tax levy agreement” had been “ ‘properly authorized and entered into’ ” between the development authority and Charlton County. Id. at 209. But here, it is undisputed that neither the county nor the board was a party to the lease agreement between the authority and EGO. EGO cites no authority, and we know of none, that would empower an authority acting alone, and without notice to a county, to excuse a taxpayer from paying a substantial portion of its property tax obligation. See OCGA § 36-62-6. Nor does an authority have the power to determine valuation or to grant a reduction in personal property taxes that would result in unequal tax liability among individual taxpayers. See Hutchins v. Candler, 209 Ga. 415, 419 (2) (73 SE2d 191) (1952). Since the trial court erred as a matter of law in reducing the value of EGO’s personal property by 50 percent, that judgment must be reversed. J.C. Penney, supra at 402; see Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 835 (3) (350 SE2d 790) (1986) (on appeal, the sufficiency of the evidence of valuation must be considered).

2. In light of the above holding, we need not reach the remaining enumerations of error.

Decided November 23, 1999.

Glover & Davis, Asa M. Powell, Jr., Jerry A. Conner, for appellant.

Wood, Odom & Edge, H. Parnell Odom, Alston & Bird, Peter M. Degnan, Paul J. Kaplan, for appellee.

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       The board derived the 50 percent figure by determining that a lessee would be gradually acquiring a greater interest in the real property over the lease’s term, but to simplify its record keeping the board would set the value of real property at a flat 50 percent.

       This leased property included: production, assembly, and testing equipment for the manufacturing of electric heating elements for smoothtop electric ranges; automated thermostat calibration equipment; programmable computerized equipment controllers; and quality endurance test stations with controllers, including automatic cyclers and counters.

       Glen Butler, the president of EGO, testified that he did not know “that there would ever be an issue between personal property and real property. We never even discussed that.”

       The chairman of the authority, Mike Barber, testified that the lease was not presented to the Board of Tax Assessors or to the county commissioners. Board member Márchese testified that before the trial he had not seen a copy of the lease.