text:
    A89A0505.
    COBB v. KENNON REALTY SERVICES, INC. et al.
    (382 SE2d 697)
   Deen, Presiding Judge.

In late 1986 the appellant, Danny Cobb, was approximately $4,000 in debt with no job and no assets other than his home. At the same time, Leon Miller, who was the pastor of the church Cobb attended, desired to purchase a house from a William and Georgina Sutherland, for which he needed $14,500 as a down payment in order to assume a mortgage. Kennon Realty Services, Inc., had located the property listed which Miller wanted to buy. Frank Velez, an agent with Kennon Realty Services, suggested to Miller that perhaps Miller could find someone who would secure a loan for him. Miller approached Cobb and proposed that Cobb borrow $18,500, with his home as security. Under Miller’s scheme, Cobb would keep $4,000; Miller would get $14,500; and Miller would pay back the $14,500 in a few weeks with money he expected to receive from his church. A local bank extended the loan upon the personal guarantee of Kelsey Ken-non, and on October 31, 1986, Cobb and Miller executed a security deed in favor of Kennon, regarding Cobb’s home and the home bought by Miller.

Of course, things did not work out as planned. Miller never got any funds from the church (which went bankrupt), defaulted on his house note, and also went bankrupt. Cobb alone renewed the note for the loan on March 6, 1987. Subsequently, upon the bank’s demand, Kelsey Kennon paid off the note, and on July 16, 1987, Cobb alone executed another security deed on his home in favor of Kennon. When Cobb failed to pay Kennon for the loan pay-off, Kennon foreclosed. Cobb filed suit against Kennon Realty Services, Inc., Kelsey Kennon, Frank Velez, and the Sutherlands, seeking to enjoin the foreclosure and also seeking damages for alleged fraud and conspiracy. Cobb also amended his complaint to allege violations of the Georgia RICO statute and the Georgia Fair Business Trade Practices Act. The trial court denied the injunction request and later granted summary judgment for the appellees. Cobb appeals from that grant of summary judgment.

1. The appellees filed their motion for summary judgment on August 2, 1988. On August 30, 1988, Cobb filed an amendment to his complaint alleging a violation of the Georgia RICO statute, and on October 6, 1988, Cobb amended his complaint to add a claim for an alleged violation of the Georgia Fair Business Trade Practices Act. No new evidentiary material was submitted in conjunction with or in response to either amendment. Oral argument on the motion for summary judgment was had on October 6,1988, and on October 20, 1988, the trial court entered its order granting summary judgment for the appellees.

In granting summary judgment for the appellees, the trial court considered and ruled on Cobb’s amendments to his complaint. Such consideration of and rulings on Cobb’s amendments, filed after the appellees’ motion for summary judgment but before the hearing or order, was proper, and Cobb’s contrary contention is without merit. See Wagner v. Ford Mtr. Credit Co., 155 Ga. App. 729 (3) (272 SE2d 500) (1980); Haskins v. Jones, 142 Ga. App. 153 (235 SE2d 630) (1977).

2. Under the Georgia RICO statute, “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-14-4 (a). The only “racketeering activity” arguably applicable to this case is that of theft. OCGA § 16-14-3 (3) (A) (ix). However, Cobb failed to allege any “pattern of racketeering activity” in his amended complaint, and the evidence submitted concerned only the one extended transaction between Cobb and the appellees. Cobb now contends that he could have produced evidence of other transactions perpetrated by the appellees to establish a pattern. However, as the evidence of record before the trial court showed but one transaction, in order to defeat the motion for summary judgment, it was incumbent upon Cobb to produce evidence of a pattern if such existed. Jenkins v. Roper Corp., 185 Ga. App. 219 (363 SE2d 625) (1987).

Decided May 23, 1989

Rehearing denied June 1, 1989.

Charles M. Evert, Sakas & Horne, Jeffrey L. Sakas, for appellant.

Richard A. Marchetti, Shannon F. Land, for appellees.

3. Cobb’s execution of the initial security deed provided no basis for Cobb’s claim of fraud. The inducements included Cobb’s receipt of $4,000 of the loan proceeds, the assurance that Miller would pay back over $14,000 of the indebtedness within a few weeks upon his church being refinanced, and the debt also being secured by the property being purchased by Miller. Cobb got the $4,000 and Miller joined in the security deed, but Miller never paid off the $14,500 because the church went bankrupt. The appellees had nothing to do with the church’s refinancing or bankruptcy, aPd had no idea that Miller would not get the funds as expected. In short, there was no evidence refuting this lack of scienter on the part of the appellees demonstrated by the evidence of record. Conner v. Branch, 185 Ga. App. 565 (364 SE2d 890) (1988).

The circumstances surrounding Cobb’s execution of the note and security deed in July 1987 provide no actionable basis for a fraud claim, because Cobb incurred no additional liability than what had attached by virtue of his execution of the initial security deed in favor of Kennon. The element of damage essential for any fraud claim is absent. Stovall Tire & Marine v. Prance Body &c. Works, 179 Ga. App. 483 (347 SE2d 313) (1986).

There being no actionable claim for fraud shown in this case, the circumstances likewise provide no support for a claim of conspiracy. See Pickelsimer v. Traditional Bldrs., 183 Ga. App. 709 (359 SE2d 719) (1987). Although appellant is in a distressful, sinking position, “[w]e think that they are both in the same boat, and that they must go down together.” McMillan v. Toombs, 79 Ga. 143, 146 (4 SE 16) (1887).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A0585.
    JOHNSON v. THE STATE.
    (382 SE2d 607)
    Decided April 27, 1989
    Rehearing denied June 1, 1989.

      Herbert Shafer, for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, David Wright, Assistant District Attorneys, for appellee.
   Sognier, Judge.

Donald Johnson was convicted of child molestation and incest, and he appeals.

1. In three enumerations of error appellant contends the tried court erred by permitting the prosecutor to ask appellant’s character witnesses whether they would believe him under oath “[i]f it was proved to you beyond a reasonable doubt that [Appellant] had sexual intercourse with [the victim].” This issue hAs been decided adversely to appellant in Mathis v. State, 175 Ga. App. 127-128 (4) (333 SE2d 10) (1985). See also Jackson v. State, 149 Ga. App. 496, 499 (2) (254 SE2d 739) (1979).

2. Appellant also challenges the trial court’s ruling allowing the State to ask a character witness called by appellant if she was aware that appellant had been arrested the previous year on an unrelated charge. As this court has approved the use of such an inquiry when, as in the case at bar, “the questions asked by the prosecuting attorney . . . were proven to be factual by [appellant’s] testimony,” Richardson v. State, 177 Ga. App. 48, 50 (2) (338 SE2d 506) (1985), this enumeration is without merit. See id. at 49-50.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A0448.
    RAINES v. THE STATE.
    (382 SE2d 738)
   Carley, Chief Judge.

Appellant was tried before a jury and convicted of rape and simple battery. He appeals from the judgments of conviction and sentences that were entered on the jury’s guilty verdicts.

1. As to the rape charge, the trial court’s denial of appellant’s motion for a directed verdict of acquittal is enumerated as error. The contention is that “there was no evidence that the sexual acts were induced by any acts of force or threats of force on the part of appellant.”

The evidence, construed most strongly against appellant and in favor of the guilty verdict, showed the following: The fourteen-year-old victim accepted appellant’s offer of a ride home. However, appellant drove her to a secluded location and parked. There, she repeatedly rejected appellant’s persistent requests for sex. She asked to be driven home or to be allowed to walk home. Appellant refused to drive her home or to allow her to leave the car unless she had sex with him. Finally realizing that appellant “wasn’t going to take [her] home” and concluding that she had no other choice, the victim gave in to his sexual demands. Over appellant’s objection, the victim was allowed to testify that she had not offered any physical resistance to appellant because she had been raped previously and had been counseled against such resistance. When appellant did return the victim to her home, she made an immediate outcry.

“The rape statute reads in pertinent part as follows: ‘A person commits [the offense of] rape when he has carnal knowledge of a female, forcibly and against her will.’ True consent to the act, of course, negates the element of force; but it is both entirely logical and legally certain that apparent ‘consent’ induced by fear is not the free consent required to prevent the act’s constituting a crime, but is the mere product of force within the meaning of the statute. [Cit.] Intimidation may substitute for force. Whether the victim consented is a fact question.” Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976). “The present case does not show the degree of force frequently found in crimes of rape, or the violent threats often made. However, there was evidence of force [or intimidation], and the circumstances provided ample ground for fear on [the victim’s] part. She repeatedly testified in regard to her fears. The jury apparently believed that it was the force exercised, and the fears which their actions produced in her mind, that caused her to yield to them, and that her consent was not of the kind to prevent the intercourse from constituting rape. The jury was authorized under the evidence to find [appellant] guilty of the crimes charged, and it was not error ... to deny the motion for [directed verdict] of acquittal.” Pierce v. State, 230 Ga. 766, 769 (1) (199 SE2d 235) (1973). See also Barnes v. State, 171 Ga. App. 478 (1) (320 SE2d 597) (1984); J. B. v. State of Ga., 171 Ga. App. 373 (1) (319 SE2d 465) (1984); Melson v. State, 157 Ga. App. 268 (277 SE2d 284) (1981). After a review of the record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the failure to sustain his objection to the admission of the victim’s testimony regarding her prior rape. As discussed in Division 1, this testimony was admitted to explain the victim’s “state of mind” and why she had not physically resisted appellant.

Decided June 1, 1989.

Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Anne Cobb, Assistant District Attorneys, for appellee.

Here, unlike Kennard v. State, 180 Ga. App. 522, 523 (3) (349 SE2d 470) (1986), the testimony related to the victim’s past experiences and was relevant to explain her contemporaneous “state of mind” and conduct in failing to physically resist appellant. Appellant took the victim as he found her and if, as the result of her prior experiences, she was not predisposed to use physical force to fend off his unwanted sexual advances for fear of the possible consequences, appellant was not entitled to have that fact withheld from the jury. Likewise, the victim’s testimony was not barred under OCGA § 24-2-3, the Rape Shield Statute. That provision precludes the introduction of evidence of the victim’s past sexual behavior. Obviously, a prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior. The trial court did not err in allowing the testimony into evidence.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0456.
    ANDREWS v. CITY OF MACON et al.
    (382 SE2d 739)
   Sognier, Judge.

Walter Yates Andrews, Jr. brought suit against the City of Macon (the City) and the Macon-Bibb County Water and Sewerage Authority (the Authority) to recover damages for injuries he sustained when a street collapsed under the front wheels of the van he was driving. The trial court granted the defendants’ motions for summary judgment, and Andrews appeals.

The material facts are not in dispute. The record reveals that on Saturday afternoon, July 5,1986, appellant was driving a van on Mercer University Boulevard in Macon when a hole opened in the pavement, causing his front wheels to sink into the collapsed space. Appellant testified by deposition that there was no hole in the street or water on the pavement before the collapse, but that when he pulled his van from the hole water began gushing out and he could see water pipes in the open space. He recalled noticing repair work performed on the road a number of times over the years, but did not remember seeing any work done at or near the scene of the accident.

Jimmy Hamm, the Authority’s inventory clerk, testified that he visited the scene several hours later and observed water standing in the hole, but saw no gushing water or exposed pipes. He acknowledged that the Authority repaired a small crack in a nearby water main the following Monday, but stated that the leak resulting from the crack was not large enough to have caused water to run onto the road in the absence of the street collapse. Hamm also testified that during a period in which there was a large differential between the volume of water pumped and the amount billed to customers, the Authority had checked for leaks in the water system by using listening devices on water meters and hydrants, but that he could not recall whether this monitoring program was in effect at the time of the incident at issue. The Authority’s water plant manager testified by affidavit that high-service pressure and high-service flow are monitored daily for the purpose of leak detection, and that his review of the records for July 5, 1986 disclosed no significant change in either indicator. He also stated that the Authority received no reports of water pipe breaks or leaks during July 1-5, 1986. Daisy Smith, the City employee responsible for recording reports and complaints regarding street repair, testified by affidavit that she had reviewed her records for the five-year period before the accident and had found only one service request for a road patch in the vicinity of the accident, which was done on December 28, 1982. It is further undisputed that the street at issue was built and widened by the State but maintained by the City, and that the water lines under the road are composed of cast iron pipe between fifty and sixty years of age.

1. The City has moved this court to dismiss the appeal under the authority of Court of Appeals Rule 14 because appellant’s brief was filed one day late, whereas appellant asserts that his brief was postmarked on the due date and thus should be deemed timely filed pursuant to Rule 4. The record reveals that appellant mailed the brief by certified mail, return receipt requested, on December 12, 1988, the last day for filing, and the brief was received in the clerk’s office and filed on December 13th. As there apparently was no postmark on the “transmittal envelope,” the City contends Rule 4 does not apply. However, appellant also submitted the affidavit of the postal clerk who postmarked the return receipt, in which he stated that the brief was mailed on December 12th and that any failure to postmark the envelope was inadvertent. Under these circumstances, the motion to dismiss is denied.

2. Appellant first enumerates as error the trial court’s grant of summary judgment to the City, contending that the City failed to pierce his allegations of negligent maintenance of the street and that a question of fact remains as to whether the City had constructive notice of the potential collapse.

“A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” (Emphasis supplied.) OCGA § 32-4-93 (a); see Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 530 (2) (307 SE2d 47) (1983). “[I]f the defect had existed only a short time so that the municipality could not reasonably have had knowledge then actual notice must be shown. However, if the street defect ‘existed for such a length of time as by reasonable diligence in the performance of its duty, the defect ought to have been known by [the municipal authority] then notice will be presumed.’ [Cits.]” (Emphasis in original.) City of Atlanta v. Hightower, 177 Ga. App. 140 (338 SE2d 683) (1985); see McKay v. City of Atlanta, 80 Ga. App. 797, 800-801 (1-3) (57 SE2d 432) (1950).

In the case at bar there is no dispute that the City did not receive actual notice until after appellant’s accident. Also, appellant testified that the hole did not appear until he drove over the spot where the street collapsed, and that there was no water in the street or any other condition to put him on notice that a potential hazard existed. Although appellant argues that the frequency of repairs performed on this street constituted constructive notice, the evidence is devoid of any indication that repairs of the street or the water main previously had been performed at or near the site of appellant’s accident, or that any similar defects or incidents had occurred. While the question of constructive notice is ordinarily one for the jury, McKay, supra at 801, in the absence of any evidence as to constructive notice there is no reasonable ground for two opinions, and thus the issue of negligence is a matter of law, not a question of fact for the jury. C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 152 (361 SE2d 34) (1987). Accordingly, we affirm the grant of summary judgment in favor of the City. See Fogarty v. Telfair County, 182 Ga. App. 163, 164 (1) (354 SE2d 880) (1987); compare Kicklighter, supra at 530-531 (2).

3. Appellant next contends that the trial court erred by awarding summary judgment to the Authority because a material fact question remains as to whether the Authority exercised ordinary care in inspecting and maintaining its sixty-year-old cast iron water lines. Specifically, appellant argues, given Hamm’s testimony regarding the monitoring of water meters and hydrants, a jury should determine whether the Authority should have used that procedure to detect the leak under Mercer University Boulevard, and whether its failure to discover the leak constituted actionable negligence.

Before a plaintiff may recover in a negligence action there must first be a “ ‘legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm .... [Cit.]’ ” Bradley Center v. Wessner, 161 Ga. App. 576, 580 (287 SE2d 716) (1982). “Actionable negligence does not exist in the absence of the breach of some legal duty. [Cit.]” Montega Corp. v. Grooms, 128 Ga. App. 333, 340-341 (9) (196 SE2d 459) (1973). Appellant contends the Authority had a duty to conduct periodic inspections of all pipes in the water system to detect leaks. Although in Georgia a municipal water authority “ ‘is not an insurer of its water or sewer system . . . [and] is required only to use reasonable care in establishing and maintaining such a system,’ ” City of Tallapoosa v. Goebel, 63 Ga. App. 1, 6 (1) (10 SE2d 201) (1940), appellant has cited no authority, and our research has not disclosed any such authority, concerning the duty to inspect underground water lines in the absence of any actual or constructive notice of a defect. Courts in other jurisdictions have concluded that absent actual or constructive notice of a defective or dangerous condition a municipal water authority has no duty to conduct costly and burdensome inspections of its underground water pipes. See I. M. of Atlantic City v. District of Columbia, 356 FSupp. 487, 491 (DDC. 1973); Grace & Co. v. City of Los Angeles, 168 FSupp. 344, 348-349 (SD Cal. 1958); A. Da Prato Co. v. City of Boston, 134 NE2d 438, 439 (SC Mass. 1956); Gillette Shoe Co. v. City of New York, 460 NYS2d 490, 491-492 (CA N.Y. 1983). We find the reasoning of these courts persuasive, and accordingly conclude that under the facts of this case there was no duty to inspect because there was no actual or constructive notice of a leak, see Division 2, supra, and “ ‘unless there is some warning of a possible defect the public or private supplier of water is not obligated to tear up the streets to inspect its pipes.’ [Cit.] While it is true that the [Authority] could have conducted tests that might have detected the presence of [a leak] without tearing up the streets, the procedure for doing so would have required that the [Authority dispatch its employees to use electronic listening devices at every water meter and fire hydrant] at regular intervals along [hundreds] of miles of pipelines. . . . We do not believe it either necessary or desirable to impose such an onerous burden upon a [municipal water authority] where there is no significant warning of a possible defect.” Gillette Shoe Co., supra at 491-492. As the Authority “did not owe [appellant] any legal duty which it neglected to perform, no action could be maintained against it for negligence on its part,” Montega Corp., supra at 340 (9), and summary judgment was properly granted to the Authority. See generally MacDonald v. Vasselin, 188 Ga. App. 467, 469 (373 SE2d 221) (1988).

4. Appellant also contends that the trial court erred by ruling on the summary judgment motions without first unsealing certain depositions filed of record. However, as appellant has cited to us no deposition testimony which raises a genuine issue of material fact, and our review of the testimony discloses no such factual dispute, this enumeration of error is without merit. Murphy v. First Nat. Bank, 182 Ga. App. 788, 789 (5) (357 SE2d 266) (1987); see Miller Grading &c. v. Ga. Fed. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442) (1981).

Decided June 1, 1989.

Dozier, Akin & Lee, Neal B. Graham, for appellant.

Joan E. Wooley, Hendley V. Napier, Karl D. Warden, Robert R. Gunn II, for appellees.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A89A0522.
    EVANS v. EAST COAST INTERMODAL SYSTEMS, INC. et al.
    (382 SE2d 743)
   Pope, Judge.

On April 15, 1988 plaintiff Daisey P. Evans filed a complaint against defendants for personal injury arising out of an automobile collision. Pursuant to plaintiffs consent to an extension of time to respond, defendants filed a timely answer to the complaint on June 27, 1988 along with interrogatories to plaintiff and a request to plaintiff for production of documents. Plaintiff failed to respond to defendants’ discovery requests and on October 4, 1988 defendants filed a motion to dismiss. The order granting defendants’ motion to dismiss was signed by the trial judge on October 7 and entered in the record by the clerk of the court on October 10,1988. Plaintiff appeals on the ground that the court erred in failing to afford plaintiff thirty days in which to respond to the motion, pursuant to Rule 6.2 of the Uniform Superior Court Rules, before the motion to dismiss was granted.

Pursuant to OCGA § 9-11-37 (d) (1) the trial court may impose the immediate sanction of dismissal for plaintiffs failure to respond to defendant’s discovery requests. Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 SE2d 441) (1987). “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” (Citations and punctuation omitted.) Bells Ferry Landing v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988). The reasons set forth in the motion for rehearing, filed by plaintiff in the lower court, do not show the failure to respond was accidental or involuntary. Under the circumstances found in this case the trial court is authorized to dismiss the complaint. Accordingly, the dismissal of the complaint before plaintiff was afforded a thirty-day opportunity to respond to the motion was harmless error. See Segrest v. Intown True Value Hardware, 190 Ga. App. 588 (379 SE2d 615) (1989).

Decided June 1, 1989.

Larsen & Larsen, W. Washington Larsen, Jr., for appellant.

Dickey, Whelchel, Brown & Readdick, John E. Bumgartner, for appellees.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A89A0116.
    THE STATE v. STEWART et al.
    (382 SE2d 677)
   Beasley, Judge.

The State appeals the grant of defendants’ motion to suppress evidence seized in a search of rented warehouse space. Defendants Tom and Brenda Stewart were indicted for the February 9, 1985 arson of their business premises in Bogart. OCGA § 16-7-60 (a) (3). In the spring of that year Tom, who was a friend of Garnett Root, approached him about renting storage space in a mini-warehouse in Root’s name. Root agreed to do so and sent an employee to the warehouse to apply for and pay rental on a space. Thereafter, Stewart gave Root the money to apply to the rental on the month-to-month lease. Stewart had the padlock and key to the space; Root had no means of ingress and never saw the inside or its contents.

In April 1986, having learned about the arson investigation, Root became suspicious that items from the fire might be stored in the space and concerned about his role as a renter. On the sixteenth he went to the GBI with his theory. Root and agents of the GBI went to the mini-warehouse where, after Agent Sosebee checked the rental agreement upon which Root’s name appeared as lessee, Root’s consent to search the storage space was obtained and entrance was gained by cutting the padlock. Items reported as destroyed in the fire of the Stewarts’ business were found inside.

The Stewarts moved to suppress the seized evidence and the trial court agreed that the search was illegal because Root’s consent was ineffective. The question is: does the person who is the lessee of premises under the terms of a lease have sufficient control of the premises so that he can consent to a search even though he did not retain a method of access? I

Suppression was based upon the facts that Root had no control over the storage area and could not consent to the search “in his own right”; that the Stewarts had an expectation of privacy in the space; and that they had not “assumed the risk” that Root would consent, because Tom had retained sole possession of the key to the padlock he had installed. The State contends that Root did not lack authority to consent to the search and the Stewarts did not have an expectation of privacy in the storage space.

This appeal rests upon U. S. Constitutional protections. United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242) (1974), held: “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” “Common authority” as defined in a footnote “is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. at 171, fn. 7.

Root was named as lessee on the rental agreement. While this represents an interest in the leasehold, it does not establish either “mutual use of the property” or “joint access or control.” Root had never been to the warehouse space prior to the search, although he paid rent at the rental office, and he did not have a key to access the space. He would have had to obtain Stewart’s permission, as well as the key, to enter the space. Thus his third-party consent lacked “common authority” and was not predicated on the requisite control of the area. As in State v. Oliver, 183 Ga. App. 92, 93 (357 SE2d 889) (1987), Root did not have mutual use of the property and the fact that the officers believed in good faith that he had authority to consent did not make their warrantless search and seizure lawful. Without exigent circumstances, they could not bypass the Constitutional safeguard of obtaining a warrant. Browning v. State, 176 Ga. App. 420, 423 (1) (336 SE2d 41) (1985).

The cases on which the State relies in which searches were permitted involve universally one who has the key to the premises or other access due to the parties’ relationship or other right to ingress, egress, occupancy or control. See, e.g., United States v. Matlock, supra; United States v. Botsch, 364 F2d 542 (2nd Cir. 1966); United States v. Curcio,_FSupp. _ (E.D. Pa. 1988). Compare United States v. Wyler, 502 FSupp. 959 (S.D. N.Y. 1980), in which the federal court found the consent of a mortgagor of the premises was invalid as to lessees where the mortgagor had no automatic contractual right to re-enter. Chapman v. United States, 365 U. S. 610 (81 SC 776, 5 LE2d 828) (1961), held that a landlord could not validly consent to the search of his rented house.

Decided May 16, 1989

Rehearing denied June 2,-1989

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

Bradley S. Wolfe, Russell T. Quarterman, for appellees.

Insofar as the State might argue abandonment through non-payment of rent, see Smith v. State, 186 Ga. App. 303, 308 (3) (367 SE2d 573) (1988), this did not obviate the need for a search warrant. On April 16 when the search took place, the rent for the month was overdue but that had occurred in the past since Root did not pay the rent until he was given the money by Tom. On the advice of the searching officers, Root obtained the money from the Stewarts within a few days. The lease agreement provided that the lessor could secure the area when the rent was 60 days overdue but could not enter until after 90 days had expired. The proof did not demand a finding of abandonment.

Because Root was without the necessary authority and control of the area searched, the Matlock test was not met and the suppression of the evidence was not error.

Judgment affirmed.

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


text:
    A89A0169.
    DEPARTMENT OF TRANSPORTATION v. SWANSON.
    (382 SE2d 711)
   Sognier, Judge.

The Department of Transportation initiated condemnation proceedings against .801 acre of land owned by La Myra Kane Swanson, paying $39,130 into court. At trial Swanson introduced evidence that the fair market value of the property was $244,000. The jury verdict set the just and adequate compensation due Swanson at $132,000 and judgment was entered thereon. DOT appeals.

1. Appellant contends the trial court erred by allowing appellee’s counsel to elicit from appellant’s expert on cross-examination the fact that the condemned property had been appraised by two other appraisers and the names of those appraisers. Neither appraiser was called as a witness by either party.

While any party can call as his own witness an expert real estate appraiser who had evaluated the property on behalf of the opposing party and compel that appraiser to testify to his opinion about the value of the property, Logan v. Chatham County, 113 Ga. App. 491-492 (1) (148 SE2d 471) (1966), and while that expert witness can properly testify that he did appraisal work for the opposite party in the past, Department of Transp. v. Cochran, 160 Ga. App. 583, 585 (2) (287 SE2d 599) (1981), both Logan and Cochran established that an expert witness employed by one party and called to testify by the other party cannot be questioned in regard to his employment by the opposing party to appraise the property in issue between the parties. Department of Transp. v. Wright, 169 Ga. App. 332, 336-337 (2) (312 SE2d 824) (1983) extended the rationale in Logan and applied it to a situation where the DOT alleged as error the trial court’s exclusion of any reference at trial to the fact that two expert witnesses (hired by the condemnees to give their opinions about the value of the property when a portion of that property had been earlier condemned by another condemnor, MARTA) were not called to testify as to that issue at the trial of the remaining property being condemned by the DOT. This court rejected the DOT’s impeachment argument, finding that the rationale in Logan “extends beyond the mere substance of the expert’s opinion, and mandates the exclusion of even the fact that such experts were retained and utilized in an earlier action, but were not called by the opposing party in the instant action. ‘(A)ll questions relating to the expert’s employment by the (condemnees) would be irrelevant and inadmissible . . . Testimony as to the original employment was not pertinent to the issues in the case and if admitted over objection would have been prejudicial and harmful to (condemnees) and on appeal by (condemnees) would have constituted grounds requiring a reversal.’ . . . [Cits.]” Wright, supra at 337 (2).

In the case sub judice, had the two reed estate appraisers, whose existence and association with appellant were in issue, been called by appellee to give their opinions about the value of the property, they could not have been questioned about their employment by appellant in this case. Logan, supra. Since the witnesses themselves could not have so testified, it follows that another witness for the party who employed the witnesses could not have testified to the same effect, since the evidence remains irrelevant and inadmissible regardless who testifies to it. We do not agree with appellee that a distinction should be made based on whether it is the condemnor or the condemnee who seeks to introduce such evidence. “Neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise realty being condemned . . . .” (Emphasis supplied.) Logan, supra at 493. Since testimony as to the employment of two other real estate appraisers by appellant was not pertinent to the issues in the case and was prejudicial and harmful to appellant, the trial court committed reversible error by admitting the testimony over objection. See Wright, supra at 337 (2).

2. The condemnation of the .801 acre resulted in the taking of appellee’s access to Mount Paran Road. Appellee testified that in her opinion the value of her property had decreased as a result of the taking of that access, based on what she had been told by “real estate people.” Appellant raised a hearsay objection to this testimony and enumerates as error the overruling of its objection. No objection was made to appellee’s testimony on the basis that she failed to state the facts upon which her opinion was based. See OCGA § 24-9-66. Compare State Hwy. Dept. v. Raines, 129 Ga. App. 123, 124-125 (1) (199 SE2d 96) (1973); City of Alma v. Morris, 180 Ga. App. 420, 421 (3) (349 SE2d 277) (1986). “Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable for the reason stated. Market value may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.” (Punctuation and citations omitted.) B & L Svc. Co. v. Gerson, 167 Ga. App. 679, 681 (307 SE2d 262) (1983). Admission of appellee’s testimony was not error for the reason asserted at trial by appellant.

3. Appellant contends the trial court erred by admitting two photographs which appellant asserts showed temporary inconvenience due to construction. The two photographs, taken shortly before trial, depicted the driveway to appellee’s property and were admitted by the trial court solely to show the removal of trees by the driveway. “ ‘The admission of evidence is a matter which rests largely within the sound discretion of the trial judge. However, (t)he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.’ . . . [Cit.] ‘Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. (Cits.)’ [Cit.]” Weathers v. Cowan, 176 Ga. App. 19, 20 (1) (335 SE2d 392) (1985). See also Department of Transp. v. Freeman, 187 Ga. App. 883, 886 (2) (371 SE2d 887) (1988). The challenged testimony was relevant as it tended to illustrate the contested question of the value of the land taken and the consequential damages to the remainder and for that reason was competent. See generally Gaines v. Dept. of Transp., 140 Ga. App. 741, 742 (2) (231 SE2d 829) (1976).

Since the two photographs were not admitted to show temporary inconvenience, and the record reveals that appellee did not seek damages for temporary inconvenience, we find no error in the trial court’s refusal to charge the jury appellant’s request to charge no. 2 concerning damages for the temporary period of construction. See generally Freeman, supra at 885 (1).

Decided May 24, 1989

Rehearing denied June 2, 1989

Weiner, Dwyer, Yancey & Mackin, Beryl H. Weiner, J. Matthew Dwyer, Jr., Thomas C. Dempsey, for appellant.

Gambrell, Clarke, Anderson & Stolz, Paul H. Anderson, for appellee.

4. In two related enumerations, appellant asserts error in the giving of one charge and the failure to give another charge relating to the widening of the lanes on Interstate 75. The record reveals that appellant widened the highway lanes on the right of way property it already owned but in the process condemned the property in the case at bar, which abutted the pre-existing right of way and which had contained vegetation shielding appellee’s remaining property from the interstate highway.

On appellate review, a charge must be considered as a whole and each part in connection with every other part of the charge. Zayre of Ga. v. Ray, 117 Ga. App. 396, 398 (5) (160 SE2d 648) (1968). We find no error in the trial court’s charge that the jury could consider “the increase in noise and dust arising from the close proximity to the remaining property of the traffic lane of the widened interstate highway abutting the remaining property” when read in context with the trial court’s instruction as a whole that the noise and dust are elements reasonably affecting the value of the remaining property, because a jury is allowed to consider “all the elements reasonably affecting value” under Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). Since, as appellant notes in its brief, no part of the subject property was needed or condemned for the widening of the interstate, we find no error in the trial court’s refusal to charge the jury that it should not consider a matter not in issue, i.e., “the use or the expanded use of the existing right of way which the [appellant] already owned.” See generally Freeman, supra at 885 (1).

5. Finally, in regard to the trial court’s failure to give appellant’s request to charge no. 17, a reading of that charge reveals it included a statement regarding remote or speculative benefits. Since the issue of benefits was not raised by the evidence, the charge requested was not pertinent or adjusted to the facts of the case and the trial court did not err by failing to so instruct the jury. See generally Sapp v. Johnson, 184 Ga. App. 603, 605 (1) (362 SE2d 82) (1987).

Judgment reversed.

Banke, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A89A0208.
    LIGHTWERK STUDIOS, INC. et al. v. DOOR UNITS OF GEORGIA, INC.
    (382 SE2d 699)
   Deen, Presiding Judge.

A contract between appellant Lightwerk Studios, Inc. (Lightwerk), and Door Units of Georgia, Inc., d/b/a Trimline Sales Company (Trimline), whereby the latter would supply specified models of doors in which Lightwerk would install panels of a certain size and type, led to a suit on account by Trimline against Lightwerk and Thomas Santora, seeking principal due, plus interest and attorney fees. The trial court granted certain motions of appellee Trimline and also granted partial summary judgment as to principal ($1,344.67), interest ($322.72), and costs ($84.50). A direct appeal asserting the same errors as those enumerated herein was filed in this court in February 1987. Lightwerk Studios v. Door Units of Ga., 184 Ga. App. 148 (361 SE2d 32) (1987). That appeal was dismissed pursuant to OCGA § 5-6-35 (a) (6), which makes discretionary all appeals in actions for damages in which the amount at issue is $2,500 or less. This court held that since the other rulings in the trial court (including a counterclaim for breach of contract and warranties) were interlocutory, the cited Code section, supra, was applicable and mandated dismissal. See OCGA § 5-6-34. Lightwerk’s counterclaim under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), was voluntarily dismissed May 17, 1988, thereby rendering final the trial court’s judgment of October 14, 1986, and the instant appeal followed.

Appellant Santora, a principal in Lightwerk, had signed a personal guaranty of payment to Trimline. A licensed attorney, he appeared as counsel for Lightwerk but acted pro se in his personal capacity. The record is replete with disputes over discovery matters; allegations and counter-allegations of bad faith, including avoidance of service of process and failure to give proper notice; and additional recriminations of various sorts. Lightwerk claims that it was put to extra expense and also encountered customer complaints because Trimline allegedly ceased to supply the two sorts of doors for which Lightwerk had designed its custom fittings, and because the doors supplied were defective. Trimline alleged that Lightwerk had raised these objections only after demand for payment had been made. Held:

We have thoroughly reviewed not only the record in the instant appeal but also that of the 1986 appeal, cited supra. Our review leads us to the following conclusions regarding appellants’ enumerations.

1. The evidence indicates that defendants/appellants were uncooperative in arranging for discovery, to the extent of justifying the trial court’s granting appellee’s motion to strike appellants’ answer and counterclaim. In striking the answer and counterclaim in a fact situation almost exactly like that in the instant case, this court held in Freeman v. Ripley, 177 Ga. App. 522, 523 (339 SE2d 795) (1986): “We find no abuse of the trial court’s discretion.” Likewise, we find none here, and the first enumeration is without merit.

2. The trial court did not err in granting appellee’s motion regarding the assessment of attorney fees against defendant/appellant for expenses incurred when appellants failed to appear for lawfully noticed depositions and to provide other requested discovery items promptly and fully. See OCGA § 9-11-37 (a) 4; Freeman v. Ripley, supra. This enumeration, likewise, is devoid of merit.

3. The trial court properly granted partial summary judgment to Trimline as to principal amount due, pre- and post-judgment interest, and costs. “When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise as provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment. . . shall be entered against him.” OCGA § 9-11-56 (e). Lightwerk was unable successfully to refute the figures set forth by appellee and therefore did not meet its statutory burden. See also OCGA § 9-11-36 (a). We find no error here.

4. The trial court did not err in granting Trimline’s motion to compel discovery. Appellants’ conduct, as indicated by the record, was such as to make such an order highly appropriate in the circumstances of the instant case. See OCGA § 9-11-37. This enumeration has no merit.

5. It is undisputed that appellant Santora, an experienced attorney and the attorney of record for appellant Lightwerk, received “lawful” notice of the October 14, 1986, hearing, despite his contentions to the contrary. It is undisputed that notice of the hearing appeared in the Fulton County Daily Report. Santora, like any other litigant, is deemed thereby to have received legally sufficient notice of the hearing. This enumeration is also without merit.

6. In the circumstances of the instant case, we find no error in the trial court’s granting Trimline’s motion for a protective order. OCGA § 9-11-26 (c) provides that the trial court (or, in certain instances, another appropriate court) may enter an order “to protect a party or person from annoyance ... or undue burden or expense, including . . . (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place.” The record indicates that such an order was clearly authorized in the fact situation below. This enumeration, too, is without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided May 23, 1989

Rehearing denied June 2, 1989

Jacqueline Santora, pro se.

Thomas Santora, pro se.

J. Guy Sharpe, Jr., for appellee.


text:
    A89A0295.
    KOLMAN, INC. v. BURNS.
    (382 SE2d 702)
   Sognier, Judge.

Betty Burns brought suit against Kolman, Inc. d/b/a Sunnyside Park Nursery seeking to recover $4,150 in deposits she had made for landscaping services to be performed by Kolman. Kolman answered and counterclaimed seeking, inter alia, recovery of fees for preparatory services it had performed. The trial court entered judgment on the jury verdict in favor of Burns and denied Kolman’s motion for judgment notwithstanding the verdict or, alternately, for a new trial. Kolman appeals.

At trial, evidence was adduced from which the jury could have determined that on October 15, 1985, the parties entered into an agreement whereby appellant, in exchange for $12,154.19, agreed to provide all necessary materials, labor, transportation, tools, and other matters to landscape appellee’s home. Pursuant to the agreement, appellee presented appellant with a personal check for approximately one third of the agreement price ($4,000), the remaining balance being due upon completion. By consent of the parties, appellee postdated the check to October 20, 1985. The parties agreed that appellee asked that the check be held until that date. While the evidence sharply conflicted, the jury was authorized to believe that after entering the agreement, appellee had reservations about the prices charged by appellant and telephoned appellant to request it hold the check, which it agreed to do. Nevertheless, appellant deposited the check and it cleared appellee’s checking account on October 22nd. Upon learning that the check had been negotiated, appellee rescinded the contract and sought the return of the $4,000 plus the $150 deposit she had made for the landscaping plans.

Appellant contends the trial court erred by denying its motions for judgment n.o.v. or, alternately, for a new trial as to the issue of the unconditional terms of the check being made conditional by an alleged parol agreement, i.e., the agreement to hold the check until appellee authorized its deposit. Appellant also alleges error in the trial court’s refusal to give various requested charges concerning the unconditional nature of checks and certain aspects of the parol evidence rule. However, it is apparent that appellee’s suit was not based on the legal enforceability of the conditions she claims were established by oral agreement, but rather was based on appellee’s entitlement to her deposits after having disaffirmed the contract for any reason, valid or otherwise. See generally Haralson v. Pope Chevrolet, 180 Ga. App. 650, 654 (350 SE2d 255) (1986). The jury was authorized to find that the contract between the parties was executory, see OCGA § 13-1-2 (b), and that appellee stopped performance on the contract because she suspected appellant had overcharged her on certain items and was upset with appellant for depositing her check before she had an opportunity to prove or disprove her suspicions. “ ‘A party to an executory contract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has sustained by reason of having his performance checked at that stage in its progress.’ [Cit.]” Southern Saw Mill Co. v. Herzfield, 35 Ga. App. 206 (1) (132 SE 264) (1926). Contrary to appellant’s assertions on appeal, the pivotal question for the jury was not whether the reasons appellee proffered for rescinding the contract demonstrated a legal breach of any contract provision by appellant, but rather the questions for the jury were whether appellant suffered any damages as a result of appellee’s breach of the contract and whether appellee was entitled to the return of her deposits from appellant. The transcript of the trial reveals ample grounds from which the jury could have concluded that appellant suffered no damages whatsoever from appellee’s decision to disaffirm the contract, and appellant does not controvert appellee’s right to recover the deposits she had made for landscaping services which were never performed.

“ ‘It is an old and sound rule that error to be reversible must be harmful. (Cits.) Thus, when a plaintiff in error (appellant) brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party.’ [Cit.]” Smith v. Hendrix, 162 Ga. App. 299, 302 (290 SE2d 504) (1982). Even assuming, as appellant contends, that appellee improperly relied upon an oral agreement contradicting the terms of an unconditional check when she decided to disaffirm the contract, and that the jury was not fully instructed that the reasons for appellee’s actions were legally insufficient, the evidence fully supports the jury’s determination that appellant suffered no damages as a result of appellee’s improper actions and that she was entitled to recover the deposit she had made. Therefore, this appeal presents no error requiring reversal of the jury verdict in the case sub judice.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Decided May 23, 1989

Rehearing denied June 2, 1989

Eichholz & Associates, Michael A. Lewanski, Gregory V. Sapp, for appellant.

Kent & Barrow, Jordan D. Morrow III, for appellee.


text:
    A89A0459.
    BOWEN v. THE STATE.
    (382 SE2d 694)
   Pope, Judge.

The record shows that on three separate occasions before the jury was impanelled in defendant’s trial for armed robbery, the court conducted proceedings to determine whether defendant wished to change his plea from not guilty to guilty. The first occasion concluded when defendant responded to the trial judge: “Start a trial.” On the second occasion, the defendant stood mute to the judge’s question as to how he wished to plead. Only after the judge instructed the clerk to bring in two jury panels for voir dire did the defendant respond: “Guilty.” Voir dire proceedings commenced after the judge instructed the defendant: “[W]e are not going to be playing games here.” On the third occasion, defendant indicated he wished to plead guilty but was reluctant to accept the terms negotiated by his attorney and the prosecuting attorney. He also denied he was in fact guilty of the offense but stated he wished to avoid a jury trial out of fear that his prior criminal record would be revealed to the jury. Generally, a trial court is not required to accept a criminal defendant’s plea of guilty. See Echols v. State, 167 Ga. App. 307 (1) (306 SE2d 324) (1983) and cases cited therein. Because the record reveals defendant’s ambivalence concerning his plea, we find the trial court did not abuse its discretion in refusing to accept defendant’s guilty plea.

Although defendant’s sole enumeration of error is that the trial court erred in refusing to accept defendant’s guilty plea, in defendant’s brief he also argues the conduct of his trial counsel during the plea hearings shows he was denied effective assistance of counsel and further argues the trial court erred in imposing a greater sentence on the jury’s verdict of guilty than would have been imposed if the guilty plea had been accepted. “It is the basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. Hibbert v. State, 146 Ga. App. 887 (3) (247 SE2d 554) [1978]. And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. Key v. State, 147 Ga. App. 800 (2) (250 SE2d 527) [1978].” Anfield v. State, 188 Ga. App. 345, 346 (373 SE2d 51) (1988).

Decided May 22, 1989

Rehearing denied June 2, 1989.

Charles M. Taylor II, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0467.
    EXPOSITO v. THE STATE.
    (382 SE2d 412)
   Beasley, Judge.

Defendant Expósito appeals his convictions after a bench trial for trafficking in cocaine and giving a false name to a law enforcement officer. He enumerates as error the denial of his motion to suppress and the sufficiency of the evidence to sustain his convictions.

Defendant’s attempt to argue that the court erred by excluding certain evidence will not be considered because it falls outside the scope of his enumerations of error. Strong v. State, 161 Ga. App. 606, 608 (6) (288 SE2d 921) (1982).

The evidence given at the hearing on the motion to suppress came entirely from the testimony of DEA Agent Johnson. He related that defendant and two others, Resca and Charpentier, were approached by him at the airport because their actions aroused his suspicions. He showed them his badge and credentials and inquired if he could speak with them. Two replied in the affirmative verbally and defendant nodded in agreement. Each was asked to show his plane ticket and each one handed his ticket to Johnson. Resca furnished his name and identification. Charpentier stated his name was Mitchell and provided no identification. When Johnson asked defendant his name he replied “Gonzales.” The identification he then furnished showed his true name was Expósito.

Based upon the circumstances, Johnson sought and obtained consent to search from each of the three, Resca and Charpentier responding “yes” verbally and defendant again nodding affirmatively. He never indicated he did not understand the officer’s requests. They all agreed to a private search and accompanied Johnson to a VIP lounge. Johnson told defendant to “sit down . . . because if nothing else happens, you’re staying with me.” Johnson testified from that point on he considered defendant under arrest for giving a false name and he intended to search defendant incident to the arrest, regardless. However, Johnson requested that Resca ask defendant in Spanish if he would consent to search of his bag. Resca related that defendant acknowledged the bag which he carried from the plane was his and agreed to a search. When the search uncovered 1013 grams of what was later determined to be 79 percent pure cocaine hydrochloride Resca fled.

1. According to the United States Supreme Court there are three levels of encounter between an individual and the police. The first involves the mere accosting by an officer usually requesting name and identification. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. The second is the “Terry type” [Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)] stop involving temporary restraint, a brief “seizure” which must be supported by articulable suspicion. The third is an actual or de facto arrest which requires probable cause and involves restraint of one’s liberty. Florida v. Rodriquez, 469 U. S. 1, 5-6 (105 SC 308, 83 LE2d 165) (1984); Florida v. Royer, 460 U. S. 491, 497-500 (103 SC 1319, 75 LE2d 229) (1983); United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980); State v. Richardson, 187 Ga. App. 456, 458 (370 SE2d 762) (1988); Reid v. State, 179 Ga. App. 144, 145 (345 SE2d 635) (1986).

Here the initial encounter was of the first type which needed no basis but was sustained by routine police work investigating possible law violations. That led to articulable and reasonable suspicion resulting from the mannerisms and actions of the trio and thence, by a natural maturation process, to probable cause for a law violation when defendant gave the officer a false name. See Reid, supra at 146. Although the officer now had a basis to pursue a search, i.e., a valid arrest, he sought defendant’s consent and received what he reasonably perceived to be acquiescence.

Defendant argues persuasively that if he did not understand English then he could have acted just as he did while being perfectly innocent of any wrongdoing and while retaining his right to decline to consent or submit to a search. But there is only an inference that he spoke only Spanish and was incapable of understanding anything said to him in English. There is not a shred of direct evidence to that effect. We are asked to infer from the fact that the officer requested Resca to translate to him a request for his consent the fact that he did not comprehend what had been and was being asked of him. That inference requires a further inference, that Resca gave defendant an erroneous translation of what was sought so his consent was to something other than a search. The evidence does not require such a finding and the trial court’s contrary determination was not clearly erroneous. Williams v. State, 251 Ga. 749, 792 (8a) (312 SE2d 40) (1983); Voight v. State, 169 Ga. App. 653, 654 (314 SE2d 487) (1984); Mc- Shan v. State, 155 Ga. App. 518, 519 (2) (271 SE2d 659) (1980).

Decided May 19, 1989

Rehearing denied June 2, 1989.

James W. Bradley, for appellant.

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

Even if the consent was not given, the misdemeanor committed in the officer’s presence authorized the search. Verhoeff v. State, 184 Ga. App. 501, 502 (362 SE2d 85) (1987); Taylor v. State, 181 Ga. App. 703, 704 (353 SE2d 619) (1987); Laws v. State, 180 Ga. App. 528, 529 (349 SE2d 478) (1986); Williams v. State, 171 Ga. App. 807, 808 (1) (321 SE2d 386) (1984).

2. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes charged.

Judgment affirmed.

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


text:
    A89A0519.
    OLSEN v. THE STATE.
    (382 SE2d 715)
   Sognier, Judge.

William Louis Olsen was convicted on charges of rape, kidnapping, aggravated sodomy, theft by bringing stolen property into the state, and possession of a knife during the commission of a crime, and he appeals.

Construed to support the verdict, the evidence adduced at trial showed that appellant left Maryland in an automobile he knew was stolen and drove south on Interstate 95 intending to visit Florida. He picked up a hitchhiker, Randy Holding, and together they entered Georgia, stopping in Savannah to visit the riverfront bars. It was at such .a liar that the two men met the victim and subsequently gave her a ride home. The victim, thinking her roommate was present, allowed the two men to come inside with her in response to Holding’s request to use the bathroom. Appellant sat beside the victim on the couch in the living room and made repeated sexual advances which the victim resisted. Both men refused to obey the victim’s order to leave. Appellant then forced the victim to the floor, pulling her skirt up and her pantyhose down. The victim screamed to Holding for help, but he took no action, and appellant muffled the victim’s mouth with his hand and struck her in the head. Appellant first tried to drag the victim, but when she resisted he carried her into the bedroom and, in order to stifle her screams, choked her almost to unconsciousness. Appellant then raped and sodomized the victim.

Afterwards, appellant acceded to the victim’s request for a glass of water and accompanied her to the bathroom, holding both her wrists. The victim left the faucet running and broke free of appellant’s grasp. In the moments it took for appellant to turn off the water the victim returned to her room, grabbed her gun, which had been unreachable during the assault, from the headboard of the bed, and fired all five shots in the weapon at appellant, injuring but not incapacitating him. The victim dialed the local emergency number and, bluffing appellant with an empty gun, allowed him to collect his clothing and leave. The victim was too badly shaken to reload the gun but followed him outside where she and a newspaper delivery man noted the out of state license plate number of the vehicle in which appellant left the apartment complex. Several hours later a vehicle with a Maryland plate with numbers almost identical to the one noted by the victim and the passerby was stopped. Holding was driving and appellant was a passenger. Four knives with blade lengths exceeding three inches were found inside the vehicle within appellant’s reach.

1. Appellant contends the trial court erred by failing to merge the crimes of kidnapping with bodily injury, OCGA § 16-5-40, and aggravated sodomy, OCGA § 16-6-2 (a). OCGA § 16-1-7 (a) provides: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” Since these crimes do not fit within the second portion of the test, their merger “will depend upon whether one is included in the other. One crime is included in another when: ‘[1] it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or [2] it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.’ [OCGA § 16-1-6].” Thomas v. State, 237 Ga. 690, 694 (229 SE2d 458) (1976).

The kidnapping and aggravated sodomy crimes did not merge here as a matter of law since the distinct essential elements for each crime are different. See OCGA §§ 16-5-40; 16-6-2; see generally Freeman v. State, 184 Ga. App. 678-679 (1) (362 SE2d 413) (1987). Nor did the crimes merge here as a matter of fact since, contrary to appellant’s argument that the aggravated sodomy constituted the bodily injury here, there was sufficient evidence from which the jury could have found that appellant’s action in choking the victim almost to the point of unconsciousness after forcibly taking the victim from the living room to the bedroom constituted the bodily injury necessary to establish all the elements of kidnapping with bodily injury, OCGA § 16-5-40, which was completed before appellant committed the aggravated sodomy. See generally Williams v. State, 184 Ga. App. 480, 481 (2) (361 SE2d 713) (1987); compare Fredrick v. State, 181 Ga. App. 600, 602 (2) (353 SE2d 41) (1987). Accordingly, appellant was properly convicted and sentenced for both offenses. Williams v. State, 156 Ga. App. 481-482 (1) (274 SE2d 826) (1980).

2. Appellant contends the trial court erred by not conducting a hearing out of the presence of the jury as to the voluntariness of the statement he gave the police. The State presented extensive evidence that a statement given Detective Pat Slawter by appellant was freely and voluntarily made after appellant was advised of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)). No objection was made to this foundation evidence. Rather, objection was made to the use of a transcript in place of the tape recorded statement and to the clarity of the tape. The trial court sustained the objection to the use of the transcript but admitted the tape recording itself. Several minutes into the recording, defense counsel objected to a reference therein to a prior crime, after which the trial court sustained defense counsel’s earlier objection to the clarity of the tape. The trial court allowed the State to question Detective Slawter about what appellant told her during the interview. Shortly after this questioning began, appellant’s counsel stated that “unless the Court feels that it’s already been done, I think we need a Jackson/Denno hearing.” The trial court overruled the objection as untimely.

“Though presented in the presence of the jury, the evidence clearly showed that the confession was freely and voluntarily given by the appellant. Since there was no objection to this foundation evidence, appellant’s later objection to the admissibility of the taped confession was without merit. And his contention here, that a Jackson-Denno hearing [Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)] was not conducted, is likewise without merit.” Pierce v. State, 238 Ga. 682 (235 SE2d 374) (1977).

3. We find no merit in appellant’s enumeration asserting an insufficiency of the evidence to support his conviction for theft by bringing stolen property into Georgia, OCGA § 16-8-9. Appellant testified at trial that while in Maryland, he decided to go to Florida and began the trip in an automobile he knew was stolen. He acknowledged that he knew that the vehicle he brought into Georgia was stolen. Even assuming, arguendo, that appellant did not “bring” the vehicle into the state because he was not physically behind the steering wheel at the moment the vehicle crossed the state line, having picked up Holding, a hitchhiker, to share the driving, appellant was nevertheless a party to the crime under OCGA § 16-2-20. We find the evidence sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charge under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 24, 1989

Rehearing denied June 2, 1989.

Cail & Cail, Kenneth H. Cail, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

4. Appellant asserts the evidence was insufficient to support his conviction for possession of a knife during the commission of a crime. OCGA § 16-11-106 (b) provides: “Any person who shall have on or within arm’s reach of his person a firearm or a knife having a blade of three or more inches in length during the commission of, or the attempt to commit:... (3) A theft from a building or theft of a vehicle . . . commits a felony . . . .” Evidence was adduced at trial from which the jury could have found that appellant committed a theft under Title 16 Chapter 8 involving a vehicle, see Division 3, supra, and that during the commission of that theft appellant had within arm’s reach four knives with blade lengths of three or more inches. Contrary to appellant’s assertion in his brief, the evidence did not show that all the knives belonged to the vehicle’s rightful owner since appellant testified that State’s Exhibit No. 13, one of the knives in the stolen vehicle, belonged to him and was in his possession when he left Maryland. As to appellant’s arguments regarding the trial court’s charges on this subject, “[i]t is the basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. [Cit.] And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. [Cit.]” Anfield v. State, 188 Ga. App. 345, 346 (2) (373 SE2d 51) (1988).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0616. A89A0617.
    TIME INSURANCE COMPANY, INC. v. ROBERTS et al. W. M. SHEPPARD LUMBER COMPANY, INC. et al. v. ROBERTS.
    (382 SE2d 718)
   Sognier, Judge.

Emory D. Roberts filed suit against W. M. Sheppard Lumber Company, Inc. and its president, W. M. Sheppard (hereinafter collectively referred to as “Sheppard”), to recover damages he allegedly incurred when Sheppard allowed a group health insurance policy to lapse. Sheppard filed a third-party complaint against Time Insurance Company, Inc., its health insurance carrier. We granted Time’s application for interlocutory appeal from the denial of its motion for summary judgment in Case No. A89A0616 and Sheppard’s application for appeal from the grant of Roberts’ motion in limine and motion for protective order in Case No. A89A0617.

The record reveals that Roberts was employed by Sheppard, and that he and his family were covered by the group health insurance policy Sheppard provided to its full time employees. Time cancelled the policy in May 1986 for nonpayment of the April and May premiums, and Sheppard unsuccessfully sought reinstatement. Sheppard continued to deduct Roberts’ portion of the premium from his paycheck for several months after the policy was cancelled. After Roberts’ claims for reimbursement of medical expenses incurred in September 1986 were not paid, he filed suit, alleging breach of fiduciary duty and fraud and seeking damages for past and future medical expenses. Sheppard then asserted its third-party claim against Time for indemnification.

1. In Case No. A89A0616 Time contends the trial court erroneously rejected its motion for summary judgment, arguing that Roberts’ complaint is wholly preempted by the Employee Retirement Income Security Act (ERISA), 29 USC § 1001 et seq., and thus Sheppard’s indemnification claim against Time presents no material factual dispute.

“With the exception of four narrow exclusions not relevant to this action, Congress has mandated that ERISA ‘shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.’ [Cits.] ‘The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law,’ [cit.], and any state law having ‘a connection with or a reference to’ an employee benefit plan covered by ERISA is preempted. [Cit.] Federal district courts have exclusive jurisdiction over all ERISA claims except those brought by a plan participant or beneficiary ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’ [Cits.]” Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 819 (2) (a) (377 SE2d 901) (1989).

In the case at bar it is contended that there is no ERISA preemption because the health insurance policy at issue was not covered by ERISA, and that no relief is sought under any provision of ERISA. We do not agree. ERISA applies, inter alia, to any “employee welfare benefit plan,” which is defined as “any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits . . . .” 29 USC § 1002 (1). There is no dispute that the insurance coverage at issue was procured by Sheppard, the employer, for the purpose of providing the participants and beneficiaries (i.e., the full time employees and their families) with medical, surgical, and hospital benefits. This coverage constitutes a “plan, fund, or program” “established or maintained by” Sheppard, and thus is covered by ERISA if “from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits. . . . [T]he purchase of a group policy or multiple policies covering a class of employees offers substantial evidence that a plan, fund, or program has been established.” (Footnote omitted.) Donovan v. Dillingham, 688 F2d 1367, 1373 (11th Cir. 1982). The health care coverage at issue was provided by Sheppard for its full time employees and their dependents through the purchase of a group health insurance policy, and Sheppard paid the premiums to Time and processed the claims. The scope of benefits could be determined by referring to the policy handbook distributed to the employees. Thus, as the benefits, beneficiaries, and procedures were clearly identifiable, the insurance constituted a program maintained by Sheppard, and was an employee welfare benefit plan covered by ERISA. See Donovan, supra at 1372-1375; see also Belasco v. W. K. P. Wilson & Sons, 833 F2d 277, 279-281 (II) (11th Cir. 1987).

There also can be no dispute that Roberts’ complaint “relates to” an employee benefit plan, as he seeks damages for his employer’s alleged breach of its fiduciary duty to pay the premium and keep the insurance policy in effect. Although Roberts contends his complaint was drafted to assert state common law claims rather than a cause of action under ERISA, given Congress’ intent to occupy the field completely, we must construe Roberts’ complaint, which alleges various wrongful acts by Sheppard, the plan fiduciary, as falling within the scope of § 502 (a) of ERISA, 29 USC § 1132 (a), and thus preempted by ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (107 SC 1549, 95 LE2d 39) (1987). Moreover, given that Roberts’ claim seeks damages for Sheppard’s alleged breach of fiduciary duty and failure to pay the insurance premiums when due, his complaint does not Ml within the scope of 29 USC § 1132 (a) (1) (B) so as to provide state courts with concurrent jurisdiction. See Local 2134, UMW v. Powhatan Fuel, 640 FSupp. 731 (ND Ala. 1986), rev’d in part on other grounds, 828 F2d 710 (11th Cir. 1987); Porter, supra at 820-821 (2 (b)). Thus, the trial court had no subject matter jurisdiction over the original cause of action, and accordingly there is no basis for secondary liability of Time to Sheppard for Roberts’ claims. However, as a motion for summary judgment cannot be granted in such circumstances, we reverse and remand with direction to dismiss the third-party complaint. See Porter, supra at 821 (2 (b)).

Decided May 24, 1989

Rehearing denied June 2, 1989

Brennan, Harris & Rominger, Richard A. Rominger, G. Mason White, for Time Insurance.

Allen, Brown, Bruce & Dasher, Charles H. Brown, Edenfield, Stone & Cox, Susan W. Cox, for Roberts.

Oliver, Maner & Gray, I. Gregory Hodges, William T. Moore, Jr., Wendy W. Williamson, for Sheppard.

2. Our decision in Division 1 renders moot Time’s remaining enumerations of error.

3. Because we have determined that the trial court did not have subject matter jurisdiction over Roberts’ claim against Sheppard, we dismiss Sheppard’s appeal in Case Ño. A89A0617 from the grant of Roberts’ motion in limine and motion for protective order as improvidently granted.

Judgment reversed with direction in Case No. A89A0616; appeal dismissed in Case No. A89A0617.

Banke, P. J., and Pope, J., concur.


text:
    A89A0765.
    HUNTER v. THE STATE.
    (382 SE2d 679)
   Beasley, Judge.

Defendant was convicted of driving under the influence, OCGA § 40-6-391 (a) (1), and failure to drive within the proper lane of traffic, OCGA § 40-6-48 (1). The primary issue was whether he refused the statutory chemical test. OCGA § 40-5-55.

Defendant was seen by two University of Georgia police officers at 2:15 a.m. on the campus of the university. He pulled out of a parking lot into a four lane road. After he pulled into his lanes, his front wheels crossed the double centerline. The officers followed him and defendant began to exceed the speed limit and weaved across the lines. The police turned on their blue lights and attempted to pull defendant over; he continued for .7 of a mile before stopping. Defendant failed two out of three field tests. He refused to take an AlcoSensor test and was arrested. An empty beer can and bottle were seen in the car. The officers repeatedly read to him the implied consent warnings, which he said he did not understand. The warnings were reread on the way to the police station and explained in everyday language, but defendant continued to say he did not understand. He was asked at the station if he knew how to read and was given the warning advice card which he appeared to read. When Officer Ahmed began administering the intoximeter test and asked if he would blow into the tube, he continued to say he didn’t know, he didn’t understand.

Officer Thompson, who was observing, took this as a non-verbal refusal. According to test administrator Ahmed, defendant at one point said he would take the test, she told him to blow into the tube, and he said he was not sure and asked for another explanation. The machine cleared itself and would have had to be reprogrammed before the test could be administered again. At this point the officer told him he could not take the test.

The State moved in limine at the beginning of trial to exclude from evidence any mention of the fact that defendant’s license, which had been suspended pursuant to OCGA § 40-5-55 (c), had been reinstated by the State Patrol hearing officer. Defendant sought a ruling that the following letter signed by the hearing officer was admissible as probative of the issue of his refusal to take the test pursuant to OCGA § 40-6-392 (c): “You are hereby officially notified by the Department of Public Safety that your driver’s license will not be suspended under the Implied Consent Law and that the six months’ suspension under said law is hereby withdrawn.” The grant of the State’s motion and the exclusion of this letter are asserted as error.

Defendant acknowledges that the status of his driver’s license as a result of the OCGA § 40-5-55 hearing is not relevant to the issue of whether he was driving under the influence. He urges that since a substantive hearing was held and one of the arresting officers and he both testified, the reinstatement of his license amounted to res judicata as to his refusal to take the test and was admissible under OCGA § 40-6-392 (c). It provides: “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.”

Defendant cites Sheffield v. State, 184 Ga. App. 141 (361 SE2d 28) (1987) (physical precedent only) and Wyatt v. State, 179 Ga. App. 327 (346 SE2d 387) (1986), distinguishing them but using their language to urge support for his position. In both cases, and in Smith v. State, 180 Ga. App. 309 (349 SE2d 4) (1986), license suspensions were administratively withdrawn due to the failure of the arresting officer to appear at the hearing.

“In Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970), the U. S. Supreme Court held that the doctrine of collateral estoppel is embodied in the guarantee against double jeopardy. The court stated that collateral estoppel itself ‘stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . .’ Ashe at 443.” Moore v. State, 254 Ga. 674, 675 (333 SE2d 605) (1985); Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989); Riley v. State, 181 Ga. App. 667, 668 (1) (353 SE2d 598) (1987); Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986).

Decided May 16, 1989

Rehearing denied June 2, 1989.

Galis & Packer, Denny C. Galis, for appellant.

Ken Stula, Solicitor, Kristopher Shepherd, Assistant Solicitor, for appellee.

“ ‘Res judicata’ is a broad term which includes the doctrine of estoppel by judgment. [Cit.]. . . . The distinction between the two is that res judicata also requires an identity of the cause of action, whereas estoppel by judgment applies to a different cause of action. Id. However, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered or as to such matters which are shown to have been actually litigated and determined.” McFadden Bus. Publications v. Guidry, 177 Ga. App. 885, 887 (1 b) (341 SE2d 294) (1986).

While an administrative decision may act as an estoppel in a judicial proceeding involving the same parties, that is appropriate only where the issue decided and the parties in the administrative proceeding are the same as those involved in the litigation. Epps Air Svc. v. Lampkin, 229 Ga. 792, 795 (2) (194 SE2d 437) (1972).

The letter proved only that the license suspension was withdrawn. It shed no light on whether defendant had refused the test; it did not contradict the evidence that he had. Since it was not probative of that issue, for which it was offered, it was not error to exclude it. Even if the doctrine applies to administrative license suspension hearings as related to D.U.I. criminal proceedings, the letter fell short of fulfilling the requirements for invoking the doctrine. Boozer v. Higdon, 252 Ga. 276, 277 (1) (313 SE2d 100) (1984).

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


text:
    A89A0963.
    JESSUP v. NEWMAN et al.
    (383 SE2d 136)
    Decided May 15, 1989
    Rehearing denied June 2, 1989
    Action on contract. Clayton State Court. Before Judge Benefield.

      James W. Bradley, for appellant.
   Beasley, Judge.

Plaintiff Jessup appeals a judgment dismissing his appeal in an action he brought against the Newmans for breach of an oral contract for services. At a trial in which Jessup had moved for a directed verdict, a verdict for the Newmans was returned on February 19, 1988. On February 22 Jessup moved for judgment notwithstanding the verdict or in the alternative for a new trial, and on February 24 judgment was entered on the verdict. On May 31 the court denied Jessup’s motion because it was filed before entry of judgment.

Jessup appealed on June 9 and the Newmans moved to dismiss the appeal because it was not timely as measured by the judgment of February 24. The court dismissed the appeal on November 30, and Jessup appealed on December 9.

The Newmans filed a motion to dismiss the appeal in this court. It is without merit because the appeal is timely as it pertains to the judgment of November 30.

That judgment is erroneous because, under OCGA § 5-6-38, regardless of the validity of the motion for new trial, an appeal filed within 30 days after entry of the order finally disposing of the motion is timely filed. Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972); Joiner v. Perkerson, 160 Ga. App. 343 (1) (287 SE2d 327) (1981). Although the court lacked authority to dismiss the June 9 appeal on the basis given, the coach rolled home because a motion for judgment n.o.v. or new trial filed prior to entry of a judgment is void. It was thus not error to deny the motion for judgment n.o.v. or for new trial on that ground. Wall v. C & S Bank, 153 Ga. App. 29 (1), (2) & (3) (264 SE2d 523) (1980), affirmed 247 Ga. 216 (274 SE2d 486) (1981); Georgia Kraft Co. v. Laborer’s Intl. Union, 170 Ga. App. 581, 587 (5) (317 SE2d 602) (1984); Harrison, supra; Joiner, supra.

Judgment dismissing the appeal reversed; judgment denying the alternative motion for judgment n.o.v. or for new trial affirmed.

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

Joseph M. Todd, for appellees.

       A motion for new trial which is invalid as the procedurally improper vehicle for securing review, and not merely due to its prematurity, does not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986); Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 29 (1) (363 SE2d 281) (1987).


text:
    A89A0061.
    REALTY WORLD-DRUID REALTY, INC. et al. v. HOOPER PROPERTIES, INC. et al.
    (383 SE2d 164)
   Sognier, Judge.

Realty World-Druid Realty, Inc., Bruce Gruber, and William Himes brought suit against Hooper Properties, Inc., Sycamore Drive Associates (in which Hooper Properties is a partner), and other undisclosed partners in Sycamore Drive Associates, designated “John Doe,” seeking to recover commissions and bonuses allegedly due under a brokerage contract. The trial court granted summary judgment in favor of the defendants and this appeal ensued.

Appellants entered into a brokerage contract with appellee Hooper Properties (hereinafter “Hooper”) whereby appellants agreed to help Hooper acquire real property within a designated “target property area.” The document provided that “for each parcel of property acquired for [Hooper], [appellants] shall be entitled to a total commission of [$1,500]. Such commission shall be payable Five Hundred ($500.00) Dollars at presentation of the contract to [Hooper] . . . and One Thousand ($1,000.00) Dollars shall be payable at the time of closing.” The document further provided that “[o]n any parcel of real property in the target property area which is acquired through the efforts of [appellants] under a contract which calls for a purchase price which is no more than 111 percent of the fair market value of the property in question, [appellants] shall receive an additional bonus of Five Hundred ($500.00) Dollars.”

We note that a review of the records fails to disclose on what basis Sycamore Drive Associates and “John Doe” are included as parties to appellants’ breach of contract claim. However, none of the parties raises this issue and considering the state of the record before us, we leave the disposition of this matter to the trial court, as we have here made no determination in that regard.

1. (a) Appellants contend the trial court misconstrued the brokerage contract, arguing that they were entitled under the terms of the document to commissions and bonuses on any properties acquired by Hooper in the target area regardless whether or not appellants were the ones who presented the contracts. We agree with the trial court’s construction of the document that the language therein did not entitle appellants to commissions and bonuses on those contested properties which were acquired by Hooper on contracts submitted to Hooper by parties other than appellants. The language of the brokerage contract is “ ‘plain, unambiguous, and capable of only one reasonable interpretation,’ ” Hopkins v. Hopkins, 186 Ga. App. 530, 531 (367 SE2d 825) (1988), and since appellants’ own evidence, i.e., the deposition of appellant Gruber, established that no questions of fact remained that appellants did not present Hooper with the contracts to those properties, we find no error in the trial court’s determination that appellants were not entitled strictly under the terms of the brokerage contract to the commissions and bonuses on those properties. But see Division 2, infra.

(b) However, as appellants note in their brief on appeal, appellants asserted in their complaint that appellees had also failed to pay appellants the total commissions and bonuses they had earned on contracts that appellants did present to Hooper. Our review of the affidavits and deposition testimony in the record shows that while appellants did not stress this claim before the trial court, having concentrated primarily on their claim addressed above, neither have they abandoned that claim or otherwise waived it.

Addressing first the commissions claimed by appellants, appellees failed to submit any affidavits regarding this claim and nothing in appellees’ one deposition of record rebuts appellants’ claim that they did not receive the compensation to which they were entitled under the contract as to the commissions sought. “The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.] . . . There is no duty placed upon the [respondent] to produce evidence until the [movants]’s evidence pierces the [respondent]’s pleadings and demands a finding in [movant]’s favor on the particular issue of fact made by the pleadings.” Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465) (1983). Appellees having failed to pierce appellants’ pleadings in regard to the issue of commissions sought for properties closed on contracts allegedly presented by appellants, the trial court erred by granting summary judgment to appellees thereon. See generally Nichols v. Frey, 185 Ga. App. 829, 831 (366 SE2d 212) (1988).

Addressing second the bonuses claimed by appellants, the bonus provision in the brokerage contract would apply to those properties allegedly closed by appellants, see above, or which allegedly would have closed but for interference by appellees, see Division 2, infra, should appellants be able to prove their entitlement to commissions thereon, a matter on which we intimate no opinion. However, the bonus provision in the brokerage contract provided that in the case of a disagreement whether appellants were entitled to a bonus “the parties shall select a real estate appraiser . . . agreeable to both parties whose decision as to fair market value shall be final. . . . Should the parties be unable to agree to an appraiser, they shall petition the presiding Judge of the Superior Court of DeKalb County to name an appraiser.” In their complaint, appellants asserted their right under the first part of this provision to designate an appraiser but did not include in their prayer for relief any petition to the trial court to name an appraiser. The record fails to indicate what response appellees made to appellants’ exercise of this contractual provision. Since appellants’ claim for bonuses would be a matter for resolution pursuant to the terms of the brokerage contract, which it appears from appellants’ complaint that they are affirmatively pursuing, this portion of appellants’ claim must be dismissed without prejudice for resolution by the parties because in the absence of any allegation that appellees have breached or violated any legal duties or rights regarding those bonus payments in the brokerage contract under which appellants claim, no right of action exists in this matter. See generally Bryant v. Randall, 244 Ga. 676, 682 (261 SE2d 602) (1979).

2. Appellants contend the trial court erred by ruling that appellants were not entitled to recover the commissions and bonuses on certain parcels of real property to which they claimed they were entitled because appellees prevented them from procuring the sales contracts. “Under [OCGA § 10-6-32] a broker is entitled to his commission whenever, during the period of his agency, ‘he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner.’ By judicial decision, this statute has been made applicable to brokers finding property for those principals desiring to purchase. [Cits.] The decisions have also held that a broker is entitled to a commission whenever negotiations conducted by him on behalf of the principal culminate in the purchase of the property by the principal or would have so culminated but for the principal’s interference. [Cits.]” Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672, 673 (244 SE2d 622) (1978). See also Hendrix v. Crosby, 76 Ga. App. 191, 193-194 (1) (45 SE2d 448) (1947). The agreement between the parties did not provide that appellants were the exclusive agents for Hooper. Thus, as non-exclusive agents, appellants were entitled to recover the commissions and bonuses claimed only upon proof that they were the “ ‘procuring cause’ ” of the sales, which can be established by showing “ ‘that negotiations for the sale[s] were set on foot through [their] efforts, that [they] performed every service required by [their] employment which it was possible to perform, and that the failure on [their] part to personally consummate the trade was due to the interference of the [appellees].’ [Cits.]” Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358, 363 (300 SE2d 186) (1983).

In the non-exclusive contract between the parties, there was no language prohibiting Hooper from controlling which property owners appellants would or would not contact on Hooper’s behalf. It is uncontroverted that appellants did not locate the “target area” property to be purchased, and that appellees intended to purchase all the property within that area. Hooper directed appellants not to contact certain property owners in that target area and appellants acquiesced in that directive.

Decided June 2, 1989.

Nancy S. Holland, for appellants.

Construing the evidence in favor of appellants as respondents on motion for summary judgment, the only activities appellants could possibly have performed on Hooper’s behalf were to persuade the owners of the property in the target area to sell their properties to Hooper and to present to Hooper contracts for the purchase of those properties, which in each case was subject to Hooper’s approval. Appellants assert that they began to perform these duties, that it was as a result of their efforts that certain property owners were cajoled into selling their properties, and that but for appellees’ interference in ordering appellants to cease contact with the property owners, appellants would have obtained the necessary contracts. Appellees presented no evidence to rebut these assertions and rely solely on the specious argument that the contract did not obligate appellants to obey Hooper’s directive.

“On motion for summary judgment, the burden is on the movant, regardless of which party would have the burden of proof at trial, to show there is no genuine issue of material fact. All evidence is to be construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. [Cits.]” Reid v. Southern Bell, 182 Ga. App. 524-525 (356 SE2d 77) (1987). Under the record before this court, questions of fact exist whether appellants’ negotiations on behalf of Hooper had progressed to such a stage that they were the “procuring cause” of the subsequent property sales so as to entitle them to the commissions claimed, see Kraft Land Sues., supra, whether appellees were aware of appellants’ progress so that the directive to appellants was designed to prevent appellants from consummating the sale in order to avoid payment of commissions and bonuses to appellants, and whether appellants’ acquiescence in Hooper’s directive amounted to a waiver of any objection to the directive. We thus find the trial court erred by granting summary judgment in favor of appellees on this issue.

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

Banke, P. J., and Pope, J., concur.

Eugene W. Walters, for appellees.