author: Cooper, Judge.

text:
    A92A0784.
    SNOW’S FARMING ENTERPRISES, INC. v. CARVER STATE BANK.
    (426 SE2d 158)
   Cooper, Judge.

In 1981, appellee sold property to appellant in return for a promissory note and deed to secure debt executed by appellant. Appellee reacquired the property in 1983 through foreclosure when appellant defaulted on the loan. On September 11, 1991, appellant filed an action for breach of contract against appellee based on an alleged failure of appellee to structure repayment of the debt on an installment basis in accordance with certain stipulated terms of the loan. Appellant sought damages and the conveyance of the property to appellant. Appellant also filed a notice of lis pendens against the property. Thereafter appellee petitioned the trial court for a temporary restraining order to restrain appellant’s attempts to interfere with the sale of the property by appellee to a third party, and on September 26, 1991, the trial court granted appellee’s prayer for relief. Then on October 11, 1991, appellant amended its complaint to allege fraud based on the alleged breach of contract and foreclosure. On October 24, 1991, appellee filed motions for summary judgment and cancellation of the notice of lis pendens and subsequently also sought an interlocutory injunction to prevent appellant from further interfering with its possession of the property. Appellee moved the court for expedited rulings on the various motions, and appellant was ordered to respond to the motions within ten days of November 5, 1991. After a hearing on November 25, 1991, the trial court granted appellee’s motions. The court concluded that appellant’s cause of action was barred by the six-year statute of limitation applicable to breach of contract actions. Appellant subsequently moved to set aside the court’s orders contending that because appellee’s counsel failed to timely serve the motion for summary judgment, appellant was not afforded 30 days within which to respond to the motion. This appeal followed.

1. In its first enumeration of error appellant contends the trial court erred in granting the September 26, 1991, temporary restraining order. Appeals from orders granting temporary restraining orders must be taken under the provisions of OCGA § 5-6-35 (d), which requires that an application be made to this court within 30 days of the entry of the order. See OCGA § 5-6-35 (a) (9). No application for review was filed with the court; therefore, we are without jurisdiction to consider this enumeration. See Fabe v. Floyd, 199 Ga. App. 322 (1) (405 SE2d 265) (1991).

2. Appellant contends the order granting summary judgment should have been set aside because appellant was not given proper time to respond. However, the record does not reflect that appellant objected to the court’s expedited consideration of the motion for summary judgment. See Smith v. National Bank of Ga., 182 Ga. App. 55 (1) (354 SE2d 678) (1987). Nor does the record contain an order evidencing a ruling by the court on appellant’s motion to set aside. Therefore, appellant has failed to show that the court erred in failing to set aside the grant of summary judgment. “When a party fails to show error affirmatively by the record, the trial court’s action is assumed to be correct. [Cit.] ” Wilson v. Norfolk Southern Corp., 200 Ga. App. 523 (5b) (409 SE2d 84) (1991). Furthermore, in granting appellee’s motion for summary judgment, the trial court correctly determined that appellant’s cause of action for breach of contract was barred by OCGA § 9-3-24, having been brought eight years after the alleged breach. Moreover, appellant’s fraud claim is likewise barred because it was not brought within four years of the discovery of the alleged fraudulent acts. See OCGA §§ 9-3-26 and 9-3-96.

3. Appellant next argues that the cancellation of its notice of lis pendens before completion of the appeal from the grant of summary judgment violated an unspecified constitutional right. However, OCGA § 44-14-612 required the removal of the lis pendens upon entry of order granting summary judgment to appellee. This enumeration is without merit.

4. Following the entry of the order granting summary judgment, appellant filed a pleading captioned “Notice of Appeal” in which appellant “appeals to the Superior Court of Chatham County, Georgia for a Trial by Jury the Order on Defendant Carver State Bank’s Motion for Summary Judgment dated November 25, 1991 and the order on Defendant Carver State Bank’s Motion Cancel Notice of Lis Pendens dated November 25, 1991.” On appeal to this court, appellant maintains that pursuant to OCGA § 9-11-38, its appeal to the superior court for a jury trial should have been granted because appellant was dissatisfied with the trial court’s rulings and had the right to a jury trial. Appellant’s reliance on OCGA § 9-11-38 is misplaced as Georgia law does not authorize such an “appeal” to the superior court. In addition, after appellee made a prima facie case demonstrating its entitlement to summary judgment, appellant failed to show that a genuine issue of material fact remained for trial. See Tench v. Turner, 201 Ga. App. 156 (2) (410 SE2d 357) (1991). This enumeration is also without merit.

Decided September 25, 1992 —

Reconsideration denied December 9, 1992

Samuel L. Green, pro se.

Ruth E. Weston, pro se.

Ellis Green III, pro se.

Elias Green, pro se.

Sampson Green, pro se.

Oliver, Maner & Gray, Patrick T. O’Connor, for appellee.

5. Finally, appellant contends the trial court erred in granting appellee’s motion for interlocutory injunction. This enumeration of error is rendered moot by the grant of summary judgment, which we now affirm. See Black v. Johnson, 233 Ga. 533 (2) (212 SE2d 368) (1975).

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A92A0815.
    PROFESSIONAL CONSULTING SERVICES OF GEORGIA, INC. v. IBRAHIM.
    (426 SE2d 376)
   Cooper, Judge.

This appeal arises out of an action brought by appellant, a computer consulting company, against appellee, a former employee of appellant, for damages stemming from an alleged breach of an employment contract. Appellee answered and filed a counterclaim asserting several theories of liability and seeking damages and expenses of litigation. The jury returned a verdict in favor of appellee on the main claim and on Count I of appellee’s counterclaim for lost wages and awarded appellee damages and attorney fees. Appellant appeals from the judgment entered on the jury verdict and from the denial of its motion for judgment n.o.v. and motion for new trial.

The evidence adduced at trial was often in conflict but reflects the following: Appellee was first hired by appellant to work as a systems analyst at an annual salary of $35,000, beginning August 26, 1986. Appellant contends that on December 11, 1986, appellee quit his job to work in his brother’s laundry business. Appellee maintains that he was available for work after December 11, 1986, and that he performed work for appellant as a systems analyst after December 11. However, both parties agree that on May 1, 1987, appellee was hired by appellant to work as a commissioned salesman at an annual salary of $24,000 plus commissions. Appellee’s employment was terminated by appellant on March 25, 1988, and on March 30, 1988, appellee signed a document entitled “Receipt of Monies Owed” in which appellee acknowledged his receipt of two checks for pro-rated salary and commissions, respectively. Appellant contends that appellee signed written employment contracts for each of the two periods of employment, but appellee denied signing any written agreements and insisted instead that he was employed pursuant to an oral agreement for a period of one year. Appellee’s claim of a one-year oral contract is based on a letter dated August 11, 1986, addressed to appellee, which stated therein that appellee was offered employment starting August 18, 1986, at an annual salary of $35,000. Appellee argued that he was entitled to recover damages for intentional infliction of emotional distress based on appellant’s forgery of his signature on an employment contract and also that he was entitled to compensation for the period between December 11, 1986 and May 1, 1987, as well as commissions earned after May 1, 1987. The jury ruled for appellant on appellee’s intentional infliction of emotional distress claim. However, on appellee’s contract claim, the jury awarded appellee $15,023 in lost wages and commissions and $24,700 in attorney fees.

1. In his first three enumerations of error, appellant contends that the trial court erred in denying its motion for directed verdict made at the close of appellee’s case and its motion for judgment n.o.v. and motion for new trial on appellee’s claim for lost wages. We first address appellee’s argument that appellant has not preserved the issue of the denial of its motion for judgment n.o.v. because appellant failed to renew its motion for directed verdict at the close of all the evidence. “Although OCGA § 9-11-50 (b) provides that a motion for judgment n.o.v. may be made ‘(w)henever a motion for a directed verdict made at the close of all the evidence is denied,’ the Supreme Court held in Department of Transp. v. Claussen Paving Co., 246 Ga. 807, 809 (2) (273 SE2d 161) (1980) that the statutory phrase ‘at the close of all the evidence’ ‘do(es) not deny to a defendant who has moved for a directed verdict at the close of the plaintiff’s evidence the opportunity to move for judgment (n.o.v.) on the grounds presented in his motion for directed verdict.’ ” Marett v. Professional Ins. Careers, 201 Ga. App. 178 (1a) (410 SE2d 373) (1991). Accordingly, appellant’s enumeration of error is properly before us.

“The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the ‘any evidence test.’ [Cit.]” Little v. Little, 173 Ga. App. 116 (1) (325 SE2d 624) (1984). “The issues of a directed verdict and judgment n.o.v. are reviewed on the same basis. [Cit.] ‘(T)he question before this court is not whether the verdict and the judgment of the trial court [were] merely authorized, but is whether a contrary judgment was demanded.’ [Cits.] A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cits.]” Stone v. Cook, 190 Ga. App. 11 (1) (378 SE2d 142) (1989). Also, “ ‘ [t] he grant or denial of a motion for new trial... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is “any evidence” to authorize it.’ [Cit.]” Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (3) (360 SE2d 418) (1987). Although the evidence presented at trial was largely conflicting on the issue of the term of appellee’s employment, there was evidence from which the jury could have concluded that appellee was hired on August 18, 1986, for a one-year period and that appellee continued to perform services for appellant between December 11, 1986 and May 1, 1987, for which he was due compensation. Appellant also argues that appellee’s signature on the document entitled “Receipt of Monies Owed” and acceptance of the checks enclosed therein constituted an accord and satisfaction. However, this argument was not raised during appellant’s motion for directed verdict. “ ‘A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal.’ ” Hercules Automotive v. Hayes, 194 Ga. App. 135 (2) (389 SE2d 571) (1989). Accordingly, appellant’s accord and satisfaction argument presents nothing for review.

2. Appellant next contends that the trial court erred in denying its motion for judgment n.o.v. on the issue of attorney fees. Our review of the record reveals that appellant did not move for a directed verdict on the issue of attorney fees. Hence, this issue has not been preserved for our review. See Hercules, supra.

3. Appellant also argues that the trial court erred in denying its motion for new trial on the issue of attorney fees. “The issue of attorney fees under OCGA § 13-6-11 is a question for the jury and an award will be upheld if any evidence is presented to support the award. [Cit.]” Arford v. Blalock, 199 Ga. App. 434 (9) (405 SE2d 698) (1991). A jury may allow the expenses of litigation “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” OCGA § 13-6-11. Defendants generally may not avail themselves of the remedies allowed under the section. See Vogtle v. Coleman, 259 Ga. 115 (3) (376 SE2d 861) (1989). “A plaintiff, however, is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute the cause of action, against a particular defendant, on which the prayer for attorney fees is based. [Cits.]” Arford, supra at 439 (10). Appellee’s attorney testified that “the time that has been spent by me in the defense of this case in behalf of [appellee] is 247 hours. And that works out to be $24,700.” “No evidence was presented from which the jury could determine what portion of the total amount of attorney time and litigation expenses incurred . . . was attributable to [appellee’s counterclaim] against [appellant].” Arford, supra. Therefore, we must conclude that the trial court erred in denying appellant’s motion for new trial on the issue of attorney fees.

4. In its final enumeration of error, appellant contends that the trial court erred in allowing appellee to testify about other litigation in which appellant was involved. During cross-examination by appellant’s counsel, appellee was asked whether he had told certain persons not to give a deposition. Appellee responded by extensively describing the nature of his communication with those persons and explaining his motive for contacting those persons about the depositions. Appellant’s counsel objected to the testimony on the grounds that it was not responsive, but the trial court overruled the objection, reasoning that appellant’s counsel’s question invited appellee to give a full explanation. We agree. A review of the transcript reveals that appellant’s counsel repeatedly pursued the line of questioning with appellee even after the trial court overruled its objection. Appellant’s argument that appellee’s answer violated the trial court’s order which excluded evidence related to other litigation initiated by appellant is likewise without merit. Appellee’s counsel did not solicit the testimony; nor did appellee volunteer the information. Appellant’s counsel induced appellee’s explanation by continuing to insist on an answer to the question. Furthermore, appellant has failed to either allege or show any prejudice resulting from the testimony. See Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991). Accordingly, we find no error in this enumeration of error.

Judgment affirmed in part and reversed in part.

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

Decided September 8, 1992 —

Reconsideration denied December 9, 1992

Jeffrey B. Talley & Associates, Jeffrey B. Talley, Michael W. Lord, Chamberlain, Hrdlicka, White, Williams & Martin, John M. Millkey, for appellant.

Carl V. Kirsch, for appellee.

Ali I. Ibrahim, pro se.


author: Andrews, Judge.

text:
    A92A0878.
    FIRST ROME BANK v. REESE OIL COMPANY, INC.
    (426 SE2d 384)
   Andrews, Judge.

First Rome Bank, defendant below, appeals the grant of partial summary judgment to Reese Oil Company, Inc. on a claim for conversion under OCGA § 11-3-419.

Viewed in favor of the bank, opponent of summary judgment, the undisputed facts were that Reese Oil had an account with First Rome. Reese Oil supplied First Rome with its corporate authorization, which showed three authorized signers for the account: Sam Reese, Jr., president and sole stockholder of the company; W. C. Reese, Sam’s brother and vice-president of the company; and Dorothy Reese, Sam’s wife and secretary-treasurer of the company. That authorization allowed any of these three to “[e]ndorse checks and orders for the payment of money and withdraw funds on deposit. . . .”

In late 1988, Sam Reese hired Lisa Raper, the wife of the executive vice-president of First Rome, to work in the office of Reese Oil. Among her responsibilities were opening the mail, posting customers’ payments on their accounts, noting on the office ledger with a “P” when amounts had been posted to the customer’s account, filling out receipts for the customers, making out deposit slips and taking the deposits to the bank, and reconciling monthly bank statements. There was an endorsement stamp used for the deposits, which read “Reese Oil Co., 1206 N. 5th Ave., Rome, Ga. 30161.” Sam Reese had occasionally cashed out checks payable to Reese Oil and bearing the endorsement stamp. He would go inside the bank and personally endorse his name under the stamp.

From July to December 1989, Raper presented numerous checks payable to Reese Oil to First Rome, bearing only the stamped endorsement, and received cash instead of depositing them into the company account, which she was not authorized to do. The defalcation resulted in a loss of over $20,000 to Reese Oil.

Because of its record-keeping system and the fact that Reese Oil had one store which was set up on an electronic funds transfer basis, whereby receipts were sent to Houston and then funds electronically transferred back to the Reese Oil account in Rome, there was no method by which it could be determined if receipts from all sources equaled the bank deposits.

The training manual used by First Rome, as well as other industry publications used in its teller training, provided that “[s] tamped or typed endorsements are acceptable for deposit purposes only”[;] that checks marked “for deposit only” were accepted only for deposit; and generally, “[c]hecks made payable to corporations, businesses, and other organizations should never be cashed by a teller.” The president of First Rome stated that these manuals and publications were “non-binding guidelines for practices and procedures,” and that the preferences and requests of the bank’s customers were also an important consideration in banking procedures.

During this six-month period, First Rome sent six bank statements to Reese Oil. Since his fiscal year ended in September, Sam Reese checked his statements more closely then and noticed a discrepancy between total receipts and monthly deposits, but he assumed it was attributable to the lag in receipt of proceeds from his credit card sales.

There was also an incident in which Sam Reese suspected that a check from Binkley’s Exxon had not been deposited into the First Rome account. When Binkley received his statement and Sam Reese examined the check, it bore the stamped endorsement, so he “just assumed that I had — that the check had gone through the normal channels of deposit and that I had just made a mistake.”

Reese Oil’s motion for partial summary judgment contended that First Rome’s cashing of checks payable to a corporate payee, endorsed only by rubber stamp, was not in accordance with reasonable commercial standards of banking as a matter of law and, therefore, First Rome was not entitled to the benefit of the affirmative defense of OCGA § 11-3-419 (3).

In granting summary judgment, the court focused on that section and concluded that the conduct of First Rome was “commercially unreasonable as a matter of law,” and that First Rome “may not avail itself of the defense of good faith and reasonable commercial standards as a matter of law,” relying on Trust Co. Bank v. Henderson, 185 Ga. App. 367 (364 SE2d 289) (1987), aff'd 258 Ga. 703 (373 SE2d 738) (1988); Nat. Bank of Ga. v. Refrigerated Transport, 147 Ga. App. 240 (248 SE2d 496) (1978); and APCOA v. Fidelity Nat. Bank, 703 FSupp. 1553 (N. D. Ga. 1988), aff’d 906 F2d 610 (11th Cir. 1990).

1. First Rome contends that the trial court’s conclusion that OCGA § 11-3-406 was inapplicable to this situation is erroneous.

OCGA § 11-3-406 provides that “[a]ny person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against ... a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.”

The court below concluded, as do we, that Raper was authorized to place the endorsement stamp on the checks. “The question of to what use [Raper] was ultimately authorized to put an instrument. . . after [s]he had placed the corporate indorsement on it is separate and distinct from the question of whether [s]he was authorized to indorse the instrument in the first instance.” Bank South v. Midstates Group, 185 Ga. App. 342, 345 (1) (364 SE2d 58) (1987). The evidence showed that Raper was authorized to stamp the checks and deposit them, the lack of authorization was only as to obtaining cash in lieu of depositing the checks to the corporate account. Bank South, supra; Bank South v. Grand Lodge &c., 174 Ga. App. 777, 781 (1) (331 SE2d 629) (1985).

2. With regard to the affirmative defense raised by First Rome under OCGA § 11-3-419 (3), we conclude that the granting of summary judgment on this issue was error.

Initially, Reese Oil, as movant for summary judgment as to an affirmative defense, had the burden of piercing this defense. In support of its motion, Reese Oil submitted the affidavits of the three authorized signatories on the checking account, stating that they had not authorized Lisa Raper to cash checks on that account, nor had they ratified such actions by her.

In opposition, First Rome relied upon the deposition of Sam Reese and submitted the affidavit of the president of another local bank stating that the practice of cashing checks payable to Reese Oil at the request of its employee was in accordance with reasonable commercial standards and the affidavit of a certified public accountant stating that Reese Oil was negligent in not investigating the Binkley’s Exxon check discrepancy.

“ ‘On a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. . . . (T)he moving party’s papers are carefully scrutinized, while the [opponent’s] papers, if any, are treated with considerable indulgence.’ Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973).” First Union Nat. Bank v. J. Reisbaum Co., 190 Ga. App. 234, 235 (378 SE2d 317) (1989). Reese Oil had the burden of piercing the “commercial reasonableness” defense. See Abalene Pest Control v. Orkin Exterminating, 196 Ga. App. 463, 466 (4) (395 SE2d 867) (1990); Peppers v. Siefferman, 153 Ga. App. 206, 207 (3) (265 SE2d 26) (1980).

Decided November 23, 1992 —

Reconsideration denied December 9, 1992

Hine, Carroll & Niedrach, John E. Niedrach, for appellant.

Shaw, Maddox, Graham, Monk & Boling, James D. Maddox, for appellee.

In such a situation, introduction of opinion evidence by the opponent of summary judgment, such as the bank president’s affidavit submitted here, can alone be sufficient to preclude summary judgment. Bryan v. Bryan, 248 Ga. 312 (282 SE2d 892) (1981); Scott v. Owens-Illinois, 173 Ga. App. 19, 22 (2) (325 SE2d 402) (1984).

Here, the issue was not whether the endorsement was authorized because the use of the stamp by Raper was authorized for certain purposes. Compare Nat. Bank, supra (collection agency depositing checks payable to a separate corporate entity into its corporate checking account without endorsement); Trust Co. Bank, supra (corporate checks cashed or deposited into individual’s account over handwritten or blank endorsement); and AJPCOA, supra (setting up of unauthorized accounts and cashing corporate checks on unauthorized signature).

Whether the actions of First Rome in this situation were commercially reasonable is a question for the jury. Stolle Corp. v. McMahon, 195 Ga. App: 270, 272 (1) (393 SE2d 52) (1990); see Bank South v. Harrell, 181 Ga. App. 64, 66 (1) (351 SE2d 263) (1986). The fact that First Rome may not have followed its own internal operating procedures does not, without more, give rise to legal liability. APCOA, supra at 1558.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


author: Cooper, Judge. .

text:
    A92A1003.
    WARD v. THE STATE.
    (426 SE2d 164)
   Cooper, Judge. .

Appellant was found guilty by a jury of manufacturing marijuana in violation of the Georgia Controlled Substances Act and sentenced to ten years to be served on probation and a fine of $3,000. On appeal from the denial of his motion for new trial, his sole enumeration of error is that the trial court erred in not granting his motion for directed verdict of acquittal.

The evidence adduced at trial reveals that two officers with a local drug task force received a complaint from a concerned citizen that marijuana was growing along the side of the road. The officers investigated and discovered that some plants which looked similar to marijuana plants were growing close to a residence. The officers went to the front door of the residence and spoke to appellant, who rented the property. Appellant informed them that the plants in question were a form of hibiscus, and upon taking a closer look at the plants, the officers could see that the plant was not marijuana. Appellant walked with the officers as they went to their cars, and on the way, they passed a large greenhouse on the property. The officers saw plants inside the greenhouse which they felt positive were marijuana. Appellant insisted that the plants were a different form of hibiscus plant but refused to sell the officers one of the plants, thus further arousing the officers’ suspicions. One of the officers also noticed a peculiar odor emanating from the plants which he recognized as being marijuana. The officers then asked appellant if they could search the greenhouse but appellant refused. One of the officers left and returned with a search warrant which he and three other officers executed. The officers found approximately 150 marijuana plants both in and around the greenhouse and a bag containing dried marijuana leaves. Appellant was arrested and charged with manufacturing marijuana. Appellant’s wife was subsequently arrested and charged with manufacturing marijuana and pled guilty to the charges prior to appellant’s trial. Appellant’s wife testified at trial that the marijuana found on the property was hers exclusively and that appellant did not plant the marijuana or help grow it. Appellant testified that he built and used the greenhouse and knew his wife had been growing marijuana in the greenhouse for several months.

“A directed verdict in a criminal case is warranted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of not guilty, that is, where an acquittal is the only legal finding possible. [Cits.]” Randolph v. State, 198 Ga. App. 291 (1) (401 SE2d 310) (1991). Appellant argues that his “mere presence” at the scene where the marijuana was found is insufficient to support his conviction. However, the evidence showed that appellant’s participation and knowledge amounted to something more than a “mere presence” at the scene of the crime and supported the State’s theory that appellant and his wife were both willing participants in the crime of manufacturing marijuana. See McDade v. State, 175 Ga. App. 204 (1) (332 SE2d 672) (1985). Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence and all reasonable deductions sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying appellant’s motion for directed verdict of acquittal.

Judgment affirmed.

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

Decided October 13, 1992 —

Reconsideration denied December 9, 1992.

Vinson, Osborne, Talley, Richardson & Cable, W. Thomas Cable, Jr., for appellant.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.


text:
    A92A1016.
    MITCHELL v. THE STATE.
    (426 SE2d 171)
   Cooper, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence and the trial court’s denial of his motion for new trial.

Viewed in a light to support the verdict, the evidence shows that while on burglary surveillance duty at 1:00 a.m. in the New Town area of Dalton, a police detective observed appellant and another man approach a car which had stopped at an intersection. The detective testified that he recognized appellant because he had known him for five or six years. Appellant leaned down, spoke to the driver of the car, Charles Smith, and passed an object to him. Smith then gave appellant money and drove off. The detective followed Smith for some distance and eventually turned on his blue light to stop Smith when he saw Smith throw a plastic bag out of the car window. The detective found the bag containing one “rock” of cocaine on the ground. Smith was arrested, and in a written statement, he admitted that he bought cocaine earlier in the morning in New Town from a person standing in the street and that he threw the cocaine out of the car window. Smith was shown photographs and identified appellant, although the evidence is in conflict as to whether Smith told the detective that appellant was the person from whom he purchased the cocaine. The detective then obtained an arrest warrant for appellant, returned to New Town, and arrested appellant.

1. In his first enumeration of error, appellant contends the evidence was insufficient to support the verdict. We disagree. Based on the foregoing, it appears the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also contends that evidence of a prior conviction which was admitted at trial was not sufficiently similar to the offense for which he was tried. Evidence of independent crimes committed by a defendant is admissible if two conditions are met: “ ‘First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]’ ” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). On the question of similarity, the trial court’s findings will not be disturbed unless “clearly erroneous.” Banks v. State, 201 Ga. App. 266, 268 (1) (410 SE2d 818) (1991); Stephens v. State, 261 Ga. 467, 469 (6), n. 2 (405 SE2d 483) (1991). The State presented the following evidence at trial: Nineteen months prior to the arrest in the instant case, another Dalton police detective received information from a confidential informant that appellant was in possession of cocaine in the New Town area, an area frequented by street level crack cocaine dealers. At approximately 10:00 p.m., the detective approached appellant in the general vicinity of his later arrest and observed appellant take a container out of his pocket and toss it to the ground. The container contained ten “rocks” of cocaine. Appellant was charged with possession of cocaine with intent to distribute and ultimately entered a guilty plea to possession of cocaine. The trial court found that both transactions occurred in the same area; that they took place at night on the street; and that they both involved rock or crack cocaine. Upon these findings, the prior conviction was admitted as a similar transaction. In our view, the findings are not clearly erroneous; therefore, the trial court did not err in admitting the evidence.

Decided October 22, 1992 —

Reconsideration denied December 9, 1992.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, Peter J. Garland II, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A1151.
    THE STATE v. BUTTON.
    (426 SE2d 194)
   Cooper, Judge.

Appellee was arrested and charged with driving under the influence and other vehicular offenses. Prior to trial, he moved to suppress the results of an intoximeter test. The motion was granted and the State appeals.

After taking an intoximeter test administered by the State at the Cobb County Adult Detention Center, appellee invoked his right to an independent blood test. The arresting officer took appellee to Kennestone Hospital, a hospital chosen by the arresting officer because of its proximity to the detention center. Kennestone will draw an individual’s blood upon request; however, it does not perform blood alcohol tests as a matter of hospital policy. Accordingly, blood was drawn from appellee’s arm and given to him, but he was unable to have it tested there or elsewhere. The officer did not take appellee anywhere else or ask him if he wanted to go anywhere else to have a test performed. Because appellee failed to receive his independent blood test, he moved to suppress the results of the State-administered intoximeter test. The trial court granted appellee’s motion despite its finding that the officer did not know Kennestone would not do the blood test when he took appellee there. In its sole enumeration of error, the State contends that the trial court erred in suppressing the results of the intoximeter test.

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. [Cit.]” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548) (1989). If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless, the failure to obtain the test is justified. See, e.g.. Turner v. State, 199 Ga. App. 466 (405 SE2d 296) (1991). “It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.” Buffington, supra at 801-802. The State cites Harper v. State, 164 Ga. App. 230 (1) (296 SE2d 782) (1982) for the proposition that no duty on the part of the officer arises until the accused has made his own arrangements for an independent test. The State’s reliance on Harper is misplaced because, to the extent its language suggested such a prerequisite to the officer’s duty, the Harper approach has been supplanted by that of more recent cases which, recognizing the inherent difficulty in making one’s own arrangements while in custody, instead simply treat whether the accused had the opportunity to make arrangements and whether he utilized that opportunity as circumstances to be considered in determining whether the officer acted reasonably to accommodate the accused’s request under all the circumstances. See Buffington, supra; Love v. State, 195 Ga. App. 392 (2) (393 SE2d 520) (1990).

In this case, the trial court determined that the officers’ failure to take appellee to another hospital for a legally admissible independent blood test after discovering that Kennestone would not perform one was not reasonable under all the circumstances, and we agree. See O’Dell v. State, 200 Ga. App. 655 (2) (409 SE2d 54) (1991). In O’Dell, this court held that an officer who took an accused requesting an independent blood test to a hospital that would draw and test blood but would not produce a legally admissible blood test had not made reasonable efforts to accommodate the accused’s request. Contrary to the State’s assertions, a blood sample is not the same as a legally admissible blood test, regardless of whether the blood sample could conceivably have been later used to obtain an independent test. Accordingly, we conclude that taking appellee to a hospital which would only give him a blood sample did not fulfill the officer’s duty in this case, just as taking the accused to a hospital which would produce a blood test that he could not use in court did not fulfill the officer’s duty in O’Dell. The trial court’s finding that the officer acted in good faith does not change this conclusion, for it is the objective result of the officer’s conduct rather than his subjective good or bad faith that is decisive. See O’Dell, supra at 657 (“[I]t makes no difference whether the officer made an innocent mistake in assuming that no other hospitals in the area could administer a legally admissible test because the end result was that appellant was unable to have an independent blood test.”).

The State distinguishes O’Dell on the grounds that the accused in O’Dell repeatedly asked the officer to allow him to call other hospitals and appellee in this case did not. It is undisputed that appellee asked for an independent blood test, however, thereby invoking his right to such a test and giving rise to a concomitant duty on the part of the officer to make reasonable efforts to accommodate that request. Once that right was invoked, it, and its concomitant duty, continued until appellee obtained his independent test, or until it was determined that, despite reasonable effort, such a test could not be obtained. The right and duty did not expire when appellee got something short of the independent blood test he requested; so he did not need to repeat his request to resurrect them. Appellee’s failure to repeatedly ask the officer to try other hospitals is a factor properly considered in determining whether the officer exerted reasonable effort under the totality of circumstances, but it is not a factor decisive enough to outweigh the similarities between O’Dell and this case, or to render efforts that would otherwise be unreasonable reasonable. Thus, the trial court did not err in ruling that the failure to obtain the requested test was not justified and in granting appellee’s motion to suppress.

Judgment affirmed.

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

Decided November 19, 1992 —

Reconsideration denied December 9, 1992

Patrick H. Head, Solicitor, Victoria S. Aronow, Clifford L. Granger, Jr., Assistant Solicitors, for appellant.

Charles A. Mullinax, for appellee.


text:
    A92A1160.
    BROWNER v. THE STATE.
    (426 SE2d 673)
    Decided October 13, 1992 —
    Reconsideration denied December 9, 1992.
    Ronald. W. Browner, pro se.

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

Appellant appeals the life sentences imposed by the trial court on his convictions of armed robbery and rape. He contends the trial court erred in imposing the maximum sentences for each of the offenses because he was not indicted as a recidivist, the convictions being his first convictions.

OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within limits provided by law. “The sentence [s] in this case [were] within the statutory limits [OCGA §§ 16-8-41 (b); 16-6-1 (b), respectively], and any complaints regarding the sentence [s] should have been addressed to the appropriate sentence review panel. [Cit.]” Pendleton v. State, 184 Ga. App. 358 (4) (361 SE2d 663) (1987).

Judgment affirmed.

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


text:
    A92A1171.
    BLALOCK v. ANNEEWAKEE, INC. et al.
    (426 SE2d 165)
   Cooper, Judge.

This appeal arises from an action for damages resulting from alleged tortious acts which occurred while appellant was a student at Anneewakee, a youth treatment and educational center. In his complaint, appellant also alleged violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”) and requested treble damages under OCGA § 16-14-6 (c). In the first amendment to his complaint, appellant further alleged that appellees were liable for breach of fiduciary duty. Appellees, Anneewakee, Inc. and Anneewakee Foundation, Inc., are Georgia corporations created specifically for the operation of the youth treatment center known as Anneewakee. Appellees moved for summary judgment on the grounds that appellant’s claims were barred by either the two-year statute of limitation applicable to actions for personal injury (OCGA § 9-3-33) or the five-year statute of limitation for RICO claims (OCGA § 16-14-8) and that appellees do not constitute an “enterprise” within the meaning of the RICO statute. Appellant subsequently filed a second amendment to his complaint, alleging that appellees were guilty of fraud by representing that appellant would receive psychological counseling and educational assistance while enrolled at Anneewakee. The trial court granted appellees’ motion for summary judgment and this appeal followed.

1. Appellant first contends that the trial court erred in granting summary judgment to appellees on the ground that his RICO action was barred by the statute of limitation. OCGA § 16-14-8 provides: “Notwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues.” OCGA § 9-3-90 (a) entitles persons who are minors when the cause of action arises to bring an action within the same statute of limitation after reaching the age of majority. The age of majority in Georgia is 18. OCGA § 39-1-1 (a). The record reflects that appellant was a student at Anneewakee between 1972 and 1975; that appellant was 13 years of age when he was discharged from Anneewakee; that appellant attained the age of 18 on August 15, 1981; and that appellant did not file his lawsuit until July 9, 1990. Appellant alleged in his complaint that during his enrollment between 1972 and 1975, he was sexually and physically abused. He argues that OCGA § 16-14-8 should be construed such that the statute of limitation does not begin to run until the racketeering activity terminates or its purpose is accomplished, which, appellant argues, is when a criminal prosecution or civil action is brought by the State against the alleged violators. Appellees contend that the statute should be construed to mean that the limitation period begins when the cause of action accrues, which is when the plaintiff learns of his injury or reasonably should have learned of his injury. We acknowledge that the Georgia RICO statute is considerably broader than the federal RICO statute and that federal circuit court opinions regarding the federal statute, while instructive, do not control our construction or application of the Georgia RICO statute. Dover v. State, 192 Ga. App. 429 (1) (385 SE2d 417) (1989). Although we have found no Georgia cases which address when the statute of limitation for civil RICO actions begins to run, we are guided by several federal decisions which have considered the question. See, e.g., Agency Holding Corp. v. Malley-Duff & Assoc., 483 U. S. 143 (107 SC 2759, 97 LE2d 121) (1987); Bivens Gardens Office Bldg. v. Barnett Bank of Fla., 906 F2d 1546, 1554-1555 (11th Cir. 1990). We do not agree with appellant’s argument that the legislature intended that the statute of limitation begin to run from the time that the racketeering activity terminates. We conclude that the more reasonable construction of OCGA § 16-14-8 is that the statute of limitation begins to run when the civil RICO cause of action accrues, which we interpret to mean when the plaintiff discovers, or reasonably should have discovered, that he has been injured and that his injury is part of a pattern. Bivens, supra at 1554-1555. Appellant had his last contact with Anneewakee in 1975 and reached the legal age of majority in 1981. We conclude that by 1981, appellant should have been aware that the physical and sexual abuses he was subjected to over the course of his three-year stay at Anneewakee were part of a pattern of unlawful behavior by the operators of Anneewakee. Consequently, we find no error in the trial court’s grant of summary judgment to appellees on the grounds that appellant’s RICO claim was barred by the statute of limitation.

2. Appellant also argues that his fraud claim was not barred by the statute of limitation. “Where . . . there is an allegation of fraud . . . , the statute of limitations is tolled until such time as the fraudulent conduct was discovered, or by exercise of due diligence ought to have been discovered. [Cits.]” Dunn v. Towle, 170 Ga. App. 487, 488 (2) (317 SE2d 266) (1984). “However, ‘(t)he statute of limitation does not cease to run due to . . . alleged fraudulent concealment.’ [Cit.] ‘The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.’ [Cits.]” Kilby v. Shepherd, 177 Ga. App. 462, 463 (339 SE2d 742) (1986). Appellant contends that he did not discover appellees’ misrepresentations about the quality of education and counseling he received at Anneewakee until he obtained, through discovery, a falsified document relating to counseling appellant received at Anneewakee. Appellant’s deposition testimony reflects that appellant was aware of improper sexual conduct by Anneewakee staff during the time that he was a student there and also that appellant was aware that he did not receive a full three-years worth of education during his three-year enrollment at Anneewakee. Even assuming arguendo that appellant had no knowledge of the misrepresentations regarding the quality of his education at Anneewakee until the commencement of his lawsuit, we find no evidence which raises a genuine issue of fact as to the existence of fraud which would toll the statute of limitation. “ ‘ “(I)t is well to remember that the fraud in question is not that which gives, but that which conceals a cause of action.” ’ [Cit.] ‘ “To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.” ’ [Cit.]” Kerce v. Bent Tree Corp., 166 Ga. App. 728, 729 (305 SE2d 462) (1983). We find no evidence that appellees’ actions were such as to prevent appellant from inquiring into or investigating the nature of the education he received at Anneewakee. Accordingly, we find no error in the trial court’s grant of summary judgment to appellees on appellant’s fraud claim.

Decided October 14, 1992 —

Reconsideration denied December 9, 1992

Lovett & Hicks, L. Robert Lovett, William E. Hicks, for appellant.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Debra E. Levorse, for appellees.

3. In light of our holding in Division 1 that appellant’s RICO claim is barred by the five-year statute of limitation, it is unnecessary to consider appellant’s remaining enumeration of error concerning whether a RICO defendant can also be the enterprise for purposes of a violation under the RICO statute.

Judgment affirmed.

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

       Although designated in the complaint as separate defendants, appellees are actually a single corporate entity identified as Anneewakee, Inc., formerly known as Anneewakee Foundation, Inc.


text:
    A92A1184.
    NEW v. HUBBARD et al.
    (426 SE2d 379)
   Cooper, Judge.

We granted this interlocutory appeal to review the trial court’s ruling that interspousal immunity doctrine does not bar third-party actions for indemnity or contribution against a plaintiffs spouse.

Plaintiff, appellant’s wife, was injured in an automobile collision involving two automobiles — one driven by appellant, and one driven by appellee Hubbard. Plaintiff sued appellee Hubbard, and appellees Hubbard and State Farm filed a third-party complaint against appellant seeking indemnification or contribution. Appellant moved for summary judgment based on interspousal immunity, and now appeals from the denial of that motion.

1. Appellant contends that the trial court erred in concluding that interspousal immunity doctrine does not apply in the context of third-party actions. We agree. In 1983, the Georgia legislature codified interspousal immunity doctrine: “Interspousal tort immunity, as it existed immediately prior to July 1, 1983, shall continue to exist on and after July 1,1983.” OCGA § 19-3-8. Moreover, prior to July 1983, this court had repeatedly ruled that interspousal immunity bars third-party actions for indemnity or contribution against a plaintiffs spouse. See, e.g., Shell v. Watts, 125 Ga. App. 542 (6) (188 SE2d 269), rev’d on other grounds, 229 Ga. 474 (192 SE2d 265) (1972); Southern R. Co. v. Brewer, 122 Ga. App. 292 (176 SE2d 665) (1970). Accordingly, interspousal tort immunity as it existed immediately prior to July 1983, and thus as it was codified in OCGA § 19-3-8, included the rule against third-party actions for indemnity or contribution against a plaintiff’s spouse.

Appellees argued below, and the trial court apparently concluded, that interspousal immunity nonetheless should not bar appellees’ third-party action because the doctrine is antiquated and, to the extent its purposes — preservation of marital harmony and prevention of collusive tort actions — still apply at all, they do not apply in the context of third-party actions. We recognize that the majority of jurisdictions have abrogated interspousal immunity. However, it is still the rule in Georgia; and it has been reaffirmed as such numerous times since the national trend away from the doctrine has been recognized. See, e.g., OCGA § 19-3-8; Robeson v. Intl. Indem. Co., 248 Ga. 306 (3, 4) (282 SE2d 896) (1981); Shoemake v. Shoemake, 200 Ga. App. 182 (407 SE2d 134) (1991). Even before codification of inter-spousal immunity, the Georgia Supreme Court refused to judicially abrogate the doctrine, saying that it was “a rather close question as to whether abrogation of the doctrine at this juncture would be a proper exercise of judicial authority. Although it is true that the doctrine is of common-law origin, it is of long-standing application; and it is not unrealistic to presume that people have come to rely on it.” Robeson, supra at 309 (4b). Now that the doctrine has been codified, judicial intervention to invalidate it on the grounds that interspousal immunity and the policy concerns underlying it are “antiquated” would clearly be improper. Furthermore, because that codification included the applicability of interspousal immunity doctrine to third-party actions, it would be equally inappropriate for this court to decide, on policy grounds, that the doctrine does not apply to bar third-party claims for indemnity or contribution from a plaintiffs spouse.

2. Appellees also argue that, even if the interspousal immunity doctrine bars third-party actions as a general matter, it should not bar appellees’ third-party action here because the purposes of the doctrine do not apply to the facts of this case. In reaffirming the validity of interspousal immunity as recently as 1991, however, we ruled that only in cases presenting “ ‘extreme factual situations,’ ” such as a lengthy separation or an act of domestic violence, can a court “ ‘deviate from a strict application of the general rule regarding interspousal immunity.’ [Cit.]” Shoemake, supra at 183. In this case, it is undisputed that appellant and plaintiff have been continuously and harmoniously married since February 1986. The “extreme factual situation” that would permit deviation from strict application of the doctrine because there is no marital harmony to be preserved and no possibility of collusion between the spouses is therefore not present.

Decided November 19, 1992 —

Reconsideration denied December 9, 1992.

Wilson, Strickland & Benson, Earl B. Benson, Jr., Mary M. Brockington, for appellant.

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, Harper, Waldon & Craig, Russell D. Waldon, Christopher M. Farmer, for appellees.

3. Appellees also challenge the constitutionality of interspousal immunity doctrine as applied in the third-party action context. The trial court did not distinctly rule on this constitutional issue, however, so it is not ripe for appellate consideration. Jones v. Jones, 184 Ga. App. 709 (2) (362 SE2d 403) (1987), rev’d on other grounds, 259 Ga. 49 (376 SE2d 674) (1989). In Jones, the estate of a spouse argued the interspousal immunity doctrine did not apply to bar its wrongful death action and, in the affirmative, the interspousal immunity doctrine as applied to wrongful death actions was unconstitutional. There, as here, the trial court made no distinct ruling on the constitutional issue. In Jones we reversed the denial of summary judgment on the issue of whether the doctrine applied to the facts and, concluding that the constitutional issue was “not ripe for appellate consideration,” we remanded “for consideration of any constitutional questions properly raised.” Id. We follow the same procedure here.

Accordingly, we reverse the trial court’s denial of appellant’s motion for summary judgment based on the inapplicability of inter-spousal immunity to third-party actions under OCGA § 19-3-8 and remand the case for consideration of any constitutional questions properly raised.

Judgment reversed and case remanded.

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


text:
    A92A1306.
    A92A1307.
    AVELAR et al. v. SCAFFOLDING & SHORING SYSTEMS, INC. et al. MAYO-TORRES v. SCAFFOLDING & SHORING SYSTEMS, INC. et al.
    (426 SE2d 673)
   Andrews, Judge.

These cases are companion cases arising out of an accident at a construction site. The parties admit that these cases and a third case, which was before this court, Ruiz v. Pardue, 204 Ga. App. 566 (420 SE2d 1) (1992), involve identical facts. All the cases involve the appeal of the grant of summary judgment to defendants Alton Pardue and Scaffolding & Shoring Systems, Inc., the denial of appellants’ cross-motions, and the enumerations of error raised in the three cases are identical.

On September 6,1991, the parties entered into a stipulation, filed in the court below, in which they claimed that the two cases here should be consolidated with the Ruiz case. According to the stipulation, “all three cases arise from the same construction accident and involve the same defendants, the same attorneys, the same legal issues, and identical pleadings.”

A notice of appeal was filed in Ruiz on May 30,1991. The notices of appeal in these cases were filed on September 5, 1991. On April 3, 1992, all of the parties in Case No. A92A1307, Mayo-Torres, filed a motion to consolidate that case with Avelar and Ruiz. The Mayo-Torres and Avelar cases were consolidated. On April 6, 1992, an opinion issued in Ruiz. On April 7, 1992, the parties filed a motion to consolidate the instant cases with the Ruiz case. In that motion, the parties requested that for purposes of the appeal they be relieved of their obligations to file any additional briefs and stated that it was not necessary to present other arguments.

Although this court was unable to consolidate these cases with Ruiz, in which an opinion had already issued, the resolution of those cases is controlled by this court’s opinion in that case, Ruiz v. Pardue, supra, in which certiorari was granted and which is now pending in the Supreme Court. Accordingly, as in Ruiz, we hold that the trial court erred in granting summary judgment to Pardue and that the trial court did not err in granting summary judgment to Scaffolding & Shoring Systems, Inc.

Judgments affirmed in part, reversed in part.

Birdsong, P. J., and Beasley, J., concur.

Decided November 23, 1992 —

Reconsideration denied December 9, 1992

Clark & Smith, P.C., Craig T. Jones, Thomas C. Blaska, for appellants.

Heyman & Sizemore, William B. Brown, William H. Major, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, for appellees.


text:
    A92A1314.
    TURNER v. THE STATE.
    (426 SE2d 168)
   Cooper, Judge.

Appellant, along with his brother and girl friend, was indicted for the offense of robbery by use of force against a person over the age of 65 years. Following his conviction by a jury, appellant appeals from the judgment of conviction entered on the verdict.

In his two enumerations of error, appellant asserts the general grounds and contends that the trial court erred in not granting his motion for directed verdict. Construing the evidence to support the verdict, the evidence adduced at trial reveals that on November 30, 1990, law enforcement officers with the local sheriff’s department and Georgia Bureau of Investigation responded to a report of an assault at the residence of the victim, appellant’s 70-year-old uncle. Corporal Allen testified that when he arrived at the victim’s home he found the victim standing in the backyard. Corporal Allen retrieved a shoestring from the yard which the victim stated his assailants had used to tie his hands. Upon further questioning the victim indicated that appellant and one of his brothers had robbed him. Investigator Súber testified that when he arrived, the victim had blood running down his face and stated that Oran and Cuthbert Turner had robbed him. Investigator Súber immediately noticed that the victim’s home had a very bad smell. Special Agent Ricks also investigated the robbery and testified that he too noticed a very distinct odor in the victim’s home. Agent Ricks testified that the victim told him that appellant and another of the Turner brothers had robbed him. Cuthbert Turner, appellant’s brother, testified that on the night of the robbery, he had been drinking with appellant and appellant’s girl friend and did not remember many of the events of that night. He stated that sometime before the robbery, he told appellant that the victim carried a lot of money on him, and several weeks after the robbery, appellant told him that they had robbed the victim. Appellant’s sister testified that on November 30, 1990, appellant and Cuthbert wanted to borrow her mother’s car, but she would not allow them to use the car. However, later that same day, appellant’s sister gave appellant’s girl friend permission to use the car. After the car had been returned, appellant’s sister was driving the car to take Cuthbert and appellant home, when she was stopped by the police. Appellant’s sister consented to a search of the car which revealed a tennis shoe with a missing shoestring, a wallet with the victim’s name stamped in it and a wallet belonging to appellant which contained $288. Investigator Súber and Agent Ricks testified that the money recovered from appellant’s wallet had the same odor as the odor emanating from the victim’s home. Investigator Súber testified that subsequent to the arrest, he received a letter signed by Cuthbert Turner, which described events that occurred the day of the robbery in part as follows: “[Appellant] asked me was what I said to my mom true. I said yes, [the victim] had a lot of money. [Appellant] said ‘we ought to go borrow my mother’s car and rob him.’ Me and [appellant] and [appellant’s girl friend] went to my mother’s and borrowed her car. They left and said they were going to get groceries. I passed out in the back seat. When I woke up we had stopped at a 7-11 store and got some beer and cigarettes. As we were leaving [appellant] handed me some money and told me it was money he owed me, so I put it in my pocket.” At trial Cuthbert denied writing the letter, and appellant’s girl friend, who along with Cuthbert entered a guilty plea prior to appellant’s trial, testified that she and Cuthbert robbed the victim but that appellant was not present.

During the trial, which took place approximately 15 months after the robbery, the victim often appeared to be disoriented and confused about his testimony. He stated that a man and a woman dressed like a man beat him and robbed him of about $1,800 or $1,900. The victim did not recognize appellant as being one of his nephews and was unable to identify his wallet although he admitted that the wallet had his name in it. The victim also remembered telling the officers responding to the robbery call that two of the Turners had robbed him.

Appellant supports his argument on appeal with a different version of the facts adduced at trial including the sequence of events related by his witnesses. “Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury. ‘ “(A)ppellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.” [Cit.]’ [Cit.] Further, on appeal we are required to view the evidence in the light most favorable to the verdict. [Cit.]” Lucas v. State, 192 Ga. App. 231, 232 (1) (384 SE2d 438) (1989). Having reviewed the transcript in its entirety, we conclude that a rational trier of fact could have found appellant guilty of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 14, 1992 —

Reconsideration denied December 9, 1992.

William R. Folsom, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A92A1323.
    WRIGHT et al. v. OSMOSE WOOD PRESERVING, INC.
    (426 SE2d 214)
   Beasley, Judge.

This is an appeal from the grant of summary judgment to one of multiple defendants in a negligence suit. The issues involve the existence vel non of a legal duty, and if one existed, whether the facts regarding breach and proximate cause are in dispute.

The evidence construed in favor of respondent plaintiffs showed the following: On November 12, 1987, Wright was operating a tractor on his neighbor’s land. The tractor struck a guy wire attached to a wooden utility pole. It fell and struck Wright in the head, inflicting permanent brain damage.

The pole had been installed by the Washington County Electric Membership Corporation (the EMC) in 1949. It was the policy of the EMC to inspect its poles approximately every ten years. Sometime prior to 1976, the EMC contracted with Osmose Wood Preserving, Inc. to perform these inspections. Apparently, under the terms of that contract, Osmose was to classify the poles it inspected into various categories. We say “apparently” because the parties to the contract were unable to produce a copy, but they agree a written contract was executed.

In a March 1976 inspection, Osmose classified the subject pole as a “reject.” Under the system of classification, “reject” pole meant that the pole was deteriorating but did not require immediate removal. Classifications of such poles were made on an examination of the degree of rot found in the wood. Osmose’s written report on the pole also stated other items of information or recommendation, such as that the effective ground line circumference at the time of inspection was 15 inches as opposed to the original ground line circumference of 30 inches; that the pole was not treated by Osmose at that time; that it was Southern pine and had originally been treated with creosote; and that “yes,” the reject pole “can be reinforced.” Under “remarks,” it was noted that the pole contained decay pockets, internal sapwood decay, and termites. The report form contained at the bottom of the column labeled “remarks,” a printed “Note: Specify ‘Dangerous’ poles and to whom reported.” It was not so specified.

In response to the report, the EMC sent a crew several months later, in September, to replace the pole. The crew did not remove the old pole because Pineland Telephone Company, pursuant to an agreement with the EMC, was also using this pole to hold its own wires. The crew erected a new pole next to it and moved the EMC’s wires to the new pole. The foreman reported it as “changed out” on September 13, 1976. To “change out” a “reject” pole meant a transfer of the EMC’s equipment to a new pole and the subsequent removal of the old “reject” pole. The EMC crew would not relocate Pineland wires but did cut off the now unneeded top of the old pole above Pineland’s wires. Pineland was notified to move its wires so the old pole could be removed. Osmose was responsible for only inspection, treatment when indicated, and reporting. Pole removal was the responsibility of the EMC, which owned the pole, or Pineland.

In 1987, Osmose again, pursuant to the contract, inspected the EMC’s poles in the area in which Wright’s injury occurred. Although the EMC inspector did not recall inspecting the subject pole specifically, or even encountering any old pole next to a new one, the newer pole bore an Osmose 1987 tag and appeared on the inspection report received by the EMC. The old pole was not listed. The EMC’s Interpretation of the contract was that Osmose was required to inspect all of the EMC’s poles in the area in 1987, including the subject “reject” pole. Osmose’s understanding was that it was required to inspect only those poles with EMC wires attached. No party contended that the old pole was actually inspected in 1987.

Wright and his wife sued the EMC, Pineland, Osmose, and four “John Doe” defendants. They alleged that Osmose was negligent in the performance of its duties to inspect, maintain and/or replace the subject pole. The EMC cross-claimed against Pineland and Osmose, and Pineland likewise cross-claimed against the EMC. The EMC’s cross-claim against Osmose was later dismissed without prejudice.

Osmose sought summary judgment on the complaint. In opposition, the Wrights submitted, inter alia, an affidavit from an expert who examined the pole remains sometime between November 1989 and January 1991. He stated that they would have contained “less than an inch of sound outer wood in 1976.” Thus, the Wrights asserted that the pole should have been properly classified in 1976 as a “danger” pole under criteria agreed upon by the EMC and Osmose. Those criteria, which are not on the report form, included “one inch or less of sound outer wood or equivalent strength remaining.” The trial court granted Osmose’s motion for summary judgment after concluding that Osmose neither owed nor breached a legal duty to Wright and that reinspection of the subject pole in 1987 was not part of its contractual duty to the EMC.

The Wrights’ five enumerations of error basically represent two contentions: 1) Osmose owed and breached a duty to Wright in 1976, and 2) a factual dispute exists concerning Osmose’s 1987 responsibility to reinspect the pole.

1. The Wrights premise Osmose’s legal duty on the contract with the EMC and on Restatement 2d Torts § 324A, adopted and quoted in Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980): “ ‘Liability to Third Person for Negligent Performance of Undertaking. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ ” (Emphasis supplied.)

The Wrights rely on (b) and (c), contending that Osmose acquired a duty either by undertaking a portion of a duty the EMC had to maintain its poles in a reasonably safe condition, for which they needed reliable inspections, or because the EMC relied upon Osmose conducting a proper inspection. As the Wrights point out, lack of privity with Osmose is no bar to recovery. See OCGA § 51-1-11 (a).

Huggins, supra, involved a negligent safety inspection in which the employee premised a duty towards him upon the employer’s reliance on the defendant’s inspection of its machinery. The Supreme Court recognized such in the quoted section of the Restatement 2d Torts. See also Sims v. American Cas. Co., 131 Ga. App. 461 (206 SE2d 121) (1974) (an inspector’s duty to on-site employees under § 324A); Robert & Co. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983) (a building inspector’s duty to purchasers of a building who relied upon the report). A common element in these cases is foreseeability.

Reliance upon an inspection need not be by the injured party. See Huggins, supra, and § 324A. The fact that Wright knew nothing of the inspection and placed no reliance on it does not bar recovery under § 324A (c) if it can be shown that the EMC’s reliance on an improper inspection caused the injury. However, the uncontroverted evidence precludes this.

Assuming that the pole should have been reported as “Dangerous” in 1976, which is in dispute, there is no evidence of record from which a jury could deduce that such a classification would have produced different action by the EMC so as to prevent Wright’s injury. It was classified as rejected and it was made plain to the EMC that the pole was in a rotted and progressively deteriorating state with termites, requiring removal. The EMC understood this as evidenced by the fact that approximately six months later, the EMC sent workers out to move the wires onto a new pole and remove the “reject” pole. The fact that the pole was not removed was not because of any misunderstanding about the pole’s condition or what should be done but because of the attachment of the telephone company’s wires. The record is silent as to why the telephone company did not transfer its wires to the replacement pole. Although it was reasonably foreseeable that the EMC would rely on the report for its continued use or removal of its poles, it was not reasonably foreseeable that the EMC would not remove or reinforce the “reject” pole at all despite it not being reported as “dangerous.” The EMC’s claimed reliance on an allegedly improper inspection for its nonremoval of the pole cannot be found to have caused Wright’s injury, which occurred more than 11 years later, so as to place the case within § 324A (c).

Alternatively, under the EMC’s interpretation of its contract with Osmose, the Wrights contend that § 324A (b) applies because the agreement was to ensure that the EMC was maintaining safe and useable poles, and Osmose had therefore assumed part of the EMC’s general duty to the public when it undertook to inspect, treat, and report. Illustration number 2 of § 324A is: “The A Telephone Company employs B to inspect its telephone poles. B negligently inspects and approves a pole adjoining the public highway. Because of its defective condition the pole falls upon and injures a traveler upon the highway. B is subject to liability to the traveler.” Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 590-591 (322 SE2d 269) (1984), uses an illustration of § 324A in its analysis.

Osmose’s objection to the use of § 324A and Illustration 2 in this case is that the predicate is not met because Osmose did not “fail to use reasonable care” or “negligently inspect,” i.e., did not breach its duty. That is in factual dispute because of the Wrights’ evidence that the pole may have been misclassified in 1976. However, such dispute is not material to the question of Osmose’s liability, again because of foreseeability.

“In order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)’ [Cit.]” Storer Communications v. Burns, 195 Ga. App. 230, 231 (393 SE2d 92) (1990). Osmose could not have reasonably foreseen that the EMC would not follow through on Osmose’s recommendation of removal or reinforcement so as to lead, ultimately, to injury.

Decided November 24, 1992 —

Reconsideration denied December 9, 1992

Gainer & Waldrop, William G. Gainer, Knox & Zacks, Gary J. Toman, for appellants.

Fortson & White, Michael J. Rust, Swift, Currie, McGhee & Hiers, Guy R. Taylor, Murray & Temple, Greg P. Counts, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, for appellee.

2. Whether or not Osmose was contractually required to reinspect the subject pole in 1987 is likewise not material to the question of Osmose’s liability because its original classification of the pole, even if found to be erroneous in alerting the EMC to the proper degree of urgency, required the pole’s removal or reinforcement long before 11 years had passed and the pole fell. See Division 1, supra.

“[Summary judgment] cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact, and it is indeed a great responsibility to say that ‘in truth there is nothing to be tried.’ However, a shadowy semblance of an issue is not enough to defeat the motion. . . .” Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (1) (126 SE2d 442) (1962).

The trial court properly granted summary judgment to Osmose on the Wrights’ claim.

Judgment affirmed.

Andrews, J., concurs. Birdsong, P. J., concurs in the judgment only.


text:
    A92A1326.
    GRAPHIC PREP, INC. et al. v. GRAPHCOM, INC.
    (426 SE2d 183)
   Cooper, Judge.

Appellants are Graphic Prep, Inc. and Jack and Joan Zeh. Graphic Prep is a family business owned and operated by the Zehs, which performs such services as color separation and graphic preparation. Appellee is a large commercial printing company. Graphic Prep and appellee enjoyed a mutually beneficial business relationship in which Graphic Prep regularly subcontracted its color printing work to appellee, and appellee subcontracted its color separation work to Graphic Prep. Due to financial difficulties occurring in the summer of 1990, Graphic Prep became indebted to appellee in the amount of $88,801.66, representing fees due for work performed by appellee. As a result, Graphic Prep and appellee entered into a course of negotiations concerning payment of the delinquency as well as future business between the two companies. Appellee requested that Graphic Prep execute a promissory note and that the Zehs execute a guaranty for the amount of the outstanding balance, in exchange for which appellee allowed Graphic Prep more time to pay the outstanding balance. Jack Zeh contends that he repeatedly informed appellee that Graphic Prep had no present ability to pay the debt and that appellee agreed to subcontract enough work to Graphic Prep, including a $14,000 job from Georgia Tech, to enable Graphic Prep to extinguish the debt. In August 1990, Graphic Prep and appellee reached an agreement regarding payment of the indebtedness, and counsel for appellee prepared a promissory note and guaranty as well as a written agreement regarding payment of the outstanding balance and the future business relationship between appellee and Graphic Prep and sent it to Graphic Prep. Graphic Prep’s attorney reviewed the documents and made one change to the agreement to reflect the parties’ understanding that the business relationship between them would continue in the future. Graphic Prep subsequently executed the note and agreement, and the Zehs executed a guaranty. Graphic Prep made three payments on the note, reducing the outstanding balance to $67,270.35, but failed to make any further payments. Appellee brought an action against appellants, Graphic Prep and the Zehs, to recover the amount due under the note and guaranty. Appellants answered and counterclaimed, alleging that appellee breached an agreement to subcontract enough work to Graphic Prep to offset the indebtedness. The trial court granted appellee’s motion for summary judgment on the main claim and the counterclaim and this appeal followed.

1. Appellants contend that the trial court erred in granting appellee’s motion for summary judgment because genuine issues of fact existed as to appellants’ liability under the note and guaranty. Specifically, appellants allege that as inducement to execute the note and guaranty, appellee agreed to subcontract to Graphic Prep sufficient color separation business to enable Graphic Prep to meet its obligation under the promissory note. Paragraph 3 of the agreement executed with the note and guaranty provides: “Graphic Prep is also a creditor of [appellee], and it is contemplated that this relationship will continue in the future. Graphic Prep shall be entitled to a credit against the Promissory Note executed contemporaneously herewith, equal to the amount of any invoice from Graphic Prep to [appellee] which remains unpaid after sixty (60) days from the date the invoice is issued; provided, however, Graphic Prep shall be entitled to a credit against the promissory note . . . equal to the amount of all invoices outstanding on that date, regardless of their age. Upon satisfaction of the promissory note, [appellee] agrees to pay Graphic Prep within sixty (60) days for all invoices issued by Graphic Prep to [appellee.]”

The specific language at issue: “it is contemplated that this relationship will continue in the future,” was added to the agreement by appellants’ attorney, and appellants argue that language required appellee to send Graphic Prep enough work to pay off the indebtedness. “ ‘The construction and interpretation of a contract, being a matter of law for the court, may properly be disposed of by summary judgment. (Cit.)’ [Cit.]” Brooks v. Forest Farms, 182 Ga. App. 901, 903 (1) (357 SE2d 604) (1987). “If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties. [Cits.]” Board of Regents v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987). The trial court found that the ordinary meaning of the word “contemplate” is “think,” “believe” or “expect,” and that none of those words mandated any action on the part of Graphic Prep or appellee. “The court did not consider parol evidence but sought to give the words [“it is contemplated”] as used in paragraph [3] of the [agreement] their usual and common significance. [Cits.]” Id. at 673. We conclude that the trial court’s construction of the agreement properly effectuated the intent of the parties, and the trial court did not err in ruling that no issue of fact remained as to appellants’ liability under the note and guaranty.

2. Appellants also argue that the trial court erred in finding as a matter of law that they were not fraudulently induced to execute the note and guaranty by appellee’s promise to subcontract enough work to Graphic Prep, including a $14,000 job from Georgia Tech, so that Graphic Prep could meet its obligations under the note. Appellants submitted the affidavit of Jack Zeh to support their argument as to the arrangement agreed to by appellee. “ ‘[P]arol evidence is not admissible to vary the terms of a binding written agreement, even to establish fraud,’ . . . and ‘[a]s a matter of law, fraud cannot be predicated on statements which are promissory in their nature as to future acts.’ [Cit.]” Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 591 (6) (281 SE2d 332) (1981). Moreover, “appellant made no showing that at the time of the alleged [promise], [appellee] had no intention [of subcontracting future business to Graphic Prep].” Mitchell v. Head, 195 Ga. App. 427, 429 (394 SE2d 114) (1990). In fact, there was evidence that appellee did subcontract a job to Graphic Prep after the execution of the agreement. Accordingly, appellants’ enumeration is without merit.

3. In their final enumeration of error, appellants contend that the trial court erred in finding that the note, guaranty and agreement were supported by consideration. As consideration for the execution of a note and guaranty, appellee gave Graphic Prep additional time in which to pay off the indebtedness. We conclude that this forbearance from commencement of collection efforts constituted a benefit to Graphic Prep as well as the Zehs who are the sole principals of Graphic Prep. There being no failure of consideration, the trial court did not err in granting summary judgment to appellee. See Pepsi Cola Bottling Co. v. First Nat. Bank, 248 Ga. 114 (2) (281 SE2d 579) (1981).

Decided November 13, 1992 —

Reconsideration denied December 9, 1992

Nelson, Mullins, Riley & Scarborough, John L. Latham, Scott K. Tippett, for appellants.

Macey, Wilensky, Cohen, Wittner & Kessler, Susan L. Howick, for appellee.

Judgment affirmed.

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


text:
    A92A1585.
    MINTER v. THE STATE.
    (426 SE2d 169)
   Cooper, Judge.

In a multi-count indictment, appellant was charged with one count of trafficking in cocaine and three violations of the Georgia Controlled Substances Act. Appellant appeals from his conviction, raising as error the denial of his motion to suppress.

The evidence adduced at the hearing on appellant’s motion to suppress reveals that on July 18, 1991, a search warrant was issued authorizing the search and seizure of “the entire premises, located at 1608 Chase Village Drive, Jonesboro, Clayton County, Georgia, an apartment at Chase Village Apartments on Battlecreek Road. A white male known as Michael Paul Minter, Jr., height 5’8”, weight 155 pounds, brown hair and brown eyes, and a black Chevrolet S-10 pickup with dark tinted windows, a toolbox in the back, a plastic bed liner, chrome rear bumper and Georgia tag number RS7882.” During the execution of the search warrant, officers seized 11.7 ounces of marijuana, 63.3 grams of cocaine, methamphetamines and benzphetamine from appellant’s person and in the toolbox on the bed of appellant’s pickup truck.

1. Appellant argues that his motion to suppress should have been granted because the search warrant was a general warrant. “The U. S. and Georgia Constitutions guarantee the right to our citizens to be secure from unreasonable searches and seizures, and that no warrant shall issue except upon probable cause ‘particularly describing the place to be searched, and the persons or things to be seized.’ [Cit.] This requirement for particularity forbids the issuance of general exploratory warrants. [Cit.] ‘A general warrant is of course void. By definition it is “one which does not sufficiently specify the place or the person to be searched.” ’ [Cit.]” Collins v. State, 187 Ga. App. 430, 431 (370 SE2d 648) (1988). “ ‘A search warrant is not invalid for want of description of the premises to be searched if the description sufficiently permits a prudent officer executing the warrant to locate the [premises, person or property] definitely and with reasonable certainty, and without depending upon his discretion. (Cits.) If a search warrant, read as a whole, “points out the [premises, person or property] to the exclusion of all others, and on inquiry leads the officers unerringly to [them],” it meets the description requirement. (Cits.)’ [Cit.]” Daugherty v. State, 171 Ga. App. 95, 96 (2) (318 SE2d 803) (1984). We conclude that the search warrant defined the person, premises, and vehicle to be searched with sufficient particularity and was not subject to attack as a general warrant.

Decided October 14, 1992 —

Reconsideration denied December 9, 1992.

Paul S. Weiner, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

2. Appellant also contends that the search warrant was void because it authorized the search and seizure of “the person, premises or property described above.” (Emphasis supplied.) Appellant argues that the use of the word “or” gave the officers unbridled discretion in what to search. We do not agree. The warrant clearly authorized the search of appellant, his vehicle and residence. Furthermore, the warrant was such that a reasonably prudent officer would be able to locate the person, premises and property and know that he had authority to search those places without depending on his discretion. All of the items seized were found in areas where the officers were authorized to search pursuant to the warrant. We find no merit to appellant’s argument. See Daugherty, supra at 96.

3. In his third enumeration of error, appellant contends that the trial court erred in entering a judgment on the basis of the evidence seized during the execution of the search warrant. For the reasons discussed in Divisions 1 and 2 above, we find no merit to this enumeration of error. We also note that “ ‘ “[ujnless the factual and credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. (Cits.)” (Cit.)’ [Cit.]” Wright v. State, 191 Ga. App. 371 (381 SE2d 587) (1989).

Judgment affirmed.

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


text:
    A92A1087.
    CATES v. THE STATE.
    (426 SE2d 576)
   Andrews, Judge.

In his sole enumeration of error, Cates seeks to appeal the trial court’s denial of his motion in autrefois convict and plea of double jeopardy. On or about July 20, 1990, Cates was involved in a motor vehicle accident and the City of Austell police department issued him two traffic citations: one for failure to stop at an accident with injuries (OCGA § 40-6-270) and the other for failure to carry a driver’s license (OCGA § 40-5-29 (a)). The two offenses were merged and on September 11, 1990, Cates entered a plea of nolo contendere in the municipal court of Austell. As a result of his plea, Cates was fined $100, which he paid.

Also on July 20, 1990, the magistrate court of Cobb County issued a criminal warrant against Cates for three counts of aggravated assault and one count of failure to stop and render aid or information. The warrant stated that Cates intentionally and maliciously rammed the affiant’s vehicle with his pickup truck and left the scene after the impact.

Ten months later, on May 30, 1991, the Grand Jury of Cobb County issued an indictment against him for three counts of aggravated assault and one count of criminal damage to property arising out of the automobile accident of July 20, 1990. The indictment charged that Cates unlawfully made three assaults with an automobile on July 20, 1990, and that he had interfered with the victim’s property in a manner so as to endanger human life.

On September 4, 1991, Cates filed a motion in autrefois convict and plea of double jeopardy, claiming that the indictment against him violated double jeopardy protections and was prohibited under OCGA §§ 16-1-7 and 16-1-8. He appeals from the trial court’s denial of that motion.

Cates first argues that OCGA § 16-1-7 (b) protects him from prosecution for the charges in the indictment since they arose from the same conduct, were within the jurisdiction of a single court and were known to the prosecuting attorney at the time he entered his plea, and thus should have been prosecuted with the traffic offenses. “Georgia’s statutory bar to successive prosecutions, the procedural aspect of double jeopardy, is codified in OCGA § 16-1-7 (b) which provides that ‘(i)f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except [as provided in subsection (c) of this Code section].’ ” Anderson v. State, 200 Ga. App. 530, 531 (408 SE2d 829) (1991).

Cates’ assertion that the prosecuting officer was aware of the traffic charges against him at the time of commencing the prosecution is based on the fact that the warrant indicates that the Austell police department investigated the accident. Citing McCrary v. State, 171 Ga. App. 585 (320 SE2d 567) (1984), affirmed State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985), he argues that this fact combined with the two-month delay between the issuance of the warrant and his plea is “conclusive circumstantial evidence” that the prosecutor knew of the previous charges.

“In determining whether the prosecuting attorney had knowledge of the proceedings . . . , the Georgia Supreme Court in Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987), held that OCGA § 16-1-7 (b) applies only to such crimes which are actually known to the prosecuting officer actually handling the proceedings. Under Baker, the appellant bears the burden of showing that further prosecution is barred by the previous prosecution, including a showing that the proper prosecuting attorney had actual knowledge of all the charges. The record before this court is void of any evidence that the proper prosecuting officer had actual knowledge of all the charges pending against defendant. . . . Defendant’s argument that the . . . police officer’s knowledge of the Clarke County charges can be imputed to the proper prosecuting attorney has been repeatedly rejected by this court. Accordingly, the trial court properly denied defendant’s plea of former jeopardy.” (Citations and punctuation omitted.) Anderson v. State, supra at 532. Because Cates has not made a showing that the prosecuting officer had actual knowledge of the charges as required by OCGA § 16-1-7 (b), Cates’ argument that this statute bars the charges against him is without merit and we need not address the other issues with regard to this statute which he raises. See also Hayles v. State, 188 Ga. App. 281 (372 SE2d 668) (1988); Dickinson v. State, 191 Ga. App. 467 (382 SE2d 187) (1989).

Next, Cates claims that the pending indictment violates the double jeopardy protections under OCGA § 16-1-8 (b) (1) since all of the relevant events occurred at the time of the automobile accident and the State was required to bring all charges arising out of the accident against him together. This argument is also without merit.

OCGA § 16-1-8 (b) provides that a “prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) resulted in either a conviction or acquittal and: (i) the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution; or (ii) is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge); or (iii) is for a crime which involves the same conduct, unless (A) each prosecution requires proof of a fact not required on the other prosecution or (B) the crime was not consummated when the former trial began.” McCannon v. State, 252 Ga. 515, 517-518 (315 SE2d 413) (1984).

Decided October 30, 1992 —

Reconsideration denied December 10, 1992

Melvin S. Nash, James H. Williams, for appellant.

Thomas J. Charron, District Attorney, Russell J. Parker, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The resolution of subpart (ii) has been addressed above. There is no bar under subpart (i) because Cates could not have been convicted for the aggravated assaults and criminal damage to property under the citations for the traffic offense. There is no bar under subpart (iii) because each prosecution requires proof of facts not required on the other. See generally Potts v. State, 261 Ga. 716 (410 SE2d 89) (1991); see generally Grogan v. State, 179 Ga. App. 300, 303 (2) (346 SE2d 378) (1986). Accordingly, the trial court’s denial of the motion was proper.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.