text:
    A96A1746.
    HESTER v. CHALKER et al.
    (476 SE2d 79)
   Judge Harold R. Banke.

Kenneth L. Chalker, Jr. filed a complaint for interpleader and deposited funds with the court to determine the viability of the lien filed by attorney Jerrold W. Hester against certain real property. Hester appeals the partial summary judgment awarded to Myong Suk Sullivan, a subsequent purchaser of the real property against which Hester filed the lien.

Relying on OCGA § 15-19-14, Hester filed an attorney’s lien against certain real property on June 16, 1992, for legal services performed on behalf of his divorce client, Lydia Black. Black, however, was not awarded sole ownership of the real property by final judgment and decree of divorce until October 22, 1993. It is undisputed that the lien was properly recorded and that Hester never filed an action to enforce the lien.

When Black transferred and sold the property to Sullivan by warranty deed in February 1994, the closing attorney for the transaction failed to report the lien on the title examination and the lien remained unsatisfied. Later when Sullivan attempted to transfer the property to Nino Buffo on June 6,1995, Buffo refused to proceed with the sale unless Hester’s outstanding attorney’s lien was satisfied. The closing attorney, Chalker, withheld $7,000 from Sullivan’s proceeds and filed the underlying interpleader action. Both Hester and Myong Suk Sullivan asserted entitlement to the funds. After Sullivan sued Black as a third-party defendant, Sullivan then filed a motion for partial summary judgment on the issue of the enforceability of Hester’s lien against the subject property.

The trial court granted partial summary judgment to Sullivan finding that Hester’s lien was unenforceable because he failed to perfect the lien by filing an action to enforce the lien against the subject property within 12 months as required by OCGA § 44-14-361.1 (a) (3). The court dismissed both Sullivan’s claim against Black and Black’s cross-claim against Hester. Hester appeals the partial summary judgment. Held:

1. Hester contends that the trial court erred in determining that his attorney’s lien was unenforceable because he did not file suit to enforce the lien within 12 months. Hester argues that the time constraint of OCGA § 44-14-361.1 (a) (3) is not applicable to attorneys’ liens. We agree.

Generally, an attorney’s lien arises upon the attorney’s employment and is perfected by the ultimate recovery of the judgment for his client. Ramsey v. Sumner, 211 Ga. App. 202, 204 (438 SE2d 676) (1993). In this case, it is undisputed that Black employed Hester to represent her in the divorce proceedings and that Black recovered the real property subject to Hester’s lien pursuant to the divorce settlement.

Although Hester filed his lien in reliance on OCGA § 15-19-14, the attorney lien statute, the trial court erroneously applied the time limit imposed by OCGA § 44-14-361.1, the materialmen’s lien statute. Nothing in OCGA § 44-14-361 authorizes its application to attorneys. By its plain terms the reach of the materialmen’s lien statute is limited to persons who have improved the property at issue. OCGA § 44-14-361; Hinkel, Ga. Construction Mechanics’ & Materialmen’s Liens (2nd ed.), Persons Entitled to Claim a Lien, § 4-1. The General Assembly did not elect to include attorneys in the list of persons having a special materialmen’s lien on real estate, and lien statutes being in derogation of the common law require strict construction. See Law Office of Tony Center v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167) (1988). Because the materialmen’s lien statute does not control Hester’s lien for unpaid attorney fees, it follows that the time limit imposed by OCGA § 44-14-362 is inapplicable.

The attorney lien statute establishes the priority of attorneys’ liens and the method of enforcement. OCGA § 15-19-14. According to the statute’s plain terms, it permits but does not require enforcement of attorney liens by means of mortgage and foreclosure. OCGA § 15-19-14 (c). Nor does the statute require that suit be filed to enforce the lien within 12 months.

2. Hester correctly argues that Sullivan was not a “bonafide purchaser without notice” within the meaning of OCGA § 15-19-14 (c). A properly filed attorney’s lien binds all persons including future lienholders and purchasers for value including bona fide purchasers. OCGA § 15-19-14 (d); Johnson v. Giraud, 191 Ga. 577, 583 (13 SE2d 365) (1941); Ramsey, 211 Ga. App. at 205. Further, according to the attorney lien statute: “[t]he property recovered shall remain subject to the [attorney’s] liens unless transferred to bona fide purchasers without notice.” OCGA § 15-19-14 (c). The purpose of recording statutes is to protect both the lienholder and innocent persons acting in good faith who lack the means of discovering the lien of another. Johnson, 191 Ga. at 582.

Because it is undisputed that at the time Sullivan purchased the property from Black, the lien was properly filed and recorded, Sullivan was not without means of discovering the lien, and constructive knowledge of the lien can be imputed to Sullivan. Kilgore v. Buice, 229 Ga. 445, 448 (192 SE2d 256) (1972). The property thus transferred was subject to Hester’s lien, and Sullivan was not a “bonafide purchaser without notice.” See id.; Johnson, 191 Ga. at 583.

Decided September 17, 1996.

Jerrold W. Hester, pro se.

Mark M. Middleton, for appellant.

Kenneth L. Chalker, Jr., pro se.

Finally, we reject Sullivan’s argument that Griner v. Foskey, 158 Ga. App. 769 (282 SE2d 150) (1981) demands a different result. As noted above, Sullivan was not an “innocent third party” as contemplated by the dicta in Griner. Id. at 770. Because the lien was filed and recorded, it was good against Sullivan. See Coleman v. Austin, 99 Ga. 629 (27 SE 763) (1896); Burgin & Sons Glass Co. v. McIntire, 7 Ga. App. 755, 758 (1) (68 SE 490) (1910).

Inasmuch as the materialmen’s lien statute was inapplicable to these facts and because Sullivan was not a “bonafide purchaser without notice,” partial summary judgment in favor of Sullivan must be reversed. In light of the above holding, we need not reach Hester’s final enumeration.

Judgment reversed and case remanded.

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

       Hester withdrew from representation prior to the final settlement.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A1848.
    MIDDLEBROOKS v. ATLANTA CASUALTY COMPANY.
    (476 SE2d 82)
   Judge Harold R. Banke.

Charlie Middlebrooks sued Emory Tennie for injuries allegedly sustained while Tennie was driving and Middlebrooks was a passenger in Tennie’s pickup truck. Tennie’s insurance policy with Atlanta Casualty Company contained a named driver exclusion agreement which provided: “In consideration of the premium charged, it is hereby agreed that no coverage is afforded by this policy while any vehicle is being used, driven, operated or manipulated by or under the care, custody or control of Named Excluded Driver(s) Emory L. Tennie.” Despite this agreement, Tennie sought coverage under the terms of the policy. Atlanta Casualty filed a declaratory judgment action asserting that it was not obligated to defend Tennie in Middlebrooks’ lawsuit because Tennie had agreed to the exclusion. Middlebrooks appeals the trial court’s determination that Atlanta Casualty was not obligated to defend Tennie. Held:

A declaratory judgment has the force and effect of a final judgment and is reviewed in the same manner. OCGA § 9-4-2 (a); Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (1) (449 SE2d 858) (1994). Middlebrooks’ sole enumeration is that judgment was precluded by the existence of material disputed facts. The uncontroverted evidence shows that Tennie signed the named driver exclusion. Nevertheless, Middlebrooks argues that a jury issue remains as to whether adequate consideration was given which would make the named driver exclusion enforceable. We disagree.

An insurer may reject coverage for a person expressly excluded from its policy. Fountain v. Atlanta Cas. Co., 204 Ga. App. 165, 166 (1) (419 SE2d 67) (1992). Provided that the exclusion agreement is supported by consideration between the parties, the exclusion is enforceable. Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527 (336 SE2d 583) (1985). The identical language of the named driver exclusion agreement at issue here was determined to be enforceable in Atlanta Cas. Co. v. Cash, 209 Ga. App. 123 (433 SE2d 311) (1993).

Darryl Howell, the insurance agent who sold Tennie the policy, testified that Atlanta Casualty’s agreement to issue a policy to Tennie was conditioned on Tennie’s consent to the named driver exclusion. Howell testified that he explained the effect of the exclusion and that Tennie agreed to the restrictions. Howell testified that he informed Tennie that in the event that Tennie was driving any of the covered vehicles, he would be excluded from coverage or a defense by Atlanta Casualty. By signing the exclusion agreement, Tennie agreed to and consented to its terms. Id. As to consideration, Atlanta Casualty agreed to issue a policy and determine the insurance premiums in exchange for Tennie’s consent to the exclusion. See OCGA § 13-3-42. Howell’s uncontradicted testimony and the specific contract language, “in consideration of the premium charged” demonstrate the existence of consideration. See Wolfe v. Breman, 69 Ga. App. 813, 817 (26 SE2d 633) (1943) (slight consideration sufficient to sustain a contract).

Where an insurance contract provision is clear and unambiguous, its interpretation is a matter for the court. OCGA § 13-2-1; Marsh v. Chrysler Ins. Co., 169 Ga. App. 639, 640 (1) (314 SE2d 475) (1984); Pacific Indem. Co. v. N.A., Inc., 120 Ga. App. 793, 794 (1) (172 SE2d 192) (1969). In this case, we find there was valid consideration, no ambiguity in the exclusion, and no material issue of disputed fact remaining for jury determination. See OCGA § 9-11-56 (c). Accordingly, we find no error.

Judgment affirmed.

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

Decided September 17, 1996.

McGee & Oxford, Douglas R. Powell, Debra K. Haan, for appellant.

Tisinger, Tisinger, Vance & Greer, Glenn M. Jarrell, for appellee.


text:
    A96A1026.
    GILBERT v. THE STATE.
    (476 SE2d 39)
   Judge Harold R. Banke.

James M. Gilbert was convicted by a jury of reckless driving, and he appeals, pro se, from his conviction and from the trial court’s denial of his motion for new trial. An off-duty DeKalb County detective driving an unmarked police car spotted James M. Gilbert driving erratically on 1-285. Gilbert was closely following another car in the right lane of the interstate. Gilbert pulled into the left lane, pulled alongside the other car, and more than once swerved his Toyota into the other car’s lane of travel. The other car had to pull off the road to avoid a collision. Held:

1. Gilbert contends this evidence, construed in a light most favorable to the verdict, is insufficient to support the conviction for reckless driving under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We disagree. See Holland v. State, 182 Ga. App. 611, 612 (3) (356 SE2d 700) (1987).

2. Gilbert also alleges the detective presented the jury with false testimony and, therefore, the trial court erred by refusing to grant his motion for new trial. But he has made no showing that the officer intentionally gave false testimony, and any inconsistencies in his testimony presented a credibility issue for the jury to resolve. The trial court did not err in rejecting this ground of Gilbert’s motion for a new trial. Arnold v. State, 198 Ga. App. 514, 516 (2) (402 SE2d 312) (1991).

3. In the trial court, Gilbert moved to exclude the testimony of the detective on the ground that he made this traffic stop in an unmarked vehicle in violation of OCGA § 40-8-91. He assigns as error the trial court’s refusal to grant his motion. This statute does not invalidate traffic arrests made in unmarked vehicles, nor does it require exclusion of this testimony. State v. Carter, 215 Ga. App. 647, 648 (451 SE2d 541) (1994).

4. Following his arrest, Gilbert complained to the DeKalb County Police Department about the manner in which the detective arrested him. After observing Gilbert’s erratic driving, the detective radioed for a marked unit and followed Gilbert off the interstate and down a highway. When no marked unit had responded by the time they reached Gwinnett County, the detective activated his blue lights. Gilbert pulled into a parking lot and stopped, got out of his car, and approached the officer. The detective identified himself and told Gilbert to stop. When Gilbert kept coming, the detective drew his weapon and ordered Gilbert to the ground.

Decided August 30, 1996

Reconsideration denied September 18, 1996

James M. Gilbert, pro se.

Ralph T. Bowden, Jr., Solicitor, Walter C. Howard, Bernard R. Ussery, Assistant Solicitors, for appellee.

Gilbert attached to his motion for new trial a copy of the Department’s investigative report into this incident and asserted as one of his grounds the trial court’s refusal to allow any evidence of the disciplinary investigation resulting from his complaint. The partial trial transcript Gilbert submitted contains no reference to this investigation, although the prosecutor testified at the hearing on Gilbert’s motion for new trial that the court ruled such evidence irrelevant. Because our review of this enumeration requires a review of a part of the trial transcript Gilbert has not provided us, we presume the trial court’s ruling was correct. Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459) (1990).

5. In his final enumeration, Gilbert charges his trial attorney with ineffective assistance of counsel. Although he argued ineffective assistance as a ground for his motion for new trial, Gilbert failed to produce any evidence which would show his attorney’s performance fell below the standard. We therefore presume the trial court did not err in denying this ground of his motion for new trial. Boyce v. State, 198 Ga. App. 371, 374 (5) (401 SE2d 578) (1991).

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Judge Harold R. Banke. McMurray, Presiding Judge,

text:
    A96A1115.
    BELL v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (476 SE2d 3)
   Judge Harold R. Banke.

Federal Employers’ Liability Act. John Bell suffered heat stroke or severe heat exhaustion while working for Norfolk Southern. In this suit against his employer, he contends the railroad’s failure to promptly supply him emergency medical attention after this attack has afflicted him with a permanently disabling syndrome called “heat intolerance.” The trial court granted summary judgment based on the statute of limitation and the merits, finding Norfolk Southern produced uncontradicted evidence it exercised reasonable care in addressing Bell’s medical problem. Held:

1. In his first enumeration, Bell contends the trial court erred by striking from its consideration three affidavits he filed in opposition to Norfolk Southern’s motion for summary judgment. We agree. These affidavits were filed December 22, 1995, five days before the hearing on the motion. Although the trial court found the documents had not been filed in accordance with Uniform Superior Court Rule 6.2, OCGA § 9-11-56 (c) requires the trial court to consider opposing affidavits filed at any time prior to the hearing. The statute controls the rule, and the trial court should have considered these affidavits. Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988).

2. Bell’s task, however, is not limited to showing error; an appellant seeking reversal must also show harm. Thompson v. Hardy Chevrolet-Pontiac-Buick, 203 Ga. App. 499, 505 (9) (417 SE2d 358) (1992). “Even if the record clearly shows that a[n affidavit] was not considered below, it may be considered on appellate review of a ruling on a motion for summary judgment to determine whether the facts of the case create an issue of material fact for determination below. [Cit.]” Taylor v. Schander, 207 Ga. App. 627, 628 (2) (428 SE2d 806) (1993). Nowhere in this appeal does Bell argue the trial court erred in granting Norfolk Southern summary judgment on the merits of his claim, so we review the record only to determine if the affidavits created any issue of material fact.

Bell claimed the railroad failed to assist him after he fell ill and failed to act reasonably in providing him with emergency medical care. In FELA cases, an employer must render medical assistance “when an employee, to the employer’s knowledge, becomes so seriously ill while at work as to render him helpless to obtain medical aid or assistance for himself. . . .” Handy v. Union Pacific R., 841 P2d 1210, 1221 (Utah Ct. App. 1992) (citing Southern Pacific Co. v. Hendricks, 339 P2d 731, 733 (Ariz. 1959), cert. dismissed, 361 U. S. 941 (80 SC 385, 4 LE2d 362) (I960)). See also Rival v. Atchison, Topeka & Santa Fe R., 306 P2d 648, 651 (N.M. 1957). To trigger the employer’s duty to render aid, the employee must show that his condition is such that he “ ‘is in immediate danger of loss of life or of great bodily harm.’ [Cit.]” Handy, 841 P2d at 1221. Federal law allows summary judgment for the employer only where there is a “complete absence” of evidence to support the employee’s claim. Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995). Whether an employee’s condition is so dire as to trigger the employer’s duty to render aid is, however, a question of law. Handy, 841 P2d at 1221-1222.

Bell’s general foreman provided an affidavit stating he went to check on Bell after Bell radioed him from the train yard. When he found Bell sitting on a crosstie, appearing a bit dizzy but coherent, Bell told him he “had another of his spells.” The foreman took Bell back to the air-conditioned office, where Bell said all he needed was water and did not want the supervisor to call his wife. Later, Bell said he was ready to return to work but then decided he would drive himself home. When the foreman and others in the office expressed concern that Bell might have another “spell,” Bell allowed them to drive him home. The foreman denied Bell appeared to need any medical attention. At his deposition, Bell said he did not recall the day’s events in detail, although he “probably used to remember more.” He did recall telling the supervisor he felt he could return to work. Bell also admitted he had suffered these types of heat-related episodes many times during the 1980s. According to the foreman, Bell stated his doctors did not know what was causing the problem.

Adding to this evidence the improperly excluded affidavits does not create any issue for trial. In two of those affidavits, witnesses who assisted Bell when he arrived home stated he appeared disoriented, dizzy, weak, and pale. In the third affidavit, a physician who treated Bell sometime after this episode opined that Norfolk Southern employees should have taken him to the emergency room. But none of these affidavits contradicts the unchallenged testimony of Bell’s foreman, corroborated in part by Bell, that Bell stated he needed only water, that he felt he could return to work, that he could =drive himself home, and that the doctors did not know what caused these recurring episodes. The evidence does not show that Bell was 'unable to help and care for himself. Handy, supra. Even assuming Bell was in such a position that the railroad was required to render him emergency aid, the affidavits do not materially detract from the trial court’s finding that Bell’s supervisors, acting on Bell’s representations, took reasonable action to assist him. Compare Brooks v. Southern R. Co., 178 Ga. App. 361, 362-363 (343 SE2d 143) (1986) and Currin v. Seaboard System R., 187 Ga. App. 751, 753 (371 SE2d 142) (1988), in which the plaintiff’s evidence that he had requested :medical assistance precluded summary judgment.

3. Because the trial court did not err in granting summary judgment based on the merits of Bell’s claim, we need not address his contention that the trial court erred in finding his claims barred by the • statute of limitation.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J, Andrews, Blackburn and Smith, JJ, concur. McMurray, P. J, Pope, P. J., and Ruffin, J., dissent. Johnson, J., not participating.

McMurray, Presiding Judge,

dissenting.

I am authorized to state that Presiding Judge Pope and Judge Ruffin join in this dissent.

Although I fully agree with Division 1 that the trial court erroneously excluded from consideration plaintiff’s timely filed affidavits, I respectfully dissent from affirmance of summary judgment in favor of the employer-defendant, Norfolk Southern Railway Company, in employee-plaintiff John Bell’s Federal Employers’ Liability Act (“FELA”) action for inadequate medical treatment. In my judgment, the majority has tacitly applied the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), to hold that plaintiff should be bound by his feeble protestations to a supervisor that he needed no immediate medical attention. But that rule is inapplicable to the case sub judice because other circumstances, established by the affidavit evidence erroneously excluded by the trial court, indicate that plaintiff Bell was not competent to make an accurate assessment of his potential need for additional medical treatment. According to the majority’s recitation, eyewitnesses other than the foreman described plaintiff as “disoriented, dizzy, weak, and pale.” (Majority opinion, ante, p. 790). Where the plaintiff’s purported contradictory statements are not the only evidence which would authorize his recovery, the general rule applies, namely that the credibility of all witnesses — including the parties — should be determined by the jury. Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485); Bynes v. Stafford, 106 Ga. App. 406, 407 (2) (127 SE2d 159). See also Ryder v. Schreeder, 224 Ga. 382 (2), 386 (162 SE2d 375). In the case sub judice, the evidence does not establish, as a matter of law, the absence of an immediate danger of loss of life or of great bodily injury. Accordingly, the jury should determine whether the employer demonstrated any negligence, however slight, in blithely accepting the word of a dazed and embarrassed worker, where the objective evidence would authorize a finding that plaintiff was not fit to make an accurate assessment of his immediate medical needs.

Decided August 23, 1996

Reconsideration denied September 18, 1996

Hicks & Massey, Frederick V. Massey, for appellant.

Hall, Bloch, Garland & Meyer, John S. Stewart, for appellee.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A1138.
    BUTLER v. BOLTON ROAD PARTNERS et al.
    (476 SE2d 265)
   Ruffin, Judge.

This is a personal injury suit involving a slip and fall which occurred on February 3, 1991. Butler voluntarily dismissed her first complaint without prejudice in November 1994. Pursuant to OCGA § 9-2-61, Butler renewed her action on March 24, 1995. Bolton Road Partners and the other defendants (collectively “Bolton Road”) filed a motion for summary judgment, alleging Butler’s renewal was not effective because she failed to pay court costs prior to renewing her action. The trial court denied the motion initially, but granted the motion following a motion for reconsideration. Butler appeals, and for reasons which follow, we affirm.

1. In her first enumeration of error, Butler contends the trial court erred in prematurely ruling on Bolton Road’s motion for reconsideration without giving her 30 days to respond to the motion. Citing Uniform Superior Court Rule 6.2, Butler contends that she was entitled to 30 days to respond to Bolton Road’s motion for reconsideration. However, Butler acknowledges in her brief that numerous cases have found that allowing less than 30 days to respond is not error when a plaintiff can still litigate her claim on the merits. See, e.g., Kidd v. Unger, 207 Ga. App. 109 (2) (427 SE2d 82) (1993). In addition, all the cases, cited by Butler involved rulings on the initial motion for summary judgment or motion to dismiss, not rulings on a motion for reconsideration.

In the present case, Bolton Road filed their motion for summary judgment on October 5, 1995. Butler responded to this motion on November 2, 1995, and the trial court entered its order denying the motion on November 13, 1995. Subsequently, Bolton Road filed a motion for reconsideration on November 17, 1995. This motion was supported by five affidavits. The trial court granted the motion and reversed its initial order on November 22, 1995, concluding its initial ruling was based on Butler’s inadmissible hearsay testimony.

It is clear that Butler had a chance to litigate her claim on the merits in responding to the motion for summary judgment. This is not a case where the plaintiff was given no opportunity to respond to the motion. While affidavits were filed with the motion for reconsideration, these affidavits merely countered Butler’s hearsay statements and did not present any new issues which had not already been responded to by Butler in her previous response. Moreover, Butler does not show this court what, if any, evidence she would have presented to the trial court if given further opportunity to respond. Thus, she fails to show any harm resulting from the'trial court’s ruling. See Leverich v. Roddenberry Farms, 253 Ga. 414 (321 SE2d 328) (1984). Accordingly, we find that the trial court did not err in ruling on Bolton Road’s motion for reconsideration.

2. Butler next asserts the trial court erred in granting summary judgment. We disagree.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the -undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). . . . If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

OCGA § 9-2-61 specifies that all costs required by OCGA § 9-11-41 (d) must be paid as a pre-condition to filing a renewal action. This requirement is a condition precedent to filing the second suit. Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). Thus, payment of costs in the prior suit may not be made after the second suit is filed or “there is no viable action presently pending, making dismissal or summary judgment for defendants] appropriate.” Id. at 855. However, this requirement has been relaxed where the plaintiff shows a good faith effort to ascertain and pay the costs. See Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985).

In the present case, the evidence is undisputed that Butler did not pay costs prior to or on March 24, 1995 when she renewed the action. After two contacts with the clerk’s office, Butler was informed, in writing, on July 10, 1995 by the jury clerk in the court administrator’s office that the total jury costs for her first action were $1,950. However, Butler only paid $500 to the clerk’s office. Thereafter, Butler made no further payments and no further efforts to comply with OCGA § 9-2-61 until after Bolton Road filed their motion for summary judgment. At this point Butler returned to the clerk’s office, rather than the court administrator’s office, where she received the July 10, 1995 letter detailing the costs to be paid.

Although Butler was informed the clerk’s office did not know her total costs in the previous action and although Butler received a letter from the clerk’s office on October 24, 1995 stating there were no outstanding court costs in the previous action, Butler never returned to the court administrator’s office and never paid any further jury costs for her previous action. We find the October 24,1995 letter from the clerk’s office to be irrelevant since the record shows the clerk’s office has no way of knowing what the jury costs may be and that these costs are calculated by the court administrator’s office. Moreover, this letter was received well after the date Butler should have paid the costs.

This is not a case as in Daugherty, where the costs were “unknown to plaintiff after a good faith inquiry.” Daugherty, supra at 91. Rather, Butler clearly knew the balance due as of July 10, 1995, yet made no effort to pay the full amount as required by the statute. This fact situation is more analogous to Oseni v. Hambrick, 207 Ga. App. 166 (427 SE2d 559) (1993), and Michaels v. Kroger Co., 193 Ga. App. 40, 41 (387 SE2d 2) (1989). In these cases, the Court affirmed the dismissal of the actions because the plaintiffs knew the amount owed, but failed to pay the amount. In the present case, the record does not reflect that Butler returned to the court administrator’s office, where she made her initial inquiry and received the initial letter outlining the amount owed. Instead, Butler chose to disregard the initial letter from the court administrator’s office and attempted to obtain another figure from the clerk’s office.

The only evidence which arguably shows a good faith effort to comply with the rule is Butler’s hearsay testimony that she was told she could pay the amount in installments. It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment. Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628 (2) (206 SE2d 598) (1974). Since Butler’s testimony is inadmissible hearsay, the trial court was correct in refusing to consider the testimony. Moreover, Butler’s testimony is directly contradicted by the testimony of the employee who accepted the $500 payment on or about July 10, 1995, and other employees of the clerk’s office.

In the present case, the facts are undisputed by any admissible evidence. While Butler contends she was informed by personnel at the clerk’s office in July 1995 that she could pay the amount owed in installments, this statement constitutes hearsay and is unsupported by any admissible evidence. Contrary to Butler’s argument, this alleged statement is not an admission by an agent.

Pursuant to OCGA § 24-3-33, “[a]dmissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal.” Before the declarations of an agent are admissible, some proof of agency must be submitted. Waddington v. Stores Mut. Protective Assn., 52 Ga. App. 331 (1) (183 SE 143) (1935). No such proof has been presented in the present case, especially in light of the fact that Butler cannot identify the person who allegedly made the statement and affidavits from the clerk’s office employee who accepted the $500 payment on or about July 10, 1995, and other employees of the clerk’s office contradict Butler’s allegation. See Collins v. S. H. Kress & Co., 114 Ga. App. 159 (1) (150 SE2d 373) (1966).

We agree with the trial court that “even assuming that Plaintiff made a good faith, yet fruitless, effort prior to July 10, 1995 to discover the costs from [the prior case], Plaintiff had a duty, once she discovered what the costs were, to pay them ‘within a reasonable time in order to preserve jurisdiction.’ [Cit.]” While Butler may have made a good faith effort to ascertain any unpaid costs due in the prior action, the record reveals that she did not pay the deficiency within a reasonable time after being made aware of it. “[T]he putting forward of some unidentified, unspecific person . . . who allegedly made certain remarks that would bind or incriminate [a party], and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that [Butler failed to pay her prior unpaid costs within a reasonable time after being made aware of them].” (Citations omitted.) Johnston v. Grand Union Co., 189 Ga. App. 270, 272 (1) (375 SE2d 249) (1988). Accordingly, the trial court did not err in granting appellees’ motion for summary judgment. See Cox v. Fillingim, 184. Ga. App. 205 (2) (361 SE2d 65) (1987).

Decided August 28, 1996

Reconsideration denied September 18, 1996.

Tony L. Axam, for appellant.

Johnson & Kane, Frederick A. Johnson, for appellees.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J, Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

The trial court reconsidered its previous denial of defendant Bolton Road’s motion for summary judgment, concluding that plaintiff Butler’s evidence regarding the clerk’s assurance that she could pay past due costs in installments is inadmissible hearsay. I believe this premise is flawed. It is also my view that this flawed reasoning can and should be corrected by this Court within the error as enumerated, namely, the existence of genuine issues of material fact precluding judgment. “Some courts live by correcting the errors of others and adhering to their own.” Ellison v. Ga. R. Co., 87 Ga. 691, 695 (1) (13 SE 809). Butler’s statement regarding what the clerk told her explains conduct and is therefore admissible and probative as original evidence under OCGA § 24-3-2. See Riviera Finance v. McBride, 221 Ga. App. 321, 322 (471 SE2d 233). “ ‘(I)t is apparent that the trial court’s ruling in the case sub judice rests upon an erroneous legal theory. The trial court’s reliance upon an erroneous legal theory requires reversal. (Cits.)’ Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984).” All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429). As my. colleagues in the majority would nevertheless affirm this unwarranted grant of summary judgment, I respectfully dissent.


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

text:
    A96A1363.
    WEIDMANN v. THE STATE.
    (476 SE2d 18)
   Birdsong, Presiding Judge.

Dawn Ellen Weidmann appeals her conviction of one count of DUI and two counts of obstruction of a police officer. She enumerates, three errors. Held:

1. Appellant contends the trial court erred in denying her motion in limine as to venue. The trial court held: “Defendant argues that Douglas County is the proper venue for the charges against her . . . because that is where she was stopped and that is where the obstruction charges originated. At trial, venue is a jurisdictional fact which the State has the burden of proving beyond a reasonable doubt. Dempsey v. State, 52 Ga. App. 35 [(182 SE 56)]. Although the obstruction charge arose in Douglas County, ‘if a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.’ See OCGA § 17-2-2 (b). Whether the obstruction charges occurred ‘adjacent to’ Cobb County must be decided by the trier of fact.” Appellant has not enumerated any charging error as to venue; accordingly, such contention has not been preserved for appeal. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

“Venue is a question to be decided by the jury and its decision will not be set aside as long as there is any evidence to support it”; further, both circumstantial and direct evidence may be used to establish venue. Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which she was found guilty (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)) and that the offenses occurred in Cobb County as averred in the indictment (OCGA § 17-2-2 (a); compare Pippins v. State, 204 Ga. App. 318 (419 SE2d 28)). In view of this we need not determine whether venue also existed under the provisions of OCGA § 17-2-2 (b). The ruling of the trial court denying the motion in limine as to venue was correct. We will not reverse the correct ruling of a trial court regardless of the reason, if any, given therefor. Ely v. State, 192 Ga. App. 203, 205 (4) (384 SE2d 268).

2. Appellant contends the trial court erred in denying her motion for directed verdict as to Counts 4 and 6 of obstruction of police officers Atwood and Saxton. “ ‘ “A directed verdict of acquittal in a criminal case is authorized 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 acquittal or not guilty.” ’ ” (Citation omitted.) Torrance v. State, 217 Ga. App. 562, 563 (2) (458 SE2d 495). The standard of reviewing the denial of a motion for directed verdict of acquittal is stated in Jackson v. Virginia, supra. Torrance, supra.

OCGA § 16-10-24 (a) provides: “Except as otherwise provided in subsection (b) [which pertains to felony obstruction] of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” The essential elements of this misdemeanor offense are that the act constituting obstruction or hindering must be knowing and wilful, and that the officer must be lawfully discharging his official duties at the time of such act. Cline v. State, 221 Ga. App. 175 (471 SE2d 24). The offense of misdemeanor obstruction, under OCGA § 16-10-24 (a), no longer contains the element of violence. Id.; Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (whole court); accord Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596). “ ‘(T)he statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties.’ ” (Citation omitted.) Carter v. State, 188 Ga. App. 464, 465 (2) (373 SE2d 277). To the extent that any other cases by this Court “stand for the proposition that a conviction for misdemeanor obstruction under existing OCGA § 16-10-24 (a) requires evidence that violence was offered or done, they are erroneous” and have been overruled since 1992. (Emphasis in original.) Duke, supra at 690. Thus, extreme caution must be exercised in applying the broad proposition that misdemeanor obstruction still requires evidence of forcible resistance or opposition. See, e.g., Norman v. State, 214 Ga. App. 408, 409 (448 SE2d 219); O’Neal v. State, 211 Ga. App. 741 (440 SE2d 513). To consummate an offense of misdemeanor obstruction, some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or hinderance is required, but actual violence or threat thereof is not. Compare OCGA § 16-10-24 (a); Duke, supra; and Cline, supra. Thus, for example, flight from police apprehension has been held to constitute sufficient opposition to support an obstruction charge. O’Neal, supra, citing Cason v. State, 197 Ga. App. 308 (398 SE2d 292), overruled on other grounds. Likewise, lying to a police officer with intent to misdirect him in the performance of his official duties can constitute a hinderance within the meaning of OCGA § 16-10-24 (a). Duke, supra at 690. Whether the evidence in a particular case establishes that the actions taken hindered or obstructed the officer making the arrest is for the trier of fact to decide. Norman, supra.

Officer Atwood observed appellant driving erratically in Cobb County and pursued her into Douglas County; he stopped appellant as soon as it was safe to do so. When arresting Officer Atwood attempted to handcuff appellant following her lawful arrest for DUI, she became abusive, cursing and screaming that the officer was hurting her. An officer from Douglas County was present on the scene and attempted to calm appellant down by talking to her. Appellant continued to resist being placed into the patrol car and kicked Atwood in the groin. At this point Atwood considered the situation to have escalated as he had been assaulted; he forced appellant to the ground and held her there while he called for a supervisor to come to the scene. Appellant continued to holler, kick, and scream while on the ground. Officer Price arrived on the scene, and the two officers struggled to hobble appellant and place her into the patrol car. Appellant, however, got out of the hobble and apparently attempted to exit the patrol car by crawling into the front seat. In the process appellant activated the vehicle’s air horn. Officer Atwood’s supervisor, Sergeant Hubbard, arrived on the scene; he helped Atwood re-secure appellant. Sergeant Hubbard directed Atwood to transport appellant to the women’s facility in Cobb County and told Officer Saxton who was now at the scene to follow Atwood’s patrol car. Appellant was still screaming and hollering in the back of the patrol car.

After the patrol car re-entered Cobb County en route to the women’s facility, appellant got to her knees in the back seat and began to bang the rear door window with her head. Atwood radioed Saxton and told him they were going to have to stop because of appellant’s conduct, but then appellant laid down, so Atwood told Saxton to disregard the transmission. “After [Atwood] said that, [appellant] got back up and started banging her head again.” Atwood pulled over and advised on the radio he was stopping because appellant was banging her head on the window. Appellant immediately laid down again, but Atwood and Saxton secured her with another hobble so she could not hurt herself or tear up the car. “ ‘Under that evidence, the jury was authorized to infer that (appellant) knew that [at least two police officers were] attempting to perform [their] official duty [of transporting appellant to a women’s facility], and to find that (appellant) deliberately took action to delay, hamper or impede the officer[s] in the performance of [their] duty.’ ” (Citation omitted.) Sanders v. State, 204 Ga. App. 545, 547 (1) (b) (419 SE2d 759).

“ ‘It is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the [applicable] elements of the obstruction statute.’ ” Mapp v. State, 204 Ga. App. 647, 650 (6) (420 SE2d 615). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the two offenses of misdemeanor obstruction of which she was found guilty. Jackson v. Virginia, supra. The trial court did not err in denying appellant’s motions for directed verdict of acquittal of misdemeanor obstruction, Counts 4 and 6. Compare Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354); see also Imperial, supra.

Decided August 29, 1996

Reconsideration denied September 18, 1996.

The Roberts Law Firm, John A. Roberts, James A. Dooley, Alan I. Begner, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Rebecca A. Hulsey, Assistant Solicitors, for appellee.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur fully in Division 2. With respect to Division 1, I concur in the conclusion that the trial court did not err. There is ample evidence that Weidmann drove her vehicle while under the influence of alcohol both in Cobb County and in Douglas County, so this crime was encompassed within the venue description provided in OCGA § 17-2-2 (a). It could have been tried in either county.

The same is true with respect to the charges that Weidmann knowingly and wilfully obstructed and hindered both officers. Although she did not engage in such behavior while in Cobb County initially, when Officer Atwood noticed her erratic driving and followed her into Douglas County without her knowing that he was about to stop her, her criminal reactions to the stop and arrest in Douglas County continued in the police car on the way to the police station, while in Cobb County. These acts, too, if separated into those which occurred in Douglas and those which occurred in Cobb, could have been prosecuted in either county.

This is simply not a situation where a crime is committed in one county and defendant is brought to another county for prosecution.

       The trial court charged the jury: “As to Courts . . . charging the defendant with obstruction of officers Atwood and Saxton, you may not consider any of the actions of the Defendant that occurred at the scene of the arrest as it was in Douglas County and beyond the jurisdiction of this Court. You may, however, consider all of the actions of the Defendant and the officers whether in Cobb County or Douglas County as they may relate to your determination of the guilt or innocence of the accused in . . . the driving under the influence charge.”


author: Birdsong, Presiding Judge.

text:
    A94A2002.
    COLUMNS PROPERTIES, INC. v. COLEMAN et al.
    (476 SE2d 86)
   Birdsong, Presiding Judge.

In Coleman v. Columns Properties, 266 Ga. 310 (467 SE2d 328), the Supreme Court reversed the judgment of this Court in Columns Properties v. Coleman, 216 Ga. App. 428 (454 SE2d 546), holding that under the doctrines of res judicata and estoppel by judgment, a workers’ compensation award was a binding determination that Catherine Coleman was not an invitee on Columns Properties’ premises, and returned the appeal to this Court for consideration consistent with that opinion. Therefore, our prior judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this Court on the issue of whether res judicata and collateral estoppel prevented Catherine Coleman from relitigating her status on Columns Properties’ premises. This reversal, however, does not end our inquiry because Columns Properties also contends that, notwithstanding the res judicata and collateral estoppel issue, the trial court erred by denying its motion for summary judgment.

After Catherine Coleman’s workers’ compensation claim was denied, “[t]he Colemans then filed this action, alleging that Catherine Coleman was injured while at the job site ‘at the invitation and permission’ of Columns Properties to pick up her pay check. The record shows that Catherine Coleman had visited her husband’s trailer on several occasions and used the same entrance each time. Before entering this door, she had to use a metal step that was attached to the trailer by its manufacturer. The step had no railings. Although the step was wet and muddy because it had rained that day, Catherine Coleman safely entered the trailer. When she started to leave, however, she put her foot on the step without looking and then slipped and fell. At a deposition given as part of her workers’ compensation claim, Catherine Coleman testified she did not know what caused her to slip and fall.” Columns Properties v. Coleman, supra at 429. Catherine Coleman’s husband, Dennis Coleman, also asserted a claim for loss of consortium. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. In this appeal, Columns Properties’ motion for summary judgment asserted that regardless of Catherine Coleman’s status as either a licensee or an invitee she cannot recover. We agree.

“The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.” (Punctuation omitted.) Cowan v. Waffle House, 217 Ga. App. 273, 275 (456 SE2d 762). “ ‘[Wjhere there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.’ ” Gaydos v. Grupe &c. Investors, 211 Ga. App. 811, 813 (440 SE2d 545).

Catherine Coleman had visited the trailer numerous times using the same step even though there was another entrance she could have used. Further, she knew there was no handrail at the step.

Additionally, Catherine Coleman testified at deposition that after entering the trailer by use of the step, when she left, she stepped from the trailer without looking at the step, placed her right foot on the wet step, and slipped and fell to the ground. She testified that she does not know what caused her fall. “ ‘Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence.’” Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550); Lee v. Peacock, 199 Ga. App. 192 (3) (404 SE2d 473).

Although at a session of her deposition a year later, Catherine Coleman testified several times that she fell because the “step gave way,” she did not explain the contradiction between this testimony and her earlier testimony that she did not know what caused her fall even after the contradiction was called to her attention. Because this is unexplained, self-contradictory testimony, it must be construed against Catherine Coleman. Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). In application this means that the portions of Catherine Coleman’s contradictory testimony favorable to her must be eliminated and then all the testimony on the motion for summary judgment must be taken as it then stands, and construed in her favor, as the party opposing the motion, to determine whether summary judgment should have been granted. Prophecy Corp. v. Charles Rossignol, Inc., supra at 28. Viewed in this manner, we must conclude that the trial court erred by denying Columns Properties’ motion for summary judgment. Catherine Coleman’s remaining testimony established nothing more than that she fell on a wet step, and that is not sufficient to carry her burden. Wilson v. Duncan, supra; Lee v. Peacock, supra. As Dennis Coleman’s consortium claim is derivative of Catherine Coleman’s claim, Columns Properties is also entitled to summary judgment on its claim as well. Hall v. Gardens Svcs., 174 Ga. App. 856 (332 SE2d 3); Groover v. Dickey, 173 Ga. App. 73 (325 SE2d 617).

3. Additionally, Dennis Coleman first testified that he was unaware of any danger or defect in the step, and knew of no problem or danger with the step. Later in his deposition, however, Dennis Coleman changed his testimony regarding the condition of the step to state that others told him that they had had problems with the step. Nevertheless, he did not explain the inconsistencies in his testimony. Consequently, because Dennis Coleman’s testimony both claimed and denied prior knowledge of problems with the step, we must also apply the self-contradictory testimony rule to his testimony. Gentile v. Miller &c., Inc., supra; Prophecy Corp. v. Charles Rossignol, Inc., supra. Construed in this manner, Dennis Coleman’s testimony was not sufficient to create a genuine issue of material fact on the condition of the step and whether Columns Properties had equal or greater knowledge of the condition of the step — even if we were to reach this step in our analysis of Catherine Coleman’s claim against Columns Properties.

Decided September 18, 1996.

Neal C. Scott, Mary P. Vilmos, for appellant.

The Sherwinter-McElroy Law Group, Emily Sherwinter, James G. McElroy, for appellees.

Accordingly, the judgment of the trial court is reversed and the case remanded to the trial court with direction to enter summary judgment in favor of Columns Properties.

Judgment reversed and case remanded with direction.

Blackburn and Ruffin, JJ, concur.


text:
    A96A0780.
    DUFFEY v. THE STATE.
    (476 SE2d 89)
   Birdsong, Presiding Judge.

This is an appeal from a resentencing which appellant contends is unlawful under North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656); Anthony v. Hopper, 235 Ga. 336 (219 SE2d 413) and Hewell v. State, 238 Ga. 578 (234 SE2d 497).

In 1994 Earl Duffey was convicted of nine counts of sexual abuse of four boys. These were Count 1 (aggravated sodomy of R. K); Count 2 (aggravated sodomy of R. K.); Count 3 (aggravated child molestation of R. K.); Count 4 (aggravated child molestation of R. K.); Count 5 (aggravated sodomy of M. R.) (Counts 6, 7, 8, and 9 involved sexual offenses against other boys, but these sentences are not issues in this appeal).

As to the counts pertinent to this appeal, Duffey was sentenced to a total of 30 years in prison: Count 1 (20 years to serve); Count 2 (10 years consecutive); Counts 3, 4, and 5 (10 years each, concurrent). In appellant’s first appeal, in an unpublished decision we held Counts 1 (aggravated sodomy) and 4 (aggravated child molestation) and Counts 2 (aggravated child molestation) and 3 (aggravated child molestation) arose out of only two incidents involving R. K. We held it was proper to prosecute appellant for Counts 1 and 4 (involving one act with R. K.) and Counts 2 and 3 (involving another act with R. K.) but that as to each act he should have been convicted and sentenced for one crime. Id. Thus, Duffey “should have been sentenced on the aggravated child molestation charges [Counts 3 and 4] as the greater offense because they subsumed the acts of aggravated sodomy [Counts 1 and 2] as a matter of fact.” We vacated his convictions and sentences for aggravated sodomy in Counts 1 and 2. We also vacated the sentences for Counts 3 and 4 because they were dependent on (concurrent to) the vacated convictions and sentences for Counts 1 and 2. On remand the trial court'resentenced appellant thusly: Count 3 (10 years to serve)', Count 4 (10 years consecutive)', Count 5 (10 years consecutive).

Appellant now contends his resentencing amounts to an illegal increase in sentencing and violates the rule in Anthony, supra, where the court held that although the second sentence equaled the first sentence, the increase of an individual sentence was illegal. See also Hewell, supra. Held:

1. Appellant contends that after Count 1 merged with Count 4, and Count 2 merged with Count 3, the remaining original sentence to serve was ten years as to Count 3. He thus contends that the most he can be required to serve on resentencing is ten years.

Anthony and Hewell are factually distinguished from this case. In Anthony, a sentence to serve five years for sale of heroin was increased to eight years to serve. In Hewell a sentence of 12 years confinement was increased to 16 years confinement. In this case, none of appellant’s sentences was increased. Counts 3, 4, and 5 — which were previously sentenced to run concurrent to the thirty-year sentences of Counts 1 and 2 — now run ten years to serve on Count 3, ten years consecutive on Count 4, and ten years to serve on Count 5. The change from concurrent to consecutive in the context of this case is not an increase in time; such distinctions are not meaningful in every case. See Thomas v. State, 150 Ga. App. 341, 342 (258 SE2d 28). In fact, by conceding that Count 3 (which was a ten-year concurrent sentence but is now a ten-year sentence to serve) is proper and is the only sentence he can be made to serve, appellant concedes that concurrent sentences may be converted to consecutive sentences on resentencing after the vacating of a prior sentence.

2. We do not find Pearce controlling in this case. Pearce applies a so-called presumption of vindictiveness only when a judge “imposes a more severe sentence” on resentencing. (Emphasis supplied.) Wasman v. United States, 468 U. S. 559, 565 (104 SC 3217, 82 LE2d 424); Pearce at 726. The trial court did not impose a more severe sentence; it merely made his ten-year sentences for Counts 3, 4, and 5 run consecutive rather than concurrent. It happened that the first two counts of which appellant was convicted and sentenced were the only two the trial court had made “to serve”; the fact that on appeal these offenses were merged into other counts does not remove the trial court’s power to resentence appellant for those other counts and to require those terms to be served.

Moreover, the convictions and sentences for Counts 1 and 2 were vacated for technical reasons having to do with duplication. The same criminal acts survived in Counts 3 and 4. In its original sentence the trial court plainly intended to sentence appellant to serve 30 years for his sexual crimes against R. K. It resentenced appellant to serve only 20 years for his crimes against R. K. The sentence for the offenses against R. K was thus actually decreased; there can be no question that the original sentences were less severe than the 20 years imposed on resentencing. See Thomas, supra. The sentence for appellant’s crime in Count 5 against M. R. was not increased but was changed from concurrent to consecutive. The total sentence imposed does not amount to an increase of appellant’s sentence for the same criminal acts and the court did not increase any sentence it had previously imposed; therefore, Pearce’s presumption of vindictiveness simply does not arise. The trial court plainly intended appellant to serve 30 years for his crimes against these children; the fact that two technically redundant counts were vacated does not lessen the severity of the crimes against these children, and it certainly does not require the trial court to reduce appellant’s sentence for the remaining counts, which is what appellant essentially contends. The trial court did not illegally increase the sentence on any count and did not run afoul of Pearce.

3. Even under a Pearce analysis, “[t]here is no absolute constitutional bar to imposing a more severe sentence upon resentencing . . . by the court after reconviction following a successful appeal.” Anthony at 337. Pearce promotes the idea that vindictiveness against a defendant for successfully attacking his first conviction must play no part in his resentencing, so an increased sentence on resentencing raises a presumption of vindictiveness. Pearce, supra at hn. 3; Hewell, supra at 579. This so-called presumption of vindictiveness, however, refers to resentencing which actually penalizes a defendant for appealing his sentence, and the notion of what will rebut such a broad presumption, as first proposed, has been less forcefully propounded. See Wasman, supra. The reason a factual basis for increased sentencing is required is to allow the constitutional legitimacy of an enhanced sentence to be assessed on appeal. Id. at 565. Nothing in this record indicates this resentencing was intended to or did penalize appellant'for successfully appealing his prior sentences. Rather, the trial judge made it clear that he was aware of the requirements of Pearce and had no intention of violating Pearce', he said he understood the defendant could be resentenced “so long as the court does not punish him for exercising his right to appeal by increasing his sentence.” Given this explanation in the record, we find most sensible and applicable to this case the reasoning in Moon v. Maryland, 398 U. S. 319 (90 SC 1730, 26 LE2d 262), where the court upheld an increased sentence for armed robbery. The trial judge in that case gave an affidavit setting out the reasons he imposed a 20-year prison sentence, including information about defendant’s conduct after the original sentencing; nevertheless, the Supreme Court found that “the dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, 7 have never contended that [the judge] was vindictive! ” (Emphasis supplied.) Id. at 320-321.

Decided September 18, 1996.

Word & Mitchell, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Dennis T. Blackmon, Assistant District Attorneys, for appellee.

Likewise, there is no claim that this judge was actually vindictive, and we find his resentencing was not vindictive.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1066.
    McLEAN v. CONTINENTAL WINGATE COMPANY, INC. et al.
    (476 SE2d 83)
   Blackburn, Judge.

John W. McLean, Jr. (employee) appeals the trial court’s grant of summary judgment to Continental Wingate Company, Inc.; Continental Wingate Company of Georgia, Inc.; Continental Wingate Associates; Wingate Management Company; Continental Wingate Capital Corporation; and Gerald Schuster (referred to collectively as the employer) after the trial court determined that the bonus provision in the employment agreement between the parties was unenforceable.

This is the second appearance of this case in this Court. In the first appearance, we reversed the trial court’s grant of summary judgment to the employer, finding as a matter of law that the bonus provision at issue was not too vague and uncertain to be enforceable based on prior dealings between the parties. We also found that a material issue of fact remained as to whether a breach of the employment agreement occurred. See McLean v. Continental Wingate Co., 212 Ga. App. 356, 358-359 (442 SE2d 276) (1994).

On remand, the employer filed a renewed motion for summary judgment which essentially alleged that McLean was wrongly decided, and cited for this proposition the recent Georgia Supreme Court case of Arby’s, Inc. v. Cooper, 265 Ga. 240, 242 (454 SE2d 488) (1995) (a bonus is unenforceable if its amount is based, at least in part, on a future exercise of discretion, where the parties’ prior performance does not operate to alter that result). Also on remand, the employer submitted two additional affidavits to the trial court — which affidavits it failed to present on its first appearance before the court — detailing its version of how the bonus provision was prepared and how the provision should be interpreted.

Prior to reaching the employee’s enumerations of error, we note that Arby’s did not announce a radical change in existing law. Instead, Arby’s merely relied upon existing case law, which generally holds that indefinite promises of future compensation are not enforceable. In the present case, the employer had unsuccessfully relied on this same proposition in McLean, supra. However, the trial court granted the employer’s renewed motion for summary judgment based on Arby’s, and the employee now appeals.

1. The employee contends that the trial court’s order granting the employer’s renewed motion for summary judgment violated the law of the case rule. This is a correct contention.

OCGA § 9-11-60 (h) provides in pertinent part that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” Although “the law of the case rule has formally been abolished ... it [still] applies to rulings by one of the appellate courts; they are binding in all subsequent proceedings, including a second trial.” (Punctuation omitted.) Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (366 SE2d 160) (1988). OCGA § 9-11-60 (h) can apply to rulings made during an appellate court’s reversal of a trial court’s grant of summary judgment. See Yaeger v. Stith Equip. Co., 185 Ga. App. 315 (364 SE2d 48) (1987) (applying the law of the case to an issue about which no new evidence was presented on the renewed motion for summary judgment).

In McLean, supra at 356, the employer argued that the bonus provision was unenforceable because the amount of the bonus was left, in part, to the discretion of the employer. In determining that the bonus provision was not unenforceable as a matter of law, this issue was necessarily resolved against the employer. Therefore, unless an exception applies, the law of the case rule prevented this issue from being relitigated upon remand.

An exception to the rule that will permit issues to be relitigated after appeal is when the evidentiary posture of the case changes. See May v. Macioce, 200 Ga. App. 542, 544 (409 SE2d 45) (1991) (appellate court holdings are not binding as the law of the case when the evidentiary posture of the case changes after the appellate court’s decision). The employer contends that such a change occurred here because it submitted two additional affidavits to the trial court.

The evidentiary posture of a case changes so as to bar application of the law of the case rule in two different situations. First, the evidentiary posture changes when a new issue not previously addressed by an appellate court is raised by amended pleadings or otherwise, and second, the posture changes when the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented. See Mom Corp. v. Chattahoochee Bank, 203 Ga. App. 847 (418 SE2d 74) (1992) (evidentiary posture changed when an affidavit was submitted following a Supreme Court ruling that the prior affidavit addressing the same question was inadmissible); Suggs v. Brotherhood of Locomotive Firemen &c., 106 Ga. App. 563, 564-565 (127 SE2d 827) (1962) (evidentiary posture changed when defendant amended its answer, raising an additional defense); May, supra at 544 (evidentiary posture changed when the pleadings were amended, changing the issues involved). Neither of these situations are present here. Accordingly, the law of the case rule applies to this renewed summary judgment motion.

Finally, even if the employer was correct that Arby’s, supra, constitutes a change in the applicable case law, such a change would not demand a departure from the rule as it pertains to this case, which was resolved by this Court before the change occurred. See Navistar Intl. Transp. Corp. v. Ogletree, 199 Ga. App. 699 (405 SE2d 884) (1991); see also Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 788 (456 SE2d 97) (1995). Therefore, as between these parties, the holding of McLean, supra, binds both the trial court and the Court of Appeals. See Eastgate Assoc., Ltd. v. Piggly Wiggly Southern, 200 Ga. App. 872, 875 (410 SE2d 129) (1991). Consequently, the trial court erred in granting the employer’s renewed motion for summary judgment.

2. In light of our holding in Division 1, we need not address the employee’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment reversing the grant of summary judgment to defendants, because the contract provision regarding bonuses is enforceable and there remain questions of fact with respect to whether it was breached. The issue of enforceability is governed in this appeal by the “law of the case” rule, although that rule was abolished as applied in Hill v. Willis, 224 Ga. 263 (161 SE2d 281) (1968). Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601 (1) (385 SE2d 397) (1989). As this Court stated in Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97) (1995), “If the decision of an appellate court [after a ruling by the Supreme Court or the Court of Appeals] becomes ‘incorrect’ because the law changes — either because of subsequent case law or because of later-enacted statutes — it may not be binding precedent for other situations. However, between the parties to the original decision it remains the law of the case.” The reason given is that to permit otherwise “would result in constant relitigation of issues as the law continually evolves.”

Relitigation of the issue once decided by this Court is simply not countenanced as another method of obtaining relief from its judgment. OCGA § 9-11-60 (h); Braner v. Southern Trust Ins. Co., 255 Ga. 117, 122 (335 SE2d 547) (1985). Motion for reconsideration filed in the Court of Appeals and petition for certiorari to the Supreme Court of Georgia are the only available methods of attack. Ga. Const, of 1983, Art. VI, Sec. VI, Par. IV; OCGA § 5-6-15; Court of Appeals Rules 37 and 38. No such petition was filed in this case.

This is not to be confused with the rule that the court will apply the law existing at the time of its decision, even if the law has changed since a prior adjudication by the trial court, or that the trial court should apply the law existing at the time of its decision, even if the law as to unappealed issues has changed since a prior adjudication by this court. Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994).

The additional evidence produced in the trial court after reversal of the first summary judgment did not affect the validity of the original ruling by this Court that the bonus provision was enforceable. The new evidence simply did not change the undisputed facts which were relevant to that issue.

Even if an interim decision in another case changed the law which this Court applied in McLean I, it would not affect the integrity of the law of this case in its journey to completion and finality, as stated in Walker, supra. But Arby’s, Inc. v. Cooper, 265 Ga. 240, 242 (454 SE2d 488) (1995), did not change the law as relates to the undisputed facts in this case, anyway. There the Supreme Court held that the original indefiniteness in the bonuses provision of the agreement was not supplanted by performance in the way of payment and acceptance of bonuses which would show the intent of the parties in the ascertainment of the bonuses and thus make the agreement enforceable, because there was an element of discretion left to Arby’s. The Court refused to accept as sufficient a formula by which Arby’s exercised its discretion and paid the employee bonuses in two years, promised specific calculated amounts for two years, and made a partial payment of one of them.

Decided September 18, 1996

King & Croft, Terrence L. Croft, for appellant.

Long, Aldridge & Norman, James J. Thomas II, David Balser, Anthony E. Diresta, for appellees.

This case differs in that it was shown from the parties’ past dealings that they understood the meaning of the term “net proceeds” and the method of establishing the percentage of profits due for the employee’s services. So the bonuses were ascertainable by way of an agreed formula which conveyed the parties’ intention, particularly with respect to the exclusion of operating expenses and the deduction of working capital advances in calculating the bonuses.

Thus, even if the law of the case rule did not apply, the result would be the same. Neither Arby’s nor defendants’ additional evidence undermines the validity of the bonus provision in the employment agreement.

       The bonus provision at issue provides, inter alia: “The net profits due [employee] shall be determined by Continental Wingate Company, Inc., in its sole discretion, as they relate to development proceeds, exclusive of operations.”

       Neither party applied for certiorari.


text:
    A96A1429.
    THORNTON v. CARPENTER et al.
    (476 SE2d 92)
   Birdsong, Presiding Judge.

Appellant/plaintiff Ernie Pauline Quinn Thornton b/n/f Wendell Thornton appeals from the order of the superior court granting summary judgment to appellees/defendants Donald R. Carpenter and Eddie Edenfield. This is an action, brought by an allegedly incompetent person by her guardian and next friend (see generally Wynne v. Fisher, 156 Ga. 656, 659 (1) (119 SE 605)), to set aside a deed of gift of real property from appellant to her son and attorney in fact, James Lee Thornton who is now deceased, to set aside all subsequent conveyances of the property, and to obtain injunctive relief. The trial court granted the motions for summary judgment holding that Carpenter was a bona fide purchaser for value and that Edenfield, being Carpenter’s grantee, was likewise protected notwithstanding that he purchased his portion of the real property after a lis pendens had been filed against it.

In November 1989, without the knowledge of her now sole surviving son Wendell Thornton, appellant Ernie Thornton personally transferred the property at issue to her son and attorney in fact, James Thornton. James Thornton died in November 1992; he was survived by his wife, Wanda Thornton, who was appointed executrix of his estate. In January 1993, defendant Moody paid $5,000 for an option to purchase the property. On February 5, 1993, Moody received a letter from the attorney of Wendell Thornton notifying him that Wendell questioned his mother’s competence to convey the property and if the matter could not be resolved, suit would be initiated to set aside the 1989 conveyance. Moody contacted Wanda Thornton who advised him there was no basis for Wendell’s claim, and that unless suit was filed the $5,000 would not be returned to Moody. Moody subsequently obtained a title search to the property.

On February 11, 1993 the property was conveyed to Moody by Wanda Thornton by means of a warranty deed; Moody pledged the property as collateral to the Broxton State Bank by deed to secure a $44,000 debt. That same day, Moody also pledged the property as collateral to Jimmy Bryant as a so-called second mortgage by executing a deed to secure a $37,500 debt with power of sale. Prior to exercising his option to purchase, Moody was aware appellee Carpenter was looking for property for a farm, and had a “deal” with Carpenter.

On February 12, 1993, Moody executed a quitclaim deed conveying the property to appellee Carpenter. Moody did not inform Carpenter about Wendell Thornton’s claim or of the letter from his attorney. Although no transfer tax was paid on the deed to Carpenter, there exists evidence of record that he tendered $1,000 for the property and timely commenced and continued making the payments due on the security interest held by the bank and to which the property remained subject. This payment scheme became known to and was, at least, tacitly consented to by the Broxton State Bank. However, Moody concedes that he remained personally liable on the instruments of indebtedness if Carpenter failed to make timely payments. Moody further testified that he made a profit of ten percent or $7,500 on the property sale to Carpenter as the property cost only $75,000 and the mortgage loan was for $82,500. Carpenter, by way of affidavit, stated under oath that he purchased the property for a total consideration of $83,500, and that he had no notice either before or during the transaction of sale of any claim against the property. Subsequently, Moody learned that appellee Edenfield wanted to purchase some property; Moody contacted Carpenter and ascertained the latter would sell a corner of the land to Edenfield.

On April 23, 1993, Wendell Thornton was appointed as emergency and permanent guardian of the person and property of appellant Ernie Thornton who was judicially determined to be incapacitated; appellant’s incapacity was determined to be total and complete as contemplated by OCGA § 29-5-1. See generally OCGA §§ 29-5-3 (a) and (b) (6); 29-5-8. The subsequent order appointing Wendell Thornton as permanent guardian expressly included the power “to receive, collect and take charge of the estate, both real and personal” of Ernie Thornton. Appellant Ernie Thornton’s attending physician, by way of affidavit, opined that Thornton has lacked the mental capacity either to comprehend or make cognitive decisions concerning her personal affairs since at least March 16, 1985. Wendell Thornton by way of affidavit opined, based inter alia on the casual communications with his mother and the letter from his brother, James Thornton, wherein his mother’s inability to recognize James was acknowledged, that his mother, Ernie Thornton, has not been mentally competent since January 1984. He testified, by way of deposition, and rendered essentially the same opinion and same reasons therefor, except it was clarified he also based his opinion, as to his mother’s lack of competency at the time she conveyed the property to James Thornton, on the statements of the attending physicians and of friends. He also stated that his mother was not competent when he and James Thornton, as co-executors of their father’s estate, previously had deeded the property to her, and she was not competent when she executed the power of attorney to James Thornton.

On May 12, 1993, Carpenter conveyed a portion of the property to appellee Edenfield by warranty deed for $10,000. This warranty deed was not filed until June 3, 1993. Edenfield then executed a deed to secure debt on behalf of Carpenter for $8,000 and apparently paid him the remaining $2,000 in cash. By way of affidavit, Edenfield stated that neither before nor during the transaction of sale did he have notice of any claim against the property. On May 19, 1993, this suit was filed in superior court and a lis pendens notice was duly recorded pursuant to the provisions of OCGA § 44-14-610.

Appellant enumerates that the trial court erred by granting Carpenter’s and Edenfield’s motions for summary judgment, by holding as a matter of law that Carpenter and Edenfield were entitled to the protection of bona fide purchasers, by holding that no question of fact existed as to the relationship of agency between defendants Moody and Carpenter whereby Carpenter would be charged with the notice given Moody as to appellant’s claim, and by failing to hold that the personal representative of an incompetent grantor could void a deed made by said grantor. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); “the opposing party should be given the benefit of all reasonable doubt, and the court should construe .the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843).

2. As the parties appear to concede that Edenfield took title with notice of this pending action, the basic issue before us is whether Carpenter is both a bona fide purchaser for value and entitled to protection against the claims of an incompetent grantor; if so, the trial court did not err in granting summary judgment to Edenfield and Carpenter.

(a) Appellant’s contention that a genuine issue of material fact exists as to an agency relationship existing between Moody and Carpenter, which would cause Carpenter to be charged with the notice given Moody as to appellant’s claim, is without merit. Appellee Carpenter stated under oath in his affidavit that at no time prior to his purchasing of the property had Moody acted as his agent in regard to the property at issue. This statement stands legally unrefuted. A denial of an agency relationship, made by a purported party thereto, is a statement of fact sufficient to support a motion for summary judgment when uncontradicted. See McDaniel v. Peterborough Cablevision, 206 Ga. App. 437, 439 (425 SE2d 424). “ Tn such circumstances the adverse party may not rest on his pleadings, but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the specific facts required.’ ” Id. Further, “ ‘[a] bare assertion of the existence of an agency relationship, when made by an outsider to the alleged relationship, is not a statement of fact, but merely an unsupported conclusion of law.’ ” Young v. John Deere Co., 221 Ga. App. 157, 159 (3) (471 SE2d 19).

(b) We need not here address the validity of the power of attorney obtained from Ernie Thornton by her son, James, as the property in question was conveyed directly by Ernie to her son, James, and was not conveyed by James to himself while acting under color of authority as an attorney in fact. The trial court held and we agree that, as a general rule, a power of attorney “merely authorizes another [agent] to do what the grantor [principal] could do with respect to the recited subject matter. The grantor retains the right to act in [his] own name with respect to that subject matter, notwithstanding [his] execution of the power of attorney.” The trial court did not err in concluding that “the recorded power of attorney did not impose upon persons dealing with the property the burden of making inquiries into subsequent transactions between plaintiff [Ernie Thornton] and the late [James Thornton] involving the same property [here at issue].” McGahee v. Walden, 216 Ga. 352 (116 SE2d 559) and Harrison v. Harrison, 214 Ga. 393 (105 SE2d 214), cited by appellant, are factually distinguishable and not controlling.

(c) The conveyance by quitclaim deed to grantee, appellee Carpenter, did not standing alone constitute constructive knowledge to Carpenter of any claims pending against the grantor, defendant Moody. See Mathis v. Blanks, 212 Ga. 226, 228 (6) (91 SE2d 509); Marshall v. Pierce, 136 Ga. 543, 548 (4) (71 SE 893); see also Archer v. Kelley, 194 Ga. 117, 122 (1) (21 SE2d 51). There exists no genuine issue of material fact that Carpenter had either actual or constructive knowledge of appellant’s claims at the time of the conveyance of the property to him.

(d) Pretermitting whether appellee Carpenter was a bona fide purchaser for value (having paid only a $1,000 down payment for the property and apparently having agreed to take the property subject to a certain secured indebtedness thereon and thereafter having made timely payments on the indebtedness; compare Ross v. Rambo, 195 Ga. 100 (23 SE2d 687)) is whether a genuine issue of material fact exists whether Ernie Thornton was incompetent at the time of the transaction and, if so, whether a bona fide purchaser is protected against the claims of an incompetent.

The general provisions of OCGA § 23-1-19 (formerly Code Ann. § 37-114) are not here controlling. See Chestnut v. Weekes, 183 Ga. 367, 371 (2) (188 SE 714). Rather, OCGA § 13-3-24 (a) pertinently provides: “The contract of ... a mentally incompetent person who has never been adjudicated to be insane ... or mentally incompetent to the extent that he is incapable of managing his estate as prescribed by this Code is not absolutely void but only voidable, except that a contract made by such person during a lucid interval is valid without ratification.” “ ‘The contract of an insane [or mentally incompetent] person who has never been adjudged insane by any tribunal of competent jurisdiction is voidable after his death, at the instance of his heirs at law, if there be no legal representative of said insane [or mentally incompetent] person. . . . The deed of an insane [or mentally incompetent] person, though made without fraud and for an adequate consideration, may be avoided by his heirs, not only as against his immediate grantee but also as against bona fide purchasers for value and without notice of such insanity. “The fairness of the defendant’s conduct cannot supply the plaintiff’s want of capacity.” And “[a] person whose mind is so unsound as not to have capacity to contract is incapable of making a binding conveyance.” ’ ” Tate v. Potter, 216 Ga. 750, 753 (2) (b) (119 SE2d 547); Sewell v. Anderson, 197 Ga. 623, 624 (8), 629 (30 SE2d 102); see Morris v. Mobley, 171 Ga. 224 (2, 5) (155 SE 8); Warren v. Federal Land Bank &c., 157 Ga. 464, 465 (3) (a), 469-472 (122 SE 40). Whether Ernie Thornton was mentally incompetent and did not have the requisite mental capacity to contract at the time the deed was executed is a question for jury resolution. McCraw v. Watkins, 242 Ga. 452 (1) (249 SE2d 202); Jones v. Union Central Life Ins. Co., 178 Ga. 591 (1) (173 SE 845). Nor is it necessary for appellant, the original grantor, to return to these third-party bona fide purchasers the consideration paid to their grantors; restoration need be made, if at all, only to the immediate grantee from the insane or mentally incompetent person. Tate, supra at 753 (2) (b). Further, where, as here, the grantor was not judicially adjudged incompetent before the conveyance, even as to an immediate grantee, restitution is not required if, for example: (1) the grantee had made no tender of a valuable consideration, or (2) the immediate grantee entered the contract with knowledge of the grantor’s incompetency. Dean v. Goings, 184 Ga. 698 (2, 3) (192 SE 826); see generally Atlanta Banking &c. Co. v. Johnson, 179 Ga. 313, 318-319 (175 SE 904). These issues likewise are for jury resolution. See Metter Banking Co. v. Millen Lumber &c. Co., 191 Ga. App. 634, 638 (2) (b) (382 SE2d 624).

Decided September 18, 1996.

Ken W. Smith, for appellant.

Morris & Tillman, Keith M. Morris, William K. Blackstone, for appellees.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A96A1532.
    WATSON v. THE STATE.
    (476 SE2d 96)
   Blackburn, Judge.

Nolan W. Watson appeals his conviction for molesting a seven-year-old girl, contending that the evidence was insufficient to support the verdict and that the trial court erred in failing to charge the jury on sexual battery as a lesser included offense and in excepting a State’s witness from the rule of sequestration.

On appeal, the evidence is viewed in the light most favorable to the verdict. Under such view, the evidence shows the following. Watson was dating the victim’s mother. One day the two adults, who had been drinking, began tickling the victim. The victim testified that, at one point after her mother had left the room, Watson began to rub her vagina through her clothing. The mother testified, recounting the child’s statement that, in the mother’s absence, Watson tickled her thighs and rubbed her genital area. The mother testified that after the incident Watson began to buy the victim unusually lavish gifts including a ring, diamond earrings, and pearl earrings, yet Watson gave no gifts to her other daughter who was two years older than the victim. Also admitted into evidence was a videotaped interview of the victim made by law enforcement authorities wherein the child recounted the incident with Watson. Watson’s indictment was narrowly tailored to charge him with child molestation.

1. Watson asserts that the trial court erred in failing to give a charge on sexual battery as a lesser included offense of child molestation. This issue, however, has been previously decided against Watson and is controlled by Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993). In Teasley, supra, the defendant was indicted on a claim narrowly drawn to include the elements of child molestation, and was convicted based, in part, on the seven-year-old victim’s testimony that he had touched her sexual organs. On appeal, the defendant’s argument that sexual battery could be considered a lesser included offense of child molestation was rejected. Consequently, this enumeration is without merit.

2. Watson argues that the trial court erred in excepting a State’s witness from the rule of sequestration in violation of OCGA § 24-9-61. When Watson invoked the rule of sequestration, the prosecutor asked that a police officer be excepted, as her assistance was required in the process of questioning, and this exception was granted by the trial court. Watson asserts that this was error because the prosecutor failed to establish an appropriate foundation for making this request.

We are bound by our Supreme Court’s rulings that the trial court has discretion to grant exceptions, where required, to the rule of sequestration. See Chastain v. State, 255 Ga. 723, 724-725 (342 SE2d 678) (1986) (no exception necessary for the prosecutor who signed the indictment bringing the charges as they are allowed to remain in courtroom and testify after other witnesses). In this case, the witness did not sign the indictment, but she was the investigating officer. Watson has shown no abuse of discretion by the trial court in making the exception, and, therefore, this enumeration is without merit. See Norman v. State, 255 Ga. 313, 316 (338 SE2d 249) (1986) (trial court did not err granting exception to rule of sequestration so that investigating officer could aid State in presentation of its case).

3. In his final enumeration, Watson argues that the trial court erred in denying his motion for a directed verdict, asserting that the record is devoid of any evidence as to his lascivious intent, a necessary element to support a conviction for child molestation. “[W]hether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” (Punctuation omitted.) Parham v. State, 218 Ga. App. 42, 43 (460 SE2d 78) (1995). The evidence was sufficient for a rational trier of fact to have found Watson guilty beyond a reasonable doubt of the crime of child molestation, and the trial court did not err in failing to direct a verdict on this issue.

Decided September 18, 1996.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Rachelle L. Strausner, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       An aunt also testified that the child reported the incident to her.


text:
    A96A1808.
    In the Interest of M. G. F., a child.
    (476 SE2d 100)
   Judge Harold R. Banke.

M. G. F.’s natural mother appeals from a juvenile court order terminating her parental rights. She contends the court violated her due process rights by refusing to continue the termination hearing on the chance that she could attend. The mother had been deported to her native Germany on September 9, 1994 and barred from re-entry for five years.

The evidence presented at the parental rights termination hearing revealed that the mother was an habitual cocaine user who had been in and out of jail for prostitution, burglary, theft of services, and parole and probation violations. At M. G. F.’s birth in 1993, both the mother and the child tested positive for cocaine. During the month M. G. F. was born, the mother’s probation was revoked. M. G. F. was placed in foster care shortly after his birth and at the time of the hearing resided with relatives who wished to adopt him. The mother had not visited him in the two years prior to the hearing. The mother failed to meet any of the goals encompassed in a reunification plan formulated by the Georgia Department of Family & Children Services (“DFCS”), which included requirements that she pay child support, remain drug and alcohol free, complete substance abuse treatment, regularly visit with the child, and provide a stable home.

Parenthetically, the mother lost her parental rights to an older child, C. B. W., approximately one year after M. G. F.’s birth. Like M. G. F., C. B. W. tested positive for cocaine at birth. When C. B. W. was one, the mother voluntarily placed him in foster care because she could no longer care for him.

Just prior to the parental rights termination hearing, the mother telephoned the court from Germany. During the 30 minute conference call and the subsequent hearing, she was represented by counsel. All parties participated in the call, during which the mother requested a six month continuance so that she might try to arrange a waiver of her deportation and attend. The court deferred ruling on this request until it heard DFCS’s evidence. After hearing the evidence, the court determined that the mother’s presence would not alter its decision to terminate her parental rights, given, the strong evidence against her and her stated opposition to further substance abuse treatment. Held:

The court did not abuse its discretion in refusing to continue the parental termination hearing for six additional months to permit the mother to attempt to arrange to attend. Murray v. Hall County Dept. of Family &c. Svcs., 137 Ga. App. 291, 293 (3) (223 SE2d 486) (1976). It is undisputed that the mother received 29 days notice of the originally scheduled hearing in September 1994. OCGA § 15-11-83 (c). After learning that the mother had been deported and could not be located, the court continued the hearing for two months, expressly stating that it would endeavor to notify her of the change. Ultimately, the case was continued until January 1995, at which time the mother made the above-mentioned conference call requesting the continuance and the court heard the foregoing evidence. During the hearing, the mother’s counsel stated it was very unlikely that she would be able to return to the United States.

It is undisputed that the mother received notice of all the parental termination proceedings and was afforded the opportunity to be heard. Due to her own inability to conform to the law, she was unable to avail herself of the opportunity to appear in person; however, it is undisputed that she was represented in all the parental termination proceedings by counsel who appeared in her stead. In the pre-hearing conference call the court considered her statements and responses to the parties’ questions. During the hearing, the mother’s counsel thoroughly cross-examined DFCS’s sole witness, the caseworker. OCGA § 15-11-31 (a).

Decided September 18, 1996.

Darden & Bazemore, Richard M. Darden, Thomas J. Gustinella, Andrea S. Moyers, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

Because the mother’s inability to attend the hearing was the natural consequence of her own voluntary actions, a continuance was not justified. Curtis v. Jones, 160 Ga. App. 904, 906 (1) (288 SE2d 615) (1982). Moreover, we know of no constitutional entitlement mandating the right to appear personally in civil proceedings under such circumstances. Accord Adoption of Quenette, 341 NW2d 619, 622 (4) (N.D. 1983). Nor did the mother in seeking a continuance satisfy her evidentiary burden of showing due diligence. OCGA § 9-10-166; see Stanley v. Amos, 79 Ga. App. 297, 300-301 (53 SE2d 568) (1949). Accordingly, we find that the court did not manifestly and clearly abuse its discretion in refusing to continue the case. Id. at 300.

Judgment affirmed.

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

       Wilson initially filed her appeal in the Supreme Court. However, after finding that no constitutional issues were raised or ruled upon in the trial court, the Supreme Court transferred the case to this court.