author: Smith, Judge.

text:
    A93A2487.
    WALLACE et al. v. TRIAD SYSTEMS FINANCIAL CORPORATION.
    (442 SE2d 476)
   Smith, Judge.

Triad Systems Financial Corporation f/k/a TSC Leasing Corporation (hereinafter “TSC”) brought suit against sole proprietorship Fast Radiator & Auto Parts and its owner, Larry Jack Wallace (hereinafter collectively “Wallace”), for monies allegedly owed pursuant to an equipment lease agreement. The trial court granted TSC’s motion for summary judgment, and Wallace appeals.

TSC is a wholly owned subsidiary of Triad Systems Corporation (“Triad”). Triad is a California corporation engaged in the manufacture, sale, licensing and maintenance of computer hardware and software. TSC leases equipment originating from its corporate parent and from other vendors. According to TSC, agents of its corporate parent are not likewise agents of TSC, even though Triad salespersons typically emphasized and arranged financing through TSC.

In July 1990, Triad representative Jeff Nash approached Wallace about purchasing a Triad computer known as a “Laser Cat.” Its function is to catalog auto parts. On July 19, Wallace agreed to acquire that system by entering into a system purchase support and licensing agreement with Triad. Wallace elected to fulfill its obligation to Triad by leasing the equipment through TSC. Toward that end Wallace signed a “master lease” and “lease schedule” on July 19, 1990 and August 6,1990, respectively. It is uncontroverted, and is in fact TSC’s position, that a lease schedule alone would not constitute the entire contract between the parties.

Thereafter another sales agent of Triad, David Sanders, approached Wallace concerning the possible purchase of a more comprehensive Triad system. Sanders and Wallace met on two occasions toward this end. On March 28, 1991, Wallace executed a system purchase support and license agreement with Triad for the more comprehensive Triad system. Just as he did following the first purchase agreement he entered with Triad, Wallace subsequently signed a TSC “lease schedule.” However, unlike the first transaction, no separate and distinct TSC “master lease” was executed with respect to the second transaction. The lease schedule executed by Wallace provides that the terms and conditions of the lease include those “specified herein and in that certain master lease agreement dated 3/28, 1991 between lessor and lessee by this reference incorporated herein.” It is uncontroverted that there was no master lease agreement signed on that date.

Mutual assent to a contract’s terms is essential to its validity, OCGA § 13-3-1, and “until each has assented to all the terms, there is no binding contract.” OCGA § 13-3-2. It is TSC’s position that the contract between the parties now in dispute consists of the lease schedule signed on March 28, 1991 and the “master lease” Wallace signed in connection with the “Laser Cat” transaction on July 19, 1990, despite the fact that the lease schedule refers unequivocally to “that certain master lease agreement dated 3/28, 1991.”

TSC first argues that the master lease signed on July 19, 1990 was intended to apply to any transaction that the parties might enter at any time thereafter, including the transaction of March 28, 1991, regardless of whether the lease schedule specifically referenced it. We need not address this novel theory since the master lease TSC relies upon simply does not manifest such an intent. Rather, it provides that “lessee hereby agrees to lease from lessor, subject to the terms of this master lease agreement. .. the personal property .. . described in any lease schedule . . . executed by the parties hereto and incorporating the terms of this master lease by reference therein.” (Emphasis supplied.) Clearly, the master lease to which TSC refers manifests an intent contrary to that described in TSC’s initial position. Without “reference therein,” future contracts between the parties would not incorporate the terms of that master lease.

TSC next argues that the lease schedule executed on March 28, 1991 reflects an express intention that it be integrated with “the” master lease and that the reference to a master lease dated March 28, 1991 was merely an “obvious mistake.” However, Wallace has filed an affidavit stating that at some point he was presented with a master lease to sign in connection with the present transaction, and that he refused to do so. It would appear therefore that, at a minimum, an issue of fact remains whether a completed lease contract exists between Wallace and TSC as the means chosen to finance the Triad system. If not, it is irrelevant whether Wallace agreed to those terms which are embodied in the lease schedule; until Wallace agreed to all of the terms making up the agreement, which were contained in more than one writing by TSC’s own express design, no binding contract existed between the parties. OCGA § 13-3-2.

TSC also attempts to label the incorrect date on the lease schedule an “ambiguity.” It reasons that since only one master lease was ever executed between the parties, that document must be the one referenced in the subsequent lease schedule for the more elaborate Triad system. This merely begs the question of whether the lease schedule refers to a “master lease” that was in fact executed at any time.

Decided March 17, 1994 —

Reconsideration denied March 30, 1994

Foster & Foster, Larry A. Foster, for appellants.

H. Michael Dever, for appellee.

It would be TSC’s burden at trial to prove by a preponderance of the evidence the existence and terms of the contract on which it relies for recovery. Jackson v. Easters, 190 Ga. App. 713 (379 SE2d 610) (1989). It is axiomatic that to warrant the grant of summary judgment, TSC must meet the heavier burden of showing that no genuine issue of material fact remains on these issues for jury determination. See, e.g., Pollard v. Faris, 159 Ga. App. 363 (1) (283 SE2d 338) (1981). Since that burden has not been met, the trial court erred in granting TSC’s motion for summary judgment. Re/Max Specialists v. Kosakai, 202 Ga. App. 871 (415 SE2d 698) (1992).

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.

       For leases formed on or after July 1, 1993, see OCGA § 11-2A-204.


source: Caselaw Access Project

author: Cooper, Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A93A2580.
    WELCH et al. v. WELCH et al.
    (442 SE2d 857)
   Cooper, Judge.

Appellants brought suit against the estates of Cecil and Elwyn Welch alleging they had been virtually adopted by the decedents and thus were entitled to share in the distribution of the decedents’ estates. The trial court granted the estates’ motion for involuntary dismissal pursuant to OCGA § 9-11-41 (b), and appellants filed a timely notice of appeal. The trial court subsequently granted appellees’ motion to dismiss the appeal on the ground there was an unreasonable and inexcusable delay in filing the trial transcript. Appellants appeal from that dismissal.

Appellants filed their notice of appeal from the trial court’s order granting the involuntary dismissal on May 27,1993. Appellants’ counsel had previously given the court reporter, who was the official court reporter for the trial judge, a written request for the trial transcript on May 7. At that time, counsel advised the reporter that there were several witnesses he did not need transcribed. The court reporter told appellant she could not begin typing until she received a deposit. On June 2, several days after he filed the notice of appeal, appellants’ counsel gave the court reporter a check and her typist began typing immediately. At some later point, counsel for one of the appellees told the court reporter that he wanted the entire transcript transcribed. At the hearing on the motion to dismiss, the court reporter acknowledged that there was no way she could have had the transcript ready by June 27. She had two trial weeks toward the end of June and, even though her typist was transcribing, she could not pick up the transcript until July. She was aware of the 30-day deadline and knew she needed to complete the transcript as soon as possible. Although she could not remember when, the court reporter told appellants’ counsel that “it would be towards the end of July ... in looking at the transcribing and everything including it, I told you it would take me until the end of July.” The court reporter said it would have taken less time had the appellees not wanted the entire transcript because there were seven or eight witnesses which appellant had not needed transcribed. She also said that it had taken longer to transcribe because of the poor acoustics in the courtroom and the fact that several witnesses had slowed them down. She acknowledged that she had told appellants’ counsel that she had kept the trial judge apprised about the transcript from the beginning.

Appellants’ counsel stated in his place that he had checked with the court reporter numerous times and that he kept thinking the transcript would be ready shortly, but then he learned it could be the end of July or August before it was ready. He acknowledged that he had not specifically discussed the 30-day deadline with the court reporter. He was aware that the transcript had to be filed within 30 days but did not realize that it was his responsibility to file a request for an extension if it was not timely filed. The transcript was due to be filed on June 28, and appellees filed their motion to dismiss on July 21, twenty-three days later. In their response to the motion, appellants requested an extension of time to file the transcript. At the time of the hearing, August 5, both volumes of the transcript were complete, and the court reporter was proofreading the second volume.

The trial court expressly found that it was not appellants’ counsel’s fault that the transcript was not filed within 30 days. However, relying on Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (375 SE2d 492) (1988), the court found that counsel was not diligent in determining that the transcript would be delayed and had failed to move for an extension of time to file the transcript within the requisite 30-day period; thus, the delay was caused by appellants.

“[T]he trial court has discretion to dismiss an appeal for failure to timely file a transcript only if 1) the delay in filing was unreasonable; [and] 2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). Pursuant to OCGA § 5-6-48 (f), “the failure of a court reporter to file the transcript will not constitute cause for dismissal ‘unless it affirmatively appears from the record that the failure was caused by the appellant.’ ” Id. at 116.

“The record before us in the present case leaves no doubt as to whether the delay in filing the transcript was caused by the appellants but establishes beyond dispute that it was attributable to the ‘backlog’ of the court reporter [and to appellees’ request for additional portions of the transcript as well as problems which arose in typing the transcript], rather than to any act or omission on the part of the appellants.” Boulden v. Fowler, 202 Ga. App. 237, 238 (414 SE2d 263) (1991). In fact, the trial court specifically found that the delay in filing was not attributable to appellants. Furthermore, the trial court’s finding that appellants had not been diligent in determining that there would be a delay is not supported by the record which reveals that appellants’ counsel ordered the transcript in a timely manner, made timely payment, and made reasonable inquiry as to the status of its preparation. Although the trial court also relied on the fact that appellants had not specifically discussed the 30-day deadline with the court reporter, the court reporter clearly stated that she knew she needed to complete the transcript as soon as possible, that she was aware of the 30-day deadline, and that the earliest she could complete it was the end of July. Thus, the record does not affirmatively establish that appellants were the cause of the delay. While the failure to obtain an extension pursuant to OCGA § 5-6-39 was caused by appellants, this was not the cause of the delay in filing the transcript. Furthermore, the Supreme Court has held that the failure to obtain an extension, is not, in and of itself, a sufficient basis for dismissal. Baker, supra at 116. Moreover, the Supreme Court in Baker “expressly cited and implicitly overruled Glen Restaurants v. Bldg. 5 Assoc.” to the extent it stands for such a proposition. Speir v. Nicholson, 198 Ga. App. 383 (401 SE2d 588) (1991). “We accordingly hold that the trial court abused its discretion in dismissing the appeal.” Boulden, supra at 238; see also Collins v. State Farm Mut. Auto. Ins. Co., 197 Ga. App. 309 (1) (398 SE2d 207) (1990).

Judgment reversed.

Smith, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

It is a failing of our appellate procedure that a case such as this, where the trial court erroneously dismissed an appeal, cannot be decided on its merits on the first appeal. This would avoid the necessity for the inevitable second appeal and the concomitant costs and delay in finally resolving this case. Nothing is gained, and to the contrary, much is lost. First, the case must be transferred back and forth, adding to the administrative burdens of both courts and requiring a new conforming order to be prepared and entered by the trial court at this juncture. Second, the assets of the estates in question will be depleted even more as the litigation lumbers on.

Decided March 17, 1994

Reconsideration denied March 30, 1994

McFarland & Associates, Bob McFarland, for appellants.

Banks & Stubbs, Robert S. Stubbs III, Lipscomb, Johnson, Ashway & Sleister, Michael R. Sleister, Boling, Rice, Bettis, Bottoms & Bagley, Jeff S. Bagley, T. Russell McClelland III, for appellees.

Of course, at this stage the record on appeal does not contain the subject transcripts and the complete record in the case. But the case could be transferred to the Supreme Court of Georgia, where it appears jurisdiction of the underlying dispute lies, and the record could be transmitted to it, or called for by it pursuant to OCGA § 5-6-48 (d). Upon its filing, the briefing time would commence. Where jurisdiction lay in this court, a transfer would not even be necessary, and even more time would be saved; the opinion reversing the trial court’s dismissal of the appeal could be accompanied by an order requiring the additional record. OCGA § 5-6-48 (d).

Our Appellate Practice Act does not accommodate such a method of more direct and earlier disposition, and thus the more cumbersome process must be used.


author: Andrews, Judge.

text:
    A94A0135.
    McIVER v. THE STATE.
    (442 SE2d 855)
   Andrews, Judge.

In McIver v. State, 205 Ga. App. 648 (423 SE2d 27) (1992), McIlver appealed prior to trial from the order of the Superior Court of McIntosh County denying his motion for discharge under OCGA § 17-7-170 for the State’s alleged failure to try him within two terms after he filed his demand for trial. We affirmed the trial court’s denial, and the remittitur from this court was received and filed by the Clerk of McIntosh Superior Court on February 10, 1993. Subsequently, McIver’s case was tried before a jury on March 2, 1993, resulting in a mistrial when the jury was unable to reach a verdict. When the case was thereafter set for trial again in August 1993, McIver moved again for discharge pursuant to his original demand for trial. The trial court denied the motion, and McIver brought the present pre-trial direct appeal. See Hubbard v. State, 254 Ga. 694, 695-696 (333 SE2d 827) (1985).

Until amended effective July 1, 1993, OCGA § 15-6-3 (4) (E) provided for four terms of court for McIntosh Superior Court: (1) February term commencing the fourth Monday in February; (2) May term commencing the fourth Monday in May; (3) September term commencing the second Monday in September; (4) December term commencing the first Monday in December. As amended effective July 1, 1993, OCGA § 15-6-3 (4) (E) provides for two terms of McIntosh Superior Court: (1) May term commencing the fourth Monday in May; (2) December term commencing the first Monday in December.

The remittitur from McIver’s prior appeal was filed by the superior court clerk on February 10, 1993, reinvesting the trial court with jurisdiction to take further action in the case during the December 1992 term of court. Chambers v. State, 262 Ga. 200, 201-202 (415 SE2d 643) (1992). After the trial court reacquired jurisdiction following the appeal, McIver was not required to file a new demand for speedy trial; however, the two-term requirement of OCGA § 17-7-170 (b) during which the State is required to try the case commenced to run again in its entirety. Ramirez v. State, 196 Ga. App. 11, 12 (395 SE2d 315) (1990); see Butler v. State, 207 Ga. App. 824, 825 (429 SE2d 280) (1993). Accordingly, the State was required to try McIver during the remainder of the December 1992 term or the following February 1993 term, provided there were juries impaneled and qualified to try the case during the remainder of the December 1992 term after the remittitur was filed, and during the February 1993 term. Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989).

It is apparently undisputed that McIver was available for trial at all applicable times, and the State does not contend that McIver took any affirmative action resulting in continuance of the case until a subsequent term, constituting a waiver of his demand. See State v. Waters, 170 Ga. App. 505, 508 (317 SE2d 614) (1984). It is also undisputed that jurors were impaneled and qualified to try McIver during the February 1993 term, and that the case was tried on March 2, 1993, during the February 1993 term, resulting in a mistrial. McIver was not thereafter tried during the February 1993 term. He filed his motion for discharge pursuant to OCGA § 17-7-170 when the State called his case for trial during the following May 1993 term.

If jurors were impaneled and qualified to try McIver during the remainder of the December 1992 term after the remittitur was filed, the fact that a mistrial was declared at the February 1993 term was not a reason for refusing his discharge under OCGA § 17-7-170. State v. Allen, 165 Ga. App. 86, 88 (299 SE2d 158) (1983). “ ‘The court could have put the defendant on trial before another jury at the same term of the court.’ [Cits.] ‘So far as the record discloses, there was no obstacle in the way of trying the defendant again at the [February 1993] term, except the difficulty and expense of obtaining another jury.’ [Cit.]” Id. at 88.

The unanswered question in this case is whether there were jurors impaneled and qualified to try McIver during the remainder of the December 1992 term after the remittitur was filed. It appears that both the defendant and the State were confused over the applicable terms of the court, perhaps because of the 1993 amendment to OCGA § 15-6-3 (4) (E) which had taken effect when the motion to discharge was argued. The stipulation of the parties as to terms in which jurors were qualified and impaneled to try the case did not consider the remainder of the December 1992 term. Mclver bears the burden to demonstrate that jurors were qualified and impaneled to try the case during the applicable terms (Roebuck v. State, 57 Ga. 154 (1876)), and absent clear and convincing evidence to the contrary, we will not disturb the trial court’s findings as to whether or not jurors were qualified and impaneled to try the defendant. State v. Prestia, 183 Ga. App. 24, 25-26 (357 SE2d 829) (1987). In this case, the trial court did not state the reasons for denial of the motion, and it is clear from the transcript of the hearing on the motion for discharge that the trial court did not consider whether or not jurors were qualified and impaneled to try the case during the remainder of the December 1992 term after the remittitur was filed. We vacate the trial court’s order denying the motion and remand the case for reconsideration of the motion on this issue in accordance with this opinion.

Decided March 17, 1994

Reconsideration denied March 30, 1994

Richard D. Phillips, 0. Dale Jenkins, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with directions.

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


author: Johnson, Judge.

text:
    A94A0169.
    THE STATE v. KIRKLAND.
    (442 SE2d 491)
   Johnson, Judge.

James Donald Kirkland was indicted for various burglaries and armed robberies which were committed by what has become known as the “Metro Area Police Crime Ring.” This is the State’s appeal of the trial court’s grant of Kirkland’s motion to suppress. A judge of the Atlanta City Court issued a search warrant for Kirkland’s home in Coweta County. In his motion, Kirkland argued that the city court lacked jurisdiction to authorize a search in Coweta County, and that the warrant was therefore a nullity.

Decided March 30, 1994.

Lewis R. Slaton, District Attorney, Alfred D. Dixon, Shawn E. Lagrua, Barry I. Mortge, Assistant District Attorneys, for appellant.

Charles M. Taylor II, Robert S. Devins, for appellee.

The State argues that lack of jurisdiction is a merely technical defect which does not affect any substantial constitutional right of Kirkland and cites OCGA § 17-5-31: “[n]o search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” However, “[l]ack of jurisdiction to issue the warrant is not a mere technicality, but results in a nullity.” Pruitt v. State, 123 Ga. App. 659, 664 (182 SE2d 142) (1971).

“It has been expressly held that a magistrate may issue a search warrant for any area of the county in which his district lies.” Ga. Crim. Trial Prac., 1993 ed., § 4-5. Dye v. State, 114 Ga. App. 299 (1) (a) (151 SE2d 164) (1966). Conversely, a magistrate may not issue a search warrant for a location outside of his district. The city court would have had jurisdiction to issue a search warrant for any part of the City of Atlanta, be it in Fulton or DeKalb County. See Campbell v. State, 207 Ga. App. 366, 367 (2) (428 SE2d 111) (1993) (in which a warrant issued by College Park Municipal Court judge from her home in Fulton County was held to be valid for execution in that part of College Park which straddles the Clayton County line). However, no part of the City of Atlanta extends to Coweta County and city court simply did not have jurisdiction to issue a search warrant for a house located there.

The State’s reliance on State v. Harber, 198 Ga. App. 170 (401 SE2d 57) (1990) is misplaced because Harber is not about the authority of a judge to issue a warrant, but addresses the authority of police officers to obtain a warrant outside of their jurisdiction. The authority of the judge to issue the warrant was not raised in Harber.

It is not surprising that the State is not able to provide any authority for its position that the protections guaranteed by Art. I, Sec. I, Par. XIII of the Constitution of Georgia and the Fourth Amendment to the United States Constitution are not substantial rights. The trial court did not err in granting Kirkland’s motion to suppress.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0512.
    SPARTAN FOOD SYSTEMS v. WILLIAMS.
    (442 SE2d 489)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to consider the trial court’s denial of the motion for summary judgment filed by Spartan Food Systems, Division of T W Services, Inc., in a slip and fall case brought by Gwendolyn Williams.

Williams alleges that she was having lunch in a Quincy’s restaurant owned and operated by Spartan in Dublin, Georgia, and, while walking next to a salad bar, she slipped and fell on a foreign substance on the floor. Williams contends she was distracted by the items on the salad bar and that after her fall, Spartan’s employee told her that the substance on the floor was salad dressing.

Spartan contends, however, that the trial court erred by denying summary judgment because there was no evidence that it had actual or constructive knowledge of the substance on the floor, that its employee regularly checked the salad bar area for objects on the floor, and that Williams admitted that the substance was not visible to the naked eye. Williams asserts, however, that Spartan did not make a reasonable effort to discover substances on the floor and did not take reasonable efforts to protect business invitees.

After the trial court denied Spartan’s motion for summary judgment, this appeal followed. Held:

To state a cause of action in this case, Williams must show that Spartan had actual or constructive knowledge of the substance on the floor and either she had no knowledge of the substance or for some reason attributable to Spartan she was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Because Williams acknowledged in the proceedings that she was advancing on the theory that Spartan had constructive knowledge of the substance on the floor since she had no evidence to show that Spartan had actual knowledge of the substance, Williams was required to show the foreign substance was on the floor for a sufficient length of time for knowledge of it to be imputed to Spartan. Williams also admitted that she had no knowledge how long the substance may have been on the floor and did not know how the substance came to be on the floor. Williams further acknowledged that the substance on the floor was not visible to the naked eye. Affidavits of Williams and her sister, who was her companion that day, stated they saw one of Spartan’s employees walking around the salad bar and the employee appeared to be keeping the area neat and replenishing the food and also stated that they did not see the employee mop, sweep, or wipe the floor. These statements, however, do not conflict with the employee’s affidavit which stated that part of her responsibilities was to check continually the floor around the salad bar for food and other foreign substances, and she saw no such substances in the area that day. See Foodmax v. Terry, 210 Ga. App. 511, 512 (436 SE2d 725).

Although Williams’ deposition testimony stated that Spartan’s employee told her after her fall that Williams had fallen on a small spot of salad dressing that she had cleaned up, this after-the-fact evidence does not prove anything about Spartan’s knowledge, or lack thereof, about the substance on the floor prior to the fall. If in fact there was a substance on the floor, there is no evidence as to whether the substance was on the floor for fifteen seconds before the fall or two hours before the fall.

Under our law, “[t]o 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). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Therefore, Williams’ contention that Spartan had the burden of disproving its superior knowledge is without merit.

In this appeal, it is apparent from the record that Williams has produced no evidence that Spartan had any knowledge of the substance on the floor. Accordingly, as she has failed to carry her burden on one of the essential elements of her claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832)), her claim tumbles like a house of cards (Lau’s Corp. v. Haskins, supra), and the trial court erred by denying Spartan’s motion for summary judgment. Foodmax v. Terry, supra.

Further, the “distraction doctrine” provides no assistance to Williams’ claims because, at best, this distraction was self-induced {Red-ding v. Sinclair Refining Co., 105 Ga. App. 375, 378-379 (124 SE2d 688)), and she claims to have been distracted by the very activity that brought her to the restaurant. Manheim Sues. Corp. v. Connell, 153 Ga. App. 533, 534 (265 SE2d 862). Therefore, this doctrine does not apply in this instance.

Consequently, the trial court’s order must be reversed, and the case remanded to the trial court with direction that summary judgment be entered for Spartan.

Judgment reversed with direction.

Cooper and Blackburn, JJ., concur.

Decided March 30, 1994.

McLain & Merritt, William S. Sutton, for appellant.

Lane, O’Brien, Caswell & Taylor, Richard T. Taylor, Harold D. McLendon, for appellee.


text:
    A94A0583.
    JONES v. THE STATE.
    (442 SE2d 908)
   Birdsong, Presiding Judge.

Jessie Jones was convicted of shoplifting for stealing three packages of meat valued at $18 from a grocery store. After a bench trial, he was sentenced to serve 12 months confinement. Jones contends the trial court erred by conducting a non-jury trial without determining whether Jones made a knowing and intelligent waiver of his right to trial by jury, his right to representation by an attorney, and his right to remain silent and not incriminate himself.

The record shows that Jones appeared at a mass arraignment and was provided a copy of a two-page document entitled “In-Court Rules and Procedure” (“Rules and Procedures”) signed by the trial judge. This Rules and Procedures provided information on a range of subjects from courtroom decorum to information about punishment, pleas, and nolo contendere pleas for DUI. The trial judge discussed the Rules and Procedures as part of the mass arraignment.

In pertinent part, the Rules and Procedures provide:

“REPRESENTATION BY COUNSEL: You have a right to be represented by a lawyer on any charge against you, at the time you first appear in court and at any trial or other proceedings. You do not, however, have to be represented by a lawyer but can represent yourself before the court. If you want a lawyer and request the judge to appoint one for you, you will be asked questions by the judge, UNDER OATH AND PENALTY OF PERJURY FOR FALSE ANSWERS, concerning your ability to hire a lawyer. The judge will decide whether to grant or deny your request for an appointed lawyer. . . .

“TRIALS: IF YOU PLEAD NOT GUILTY to a charge, you have a right to a trial on such charge, either by the judge or by a jury, at which trial you have a right to face your accusers and to cross-examine them. You have an absolute right to trial by jury. If you want a trial by a jury, you must tell the judge this at the time you enter your plea, or your case will be tried by the judge without a jury. . . .

“QUESTIONS: You have a right to ask the judge questions about these Rules and Procedures before you enter a plea. If you have any questions, you must ask them at the time your case is presented to the judge.

“CERTIFICATION: At the time of entering your plea or pleas, you will sign a certification that you can read and that you have read the foregoing rules and understand them; that if you cannot read you have made this fact known to the court and have had the foregoing rules read to you and that you understand them; that you have had a chance to ask any questions concerning same, and that you are entering your plea or pleas voluntarily and with full knowledge and understanding of your rights in connection therewith and of the possible consequences of your plea or pleas.

“THESE RULES AND PROCEDURES ARE DESIGNED TO PROVIDE FOR THE ORDERLY AND EFFICIENT DISPOSITION OF CASES IN COURT AND NOT TO ADVISE YOU ABOUT YOUR CASE OR THE LAW. NEITHER THE COURT NOR ITS OFFICERS CAN GIVE YOU SUCH ADVICE NOR ADVISE YOU HOW TO PLEAD. IF YOU NEED SUCH ADVICE, YOU MUST OBTAIN IT FROM A LAWYER.”

The transcript of the mass arraignment shows the following remarks by the trial court regarding advice about non-jury trials and proceeding without an attorney: “You also were given a sheet entitled In-Court Rules and Procedures. The purpose of this sheet is to advise you of several things: number one, the court decorum as far as dress code is concerned. . . . The most important thing on the sheet is the information concerning the rights with respect to whatever you’re charged with. . . .

“You are also advised of your right to various, two kinds of trials if you plead not guilty: Jury trial or non-jury trial and your right to subpoena witnesses in connection with the charge and particularly your right to be represented by an attorney. Generally, this is an attorney of your choice. However, if you are indigent, and the court finds that you’re indigent, then the court is authorized to appoint an attorney to represent you.

“Please read that sheet very carefully and at the time that your case is called you’ll be given an opportunity to ask any questions that you may have concerning any of the information on the sheet or that you may have concerning the charge or charges against you prior to entering your plea. Now, the purpose in all of this is so that you will enter a knowledgeable plea, that you’ll know what you’re doing and that you will do it voluntarily and with as much information about it as possible to give you. Don’t take that lightly. Some folks hear me say this and they still don’t read it. Please be sure you do that because it’s very important to you.”

The transcript of Jones’ arraignment shows that when asked if he had any questions, Jones sought information about the property he was alleged to have taken. When the case was called for trial, Jones was not asked about proceeding without a jury or without an attorney to represent him, and he was provided no further information about waiving his right to a jury trial or proceeding pro se. Subsequently, after the prosecution rested, the trial court said: “All right, tell me what you want me to hear, Mr. Jones.” Jones, who was sworn earlier, then gave his version of the events. When the solicitor stated he had no questions for Jones, the trial judge examined Jones at length about his contentions. Thereafter, Jones was convicted of shoplifting. After the trial court’s finding was announced, the solicitor presented the trial court with a history on the defendant that included several crimes that Jones apparently was charged with, including a charge of auto theft that Jones disputed. The record does not reflect that Jones was given an opportunity to review this history prior to the presentation to the trial court. Held:

1. “When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver.

“The state contends that there was a knowing and voluntary waiver under the facts of this case. We cannot agree. . . .

“Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment. Merely finding that a request for counsel was not made is insufficient to establish waiver. Where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. The procedures here were insufficient.

“The state’s position is that because Jones knew he had a right to counsel and did not request counsel, he waived his constitutional rights and has no cause to complain. However, since Jones pled not guilty and went to trial, the state must also prove that the decision to proceed pro se was made knowingly and intelligently. Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) . . . was decided prior to the trial in this case and the procedures required by Clarke, that the judge make a finding on the record that the accused has made an informed and knowledgeable choice to proceed pro se, were not followed. Although Clarke involved a felony charge, the right to counsel (and therefore the corresponding right to self-representation) exists for all charges for which loss of liberty may be imposed. We find no reason why the requirements set forth in Clarke should not apply in misdemeanor cases where the accused faces imprisonment.” (Citation omitted.) Jones v. Wharton, 253 Ga. 82, 83-84 (316 SE2d 749). Moreover, the record must show that the accused was aware of his right to counsel and that he was aware of the dangers of proceeding without counsel. Clarke, supra at 197.

Decided March 30, 1994.

Gilbert J. Murrah, for appellant.

Smith & Perry, Ralph C. Smith, Jr., for appellee.

It is difficult to imagine a mass arraignment procedure which could satisfy the trial court’s burden of establishing that a proper waiver of counsel has occurred. Washington v. City of Atlanta, 201 Ga. App. 876 (412 SE2d 624); Turner v. State, 162 Ga. App. 806 (293 SE2d 67). In this appeal, Jones was not so much as asked whether he wished to proceed without counsel. No examination was conducted by the court of this individual defendant’s waiver of counsel and no consideration was given to his personal circumstances or with particular regard and attention to the charge against him or the possible penalties. Waire v. State, 211 Ga. App. 69, 70 (438 SE2d 142); Washington, supra; Turner, supra.

2. Additionally, the record in this case is insufficient to show that Jones properly waived his right to a jury trial. “ ‘A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.’ ” White v. State, 197 Ga. App. 162 (398 SE2d 35). In this case, however, the record does not show that Jones personally, knowingly, voluntarily, and intelligently waived his right to a jury trial. Capelli v. State, 203 Ga. App. 79, 80 (416 SE2d 136). Although the record shows Jones did not demand a jury trial, there is no showing that Jones knew what he was surrendering by not making such a demand and there is no evidence that Jones made a conscious choice to waive his right to a jury trial. Compare Stephens v. State, 176 Ga. App. 187, 188 (335 SE2d 473).

Judgment reversed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0665.
    MARLOWE v. LOTT.
    (442 SE2d 487)
   Birdsong, Presiding Judge.

Walter Marlowe files notice of appeal from the trial court’s order denying plaintiff’s motion to allow withdrawal of admissions of matters and granting summary judgment to defendant. The record, including the pleadings and motions filed therein, has been forwarded for review; no hearing transcript accompanies this appeal.

On June 18, 1993, appellant’s original attorney filed a notice to withdraw immediately from the case, stating that all further notices, motions, and related court documents should be served upon appellant/plaintiff. On June 28, 1993, appellee sent a request for admissions directly to appellant; this request was so broad as to constitute a virtual concession of the case. No copy of the request was served on appellant’s original attorney. On August 2, 1993, an order of the trial court was filed formally allowing’the withdrawal of appellant’s original attorney. The record reflects that appellant attempted, without success, to hire several other attorneys to represent him before hiring his current attorney. On August 6, 1993, the current attorney filed an entry of appearance, and that same day filed a motion to withdraw the admissions. Held:

1. The trial court’s finding of fact that appellant’s original counsel formally withdrew from the case on June 17, 1993, is erroneous as a matter of law. Although the attorney filed notice of withdrawal without specifying any time therefor and apparently attempting to withdraw instanter, we find a formal withdrawal cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record. Uniform Superior Court Rule 4.3 clearly requires counsel to submit a “request” for “an order permitting withdrawal” in writing; the request shall state, inter alia, an “intention” to withdraw not less than ten days hence (unless a lesser time is shown of record to have been approved by the trial court). Although such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or result in manifest unfairness to the client, withdrawal does not occur automatically upon the expiration of the period of time specified in the request, but occurs only when duly ordered by the trial court. Cf. Morris v. McClinton, 209 Ga. App. 88 (1) (434 SE2d 174). It is the trial judge and not counsel who controls the proceedings and the conduct of the court officers who are appearing before the court. Uniform Superior Court Rule 4.3 is consistent with the statutory powers of courts to control (in the furtherance of justice) the conduct of its officers and all other persons connected to the pending judicial proceeding, in every matter appertaining thereto. OCGA § 15-1-3 (4). However, the record, as forwarded for appellate review, reflects that the issue of inadequate service of the request for admissions was not raised timely and specifically before the trial court; accordingly, such issue has not been preserved for appellate review. See Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581). Accordingly, we decline to review appellant’s second enumeration of error.

2. Appellant asserts the trial court erred in applying the wrong legal standard in evaluating his motion “to withdraw request for admission of matters.”

The trial court’s order states, inter alia: “Plaintiff had a total of 42 days to retain an attorney from the date of withdrawal of his first attorney and plaintiff has not met his burden of proving ‘excusable neglect’ in order to allow him to withdraw his admissions.” Excusable neglect is not an element of the standard for withdrawal of admissions set forth in OCGA § 9-11-36 (b). See Moore Ventures Limited Partnership v. Stack, 153 Ga. App. 215, 219 (264 SE2d 725). There is a two-pronged test to be employed when considering a motion to withdraw admissions. “A court may grant a motion to withdraw (1) when the presentation of the merits will be subserved thereby and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining his action or defense on the merits.” (Emphasis supplied.) Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 727 (1) (405 SE2d 764). “If the movant satisfies the court on the first prong, the burden is on the respondent to satisfy the second prong.” Id. at 728. Both prongs must be established, pursuant to the standard provided in OCGA § 9-11-36 (b).

Nevertheless, appellant contends, inter alia, that “the trial court thought that the first part of the standard was whether ‘excusable neglect’ existed . . . and then proceeded to find that the defense would be prejudiced by the allowance of the withdrawal of admissions.” The order when examined in its totality establishes that, notwithstanding apparent application of “excusable neglect” as a part of its determination, the trial court in denying appellant’s motion also independently determined that “the defendant relied on the admissions to his detriment by not completing discovery and being precluded from doing so pursuant to Rule 5 of the Uniform Superior Court Rules which has not been granted or requested in this case. Defendant has thereby satisfied this court that to grant withdrawal of the admissions will prejudice defendant in maintaining his defense on the merits due to defendant’s reliance on said admissions. Therefore, pursuant to OCGA § 9-11-36, the said request for admissions of matters [is] admitted as a matter of law and fact and the court overrules plaintiff’s motion to withdraw the admissions of matters for the stated reasons.” (Emphasis supplied.) A proper finding that either the first or second prong of the two-prong test was not met will support the ruling by a trial court not to allow the withdrawal of admissions. (Cf. Cofield v. State, 204 Ga. App. 776, 778 (1) (420 SE2d 597) failure to meet second prong of two-prong Strickland test causes claim of ineffectiveness of counsel to fail.) As the trial court applied the correct legal principle concerning the second prong of the withdrawal test, any error resulting from applying “excusable neglect” as an additional basis for denying the motion to withdraw would constitute harmless , error. Further, as the transcript of the hearing is not before us on appeal, we must conclude that the trial court’s factual findings supporting its ruling as to the second prong are correct. See Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500); Nodvin v. West, supra at 97 (3c). Appellant’s first enumeration of error is without merit.

Decided March 30, 1994.

Fred R. Kopp, for appellant.

Andrew, Threlkeld & Ellington, Charles H. Andrew, Jr., for appellee.

3. In view of our holding in Division 2 above, we find appellant’s third enumeration that the trial court erred in awarding summary judgment to appellee to be without merit. The admissions stand. Appellee/nonmoving party defendant has carried his burden under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) by relying on the legal effect of the admissions which arose in the case at bar by operation of OCGA § 9-11-36.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A2026.
    JONES v. STATE OF GEORGIA.
    (442 SE2d 880)
   Smith, Judge.

The State filed a petition pursuant to OCGA § 16-12-32 to condemn a Toyota pickup truck and a $200 check belonging to Danny Jones. The petition alleged that the truck was used by Jones to transport gambling paraphernalia, facilitating a violation of OCGA § 16-12-22, and that the check was used in, derived from, or realized through Jones’s commercial gambling operation.

The record reveals that Jones was employed by Brown & Williamson Tobacco Company. After receiving information that Jones was conducting or participating in a large sports-gambling operation at work, sheriff’s deputies placed Jones under surveillance. He was arrested on commercial gambling charges in Bibb County. Subsequent to Jones’s arrest, his home and a truck parked at his residence in Jones County were searched pursuant to a warrant. A sports-betting form, referred to as a parlay sheet, and two handwritten lists on yellow sheets were found in the truck. The parlay sheet contained a list of college football games, the point spreads, and some of the final scores. The yellow sheets also contained, in cryptic fashion, mathematical information regarding designated college sports games. Other sports-betting forms and related handwritten materials were found in Jones’s residence and in his possession when he was arrested, along with Brown & Williamson payroll checks payable to other employees and endorsed to Jones. The particular $200 check that is the subject of this condemnation petition was seized from Jones’s residence. It is payable to a Brown & Williamson employee and endorsed to Jones. A slip of paper found in Jones’s home indicated that this employee had placed a bet with Jones.

Jones pled guilty under the First Offender Act, OCGA § 42-8-60 et seq., to the charge of commercial gambling. The State then filed this condemnation petition, and the jury returned a verdict finding in favor of the State, declaring the truck and the check forfeited to the State. Jones appeals the judgment entered on the verdict.

1. Jones contends the trial court erred in admitting testimony and documents concerning his entry of the first offender guilty plea. He argues that because he was still on probation at the time of the condemnation trial, and because it was not used for impeachment purposes, its use was prohibited. We agree and reverse.

“OCGA § 42-8-62 provides that upon fulfillment of the terms of probation under the first offender statute, the defendant shall be discharged without adjudication of guilt and ‘shall not be considered to have a criminal conviction.’ This provides the person who successfully completes his probation under the first offender statute protection against the stigma of a criminal record.” Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990). This underlying humanitarian purpose must remain our guiding principle; it must remain the standard against which any possible use of a first offender record must be measured. With that underlying purpose as rationale, in Witcher the Supreme Court held that a first offender record may not be used in a civil case to impeach an adverse witness by using it to show a conviction for a felony or a crime of moral turpitude. There are narrow exceptions to this rule. However, it is clear that the exceptions apply only when some other compelling competing purpose is stronger than that underlying the purpose of the First Offender Act. For instance, in Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986), the offender testified in a civil suit, and the Supreme Court held that his first offender guilty plea was admissible to disprove and contradict facts testified to by him, “[t]o insure that in seeking the truth, the jury is not misled by false or deceiving testimony.” Id. at 352.

A prior first offender record may not be used to sentence a defendant as a recidivist for a later crime if the conditions of probation under the prior first offender treatment have been fulfilled and the defendant has been “discharged” under OCGA § 42-8-62. Queen v. State, 182 Ga. App. 794, 796 (1) (357 SE2d 150) (1987). This court held, however, in Tilley v. State, 197 Ga. App. 97 (397 SE2d 506) (1990), that the underlying facts of a prior offense, but not the first offender adjudication itself, are admissible in a later criminal prosecution to show a similar transaction. Our decision in Tilley turned on the fact that the behavior in issue need not result in a conviction to be admissible as a similar transaction in a later criminal prosecution.

The cases relied on by the dissent afford no authority or support for allowing the introduction of evidence of Jones’s first offender guilty plea in this case. Reliance on the first offender record was not the only method available to the State to prove the property’s connection to gambling activity. Numerous law enforcement personnel were involved in the surveillance, arrest, and searches leading to this condemnation action. A proper foundation for the condemnation could easily have been established by calling witnesses knowledgeable about the circumstances under which the property was seized or the investigation preceding the seizure. The procedure set forth in OCGA § 16-12-32 does not require a showing that the owner or user of the property sought to be condemned was convicted of a crime.

Jones’s answer to the condemnation petition is not analogous to the testimony of the offender in Hightower, rendering the first, offender guilty plea admissible to impeach the offender’s contrary testimony. Jones did not testify in this action, and therefore his first offender record was not admissible under Hightower, supra. Moreover, the fact that the plea was the admission of a party opponent is not dispositive of the issue of its admissibility. A guilty plea is in all cases the admission of a party opponent. If the State’s position obtains, the owner of property subject to condemnation under OCGA § 16-12-32 will be faced with the Hobson’s choice of leaving the petition unanswered, thereby conceding the condemnation by default, or answering and having his first offender record used against him. Such a result is neither fair nor compatible with the purpose underlying the First Offender Act. The trial court erred in admitting into evidence Jones’s first offender plea, and consequently, Jones is entitled to a new trial.

2. Because it may recur at retrial, we address Jones’s contention that because they bore no relation to the items seized from the truck, the trial court also erred in admitting testimony and documents concerning gambling paraphernalia found in locations other than the truck. We find no merit in this contention. In its petition, the State alleged that the truck and the check were “used in, intended for use in, or used to facilitate a violation of the Georgia Article relating to Gambling.” It was therefore relevant to show that Jones was in fact engaged in a commercial gambling enterprise. Evidence connecting Jones to the gambling enterprise, even if found in other locations, was therefore admissible.

3. We need not address Jones’s final enumeration of error, regarding the sufficiency of the evidence to justify the seizure of the truck, because the evidence may differ upon retrial.

Judgment reversed and remanded.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Johnson and Blackburn, JJ., concur. Beasley, P. J., and Andrews, J., dissent.

Beasley, Presiding Judge,

dissenting.

Jones pled guilty to the charge of commercial gambling, in that he did “receive and record a bet and offers of bets and did sell chances upon the partial and final results of, and upon the margin of victory in, sports games.”

When a person’s plea of guilty results in first offender treatment, the first offender record is not admissible to show such person has been convicted of a felony or crime of moral turpitude for impeachment purposes, because OCGA § 42-8-62 provides that upon fulfillment of the terms of probation under the first offender statute, the defendant shall be discharged without adjudication of guilt and “shall not be considered to have a criminal conviction.” (Punctuation omitted; emphasis supplied.) Witcher v. Pender, 260 Ga. 248 (392 SE2d 6) (1990). Compare Favors v. State, 234 Ga. 80, 87 (3) (214 SE2d 645) (1975).

However, where a witness in a civil case testifies concerning the incident resulting in a first offender plea, the plea is admissible to impeach the witness by disproving or contradicting the facts to which he testifies. Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986). In a criminal trial, the State may introduce evidence of a similar transaction for which the defendant has been subsequently discharged as a first offender, without introducing evidence of adjudication. Tilley v. State, 197 Ga. App. 97, 98 (2) (397 SE2d 506) (1990). See generally Brewer v. Rogers, 211 Ga. App. 343 (439 SE2d 77) (1993).

In this case, the trial court allowed the State’s evidence, that Jones pled guilty to the indictment charging him with commercial gambling, as an admission that he had committed the offense, without admitting evidence of his first offender treatment. This use of only the indictment and signed plea form, in the condemnation action directly related to them and based on the same facts, was not inconsistent with the first offender statute, as interpreted in the previously cited cases.

The State did not seek to admit evidence of the plea for the purpose of showing the defendant’s conviction of a crime, which is what Witcher prohibits. There was no evidence of adjudication, which is what Tilley prohibits. There was only evidence, as shown by the plea, that defendant admitted engaging in the conduct. This is not a “conviction,” which is the judgment on a verdict or guilty plea. OCGA § 16-1-3 (4); Black’s Law Dictionary, p. 403 (4th ed. rev., 1968).

Decided March 18, 1994

Reconsideration denied March 31, 1994

J. Russell Phillips, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

Admission of the evidence here is consistent with Witcher and Tilley as well as Hightower. Certainly the statute protects defendant against the stigma of a criminal record and the loss of civil rights or liberties. It does not protect him against the loss of property used in, derived from, or realized through his commission of the crime. Use of the defendant’s plea of guilty in the first offender proceeding did not create a Hobson’s choice. Instead, it obviated the necessity for the State to submit all the witnesses and physical evidence to show that he had committed the prohibited act, which he had already acknowledged.

Neither the fact that he had not yet had an opportunity to complete probation and be discharged without an adjudication of guilt, nor the use of the guilty plea for a purpose other than certain types of impeachment, precluded its admission in the forfeiture, which merely proceeded upon the same underlying circumstances as did the plea. No stigma was created which would not have been created by the introduction of the underlying evidence. Nor was the exoneration purpose of the First Offender Act jeopardized, because first offender treatment does not insulate a defendant’s property from forfeiture under OCGA § 16-12-32.

I am authorized to state that Judge Andrews joins in this dissent.

       The fact that Jones had not completed his probation under the first offender statute is not material in these circumstances. See 1981 Op. Atty Gen. U81-12.


text:
    A93A2112.
    HABERSHAM DOWNS HOMEOWNERS’ ASSOCIATION, INC. v. DEPARTMENT OF TRANSPORTATION.
    (442 SE2d 868)
   Smith, Judge.

In this condemnation case involving the widening of State Route 92 in north Fulton County, Habersham Downs Homeowners’ Associa- • tion filed a petition to set aside, annul, vacate, and dismiss the Department of Transportation’s declaration of taking. See OCGA § 32-3-11 (c). The trial court denied the petition, and this appeal followed.

The record reveals that Habersham Downs is a subdivision consisting of 52 lots in the Roswell area of north Fulton County. Part of the common area owned by the association, an amenities area including a swimming pool and tennis courts, abuts Highway 92. The property subject to the taking is part of the land between the amenities package and the road. Before the taking, Highway 92 was a two-lane road, and the amenities area was bordered by a stand of pine trees approximately 15-30 feet from the pool. A berm and about 20-25 feet of open ground separated the trees from the road bed. The DOT condemned .350 acres of this land. The taking will permit construction of a six-lane highway. The elevation of the road over the amenities will be higher, the slope between the road and the subdivision will be steeper, and a smaller barrier will exist between the road and the amenities.

The DOT estimated just and adequate compensation for the taking, including the land condemned and a temporary construction easement, at $100,600, and deposited that amount into the registry of the court.

In a proceeding regarding non-value issues, “OCGA § 32-3-11 [(b)] gives a trial court authority to set aside, vacate and annul a declaration of taking in the following situations — fraud or bad faith, the improper use of the condemnation powers, the abuse or misuse of the condemnation powers, and ‘such other questions as may properly be raised.’ ” Dept. of Transp. v. B & G Realty, 197 Ga. App. 613, 614 (1) (398 SE2d 762) (1990). In reviewing the trial court’s judgment in such a proceeding, this court will not reverse the lower court’s findings on these issues if there is any evidence to support them. Id. at 615.

1. The association contends the trial court erred in denying its petition because the proposed road is unsafe, and the taking therefore was an improper use of the DOT’s condemnation powers. The association’s main safety concern is that because of the increased elevation of the road and the shorter distance between the road and the pool, vehicles leaving the highway may crash into the pool area. It also cites problems with regard to environmental damage, drainage, noise, and vibration.

However, as pointed out by the trial court, the association has proved none of its allegations regarding safety. It hired no road design consultants, safety experts or engineers, and called none as witnesses. The only “expert” called by the association was James Bradford, a real estate appraiser, consultant, and broker with experience at DOT as a staff appraiser. Bradford testified that he lacked the qualifications to assess the road’s safety himself. He was told by DOT employees that their design department considered the road safe, and he “believe[d] it meets minimum standards.”

We do not agree with the association that the facts in this case are “indistinguishable” from those in Cox Communications v. Dept. of Transp., 256 Ga. 455 (349 SE2d 450) (1986). In Cox, DOT condemned several acres of land to be used in the construction of a highway located adjacent to Cox’s broadcasting tower and running beneath supporting guy wires. Cox filed a petition to set aside the declaration of taking, alleging that DOT was guilty of bad faith because it had failed to adopt a specific plan to protect the public from the danger of ice falling from the upper portions of the tower and injuring highway users. The Supreme Court found that because it believed the facts in that case were unique, and the “risk to the public . . . transcend [ed] the hazards that ordinarily attach to public works,” Cox’s concerns were “neither fanciful nor speculative.” Id. at 456 (2). Therefore, although the DOT’s failure to adopt specific plans did not constitute bad faith under the standard developed in City of Atlanta v. Heirs of Champion, 244 Ga. 620 (261 SE2d 343) (1979), Cox, supra at 456 (1), it did constitute an “ ‘improper use’ ” of DOT’s powers within the meaning of OCGA § 32-3-11 (b) (2). Id. at 456-457 (3).

The holding in Cox was explicitly premised upon its unique facts, and absent those distinctive and rare facts, the analogy to Cox fails. The facts here are not unique. Moreover, while the danger in Cox was a proven one, the concerns here consist of unproven speculation. The trial court did not err in finding the association had not proved that DOT improperly used its powers because the proposed road is unsafe.

2. The association maintains the trial court erred in denying its petition because DOT abused its powers. In this enumeration, the allegation is that DOT has essentially required the association either to purchase safety from DOT or to pay for it itself. The allegation is based upon a letter dated February 22, 1991, from James L. (Smoky) Butler III, DOT’s Acquisition Manager, to Bradford. In the letter, Butler explained that the original compensation proposed by DOT included $60,900 in consequential damages, based on the increased proximity of the right-of-way to the amenities package. If the association desired a wall, DOT offered to work with it in designing one, but the construction of such a wall would “negate” the $60,900 “proximity” damages.

Consequential damages to the remainder of the property are awarded to compensate the condemnee for the diminution in value of the remainder of the property as a result of the taking. Benton v. Chatham County, 206 Ga. App. 285, 288-289 (4) (b) (425 SE2d 317) (1992). As pointed out at the hearing, it is intuitively obvious that the larger and more aesthetic the barrier erected between the amenities package and the road, the smaller the consequential damages. It follows that DOT would not be required both to provide compensation for a diminution in the value of the amenities package, and to construct a barrier so as to eliminate such diminution in value. This enumeration is without merit.

3. We find no merit in the association’s contention that the trial court erred when it denied the petition yet ordered DOT to produce its environmental impact statement and other relevant information to the association. Because OCGA § 32-3-11 (b) restricts the relevant issues, the declaration of taking would not be set aside for DOT’s failure to provide an environmental impact statement unless it was a misuse or abuse of DOT’s powers. The association cites Dept. of Transp. v. Hudson, 179 Ga. App. 842 (348 SE2d 106) (1986), in support of its argument that failure to provide the environmental impact statement was such an abuse. Hudson, though, is clearly distinguishable. In that case, a DOT design engineer admitted that DOT had failed to perform safety studies, an environmental impact statement, or a detailed cost analysis. This court held DOT’s complete failure to perform was a misuse of its powers. No such evidence was presented here. It is undisputed that the environmental statement had been performed, and apparently had been distributed at public hearings on the road widening. The trial court did not err.

4. The association contends that DOT’s omission of the commencement date of the temporary construction easement it sought to condemn rendered the declaration of taking invalid under the rule established in Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981). This contention is patently without merit.

In Dorsey the Supreme Court held that the “possibility of a condemnor reaping a benefit from having filed a faulty declaration of taking should be avoided.” Id. at 37. Therefore, where a declaration of taking does not comport with the requirements of OCGA § 32-3-6, the condemnee who has successfully invoked OCGA § 32-3-11 may elect whether the effective date for determining the amount of just and adequate compensation — the date of the taking — is the date of filing the original declaration or the amended declaration. Id.

Dorsey has no application here because in this case the declaration of taking was not faulty. OCGA § 32-3-7 (a) provides that title to the property in issue vests in the condemnor on the date the declaration of taking is filed and the compensation is deposited with the court. As a matter of law, the commencement date for the temporary construction easement is the date of the taking.

5. We find no merit in the association’s final enumeration of error complaining that the trial court’s examination of two of the association’s witnesses, James Van Epps and Bradford, went beyond an inquiry into relevant facts and constituted advocacy in support of DOT. The court did question the witnesses extensively, and at times may have seemed irritated. It is apparent from the record that the court was concerned because the association’s numerous allegations were not being proved. The court was never discourteous and did not discount the association’s concerns. Given that this was a nonjury hearing, we find no harm in the court’s questioning of these witnesses.

Decided March 17, 1994

Reconsideration denied March 31, 1994

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, David P. Thatcher, for appellant.

Michael J. Bowers, Attorney General, Howell & Whiting, James S. S. Howell, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       We have been unable to discern from the record any “other relevant information” ordered released to the association.


text:
    A93A2245.
    SOUTHERN GUARANTY INSURANCE COMPANY et al. v. RAGAN INSURANCE AGENCY, INC. et al.
    (442 SE2d 871)
   Andrews, Judge.

Southern Guaranty Insurance Company (Southern) and Charles Shierling Construction Company, Inc. appeal from the granting of summary judgment to Ragan Insurance Agency and State Automobile Mutual Insurance Company and the dismissal from the litigation of Shierling Construction Company.

1. Viewing all the undisputed facts in the light most favorable to Southern and Shierling, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence on summary judgment was as follows.

A wreck occurred on July 9, 1985 involving a 1963 Chevrolet C60 truck driven by Shierling employee Clark and used in the construction business. Mr. Eliasz, who was in the car struck by the Shierling truck, died. On that date, policies issued by Southern with an effective date of June 30, 1985 were in place. These provided general and automobile liability as well as workers’ compensation and excess liability coverage.

These policies were. obtained by Shierling from Philips of the Graham-Naylor Agency, Inc. The premiums had been paid to Southern as of the accident date. Southern defended the suit and entered a settlement with Mrs. Eliasz for $1,000,000 which has been paid. In return, she signed a full release. Southern seeks contribution from State Auto as a result of this settlement, contending that State Auto also had coverage in place on the accident date.

The Graham-Naylor Agency had previously provided business insurance for Shierling in 1984. That policy was written by Bituminous and was scheduled to expire on March 19, 1985. At that time, Bituminous’ rates went up and Philips obtained a quote from Southern for Shierling. Shierling, however, advised Philips that he was not going to take the coverage, because he had a better rate with another agent. At Shierling’s request in June, Philips checked with Southern on June 24, 1985, found the rates quoted in March were still good, and issued the policies under which payment of the Eliasz settlement was made.

On March 15, 1985, Shierling met with Mr. Ragan of Ragan Insurance Agency concerning his business coverage. In January 1985, Ragan had placed personal coverage for Mr. and Mrs. Shierling with Grange Mutual Insurance Company. This coverage, however, had been cancelled by Grange by March 1985 due to inaccuracies in the driving record information provided by the Shierlings. Ragan also obtained personal automobile, major medical and life insurance from Grange and another insurance company for Shierling and members of his family.

Because of the cancellation by Grange, Ragan contacted the underwriter for State Auto before accepting Shierling’s application for business coverage on March 14, 1985. Binders were authorized by the underwriter and went into effect on March 19, 1985. Shierling stated that he believed he had acquired the 1963 truck involved in the wreck after March 19, 1985 and that he had not asked Ragan to put that vehicle on the State Auto policy.

A June 24, 1985 listing of vehicles provided to Philips for inclusion in the Southern policy includes the 1963 truck. The Fleet Schedule attached to the State Auto policy does not include this truck. Because, however, Southern contends that the policy issued by State Auto included an after-acquired vehicle provision, we will address the contentions regarding the viability of the State Auto policy.

Shierling completed the State Auto application and gave Ragan a check for $1,500. Shierling said that Ragan “told me to make a $1,500 binder and he [Ragan] would get the company to finance the balance of premiums on monthly payments.”

Shierling signed a Premium Finance Agreement which contained blanks where the total premium, down payment, monthly payment amounts, and finance charge should be. This was because, until the application was processed by State Auto, the amount of the premium was not definitely known.

Shierling was aware that he had 90 days within which to receive the permanent policies and during which the binder would apply. Ragan had requested that Shierling make monthly payments to him which would be escrowed until the policies were received, but Shierling refused. Ragan advised him that, because he refused this arrangement, when the policies came, there was going to be a “large, substantial payment at that time.”

Ragan forwarded the signed finance application to Stateco, a wholly owned financing subsidiary of State Auto, when he sent the application for insurance to State Auto. Stateco would pay the full year’s premium to State Auto upon receipt of a specified percentage down payment from the insured. The amount over the down payment would then be financed for the insured by Stateco. Because the policies’ numbers were not yet available and the required down payment had not been included with the financing application, the finance application was returned to Ragan. He received the permanent policies from State Auto on June 14, 1985 and filled in the policy numbers and other blanks on the financing application. It reflected a “Cash Price Total Premium” of $10,517 and a required down payment of $2,629.95. State Auto did not receive any payment of premium on these policies. That these blanks were not filled in until after Shierling signed the document is of no avail. “ ‘If a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it. [Cit.]’ [Cit.]” Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 853 (2) (386 SE2d 723) (1989); Hall v. World Omni Leasing, 209 Ga. App. 115, 117 (2) (433 SE2d 297) (1993).

The application for insurance, which Shierling does not dispute was completed when signed by him, reflects that the application is for a “policy term” of three years and that premium payment will be “annual installments (3 yr. pol. only)” under which is noted “Statco” (sic).

Prior to June, Shierling had called Ragan and asked where the policies were. Although he denied having received any letters from Ragan, Ragan mailed two, one on May 27, 1985 and one on June 14, 1985, requesting that additional payments be made toward the State Auto policy. Also, in April, Ragan made a notation in his business records that, on April 30, 1985, he had sent the invoice to Shierling for the April installment on the down payment. These letters.and invoice were sent to the correct mailing address and were not returned to Ragan. Shierling acknowledges that he was told by Ragan that a large payment was due and that the May 27 letter did reflect a conversation which he had with Ragan around that time.

Ragan had gone by Shierlings’ residence on at least one occasion, Friday, June 7, to attempt to collect payment.

Shierling was asked at his deposition in 1988:

“Q. Mr. Shierling, I take it it was not your desire at the point that you went to Graham-Naylor [June 1985] and applied for Southern Guaranty coverage and paid for that coverage, I take it it was not your desire to maintain coverage with, duplicate coverage; that is to have two separate insurance companies insuring the same thing?

“A. That’s correct.

“Q. So, at that point, obviously, you were not going to make any more payments to State Auto because you had, ... if the bill had come in for example, you would not have paid that because you had coverage with . . . Southern Guaranty?

“A. That’s correct.”

He further testified that “I had felt like that possibly I was paying insurance to an agency that wasn’t for State Auto and I wasn’t never going to receive any policy. And that if I had an accident, then I might not be covered.”

Having been unable to contact Shierling or obtain the payments due, Ragan mailed the policy back to State Auto on June 21,1985. No notice of the accident was given by Shierling to State Auto, only to Southern.

Shierling acknowledges that, on July 11, 1985, he received an auto policy notice of cancellation from State Auto. This cancellation was issued in response to a request from Ragan in order to clear his and State Auto’s financial records of the policy.

2. According to Shierling’s own testimony, he never knew the permanent policy had been received by Ragan and, at least after June 30, 1985, he did not intend to pay any more money to Ragan, nor did he believe that he had obtained permanent coverage from State Auto. At most, he had received, in the form of certificates of insurance, proof of the issuance of a “binder” by State Auto, pending issuance of the permanent policy upon payment of the annual premium.

“No binder shall be valid beyond the issuance of the policy with respect to which it was given or beyond 90 days from its effective date, whichever period is the shorter. . . .” OCGA § 33-24-33 (b). Here, Shierling did not intend to have insurance with State Auto after the expiration of the binder coverage and the accident occurred thereafter. Under the circumstances, there is no basis upon which Shierling could reasonably have believed he was insured by State Auto at the time of the accident and, in fact, he disclaims any such belief. Jourdan v. First Nat. Ins. Co., 203 Ga. App. 155, 156 (416 SE2d 162) (1992); Southern Gen. Ins. Co. v. Snipes, 196 Ga. App. 727, 728 (396 SE2d 808) (1990). Compare Progressive &c. Ins. Co. v. Davis, 199 Ga. App. 598, 599 (405 SE2d 529) (1991).

There was no error in granting summary judgment to State Auto on the claim by Southern for contribution.

Decided March 17, 1994

Reconsideration denied March 31, 1994

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Saveli & Williams, Daniel N. Meyer, Carl W. McCalla III, for appellants.

Lokey & Bowden, Malcolm Smith, Peter K. Kintz, Freeman & Hawkins, Barry S. Noeltner, Michael J. Goldman, for appellees.

3. As for Ragan, in support of the agency’s motion for summary judgment, Ragan came forward with a financial resolution of his dealings with Shierling. Shierling stated his belief that the $1,500 check was to go to the State Auto business policies only, although there was no such notation on the check. Ragan’s testimony was uncontradicted that, as of August 20, 1987, Shierling was indebted to Ragan for $7,415.87 for all personal and other policies of insurance obtained by Ragan from Grange, American States, and others.

“A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. 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., supra. Ekokotu v. Pizza Hut, 205 Ga. App. 534, 537 (6) (422 SE2d 903) (1992).

Shierling’s conclusion about the check, absent more evidence supporting that contention, is not sufficient to defeat summary judgment in light of Ragan’s evidence. Sullivan v. Fabe, 198 Ga. App. 824, 826 (1) (403 SE2d 208) (1991); Collins v. West Am. Ins. Co., 186 Ga. App. 851, 852 (3) (368 SE2d 772) (1988).

4. The dismissal of Shierling Construction Company was not error. As reflected above, Shierling was defended by Southern and the judgment paid by Southern, which is the real party in interest. North Am. Life &c. Co. v. Riedl, 209 Ga. App. 883 (434 SE2d 820) (1993); Allman v. Hope, 200 Ga. App. 137, 138 (407 SE2d 107) (1991).

Judgment affirmed.

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

       The issue of coverage under State Auto’s policy and Ragan’s role in it, Counts 3 and 4 of Southern’s complaint, are the only substantive matters addressed by the summary judgment and enumerated as error. Therefore, these are the only claims addressed. West v. Nodvin, 196 Ga. App. 825, 830 (4b) (397 SE2d 567) (1990).


author: Cooper, Judge.

text:
    A93A2452.
    CLARK v. ARRAS et al.
    (443 SE2d 277)
   Cooper, Judge.

This appeal arises out of an action brought by plaintiff against Dr. Milton Arras, the county medical examiner, and Dr. Abram Brown, the county coroner. In her complaint, plaintiff asserted a claim for intentional infliction of emotional distress as a result of an autopsy performed on her stillborn fetus. The trial court granted summary judgment to both defendants, and this appeal follows.

In August 1990, plaintiff had a miscarriage in approximately her twentieth week of pregnancy. In March 1991, plaintiff suffered another miscarriage while in her twenty-second week of pregnancy. Because of plaintiff’s history and because the second miscarriage appeared unexplained, Dr. Arras performed an autopsy on plaintiff’s stillborn fetus. Plaintiff contended in her complaint that Dr. Arras, in conjunction with Dr. Brown, performed the autopsy by mistake and without her permission, causing her mental distress, pain and anguish.

1. Plaintiff argues that summary judgment should not have been granted to defendants because Dr. Arras admitted that he performed the autopsy on the wrong fetus. The record does not support plaintiff’s argument. Dr. Arras explained in his deposition that some confusion arose because there was a four-week-old miscarried fetus in the morgue at the same time as plaintiff’s twenty-two-week-old fetus. After performing the autopsy on plaintiff’s fetus, he mistakenly put the name of the four-week-old fetus on the autopsy report. Dr. Arras further explained that the four-week-old fetus was too small to autopsy and that there was no mistake in his mind about which fetus he was to autopsy. Plaintiff attempted to rebut this evidence with her affidavit in which she stated that she was told the autopsy was supposed to have been performed on another fetus. However, plaintiff did not identify the source of this hearsay statement, and the statement referring to what she was told is not admissible evidence. See Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991). Plaintiff failed to rebut defendants’ evidence that the autopsy was not performed by mistake, and the trial court did not err in granting summary judgment.

2. Citing the Death Investigation Act, OCGA § 45-16-20 et seq. as authority, plaintiff also contends summary judgment was improper because the autopsy was performed without her permission. OCGA § 45-16-28 provides: “In the case of death of any person under such circumstances as would not require a medical examiner’s inquiry under Code Section 45-16-24, any physician who is duly licensed . . . shall be deemed to have been legally authorized to perform an autopsy upon the body of a deceased person when such autopsy has been consented to by the person assuming custody of the body for the purposes of burial. ...” (Emphasis supplied.) Defendants argue that the autopsy was specifically authorized under OCGA § 45-16-24 (a) (6), which requires that a medical examiner’s inquiry, including an autopsy (see OCGA § 45-16-27.1 (a)), be performed when any person dies “[a]fter birth but before seven years of age if the death is unexpected or unexplained.” Defendants also cite OCGA § 45-16-22 (c), which provides that “[e]xcept as otherwise provided in this article, it shall be in the sole discretion of the medical examiner to determine whether or not an autopsy ... is required.” Regardless of whether a stillborn fetus is included within the term “person” for purposes of the Death Investigation Act (see Jackson v. State, 208 Ga. App. 391, 393-394 (2) (430 SE2d 781) (1993)), we find that plaintiff has failed to establish intentional infliction of emotional distress.

“In Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985), this court noted the four elements of the tort of intentional infliction of emotional distress set forth in the Restatement (Second) of Torts § 46, all four of which must be present in order for the claimant to recover: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe.” (Citations and punctuation omitted.) Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993). “It is not enough that the defendant’s conduct in a given situation is intentional or that it is willful and wanton. In order to warrant recovery the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness.” (Citations and punctuation omitted.) St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 123 (1) (421 SE2d 731) (1992). “Factors which may contribute to outrageousness and egregiousness include the existence of a special relationship in which one person has control over another, the actor’s awareness of the victim’s particular susceptibility, and the severity of the harm resulting from the conduct. Some claims will be found not to rise to the requisite level of outrageousness and egregiousness as a matter of law.” (Citations and punctuation omitted.) Richardson v. Hennly, 209 Ga. App. 868, 872 (3) (434 SE2d 772) (1993). Dr. Arras testified in his deposition that he performed the autopsy because he considered the stillbirth to be suspicious and unexplained. We conclude that the actions of defendants do not rise to the necessary level of outrageousness and egregiousness as a matter of law. Since plaintiff failed to establish a claim for intentional infliction of emotional distress, the trial court properly granted summary judgment to defendants.

Decided March 15, 1994

Reconsideration denied March 31, 1994.

Clark & Clark, Fred S. Clark, for appellant.

Lane & Crowe, Donald B. Napier, Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellees.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge. Pope, Chief Judge,

text:
    A94A0321.
    McALLASTER v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. et al.
    (443 SE2d 9)
   McMurray, Presiding Judge.

Richard E. McAllaster brought a multi-count action against Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and Robert H. Thorne, for damages allegedly sustained after McAllaster’s termination of employment from Merrill Lynch. Merrill Lynch filed a motion to compel arbitration pursuant to the parties’ agreement to submit such disputes to arbitration. McAllaster filed a motion to stay any such arbitration. The trial court granted Merrill Lynch’s motion to compel arbitration and denied McAllaster’s motion to stay arbitration. McAllaster filed this direct appeal and also filed an application for interlocutory appeal pursuant to OCGA § 5-6-34 (b), stating that “[b]oth appeal procedures are pursued since if order at issue may be considered a final order since the trial court did not retain jurisdiction.”

McAllaster’s interlocutory application was denied on September 27, 1993, in Georgia Court of Appeals Case No. A93I0292. We now consider McAllaster’s direct appeal. Held:

The grant of an application to compel arbitration is not equitable in nature, but “operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending [and] ‘ “. . . is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” ’ Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (198 SE2d 144) (1973).” Tillman Group v. Keith, 201 Ga. App. 680 (1), 681 (411 SE2d 794). Consequently, the order granting Merrill Lynch’s motion to compel arbitration does not constitute an equitable injunction directly appealable pursuant to OCGA § 5-6-34 (a) (4), but resolves an interlocutory matter reviewable pursuant to OCGA § 5-6-34 (b). Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538). But see Bartlett v. Dimension Designs, Ltd., 195 Ga. App. 845, 846 (2) (395 SE2d 64). The case sub judice must therefore be dismissed.

Decided March 31, 1994.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellant.

Hunter, MacLean, Exley & Dunn, F. Saunders Aldridge III, for appellees.

Appeal dismissed.

Birdsong, P. J., Beasley, P. J., Cooper, Johnson and, Smith, JJ., concur. Pope, C. J., Andrews and Blackburn, JJ., concur specially.

Pope, Chief Judge,

concurring specially.

In Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488 (299 SE2d 538) (1983), the Supreme Court held that orders granting or denying motions to stay judicial proceedings pending arbitration are interlocutory in nature, but suggested that applications for interlocutory review of such orders should be viewed with favor except in the clearest cases due to considerations of judicial economy. See also Rhodes v. Inland-Rome, 195 Ga. App. 39, 40 (392 SE2d 270) (1990) (pursuant to Phillips Constr., order granting appellee’s motion to compel arbitration and stay judicial proceedings was certified for immediate review and the application for interlocutory review was granted). Although appellant’s application for interlocutory review was denied in this case, that was the proper procedure to present the case to this court. Thus, I agree that this direct appeal must be dismissed.

In Bartlett v. Dimension Designs, Ltd., 195 Ga. App. 845 (2) (395 SE2d 64) (1990), a panel of this court held that an order compelling arbitration and staying judicial proceedings was a directly appealable interlocutory injunction. This aspect of the Bartlett decision is inconsistent with Phillips Constr. and should be overruled.

I am authorized to state that Judge Andrews and Judge Blackburn join in this special concurrence.


author: Pope, Chief Judge.

text:
    A94A0786.
    BUTLER v. THE STATE.
    (443 SE2d 11)
   Pope, Chief Judge.

As part of a negotiated plea bargain, Michael Anthony Butler pled guilty to a single count of violating the Georgia Controlled Substances Act, in return for which an order of nolle prosequi was entered as to a count charging Butler with possession of a firearm during the commission of a felony. He appeals from the judgment of conviction and sentence entered by the trial court on his guilty plea, enumerating as error the denial of his motion to suppress.

“Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of specified issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved; and an unconditional guilty plea will waive any defenses and objections except appellate review of whether such plea was voluntarily made by [the accused] and accepted following proper inquiry by the trial court.” (Citations and punctuation omitted; emphasis in original.) Caldwell v. State, 202 Ga. App. 729, 730 (1) (415 SE2d 653) (1992). Likewise, there must be an express indication by the State that it agrees with the reservation of appellate rights. Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991). The transcript of the guilty plea hearing in this case shows that the defendant entered his plea after the prosecutor first set out the terms of the negotiated plea for the court and then questioned the defendant concerning whether his plea was freely and voluntarily entered. At no time did the State’s counsel indicate that the guilty plea was being entered with a reservation of rights. The transcript further shows that after defendant entered his plea his counsel spoke on his behalf, and made reference to the fact that the decision to enter the plea had been reached after the trial court’s adverse ruling on defendant’s motion to suppress. However, defense counsel did not indicate his intent to appeal the court’s adverse ruling on the motion to suppress, but, after additional comments concerning the entry of the guilty plea, went on to state that he was noting for the record that defendant “would reserve any and all appellate rights.” Defense counsel then asked the court to accept the plea, and the trial court indicated its acceptance by stating “All right.”

Although mindful of the fact that no particular nomenclature is required in order to show the trial court’s express acceptance of a conditional guilty plea, see Springsteen v. State, 206 Ga. App. 150, 151 (424 SE2d 832) (1992), we find the record in the present case fails to demonstrate both the State’s agreement to the entry of the plea with a reservation of appellate rights and the trial court’s acceptance of the plea upon that condition. Compare Ballew v. State, 206 Ga. App. 631 (1) (426 SE2d 254) (1992); Springsteen, 206 Ga. App. at 150. Except for defense counsel’s general comment, there is nothing in the record to show that Butler’s negotiated guilty plea was anything but unconditional. Butler has thus waived all defenses, known or unknown, by his entry of a voluntary and unconditional guilty plea, Mims, 201 Ga. App. at 278 (1), including the right to assert the present contention that incriminating evidence was unlawfully seized.

Decided March 31, 1994.

Carl A. Johnston, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.