text:
    A01A1352.
    HILL et al. v. CITY OF FORT VALLEY et al.
    (554 SE2d 783)
   Ruffin, Judge.

In 1981, Edwards Funeral Home interred Mrs. Logie Postell at Willow Lake Memorial Gardens Cemetery, which is owned by the City of Fort Valley. In 1997, the funeral home discovered the casket had been buried in the wrong plot, and, at the City’s expense, the casket was removed and reburied in the correct plot. Mrs. Postell’s children (“plaintiffs”) sued the funeral home and the City, asserting claims for intentional infliction of emotional distress, trespass, and wrongful burial. Both defendants moved for summary judgment. The trial court granted both motions, and the plaintiffs appeal. For reasons that follow, we affirm.

1. In reviewing a trial court’s grpnt of summary judgment, we conduct a de novo review of the law and evidence, and we construe all evidence, inferences, and conclusions in favor of the party opposing the motion. So viewed, the relevant facts show that in 1974, the City purchased Willow Lake Memorial Gardens Cemetery from Edwards Funeral Home. Although the funeral home no longer owned the cemetery, it continued to sell lots on behalf of the City and conduct burials at the cemetery. The City was responsible for authorizing contracts for the sale of lots, identifying the grave site, and maintaining the cemetery.

After Mrs. Postell died in February 1981, her family shared the cost of purchasing four plots at the cemetery through Edwards Funeral Home. Although Mrs. Postell’s children contributed to the cost of the plots, the deed was recorded in the name of R. B. Postell, Mrs. Postell’s brother. The family members agreed that one plot would be reserved for R. B. Postell, but that the remaining two plots could be used for the children. At the time of Mrs. Postell’s death, the funeral home used grave markers to identify the plot for the gravediggers.

In February 1997, R. B. Postell died, and he was interred at the cemetery next to his sister. In June of that year, R. B. Postell’s children contacted Claybon Edwards, the owner of the funeral home, regarding improvements to the grave site. In connection with the proposed improvements, Edwards visited the grave with R. B. Postell’s daughter, Bertha Cook, and two of Mrs. Postell’s children, Annie Postell and Bertha Jones. When Edwards returned to the funeral home, he discovered that Mrs. Postell was not buried on the correct plot. Upon making the discovery, Edwards asked Cook to come to the cemetery, and Cook returned with one of her cousins.

According to Edwards, he discussed the situation with the two and received permission to move Mrs. Postell. However, neither Bertha Jones nor Annie Postell recalled having any such discussion with Edwards. In two affidavits, Bertha Cook gave inconsistent testimony regarding her discussion with Edwards. In one affidavit, she averred that, when meeting with Edwards, “at no time . . . did we discuss moving the graves of my relatives” and that she never “authorize [d] anyone to move the graves of [her] relatives.” In a subsequent affidavit, however, she admitted that Edwards told her that Mrs. Postell’s “grave was on the next lot over and would have to be moved” and that she gave this information to Annie Postell.

On July 9, 1997, at the City’s expense, Mrs. Postell’s grave was moved four feet to the correct plot. When Annie Postell learned that the grave had been moved, she, Bertha Jones, and their brother, Henry Hill, went to the cemetery and saw that their mother’s grave had been disturbed and that the headstone had been moved. In February 1999, the plaintiffs sued the City and the funeral home for trespass and intentional infliction of emotional distress. In January 2000, plaintiffs filed an amended complaint, which added a claim for wrongful burial.

Both defendants filed motions for summary judgment, which the trial court granted. In its order, the trial court found, inter alia, that the evidence failed to establish a claim of intentional infliction of emotional distress, that the plaintiffs lacked standing to bring a claim for trespass, and that the claim for wrongful burial was barred by the statute of limitation. As the trial court ruled correctly, we affirm.

(a) To sustain a claim for intentional infliction of emotional distress, the plaintiffs must prove the following four elements:

(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; and (4) The emotional distress must be severe. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.

To warrant the imposition of liability for such claim, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The evidence presented here does not rise to this level as a matter of law.

As the plaintiffs do not allege that they suffered any physical injury or pecuniary loss as a result of the disinterment and reburial of their mother, their recovery against the City and funeral home depends on a showing that the conduct of the two defendants was “malicious, wilful or wanton.” Even if the City and funeral home were insensitive or negligent in failing to obtain the express permission of the plaintiffs prior to moving their mother’s grave, there is nothing in the record to raise such conduct to the degree of wilfulness or wantonness that is necessary for a claim of intentional infliction of emotional distress.

Even assuming that the defendants’ actions can be characterized as wilful or wanton, plaintiffs’ claim for intentional infliction of emotional distress still must fail. To sustain such claim, the plaintiffs must show that the conduct of the defendants was directed toward them. The record here shows that, in moving the casket containing the remains of Mrs. Postell, the defendants were trying to correct a mistake that had been made many years earlier. Although the defendants should have shown more consideration for the next of kin, there is nothing to suggest that the defendants’ conduct was directed toward the plaintiffs. Thus, the plaintiffs are unable to sustain a claim for intentional infliction of emotional distress, and the trial court properly granted the defendants’ motions for summary judgment on this claim.

(b) The plaintiffs assert “[t]hat the disturbance of the remains of [Mrs. Postell] by the Defendants was a trespass upon the burial plot owned by the Plaintiffs.” Notwithstanding the plaintiffs’ contention that they owned the plot, the undisputed evidence shows that the plot had been deeded solely to R. B. Postell, and thus the plaintiffs, who are not the heirs of R. B. Postell, have no property interest in the lot. Although Georgia courts recognize a right of recovery for interference with an easement of burial, “the property right [is] acquired by the purchase of [the] cemetery plot.” Accordingly, the trial court correctly concluded that the plaintiffs lack standing to pursue a claim for trespass.

The plaintiffs further assert that they have a property interest in their mother’s remains and that the defendants “committed a trespass against their personalty when the [defendants] moved their mother without permission.” The trial court found that “[t]here is no evidence in the record showing that the body of Ms. Postell was harmed or damaged in any way.” Thus, the court reasoned, “no action can lie for trespass to the body.”

It is true that, as Mrs. Postell’s children, the plaintiffs have a “quasi-property right” in her body. Accordingly, the plaintiffs have standing to bring a claim for trespass to the body. Pursuant to OCGA § 51-10-3, “[a]ny unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages may be recovered.” Here, there is no evidence that the body was damaged in any way by the move. According to the affidavit of Horace Bell, who was present when the grave was moved, the burial vault remained sealed at all times, and the remains were not disturbed. Thus, the sole issue is whether moving the body constituted an unlawful abuse of the body.

The record shows that, upon discovering that Mrs. Postell was buried on the wrong plot, the defendants had the casket removed and reburied in the correct plot. Although the defendants failed to secure the permission of the next of kin prior to moving the casket, the mere movement of the casket from a plot where the casket had no right to be to the correct burial plot does not rise to the level of unlawful abuse necessary to sustain a claim for trespass to the body itself. Here, the plaintiffs’ true complaint is not for any trespass to the body, but to the plot. For the reasons discussed above, however, they are unable to sustain such claim.

(c) In their amended complaint, the plaintiffs assert that, in 1981, the defendants failed to properly mark the boundaries of the grave site, which resulted in their mother being buried in the wrong place. The trial court concluded that any claim for wrongful burial in 1981 is barred by the statute of limitation. Again, we agree.

The plaintiffs do not contend that the defendants intentionally mismarked the grave site. Thus, their claim sounds in negligence, and such claim must be brought within four years. Although the plaintiffs clearly brought their claim well beyond four years, they argue that the statute of limitation was tolled by the fraud of the defendants.

Decided September 20, 2001

Ronny E. Jones, for appellants.

Miller & Towson, James V. Towson, Joel A. Howe, Jones, Cork & Miller, Sharon H. Reeves, Thomas C. Alexander, Gregory Homer, for appellees.

OCGA § 9-3-96 provides that if a defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” To avoid summary judgment based on the statute of limitation, however, the plaintiffs are “required to present some evidence of actual fraud.” Here, there is no evidence that the defendants acted fraudulently. To the contrary, Edwards testified that until 1997 he had no knowledge that Mrs. Postell was buried on the wrong plot.

The plaintiffs essentially argue that, as Edwards was responsible for Mrs. Postell’s burial, he had to have known that she was buried in the wrong plot and that his failure to disclose this information constituted concealment. However, such conclusory statements are not sufficient to survive summary judgment. Accordingly, the trial court correctly concluded that this claim is barred by the statute of limitation.

2. In their second enumeration of error, the plaintiffs contend that the trial court erred in excluding the affidavit of Martha Harris, in which she purported to authenticate City records regarding other wrongful burials at the cemetery. Pretermitting whether the trial court should have considered the affidavit, our holding in Division 1 renders this issue moot.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Northside Hosp. v. Ruotanen, 246 Ga. App. 433-434 (541 SE2d 66) (2000).

       Id. at 435.

       Id.

       (Punctuation omitted.) Edwards v. A. S. Turner & Sons, Inc., 181 Ga. App. 105, 106 (2) (351 SE2d 505) (1986).

       See id. See also Northside Hosp., supra (hospital official's conduct toward bereaved, although rude and insensitive, was not outrageous); Hall v. Carney, 236 Ga. App. 172, 174 (2) (b) (511 SE2d 271) (1999) (conduct of church members in disinterring body of child not malicious, wilful, or wanton).

       See id.

       See id.

        See Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992).

       See Black v. Ga. Mem. Park Cemetery, 173 Ga. App. 290, 291 (2) (325 SE2d 901) (1985).

       (Punctuation omitted.) Id.

       See id. See also Hall, supra at 174-175 (3).

        Wages v. Amisub of Ga., 235 Ga. App. 156, 157 (1) (508 SE2d 783) (1998).

       Cf. Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 356 (2) (a) (514 SE2d 691) (1999) (plaintiff “asserted a claim of trespass on her quasi-property rights in the body of her deceased husband, arising from the removal of [his] eyes despite her refusal to consent”).

       Indeed, in their complaint, the plaintiffs assert only a claim for trespass to the plot.

        See Armstrong v. Royal Lakes Assoc., 232 Ga. App. 643, 644 (1) (502 SE2d 758) (1998) (“With respect to [appellants’] negligence claim, the statute of limitation on an action for damages to realty is four years from the date the right of action accrues.”).

       AAA Truck Sales v. Mershon Tractor Co., 239 Ga. App. 469, 471 (1) (521 SE2d 403) (1999).

       See Wilson v. Phillips, 230 Ga. App. 290, 292 (495 SE2d 904) (1998) (plaintiffs “failed to show any act or artifice by [defendants which would] deter them from timely obtaining the true facts”).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A01A1604.
    SLATER v. THE STATE.
    (555 SE2d 8)
   Smith, Presiding Judge.

Keith Slater was convicted of simple assault after a bench trial. He appeals, contending that his right to a trial by jury, as guaranteed by the Georgia Constitution of 1983, Art. I, Sec. I, Par. XI, was violated and that the trial court erred in ordering restitution. Finding no error, we affirm.

The facts are undisputed. Slater was charged with simple assault upon a customer at his store. The customer was drunk and refused to leave. Slater admits that before the bench trial began, the prosecutor presented defense counsel with a waiver of jury trial form. Defense counsel did not return the form. The case was called, and a bench trial proceeded after defense counsel announced he was “here and ready.” Both the State and Slater presented evidence. After arguments, the judge found Slater guilty and announced from the bench that he would sentence him to three months to serve in the county jail, which would be suspended upon payment of a $250 fine. The , State then informed the court that the victim had medical expenses. After taking evidence from the victim, the court announced it would change Slater’s sentence from three months suspended and a fine to three months probated, a fine of $250, and restitution of the victim’s medical expenses. He directed the probation officer to let Slater go as soon as he “does what he is supposed to do.”

At that point, defense counsel informed the court that Slater had never waived his right to a jury trial. The court confirmed that counsel had announced ready, then instructed counsel to have a seat in the courtroom with Slater and wait. The court told counsel that “we will get a jury before this term is over with and you can retry it again if you want to.” Defense counsel replied: “That’s what we want to do,” and the court repeated: ‘You’ll have an opportunity to go before a jury.” But after this exchange, ignoring the judge’s instructions, Slater and his attorney apparently left the courtroom.

In their absence, the judge heard from the prosecutor, who informed the court that Slater’s counsel advised him before trial that he had waived jury trial for Slater but not for another defendant. In addition, several weeks before trial, the prosecutor wrote a letter to defense counsel confirming that Slater’s case had been set down for a bench trial.

That afternoon, the judge held a hearing to determine whether Slater’s counsel should be held in contempt of court for leaving the courtroom. Defense counsel admitted that he had received the waiver of jury trial form. He acknowledged informing the prosecutor he would tell Slater that he thought they should waive a jury trial. He testified he had discussed it with Slater, and Slater said he “would do whatever I wanted to do.” He had decided that “we would proceed this morning, but. . . according to the law in order for his right to a jury trial — in order for that to be waived it must be done on the record or in writing.” He readily admitted that he proceeded with the bench trial without returning the waiver form, “[b]ecause I was fully aware that if something happened during the trial that I deemed to be illegal as a result of Mr. Slater not waiving his right to a jury trial we could receive then a jury trial on the issue.” When the court resentenced Slater, defense counsel “felt like that was an incorrect procedure by the Court.” He also told the court it “had absolutely no right to tell me to sit here and wait all day in this courtroom.”

The court found defense counsel in contempt and sentenced him to 48 hours in jail, which counsel promptly announced he was appealing. As to Slater’s case, the court was willing to schedule a retrial before a jury, but the prosecutor took the position that the case had already been tried. The court apparently was persuaded by the prosecutor’s argument, because it told defense counsel: ‘You’ve had your hearing, you’ve had your case being tried, and you can appeal that too if you don’t like it.” This appeal ensued.

1. Slater contends that his right to a trial by jury, as guaranteed by the Georgia Constitution of 1983, Art. I, Sec. I, Par. XI, was violated when the court refused him a jury trial.

Criminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered “fundamental” and personal to defendant, waivable only by the defendant. Examples of fundamental decisions which only the defendant is empowered to waive are entry of a guilty plea, waiver of a jury trial, and whether to pursue an appeal.

(Citations and punctuation omitted.) State v. Barrett, 215 Ga. App. 401, 406 (2) (451 SE2d 82) (1994), overruled on other grounds, City of Baldwin v. Barrett, 265 Ga. 489 (458 SE2d 619) (1995). When waiver of the right to a trial by jury is placed in question, the State bears the burden of showing the waiver was knowing and intelligent. It may satisfy this burden either by showing on the record that the defendant was aware of the right he was waiving or by filling in a silent or incomplete record through the use of extrinsic evidence that shows the waiver was knowing and voluntary. Gary v. State, 241 Ga. App. 76, 77 (2) (526 SE2d 148) (1999).

Notwithstanding defense counsel’s flagrant misuse of the judicial process, we would be constrained to agree with counsel that Slater’s right to a jury trial had been violated if presented only with the failure to return the waiver form, the subsequent bench trial, and the belated exercise of the defendant’s constitutional right. It is incumbent upon the State to make certain that a jury trial has, in fact, been properly waived. Here, however, the trial court was prepared to afford Slater his right to a jury trial even after the bench trial was concluded. But Slater waived that right when he and his counsel ignored the trial court’s instruction to remain in the courtroom until a jury trial could be arranged.

Defense counsel’s testimony at the contempt hearing further supports a waiver. Counsel virtually admitted he was aware that a jury trial had not formally been waived, and he planned a cynical manipulation of the judicial process by proceeding with the bench trial and later asserting his right to a jury trial if the result of the bench trial did not please him. We cannot reward this behavior by insisting on the technical requirements of a formal waiver. This is particularly true when defense counsel testified that he discussed the issue with Slater and that Slater left the decision to him. Counsel also testified that he informed Slater that in order for a waiver of the right to a jury trial to be effective “it must be done on the record or in writing.” It is apparent, therefore, that Slater acceded to and participated in counsel’s plan by proceeding with the bench trial knowing he had not completed the technical requirements for waiving his right to a jury trial. We hold that Slater, by his actions on the record, waived his right to a trial by jury.

2. Slater also contends the trial court erred in ordering restitution because no evidence was presented by the State during the course of the trial as to any monetary damages suffered by the victim. We do not agree.

In his brief, Slater correctly notes that the trial court originally sentenced Slater to three months in the county jail to be suspended upon payment of a $250 fine. As best we understand Slater’s argument, he contends that because he was in possession of $250, he would have been able to pay that fine and suspend the jail sentence, and therefore the court never gave Slater time to serve. Citing Paul v. State, 170 Ga. App. 746 (318 SE2d 200) (1984), he appears to argue that this court has held that an oral declaration of sentence may not be increased after a defendant has begun to serve it, and he had effectively begun serving his sentence when the court ordered restitution. This argument is specious, because Slater had not actually begun serving any portion of his sentence. See Jenkins v. State, 246 Ga. App. 38, 39 (4) (539 SE2d 542) (2000). Moreover, this argument does not address the issue raised in the enumeration. It is well established that an “enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. [Cit.]” Echols v. State, 149 Ga. App. 620, 625 (3) (255 SE2d 92) (1979).

Decided September 20, 2001.

Salter, Shook & Craig, Mitchell M. Shook, for appellant.

J. Franklin Edenfield, Solicitor-General, for appellee.

Second, OCGA §§ 17-14-8 through 17-14-10 specifically contemplate a hearing on the issue of restitution. Britt v. State, 232 Ga. App. 780, 781 (2) (503 SE2d 653) (1998). After learning of the victim’s medical expenses, the trial court did hold a hearing on restitution in this case. We find no error.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       We are not concerned with that appeal in this case.

       Findings of fact are also contemplated under OCGA § 17-14-8 (a); “failure to make a finding as required by this Code section, however, shall not invalidate any order or other action of the ordering authority.” OCGA § 17-14-8 (b).


author: Phipps, Judge.

text:
    A01A2187.
    AYERS v. THE STATE.
    (555 SE2d 4)
   Phipps, Judge.

Dewey Ayers was convicted of theft by receiving stolen property. His motion for new trial was denied. He now appeals, challenging the sufficiency of the State’s proof and the admission of similar transaction evidence. We find Ayers’s claims of error either to have been waived or to be lacking in merit and affirm.

Ayers was charged with theft by receiving a stolen 1997 Corvette automobile. Fayette County Detective Whiteside testified that the Corvette was reported stolen and a lookout for it was posted by Federal Bureau of Investigation Special Agent McFarlane. Whiteside further testified that upon being advised that the Corvette had been seen, he gave orders to pursue it. Sergeant Chitwood observed Ayers drive the vehicle to his Fayette County residence, initiated a traffic stop, took him into custody, and placed him in a patrol car. Detective Whiteside later arrived on the scene. When Detective Whiteside asked Ayers whether the car belonged to him, Ayers indicated that he had purchased the car from an unnamed individual and regretted having done so because it was the second time that person had sold him a stolen vehicle. The State presented evidence showing that Ayers had registered the Corvette by submitting an application containing fraudulent information.

The State presented similar transaction evidence relating to five other stolen vehicles. First, Cobb County Detective Gaynor testified that uniformed officers had received information that an individual was attempting to sell a stolen vehicle later identified as a Toyota 4Runner. Police observed Ayers enter the 4Runner and arrested him. When asked for documentation by the arresting officer, Ayers presented a fraudulent insurance card. The second transaction involved a Toyota Land Cruiser stolen from Colvin Leonard. A cellular telephone was mounted in the car, and numerous calls were made from it after the theft. One call was placed to Ayers. Greg Foster obtained title to the stolen Land Cruiser in Ayers’s name, and Ayers submitted the fraudulent title to an automobile insurer in order to obtain payment for the car after it was destroyed in an accident. Third, Agent McFarlane testified that during the course of an investigation, he ascertained that a stolen Mercedes had been registered in Ayers’s name through use of a fictitious Pennsylvania title, that Ayers used the Pennsylvania title to obtain a Georgia certificate of title, and that he then sold the car. Last, the State presented additional testimony authorizing the jury to find that Ayers had sold a stolen Ford Explorer to Alva Loney and a stolen Nissan Pathfinder to Annie Williams.

Ayers’s defense was that he did not know that the Corvette was stolen but had simply purchased the car from John Malloy, a car dealer who was a member of a fitness center owned by Ayers. In rebuttal, Agent McFarlane testified that upon investigation he found no evidence that anyone named John Malloy was or had been a car dealer in Georgia.

1. Construed in a light most favorable to support the verdict, the evidence was sufficient to authorize any rational trier of fact to find beyond a reasonable doubt that Ayers possessed the stolen Corvette and that he knew or should have known it was stolen. Consequently, the trial court did not err in denying Ayers’s motion for directed verdict.

2. (a) Ayers complains that the trial court instructed the jury on the uncharged offense of theft by taking. The court, however, explained to the jury that it was providing the definition of this offense solely because theft is an element of the offense with which Ayers was charged. The court never instructed the jury to consider returning a verdict of guilt against Ayers for any charge other than theft by receiving. Therefore, we find no error.

(b) Ayers complains that the trial court in effect instructed the jury to find him guilty by stating during its charge that he had been found in possession of a stolen vehicle. Because Ayers never denied possessing the vehicle, but rather raised a defense grounded on the claim that he did not know it was stolen, we do not find that Ayers was harmed by the charge.

3. Ayers contends that the court erred in failing to limit the purpose for which the similar transaction evidence was introduced. There is no merit in this complaint, as the trial court charged the jury that such evidence could be considered only for the limited purpose of showing “the defendant’s state of mind, knowledge, intent, or mode of operation in the crime charged.” This was an adequate limiting instruction.

4. Ayers contends that because of factual dissimilarities between the five prior transactions and the offense charged, the independent transactions were not sufficiently similar to the one at bar to warrant their admission in evidence.

All transactions involved stolen motor vehicles. In at least four of the prior transactions, Ayers was found in possession of the vehicle. Three of the transactions, like this case, involved instances in which he had submitted or was found in possession of false vehicular or insurance documentation. Given these similarities, the court did not abuse its discretion in admitting the extrinsic evidence. In determining whether prior transactions are sufficiently similar, courts must focus on the similarities of the occurrences rather than their differences.

5. Ayers contends that the trial court erred in allowing the State to present testimony from Detective Whiteside, Detective Gaynor, and Agent McFarlane which improperly placed his character in issue.

Ayers’s complaint about Detective Whiteside’s testimony concerning participation by narcotics officers in the investigation of Ayers has not been preserved for appellate review because there was no objection to this testimony at trial.

Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal. Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.

The defense did object and move for a mistrial when Detective Gaynor testified that Ayers had been charged with possession of a loaded handgun found in the Toyota 4Runner. The trial court, however, sustained the objection in lieu of declaring a mistrial and gave a curative instruction directing the jury to disregard the testimony. We find no abuse of discretion.

The court also sustained an objection by the defense to testimony by Agent McFarlane which may have led the jury to believe that Ayers was a member of an auto theft ring. Because the defense did not ask for any additional curative action, Ayers has waived any further objection. Additional testimony by McFarlane as to which Ayers complains on appeal either was given by him on direct examination and not objected to or was elicited by defense counsel on cross-examination. “Induced error does not furnish a basis for reversal.”

6. ’ Ayers contends that the court erred in allowing the State to establish venue through hearsay testimony There is no merit in this complaint, as the jury was authorized to find venue in Fayette County based on testimony given by Detective Whiteside as to his own observations as well as statements made to him by Ayers. By failing to raise any objection at trial, Ayers has waived complaints concerning allegedly hearsay testimony given by Detective Gaynor as to the stolen Toyota 4Runner and by Agent McFarlane as to the purchase of the Mercedes from Ayers.

7. Ayers contends that the court erred in admitting the statement he made to Detective Whiteside at the time of his arrest because he was not given Miranda warnings. The detective’s testimony concerning this statement was, however, elicited by defense counsel. Therefore, Ayers cannot complain of its admission on appeal.

8. Finally, Ayers challenges the legality of his seizure by Sergeant Chitwood. Again, however, this challenge has not been preserved for appellate review because the issue was not raised at trial.

Decided September 20, 2001.

William S. Callahan, for appellant.

Dewey Ayers, Jr., pro se.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See, e.g., Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

       See Nelson v. State, 240 Ga. App. 454, 456 (1) (521 SE2d 593) (1999).

       See generally Arnold v. State, 236 Ga. App. 380, 382 (2) (511 SE2d 219) (1999).

        Guild v. State, 236 Ga. App. 444, 445 (2) (512 SE2d 343) (1999).

       (Citations and punctuation omitted.) Holland v. State, 197 Ga. App. 496, 497 (1) (398 SE2d 810) (1990).

        Williams v. State, 247 Ga. App. 88, 90 (2) (543 SE2d 402) (2000).

       See Brown v. State, 180 Ga. App. 611, 612 (2) (349 SE2d 830) (1986).

       (Footnote omitted.) In the Interest of K. D. J., 246 Ga. App. 500, 502 (2) (540 SE2d 682) (2000).

       In this enumeration of error, Ayers also complains of the trial court’s refusal to instruct the jury on the rules of Miranda. Because defense counsel expressed his agreement with the court’s decision not to charge the jury on such rules, Ayers cannot complain of this ruling either. “A party cannot submit to a ruling or acquiesce to it. . ., then complain about the ruling on appeal.” Boone v. State, 229 Ga. App. 379, 381 (4) (494 SE2d 100) (1997).


author: Ellington, Judge.

text:
    A01A1764.
    HESTER v. THE STATE.
    (555 SE2d 13)
   Ellington, Judge.

A Whitfield County jury found Eddie Weston Hester guilty of possessing marijuana with the intent to distribute, OCGA § 16-13-30. The trial court sentenced Hester to ten years imprisonment as a recidivist under OCGA § 17-10-7 (c). Hester appeals from the denial of his motion for new trial, contending the trial court erred in sentencing him as a habitual felon because the State failed to carry its burden of proving that two of Hester’s four prior convictions were the result of knowing and voluntary guilty pleas. For the following reasons, we affirm.

Contrary to Hester’s assertion, “the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered.” (Footnote omitted.) Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999). In this case, the State presented documentary evidence establishing that Hester had, in fact, entered guilty pleas to the contested felony drug charges. Hester failed to come forward with evidence sufficient to challenge the validity of either plea. Consequently, the court sentenced Hester as a recidivist. This procedure is consonant with the Supreme Court’s rule which requires “the defendant to produce evidence of invalidity once the fact of conviction is proved.” (Citations and punctuation omitted.) Id. at 284. We find no error.

Hester argues that because he contested the voluntariness of his guilty pleas in a habeas corpus hearing held prior to trial, the burden of proof also should have been on the State during his recidivism hearing. Hester’s attempted end-run around the requirements of Nash fails for the following reasons. Although the State “bears the burden in a habeas proceeding of establishing that the guilty plea was knowingly, voluntarily, and intelligently made,” Byrd v. Shaffer, 271 Ga. 691, 692 (2) (523 SE2d 875) (1999), this appeal is not from a habeas corpus proceeding. Although the bulk of the relevant evidence was initially introduced in the context of a prior civil habeas proceeding, that evidence was later imported into the criminal trial on the issue of recidivism upon Hester’s own motion. Although Hester had the opportunity both to appeal the habeas court’s findings and to present further evidence on the issue of the validity of his guilty pleas at sentencing, he failed to do either. Because this appeal is from a recidivism hearing, we review the trial court’s decision under Nash, not Byrd. If Hester objected to the habeas court’s decision, his remedy was to seek a certificate of probable cause to appeal to the Supreme Court of Georgia pursuant to OCGA § 9-14-52. This court lacks jurisdiction to consider an appeal from a habeas corpus proceeding. Id.; Fullwood v. Sivley, 271 Ga. 248, 250 (517 SE2d 511) (1999).

Decided September 21, 2001

William W. Keith III, Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A1862.
    COTTEN v. THE STATE.
    (555 SE2d 15)
   Ellington, Judge.

Matthew Lee Cotten appeals from the trial court’s order denying his plea in bar on former jeopardy grounds. For the following reasons, we affirm.

On August 8, 2000, Cotten entered a nolo contendere plea to misdemeanor possession of marijuana. During the plea colloquy, the court asked Cotten if he was under the influence of drugs or alcohol, and Cotten replied that he was not. The court accepted the plea and sentenced Cotten to 12 months probation. Within a few hours of the plea, a probation officer tested Cotten’s urine for the presence of drugs. The probation officer told the judge that Cotten’s urine was “very” positive for marijuana metabolites, suggesting Cotten’s recent use of the drug. On the same day he took the plea, the judge summoned Cotten back to court. The judge set aside the conviction, expressing doubts about the voluntariness of Cotten’s plea: “Where circumstances suggest to the Court that the person might be under the influence of anything, then it is certainly in the court’s discretion and I think it is incumbent upon the court not to allow such a proceeding to take place.” There is no evidence in the record that the court prohibited Cotten from reentering a plea at a later date.

On September 5, 2000, Cotten entered a not guilty plea, and his case was placed on the trial calendar. On March 15, 2001, just before his trial was to begin, Cotten argued his plea in bar and, in the alternative, asked to reenter his nolo contendere plea. The judge told Cot-ten he was no longer inclined to accept a nolo plea, but that he would entertain a negotiated guilty plea. Cotten declined to plead under those circumstances and brought this appeal.

In a criminal case, the trial court retains the inherent power to modify, suspend, or vacate a judgment until the end of the term in which the judgment was rendered. Sledge v. State, 245 Ga. App. 488 (537 SE2d 753) (2000); Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388 SE2d 425) (1989). As our Supreme Court recently explained:

Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts. The power of the court, during the term, is described as plenary, to be used for the purpose of promoting justice, but the court’s discretion, although broad, is not unbounded and should be exercised only upon sufficient cause shown. Hence, we have recognized that this inherent power should not be used unless some meritorious reason is given therefor. However, the right to determine what is a meritorious reason is also addressed to the sound discretion of the judge, and this court will not reverse his or her decision unless such discretion is manifestly abused.

Decided September 21, 2001

Crumbley & Crumbley, Wade M. Crumbley, for appellant.

John T. Rutherford, Solicitor-General, for appellee.

(Citations and punctuation omitted; emphasis supplied.) Buice v. State, 272 Ga. 323, 324-325 (528 SE2d 788) (2000).

In this case, the court vacated Cotten’s plea because there was some evidence that Cotten was under the influence of marijuana at the time he entered his plea. The court, expressing an interest in insuring that Cotten’s plea was completely voluntary, vacated the conviction to promote that meritorious purpose. Further, we find no evidence that Cotten was prejudiced by the court’s decision. Although Cotten may have lost the opportunity to enter a nolo contendere plea, that event, like the court’s decision to vacate the plea, was a direct consequence of Cotten’s own unlawful marijuana use. Cotten’s actions are comparable to induced error, and the prejudice he asserts is based on his actions. As we have held: “Asserted prejudice based upon induced error is impermissible.” (Citations omitted.) Martin v. State, 235 Ga. App. 844, 845 (2) (510 SE2d 602) (1998). Cotten has not carried his burden of showing that the court’s actions have impaired his defense in any way. See Buice, 272 Ga. at 326, n. 2. Therefore, we find no abuse of discretion in the trial court’s decision to vacate Cotten’s conviction. See id. at 326.

Cotten’s prior conviction does not bar his prosecution for the same crime because his conviction was vacated in a later proceeding that did not result in a finding of not guilty or a finding that the evidence was insufficient to authorize a guilty verdict. OCGA § 16-1-8 (d) (2). See McCrary v. State, 254 Ga. 382 (1) (329 SE2d 473) (1985); Garrard v. State, 242 Ga. App. 189, 190-191 (528 SE2d 273) (2000). Accordingly, the trial court properly denied Cotten’s plea in bar.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       An order denying a plea in bar is a collateral order which may be directly appealed under OCGA § 5-6-34. Patterson v. State, 248 Ga. 875, 876-877 (287 SE2d 7) (1982).

       The terms “judgment” and “conviction” are not synonymous with “verdict.” “ ‘Conviction’ is not the verdict; it is the judgment on the verdict or guilty plea.” (Citations and punctuation omitted.) Blackstock v. State, 270 Ga. 117, 119 (4), fh. 5 (506 SE2d 130) (1998); see also OCGA § 16-1-3 (4). A verdict is the “formal decision or finding made by a jury . . . upon the matters or questions duly submitted to them upon the trial.” Black’s Law Dictionary (6th ed. rev. 1990), p. 1559.

       We do not address Cotten’s implied contention that the trial court’s conduct is presumptively vindictive in violation of North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969). Because Cotten has yet to be convicted and sentenced, we do not have two sentences to compare. Therefore, any claim based upon Pearce is premature. Hyman v. State, 248 Ga. App. 521, 522 (546 SE2d 881) (2001).


author: Mikell, Judge.

text:
    A01A1934.
    MERCK v. SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC. et al.
    (555 SE2d 11)
   Mikell, Judge.

Barbara Merck, pro se, filed the underlying action against Saint Joseph’s Hospital of Atlanta, Inc. (“Saint Joseph’s”), asserting claims of medical malpractice and intentional infliction of emotional distress arising from medical care Merck’s mother received at Saint Joseph’s prior to her death on April 2, 1998. Merck sent a copy of the complaint to Saint Joseph’s via certified mail; however, a sheriff’s entry of non est service was filed on April 18, 2000, demonstrating that valid service had not been perfected on the hospital’s registered agent. On May 3, 2000, “appearing specially without waiving and specifically reserving any and all defenses,” Saint Joseph’s filed its answer, in which it raised the affirmative defenses of insufficiency of process, insufficiency of service of process, and failure to provide an expert affidavit as required by OCGA § 9-11-9.1.

On May 12, 2000, an unidentified woman who was not a sheriff’s deputy and who did not identify herself as being appointed by the court to serve process left a second copy of the complaint at the receptionist’s desk at Saint Joseph’s corporate office. Neither the copy of the complaint sent by certified mail nor the one left at the receptionist’s desk was accompanied by a summons.

On June 29, 2000, Saint Joseph’s filed a motion to dismiss based on Merck’s failure to perfect service and failure to file an expert affidavit in support of her medical malpractice claim. The motion was accompanied by the affidavits of Saint Joseph’s risk manager, Sue Wilson, and employee, Debra Hayward, stating that there had been no valid service of the complaint. Merck did not respond to the motion. The trial court scheduled a hearing on December 11, 2000; however, Merck failed to appear. The record shows that counsel for Saint Joseph’s mailed notice of the hearing to Merck on November 15, 2000, at the post office box Merck identified as her return address in the complaint. The trial court granted Saint Joseph’s motion and dismissed Merck’s complaint with prejudice. This appeal followed.

We conclude that the trial court’s dismissal of Merck’s complaint was not legal error. First, the court did not err in finding that Merck failed to perfect proper service on the defendants. The case of Wilkinson v. Udinsky, 242 Ga. App. 464 (1) (530 SE2d 215) (2000), is directly on point. In that case, we affirmed the dismissal of a pro se plaintiff’s complaint due to his failure to serve the defendants properly. As in the case sub judice, in Wilkinson, the defendant submitted affidavits stating that an unidentified person delivered copies of the complaint to the defendant’s office; that the complaint was not served by a sheriff or someone appointed by the court to serve process; and that the complaint was not accompanied by a summons. Id. We recognized the well-settled principle that “[a] suit commences only after the filing of a petition and the proper service of process upon the defendant as required and authorized by law.” (Punctuation omitted.) Id., citing Thorburn Co. v. Allied Media of Ga., 237 Ga. App. 800, 802 (1) (516 SE2d 833) (1999).

OCGA § 9-11-4 (c) plainly states who may serve process in a civil action. “Process must be served by either (1) the sheriff or deputy of the county where the action is filed; (2) the sheriff or deputy of the county where the defendant is found; (3) the marshal or sheriff of the court or their deputies; or (4) any specially appointed process server. OCGA § 9-11-4 (c).” Zimmerman v. Hammer, 220 Ga. App. 864, 865 (470 SE2d 688) (1996). “[P]ersonal service must be made by an authorized person.” (Citations and punctuation omitted.) Id. “In the absence of service in conformity with OCGA § 9-11-4, the court does not obtain jurisdiction over the defendant.” Wilkinson, supra at 465 (D.

When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of demonstrating improper service. Wilkinson, supra. Saint Joseph’s met this burden by presenting the affidavits of Wilson and Hayward stating that service was improper. The burden then shifted to Merck to provide additional evidence in support of proper service, which she failed to do. See id. The fact that Merck is proceeding pro se does not relieve her of her burden to establish proper service. “In a civil case, the court cannot put a pro se litigant on a different standard from one represented by counsel.” (Citations and punctuation omitted.) Waits v. Gil, 232 Ga. App. 186, 187 (501 SE2d 303) (1998). Accordingly, the court properly dismissed the complaint for failure to properly serve the defendant.

Furthermore, we find that the trial court correctly dismissed Merck’s malpractice claims based on her failure to file an expert affidavit with the complaint. OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” A complaint that is not accompanied by the required affidavit is subject to dismissal. Epps v. Gwinnett County, 231 Ga. App. 664, 666 (1) (499 SE2d 657) (1998).

Therefore, we conclude that the trial court properly dismissed Merck’s complaint for improper service of process and failure to file an expert affidavit.

Decided September 21, 2001.

Barbara Merck, pro se.

Goldner, Sommers, Scrudder & Bass, Susan V. Sommers, Matthew P. Lazarus, for appellees.

Judgment affirmed.

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

       Merck’s complaint and this appeal name “Saint Joseph’s Hospital of Atlanta, Inc., et al.” as defendants and appellees; however, Merck has not named any defendants other than Saint Joseph’s.


author: Miller, Judge.

text:
    A01A0929.
    BELK, INC. v. WARNER ROBINS ZAMIAS LIMITED PARTNERSHIP.
    (555 SE2d 19)
   Miller, Judge.

This case involves the construction of a contract between a mall owner and one of its anchor tenants. The contract requires the mall owner to obtain the consent of the anchor tenant before constructing any building not shown on the site plan, which plan is attached to and incorporated into the contract. The question is whether language in the site plan authorizing a variance in a future store’s size and configuration permits the mall owner to construct a store substantially larger than the 70,000-square-foot square depicted and described in the site plan for the future store. We hold the language permits the larger store and thus affirm the court’s granting of summary judgment in favor of the mall owner.

As this is the appeal of a grant of summary judgment, we consider the case de novo and construe the facts in favor of the nonmovant. So construed, the evidence shows that in 1989 Warner Robins Zamias Limited Partnership (a mall developer) and Belk, Inc. (a department store) entered into a contract (drafted in large part by Belk) leasing Belk certain space at the Galleria Mall being built near Warner Robins. Attached to and incorporated into the lease was a site plan (drafted by Zamias) depicting the mall. Zamias agreed that without written consent from Belk, “no buildings nor other structures of any kind shall be constructed or otherwise built, erected or placed anywhere on the Shopping Center Site, except as shown on the Site Plan or otherwise permitted by this Lease. . . .” The original site plan showed an 86,479-square-foot “Future Proposed Discount Department Store” to be built on pad no. 6.

Over the years, the parties amended the lease on three occasions, with the third and final amendment substituting in a new site plan that renumbered pad no. 6 to pad no. 5 and that showed a 70,000-square-foot “Proposed Future Store” to be built on this pad. The following words appeared for the first time inside the dotted lines depicting this store: “Actual Configuration & Size May Vary[,] A Minimum of 5.5 Parking Ratio Will Be Maintained.” The “5.5 Parking Ratio” refers to a requirement that for every thousand square feet of leasable space, there was to be available 5.5 parking spaces. The parking spaces depicted on the site plan met this ratio for the 70,000-square-foot store shown.

Some years later Zamias struck a deal with Dillard’s (another department store) to have Dillard’s construct a 101,298-square-foot store on pad no. 5. Sufficient additional parking was provided to maintain the ratio. Belk objected, arguing that the 70,000-square-foot figure represented a maximum and that the proposed store exceeded this limit. Zamias announced that it intended to go forward with the deal, arguing that the lease and site plan allowed the size to increase. Belk brought the present suit against Zamias to enjoin the construction of the store. After the court denied Belk’s motion for an interlocutory injunction, both parties moved for summary judgment, resulting in the grant of Zamias’s motion and the denial of Belk’s. Belk appeals.

The issue on appeal is whether the language of the contract allows Belk to veto the construction of the proposed 101,298-square-foot Dillard’s on pad no. 5. “[T]he construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract. . . .” We review de novo the trial court’s application of the following three-step procedure for construing the contract. “The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.”

The parties both argue that the contract is unambiguous; they simply disagree on the meaning of that contract language. We agree that the lease is unambiguous.

Paragraph 9 (j) allows Belk to veto any buildings or structures at the mall if they are not “shown on the Site Plan or otherwise permitted by this Lease.” The amended site plan, which is attached to and incorporated into the lease, shows a “Proposed Future Store” on pad no. 5 depicted by a dotted line forming a square and described as 70,000 square feet. Also within the dotted line area is the language: “Actual Configuration & Size May Vary[,] A Minimum of 5.5 Parking Ratio Will Be Maintained.”

Since the site plan expressly provides that the actual size and configuration of the future store may vary, and places no limit on that variance, we will not insert words to limit the permitted variance. In this context, the dotted line simply shows the intended location of the future store, and the 70,000-square-foot figure simply reflects an approximation that places no outside limit on the size of the future store.

Other provisions in the lease support this interpretation. In the text of the lease is language expressly prohibiting the construction of freestanding buildings that “exceed 10,000 square feet of Floor Area” and expressly requiring certain stores to have no less than specified square-footage minimums. Thus, when the parties intended to limit the maximum or minimum size of a proposed store, they used clear language to do so. Also significant is the phrase “A Minimum of 5.5 Parking Ratio Will Be Maintained” that follows the warning that the actual size and configuration of the store might vary. Since sufficient parking spaces are depicted on the site plan for a 70,000-square-foot store or smaller, the only purpose for this language is the anticipation that the future store would exceed this size and thus would require additional parking spaces to maintain this ratio.

Belk raises two counterarguments. First, Belk claims that the variance and'parking ratio language refers not to size of the future store, but to a temporary grass area that overlies the pad pending the construction of a store. This argument fails for at least two reasons: (1) this same language is found within the dotted lines of the other two future store pads shown on the site plan, but is not found in another “Temporary Grass Area” that does not overlie a store pad, thus showing the language is referring to the size of the future store, not to the size of the overlying grassy area; and (2) all “Temporary Grass Area” language on the site plan is in boldface type whereas the variance and parking ratio language is in the same regular typeface that describes the projected size of the future stores.

Second, Belk contends that paragraph 1 (k) of the lease imposes a maximum limit on this store insofar as it defines “Future Department Stores” as department store buildings “constructed within the Permissible Building Areas in the Shopping Center designated ‘Future Department Store’ on the Site Plan. . . .” Belk argues that the dotted line represents the outer limits of the “Permissible Building Area” and that therefore the new store must be built “within” or inside of its parameters, which according to the site plan scale represents a 72,000-square-foot box. This provision, however, does not apply to the store pad at issue here for the simple reason that by its express terms the provision applies only to those “Permissible Building Areas” “designated ‘Future Department Store’ on the Site Plan.” The pad here is not so designated. Unlike earlier versions of the site plan designating this pad as a “Future Proposed Discount Department Store” or a “Future Proposed Department Store,” the current site plan designates this pad as “Proposed Future Store.” Thus, paragraph 1 (k), which applies only to those pads designated as “Future Department Store,” does not apply to a pad designated by the clearly broader and more inclusive term “Future Store.” It is obvious that after years of unsuccessfully marketing this pad to other department stores, Zamias expanded the uses for this pad by getting Belk to agree to allow any type of store on this spot, thus freeing it from any restriction possibly imposed by paragraph 1 (k).

Moreover, even if paragraph 1 (k) applied, it does not expressly limit the size of the store as was done elsewhere in the lease with regard to freestanding buildings. Since we are instructed to strictly construe restrictive covenants so as to minimize their impact on the right of landowners to use their property for any lawful purpose, we hold that this provision, which contains an express limitation as to the minimum size of the store, does not restrict the maximum size of the store by use of the single word “within,” particularly where the parties elsewhere in the lease use clear language to limit maximum sizes of buildings. To follow Belk’s interpretation would render meaningless the designation “Future Store,” a point Belk concedes in its appellate brief. This we decline to do.

Since the lease does not limit the maximum size of the proposed store on pad no. 5, the trial court correctly granted summary judgment to Zamias and denied summary judgment to Belk.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Decided September 24, 2001.

Jones, Cork & Miller, H. Jerome Strickland, Hubert C. Lovein, Jr., for appellant.

Kritzer & Levick, Michael S. French, David L. Pardue, Walker, Hulbert, Gray, Byrd & Christy, Charles W. Byrd, for appellee.

        Bryant v. PMC Capital, 244 Ga. App. 313 (535 SE2d 319) (2000).

        Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000); see OCGA §§ 13-2-1; 13-2-3.

        Deep Six, supra, 246 Ga. App. at 73 (2), quoting Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

       See Wilbanks v. Mai, 232 Ga. App. 198, 199 (501 SE2d 513) (1998) (plain and obvious words must be given their literal meaning and no new terms can be inserted).

       See Deep Six, supra, 246 Ga. App. at 74 (2) (“[W]e look at the whole contract in arriving at the construction of any part.”) (footnote omitted).

       Belk effectively concedes this point in its brief when it argues that “the approved Current Site Plan no longer has a Future Department Store area designated, and thus there is no Permissible Building Area provided for a Future Department Store of any size.”

        Douglas v. Wages, 271 Ga. 616, 617 (1) (523 SE2d 330) (1999).

       See Deep Six, supra, 246 Ga. App. at 74 (2) (“We should avoid any construction that renders portions of the contract language meaningless”) (footnote omitted).


text:
    A01A1621.
    FINCH v. DASGUPTA.
    (555 SE2d 22)
   Miller, Judge.

Billie Ann Finch appeals from the trial court’s grant of summary judgment against her on her complaint for common law marriage, breach of promise to marry, and fraud. She contends that summary judgment was improper because (1) there was some evidence of a common law marriage and (2) the trial court failed to specifically address her claims of breach of promise to marry and fraud. We discern no error and affirm.

Construed in favor of Finch, the evidence shows that Finch began dating Gautam Dasgupta in 1988. In September of that year, Dasgupta asked Finch to marry him, but Finch stated that she was not ready to get married at that time and declined. When Finch was ready to get married a few years later, she left a note in one of Dasgupta’s shoes asking him to marry her, but Dasgupta did not say that he would marry her. In 1992, Finch again expressed her desire to get married and asked Dasgupta for an engagement ring for Christmas, but Dasgupta instead gave her a ring box containing a check for $3,000 to pay off a loan and insisted that he needed to “get [his] priorities straight” before he could marry her. Finch again asked Dasgupta to marry her in 1998, and again he refused.

Throughout their ten-year relationship, Finch stayed at Dasgupta’s home for several nights of each week. She always maintained her own separate residence and separate financial accounts, however. After she turned down his offer in 1988, Dasgupta never asked Finch to marry him again or told Finch that they would get married, never introduced her to anyone as his wife, and never signed any contract or other document representing that Finch was indeed his wife. Although Finch and Dasgupta sometimes took vacations together, Finch concedes that Dasgupta never, at any time, represented that he and Finch were married.

Finch and Dasgupta’s relationship ended in 1998 after Finch suspected that Dasgupta was cheating on her. She sued Dasgupta, alleging that they had a common law marriage, that he breached his promise to marry her, and that he committed fraud by leading her to believe that they would someday be married when in reality he had no intention of marrying her. The trial court granted summary judgment to Dasgupta, holding that “[t]he evidence [was] plain, palpable and undisputed that there was never an express agreement entered into by the parties to live together as man and wife.”

1. In reviewing the grant or denial of summary judgment, we conduct a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. In addition, “[w]hen [an] alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law marriage existed.” The proponent of the marriage must demonstrate that the parties (1) were able to contract, (2) agreed to live together as man and wife, and (3) consummated the agreement.

The undisputed evidence reveals that no common law marriage existed in this case. By Finch’s own testimony, she and Dasgupta never agreed to live together as man and wife. Finch maintained her own residence throughout the course of her relationship with Dasgupta, and she rejected Dasgupta’s only marriage proposal in 1988. Dasgupta never represented that he and Finch were married, or even that they would get married. Even if Dasgupta intended to marry Finch at some point in the future, “[a]n agreement to marry in the future is insufficient to establish a common law marriage. Such a bond can be established under OCGA § 19-3-1 only by an express, present marriage contract.” Finch’s cldim of common law marriage is entirely without merit, and the trial court properly granted summary judgment to Dasgupta on this issue.

2. Finch further contends that the trial court erred by failing to specifically mention her claims for breach of promise to marry and fraud in its summary judgment order when it entered judgment on the entire complaint. Since these additional claims are also without merit, we discern no error.

Decided September 24, 2001.

Alan B. Fecteau, for appellant.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Augustus T. Curtis, for appellee.

(a) “Breach of promise to marry is a common law contract action.” By the very nature of the action, there must be an actual promise to marry and acceptance of that promise before one can be held liable for a breach. Since it is undisputed that Finch rejected Dasgupta’s only marriage proposal, there was never any accepted promise upon which Finch could base a claim for breach of promise to marry. Summary judgment to Dasgupta was warranted on this issue.

(b) With respect to her claim for fraud, Finch relies on Perthus v. Paul to contend that Dasgupta committed fraud by falsely leading her to believe that he loved her and intended to marry her. Finch’s reliance on Perthus is misguided, however, as it does not support her argument and is distinguishable from the instant case.

In Perthus, the defendant falsely represented to the plaintiff that she was divorced. Relying on this misrepresentation about defendant’s marital status and her promise that she would marry him, plaintiff moved from his home and left his job to be with defendant. Under these circumstances, this court held that plaintiff had stated a cause of action for fraud.* In the instant case, however, no misrepresentation was ever made about Dasgupta’s marital status, as both he and Finch were single. Nor did Dasgupta promise to marry Finch. Contrary to Finch’s contentions, Perthus does not create a fraud cause of action for all jilted lovers, but only for those who reasonably rely to their detriment upon misrepresentations by another about their marital status and about their intent to marry. Finch has not stated any cognizable action for fraud, and the trial court properly granted summary judgment to Dasgupta.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       We note that under OCGA § 19-3-1.1, “[n]o common-law marriage shall be entered into in this state on or after January 1, 1997.” This case, however, concerns a common law marriage that allegedly took place prior to January 1,1997, and such “[o]therwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by [OCGA § 19-3-1.1] and shall continue to be recognized in this state.”

        Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       (Citation and footnote omitted.) Wright v. Goss, 229 Ga. App. 393, 394 (1) (494 SE2d 23) (1997).

       Id.; see also OCGA § 19-3-1.

       (Footnote omitted.) In re Estate of Wilson, 236 Ga. App. 496 (1) (512 SE2d 383) (1999).

       (Citations omitted.) Thorpe v. Collins, 245 Ga. 77, 78 (1) (263 SE2d 115) (1980).

       See, e.g., Leonard v. Owen, 125 Ga. App. 5, 6 (2) (186 SE2d 506) (1971).

       81 Ga. App. 133 (58 SE2d 190) (1950).

       Id. at 134.

       Id.

       Id. at 136.

       See also Field v. Massey, 232 Ga. App. 524 (502 SE2d 349) (1998).


author: Barnes, Judge.

text:
    A01A0967.
    DORSEY v. THE STATE.
    (554 SE2d 278)
   Barnes, Judge.

Lloyd Dorsey appeals from the trial court’s order denying his plea of former jeopardy. Dorsey claims the doctrine of collateral estoppel precludes the State from relitigating a motion to suppress in the criminal case against him because a different judge in a civil forfeiture action granted a motion to suppress based on the same evidence. Because we find the collateral estoppel doctrine does not apply in a criminal case following a final judgment in a civil forfeiture action, the trial court properly denied Dorsey’s double jeopardy claim.

The record shows that following the execution of a search warrant, Dorsey was indicted for trafficking in cocaine, possession of cocaine with intent to distribute, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. The State also filed a civil forfeiture proceeding against $19,175 and other various items, such as electronics, jewelry, and guns, found during the search. The State instituted both the criminal action and the civil forfeiture action in Fulton Superior Court, but the two cases were assigned to different judges. On February 14, 2000, Dorsey filed identical motions to suppress in both the criminal and the civil forfeiture actions, asserting that the search warrant contained an illegal “no-knock” provision and lacked probable cause.

On February 29, 2000, the judge presiding over the civil forfeiture proceeding held a hearing on Dorsey’s motion to suppress, but did not file an order granting the motion with the clerk’s office until March 9, 2000.

On March 9, 2000, the judge presiding over the criminal proceeding held a hearing on Dorsey’s motion to suppress, signed a written order denying the motion, and filed it with the clerk’s office on the same day. Because the superior court clerk’s office does not enter the time documents are filed, we cannot determine which of the orders was filed first.

On April 12, 2000, the civil forfeiture judge entered a final judgment in favor of Dorsey and ordered that the property be returned to him. When the State failed to appeal this order, Dorsey filed a plea of former jeopardy in the criminal action on May 17, 2000. Dorsey argued in his plea that collateral estoppel required the judge in the criminal action to grant the motion to suppress and his plea of former jeopardy. After a hearing, the criminal trial judge denied Dorsey’s plea of former jeopardy. Dorsey now appeals the denial of this plea.

1. (a)

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Georgia Constitution also contains a double jeopardy clause which provides that “no person shall be put in jeopardy of life or liberty more than once for the same offense.” Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.

(Citations omitted.) Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995).

In Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970), the U. S. Supreme Court held that the doctrine of collateral estoppel is embodied in the guarantee against double jeopardy. The Supreme Court described collateral estoppel as: “an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443. Thus, the State of Missouri could not prosecute a defendant for the robbery of one of six victims in the same robbery after a jury in another case had determined that the defendant did not rob one of the other victims.

Dorsey urges us to apply collateral estoppel in this case even though the first action to resolve the motion to suppress was not the prosecution of a crime for which he could be punished, but instead a civil forfeiture action. This we cannot do. A civil forfeiture proceeding is a civil action and does not seek to impose the punishment necessary to activate the protection against double jeopardy. Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996); Rojas v. State, 226 Ga. App. 688, 689 (487 SE2d 455) (1997); Cuellar v. State, 230 Ga. App. 203 (496 SE2d 282) (1998). If double jeopardy does not arise from a civil forfeiture action in general, then resolution of an issue in the civil forfeiture action should not result in the application of double jeopardy through the collateral estoppel doctrine. See Robertson v. Texas, 2001 Tex. App. LEXIS 1650 (collateral estoppel did not apply to motion to suppress filed in prosecution for DUI based on finding of no probable cause to arrest in driver’s license suspension hearing). Simply put, double jeopardy does not apply because Dorsey was not subjected to multiple criminal prosecutions. The trial court properly denied Dorsey’s plea of former jeopardy.

(b) Because this case involves a ruling on a motion to suppress in a civil forfeiture proceeding, as opposed to a probation revocation proceeding, we need not address any alleged inconsistencies in our decisions in Harvill v. State, 190 Ga. App. 353 (378 SE2d 917) (1989) and Talley v. State, 200 Ga. App. 442 (408 SE2d 463) (1996). See Quinn v. State, 221 Ga. App. 399, 400-401 (2) (471 SE2d 337) (1996).

Decided August 21, 2001

Reconsideration denied September 25, 2001

Brian Steel, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

2. During oral argument of this appeal, appellant asserted for the first time that this Court should apply the civil concept of collateral estoppel regardless of whether jeopardy attached in the civil forfeiture proceeding. Appellant did not raise this argument in the trial court or in its written submissions to this Court. “ ‘We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.’ [Cit.]” Padilla v. Melendez, 228 Ga. App. 460, 461 (1) (491 SE2d 905) (1997). Moreover, assertions of error not timely raised on appeal are generally waived. Hittson v. State, 264 Ga. 682, 690 (15) (449 SE2d 586) (1994), overruled on other grounds, Nance v. State, 272 Ga. 217, 220 (2), n. 2 (526 SE2d 560) (2000). Finally, “the civil doctrines of ‘res judicata' and ‘collateral estoppel' have no real application to a criminal case. The proper, analogous bar in a criminal prosecution is under the principle of ‘double jeopardy,' which is clearly not applicable under the facts of this case.” Carter v. State, 231 Ga. App. 42, 43, n. 2 (497 SE2d 812) (1998).

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Ruffin, Judge.

text:
    A01A1549.
    CRAFTER et al. v. STATE FARM INSURANCE COMPANY.
    (554 SE2d 571)
   Ruffin, Judge.

Following the death of his wife in an automobile accident, Harold Crafter sought payment of uninsured motorist benefits from his wife’s insurer, State Farm Insurance Company. The sole issue presented to the trial court was the proper method for calculating uninsured motorist benefits due Crafter. Following the parties’ cross-motions for summary judgment, the trial court concluded that, in determining the amount due, the equation should factor in only those uninsured motorist benefits that were available to the insured. The trial court then granted State Farm’s motion for summary judgment and denied the motion filed by Crafter. As the trial court ruled correctly, we affirm.

The parties have stipulated the relevant facts. On October 21, 1998, Crafter’s wife, a passenger in a car driven by Judy Hopkins, was killed when Hopkins’ car collided with a tractor-trailer driven by John Peavy, who was employed by Midwest Coast Transport. Harold Crafter, individually and as administrator of his wife’s estate, sued Hopkins, Peavy, and Midwest Coast Transport. Following discovery, Crafter determined that Peavy and Midwest Coast Transport were not at fault, and he dismissed them from the suit, leaving Hopkins as the sole defendant.

Hopkins had an insurance policy through Travelers Property Casualty, which provided $100,000 in liability coverage for the bodily injury or death of an individual. Travelers paid the full $100,000 to the Crafter estate. The same policy also provided uninsured motorist benefits of $100,000.

Crafter’s wife was insured through State Farm. Under five separate policies, State Farm provided a total of $245,000 in uninsured motorist benefits. After subtracting Travelers’ $100,000 liability payment from this amount, State Farm tendered $145,000 to the Crafter estate.

Crafter contends that State Farm owes the estate an additional $100,000 in uninsured motorist benefits. Under Georgia law, uninsured motorist benefits are calculated by “stacking the limits of all of the available uninsured motorist coverage and setting off the limits of the available liability coverage.” Here, Crafter argues that, in addition to being an insured under the State Farm policy, his wife qualified as an insured under the Travelers policy. Thus, he reasons, the amount of uninsured motorist benefits under the Travelers policy should have been “stacked” with the total benefits under the State Farm policy for an aggregate amount of $345,000. As the parties stipulated that the value of his wife’s life exceeded this amount, Crafter asserts that State Farm should have been required to pay $245,000, which is $345,000 minus the $100,000 liability payment.

The trial court rejected this argument, concluding that the uninsured motorist benefits contained in the Travelers policy were not “available” to Crafter’s wife, “which thus precludes that coverage from being included in the stacking of the policies to calculate the benefits available to the plaintiff.” We agree with the trial court.

The Travelers policy defined an “insured” as “[y]ou or any ‘family member’ [or] [a]ny other person ‘occupying’ ‘your covered auto.’” Accordingly, as an occupant, Grafter’s wife was an “insured” under Hopkins’ insurance policy. It does not necessarily follow, however, that the policy’s uninsured motorist benefits are available to her estate.

We construe every insurance contract according to the entirety of its terms. When the language of a policy is unambiguous and capable of but one reasonable construction, we enforce the contract as written. Although the Travelers policy treats occupants as insureds, it also provides that an “ ‘uninsured motor vehicle’ does not include any vehicle . . . [o]wned by or furnished for the regular use of you or any ‘family member.’ ” Thus, under the express language of the policy, Hopkins’ vehicle could not serve as the uninsured vehicle for the purpose of triggering entitlement to Hopkins’ uninsured motoris^ benefits.

Moreover, Travelers paid the Crafter estate the limits of its lia bility policy. To allow the estate to recover uninsured motorist bent fits under the same policy would be to permit a double recovery. Sue a situation is analogous to the stacking of uninsured motorist bent fits within a single policy, and “[a]s a general rule, there can be r, stacking or pyramiding of the uninsured motorists provisions as f single policy coverage of automobiles.” Accordingly, the uninsured motorist benefits from the Travelers policy were not available to th Crafter estate, and State Farm was not required to “stack” those bei, efits in calculating uninsured motorist benefits due. It follows the, the trial court correctly concluded that, having paid $145,000 to tm Crafter estate, State Farm owed no additional uninsured motorist benefits.

Such result is consistent with the purpose of uninsured motorist legislation, which is not to make insureds whole, but “to place insureds in the same position they would be in relation to coverage if the tortfeasors causing the injuries had obtained at least the minimum prescribed liability insurance.” Thus, we affirm.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided August 30, 2001

Reconsideration denied September 14, 2001 and RECONSIDERATION DISMISSED SEPTEMBER 25, 2001.

Mullis, Marshall, Lindley & Powell, Gerald S. Mullis, Thomas W. Malone, S. Bradley Houck, for appellants.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas P. Allen III, for appellee.

       Although OCGA § 33-7-11 (b) (1) (D) refers to “‘[u]ninsured motor vehicle[s],’” the 1980 amendment to the statute extended the scope of the Code section to include underinsured vehicles. See State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32, 33 (295 SE2d 359) (1982).

       (Punctuation omitted.) Sanborn v. Farley, 192 Ga. App. 376, 377 (385 SE2d 6) (1989).

       See Cotton States &c. Ins. Co. v. Coleman, 242 Ga. App. 531, 532 (530 SE2d 229) (2000).

        Jenkins v. Lanigan, 196 Ga. App. 424, 425 (1) (396 SE2d 28) (1990) (“ “Where the language of a contract is plain and unambiguous,... no construction is required or even permissible.’ ”).

       (Punctuation omitted.) Id. at 426 (2).

         The case cited by appellants, Sanborn v. Farley, supra, does not require a different result. Indeed, that case does not address the issue here — whether a claimant can recover both liability benefits and uninsured motorist benefits from the same policy.

       (Punctuation omitted.) Young v. Maryland Cas. Co., 228 Ga. App. 388, 390 (491 SE2d 839) (1997).


author: Phipps, Judge. Smith, Presiding Judge,

text:
    A01A2007.
    A01A2015.
    A01A2016.
    EPPS v. THE STATE. ANGULO v. THE STATE. BRAYBOY v. THE STATE.
    (555 SE2d 25)
   Phipps, Judge.

) William Epps, Rogelio Angulo, Dwayne Brayboy, and Fondel larr were arrested by a drug task force conducting a reverse sting wherein undercover police officers pose as drug dealers, sell drugs to 'urchasers, and then arrest the purchasers for possession of the rugs). The arrestees were charged with trafficking in cocaine and ther offenses. Epps, Angulo, and Brayboy appeal their convictions of rafficking in cocaine. Because possession of cocaine is an essential dement of trafficking in cocaine, and because law enforcement mthorities arrested appellants before they acquired possession of the cocaine, we must reverse their convictions based on an insufficiency of supporting evidence. Remaining issues are moot.

Construed in a light most favorable to support the verdict, the evidence showed that a City of Doraville police sergeant was told by a confidential informant that a man later identified as Angulo wanted to purchase a kilogram of cocaine. The sergeant decided to conduct a reverse sting with the assistance of a DeKalb County drug task force. The sting was conducted at an apartment complex in Doraville where Brayboy resided. The informant met Angulo at the apartment complex entrance. They were driving their respective cars. The informant was in possession of a block of cocaine weighing almost 998 grams.

Epps and Barr later arrived in Epps’s truck with the purchase money. After going to Brayboy’s apartment, Epps and Angulo returned with Brayboy to the informant’s car. Epps and Angulo went to the rear of the vehicle and asked to see the cocaine. The informant had put the cocaine on the backseat of his car, and he took it out and showed it to Epps and Angulo. At Epps’s request, the informant unsealed the cocaine. The informant also cut a piece out of it. Epps then bent down, smelled the cocaine, and took a piece of it to test at Brayboy’s apartment.

After Epps, Angulo, and Brayboy went back to Brayboy’s apartment and tested the cocaine, they returned to the area of the informant’s car to make the purchase. Epps and Angulo approached the car while Brayboy remained in the background. Angulo placed the money in the backseat of the car. The informant, however, had put the cocaine in the trunk of his car at the direction of the police sergeant who wanted to hide the cocaine from the appellants because he was concerned they might try to steal it. Observing that the cocaine had been moved from its prior location, Angulo asked where it was. The informant asked where the money was. When Angulo told the informant the whereabouts of the money, the informant alerted task force officers by prearranged signal that the buy had been completed. The informant continued giving the signal while telling the appellants that the cocaine was in his trunk. When the informant opened the trunk, the officers converged on the scene and arrested Epps, Angulo, and Brayboy. As the trunk was opened, Epps and Angulo stood approximately three feet from the informant’s car.

“The relevant element of trafficking in cocaine is knowing possession of 28 grams or more of cocaine. Possession may be joint or exclusive and actual or constructive.” “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ [Cits.]” “ Tf one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.’ ” “Spatial proximity alone is insufficient to prove joint constructive possession of contraband.”

The State argues that the evidence in this case supports a finding that when Epps inspected the cocaine and acquired actual possession of a piece of it, he and the other appellants, along with the informant, were in joint constructive possession of the entire block of cocaine. Alternatively, the State argues that once the appellants paid the purchase price for the cocaine, they obtained constructive possession of it as a result of their apparent ability to overpower the informant and take the cocaine from him.

Decided September 25, 2001

Richard O. Allen, for appellant (case no. A01A2007).

Penn & Pate, Page A. Pate, for appellant (case no. A01A2015).

Bernard S. Brody, for appellant (case no. A01A2016).

We cannot agree with either of these arguments. The appellants could not have been in constructive possession of the entire kilogram of cocaine when Epps conducted his inspection, because they indisputably lacked the intention to exercise dominion or control over it until they had tested the sample. Upon tendering the purchase price to the informant, the appellants clearly possessed the intent to exercise control over all of the cocaine, but the evidence is insufficient to show that they ever acquired the power of control so as to give them constructive possession, as the informant hid the cocaine from them by placing it in his closed trunk until the police arrived to make the arrests. This is simply a case in which authorities conducting a sting arrested the subjects before they acquired possession of the drug and then obtained convictions against them for an offense which has possession of the drug as an element. Applying the law to the facts as established by the evidence, we must reverse the convictions for trafficking in cocaine.

Judgments reversed.

Blackburn, C. J., Barnes and Miller, JJ., concur. Pope, P. J., Smith, P. J., and Mikell, J., dissent.

Smith, Presiding Judge,

dissenting.

I respectfully dissent. Whether sufficient evidence was presented from which the jury could have convicted the defendants of the crime charged is a close question. But given the circumstances of this case, I believe the issue of whether the defendants had the ability to exercise control over the contraband, even though it was in the trunk of the informant’s vehicle, was properly submitted to the jury and that evidence existed from which a rational trier of fact could have concluded that the defendants were in constructive possession of the cocaine.

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

J. Tom Morgan, District Attorney, Barbara B. Conroy, Andrette Watson, Assistant District Attorneys, for appellee.

        Giraldo v. State, 249 Ga. App. 178-179, n. 1 (547 SE2d 651) (2001).

       (Footnotes omitted.) Stevens v. State, 245 Ga. App. 237, 238 (1) (537 SE2d 688) (2000); see OCGA § 16-13-31 (a) (1).

        Lockwood, v. State, 257 Ga. 796, 797-798 (364 SE2d 574) (1988).

        Tamez v. State, 148 Ga. App. 307, 308 (2) (251 SE2d 159) (1978).

       (Footnote omitted.) Stevens, supra.

       Compare Cody v. State, 222 Ga. App. 468 (474 SE2d 669) (1996) (where defendants were convicted of trafficking in cocaine after being arrested during a reverse sting, and the evidence showed that actual possession of the cocaine was transferred to one of them before their arrest); Heath v. State, 240 Ga. App. 492 (522 SE2d 761) (1999) (where the police used counterfeit cocaine during a reverse sting, never allowing the defendant to hold it, and the defendant was convicted of criminal attempt to possess cocaine).