text:
    A93A2290.
    A93A2291.
    RAMSEY v. SUMNER. RAMSEY et al. v. NEWTON GENERAL HOSPITAL.
    (438 SE2d 676)
   Birdsong, Presiding Judge.

Appellee Newton General Hospital brought suit on account against appellants Thomas and Patsy Ramsey for certain medical bills. Another suit was pending for damages arising from an automobile collision between Patsy Ramsey and Brenda L. Sumner, administrator of the estate of Charles Sumner; $15,000 in insurance proceeds was paid into the superior court registry, by defendant’s insurer, in settlement of that action. On January 14, 1993, appellee hospital and appellants Ramsey entered into a consent judgment whereby appellants confessed judgment in an amount of $23,866.20 plus $4,507.77 in interest, thereby resolving all claims between the parties in the suit on account. On February 12, 1993, a writ of fieri facias was issued in accordance with the terms of the consent judgment, and it is uncontroverted that the fi. fa. was recorded on the general execution docket on March 17, 1993. Subsequently several creditors applied to the court for some or all of the funds in the registry in satisfaction of debts owed them by Thomas and Patsy Ramsey. Among those claims were medical claims of Patsy Ramsey’s doctor. On April 28, 1993, appellee hospital filed a motion in appellants’ suit for damages, entitled “Motion of Non-Party Newton General Hospital to Condemn Funds,” asserting its claim as a judgment creditor against the entire $15,000 in the court’s registry. On April 16, 1993, appellants’ attorney filed a motion to set aside $6,000 in attorney fees (said amount being calculated in accordance with a 40 percent contingent fee agreement between appellants and their attorney) based upon a claim of an attorney’s lien on that property of their clients in the form of the $15,000 settlement now on deposit in the court registry. This motion was filed in the suit on account, brought by the hospital against appellants, and does not appear in the record of the suit for damages brought against the estate. However, on June 16, 1993, a brief in support of the attorney’s motion was filed in the suit against the estate. The total amount of all timely filed claims is nearly $100,000.

Case Nos. A93A2290 and A93A2291 are appeals from the order of the superior court entered as to both cases. This order acknowledges that the $15,000 deposited with the court is “in settlement” of the suit for damages (Civil Action No. 91-165-S). It then holds that medical claims have priority when all claims are timely filed and, accordingly, awards $3,771 to Mrs. Ramsey’s attending physician and the remainder of the fund deposited in court of $11,229 to Newton General Hospital, as the first hospital to treat Mrs. Ramsey after her accident. The common enumeration of appellants is the trial court erred in ruling that medical claims have priority over a valid attorney’s lien created pursuant to OCGA § 15-19-14. Held:

1. These appeals are hereby consolidated.

2. As neither party argues in its brief or cites authority supporting a claim that either the attorney’s lien or the hospital’s claim of lien as a judgment creditor was filed improperly or untimely, such issues are deemed abandoned on appeal. Court of Appeals Rule 15 (c) (2).

3. Appellee hospital, citing Royal Indem. Co. v. Mayor &c. of Savannah, 209 Ga. 383 (73 SE2d 205) and Morgan v. Sims & Nance, 26 Ga. 283, asserts that, as a judgment creditor, it had a general lien over all of appellants’ real and personal property, and that said lien took priority over all claims upon which no judgment had been obtained and recorded, and over all claims upon which judgment was rendered after January 14, 1993 (the date the hospital obtained judgment against appellants). Moreover, appellants assert that, pursuant to OCGA § 44-14-323, liens rank according to their date with the oldest having priority. Although we do not take issue with the general legal principles expressed in the precedent cited by appellee hospital, such precedent is not dispositive of the issue before us. Morgan, supra, involves a contest between a creditor and an alleged bona fide purchaser of the property levied on from the debtor. Id. at 287. Royal, supra, involves a contest between a judgment creditor and the State’s lien under the Motor-Fuel Tax Law.

Lien laws, including the attorney’s lien statute, must be strictly construed. Law Office of Tony Center v. Baker, 185 Ga. App. 809, 810 (366 SE2d 167). Nothing in OCGA § 44-14-470 gives an express statutory priority to a hospital or medical lien over an attorney’s lien. Rather, OCGA § 44-14-470 (b) pertinently provides: “Any person, firm, [or] hospital authority . . . operating a hospital... in this state shall have a lien for the reasonable charges for hospital . . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital. . . care, subject, however, to any attorney’s lien.” (Emphasis supplied.) OCGA § 15-19-14 (b) provides: “Upon actions, judgments, and decrees for money, attorneys at law shall have a lien superior to all liens except tax liens; and no person shall be at liberty to satisfy such an action, judgment, or decree until the lien or claim of the attorney for his fees is fully satisfied. Attorneys at law shall have the same right and power over the actions, judgments, and decrees to enforce their liens as their clients had or may have for the amount due thereon to them.” (Emphasis supplied.)

An attorney’s lien “ ‘attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions.’ ” (Citations omitted.) Brotherton v. Stone, 197 Ga. 74 (3) (28 SE2d 467). We find that the $15,000 settlement here at issue, at a minimum, constituted an award and also, that the obtained “settlement” expressly referred to in the trial court’s order was per force a result of the exertion of appellants’ attorney. An attorney’s lien arises upon the attorney’s employment and is perfected by the ultimate recovery of the judgment for his client; as a general rule, between the attorney and other creditors of the client, it is not essential to the validity of the lien that it should be filed, or recorded, or enforced by foreclosure. Molloy v. Hubbard, 48 Ga. App. 820, 821 (1) (173 SE 877). In Johnson v. Giraud, 191 Ga. 577 (2) (13 SE2d 365), the Supreme Court noted that “every decision holding that recording of the claim of [an attorney’s] lien was not necessary in order to bind the client and his creditors dealt with creditors existing at the time that property was recovered by the attorney. The [general attorney’s lien] rule is therefore limited to such existing creditors, and has no application whatever to future creditors.” However, if an attorney files his assertion claiming a lien on the recovered property within 30 days after perfection of said lien by property recovery, his lien would bind all persons, including future lienholders and purchasers for value. See generally OCGA § 15-19-14 (d). In any event, the records in this consolidated appeal establish that appellee hospital was an existing creditor at the time the property (in the form of the $15,000 settlement) was obtained by appellants’ attorney. Compare Johnson, supra, with Dunagan v. Marell Farms, 95 Ga. App. 857 (1) (99 SE2d 236). Further, appellee hospital correctly concedes in its brief that, although it did not receive actual notice of the attorney’s lien until well after they had received and recorded their judgment, the hospital “was a creditor existing at the time that [appellants’ attorney] agreed to accept the $15,000 insurance proceeds in its pending action.” Thus, the general rule of the attorney’s lien law applies and the lien of appellants’ attorney had priority over all medical claims of existing creditors. Accordingly, the trial court erred in granting appellee a priority claim over the settlement proceeds and in ruling that “medical claims have priority when all claims are timely filed.”

Decided December 1, 1993.

Doming, Deming, Born & Parker, Peter L. Lublin, for Ramsey.

Chambers, Mabry, McClelland & Brooks, Cynthia J. Becker, for Sumner.

William J. Crowe, Christine C. Daniel, William A. Moncreif, for Newton General.

4. Appellees assert that the failure to record a lien timely should have the same effect regarding attorney’s liens as befalls other neglectful lienholders. Suffice it to say, the attorney’s lien statute is clear and unambiguous; we are satisfied that a rational basis exists for its enactment.

5. Appellees speculate that the trial court awarded medical claims a priority because the attorney’s fee claim was unreasonable in amount. The order on its face does not support such a contention. This court will not speculate as to such matters. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). Further, this issue is not ripe for appellate adjudication. Southern Bus. Machines of Savannah v. Norwest Fin. Leasing, 194 Ga. App. 253, 260 (390 SE2d 402).

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A93A2511, A93A2512.
    McCLUSKEY v. THE STATE; and vice versa.
    (438 SE2d 679)
   Birdsong, Presiding Judge.

Louis Michael McCluskey was indicted on two counts of armed robbery and two counts of robbery by intimidation, for robbery of two bank tellers in the First National Bank of Haralson County. He was arrested 20 minutes after the robbery in the described get-away vehicle and with the stolen money and other paraphernalia used in the crime. On McCluskey’s motion, the trial court dismissed the counts of the indictment relating to the second bank teller, on the theory that the money was the property of the bank and that he could not be prosecuted for robbing each of the tellers.

The jury convicted McCluskey of one count of armed robbery. McCluskey appeals his conviction. The State appeals the dismissal of the counts relating to the second bank teller. These appeals are here consolidated.

The evidence showed that McCluskey entered the bank and robbed the first teller by purporting to have a gun in his pocket and that there was a bomb in a bag he placed on the counter. He then motioned toward the second teller and told the first teller to get her money also. When the first teller called her over, the second teller saw the first teller putting all her drawer money into a brown folder that had a note stuck on it. The note was not produced in evidence and the evidence is in dispute whether the first teller told the second teller that McCluskey had a gun and a bomb. McCluskey told the second teller that he did not want any “bait” money. After robbing both tellers of about $10,000 in this manner, McCluskey ordered both tellers to lie on the floor, and they did so. They remained on the floor until he left. Held:

1. As to the State’s appeal, the trial court erred in dismissing the counts of the indictments relating to the robbery of the second bank teller. A person commits armed robbery when, with intent to commit theft, he takes property of another “from the person or the immediate presence of another” by use of an offensive weapon, or any replica, article or device having the appearance of such weapon. OCGA § 16-8-41 (a). Appellant committed armed robbery, as the jury found, against the first teller by taking money from her immediate presence. The actual ownership of the money was irrelevant. “Robbery is a crime against possession, and is not affected by concepts of ownership. . . . [0]ne may only rob a person, and not a corporate entity.” Creecy v. State, 235 Ga. 542, 544 (221 SE2d 17). Each employee who was robbed is a victim, regardless who owned the money. See Lawrence v. State, 198 Ga. App. 287, 290 (3) (401 SE2d 275). If two victims are robbed, the defendant may be charged with the robbery of each victim. See Painter v. State, 237 Ga. 30 (226 SE2d 578). There is no basis whatever to conclude that the second teller was not a victim of robbery, and that appellant could not be prosecuted for having robbed her either by armed robbery or by robbery by intimidation.

2. In McCluskey’s appeal, he contends the trial court erred in denying his motion for new trial because his conduct does not meet the requirements of an armed robbery set out in OCGA § 16-8-41, and because the evidence was insufficient to authorize a conviction for armed robbery.

McCluskey contends that under § 16-8-41, to constitute the offense of armed robbery “the evidence must at least show that there was an offensive weapon or an article having the appearance of one.” Talbot v. State, 198 Ga. App. 636, 638 (402 SE2d 366), and see Tate v. State, 191 Ga. App. 727 (382 SE2d 688). McCluskey contends he could not be convicted for armed robbery because he had no gun or bomb and never indicated he had a gun or bomb; the first teller did not testify he said he had a gun or bomb nor did he display anything having the appearance of a gun or bomb; and the teller testified that she thought the bag he placed on the counter contained coins. These contentions misconstrue the evidence. The teller testified that Mc-Cluskey said “he had a gun in his pocket and he didn’t want to use it” and he then put his hand in his right pocket for a few seconds. Although the teller first thought the bag placed on the counter contained coins, this impression was changed by a note which McCluskey had attached to an accordion folder he showed her; the note referred to a bomb. That the State did not produce this note and could produce no bomb or gun because none was found in the car, does not negate the conclusion that McCluskey used a replica or device having the appearance of an offensive weapon.

The presence of an offensive weapon or the appearance of such may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon was neither seen nor accurately described by the victim. Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336), but OCGA § 16-8-41 (a) does not require proof of an actual offensive weapon. The legislature intended the Code section to encompass armed robbers who have concealed offensive weapons in their pockets or under wraps or other devices (Hughes, supra), “or any replica, article or device having the appearance of such weapon.” (Emphasis supplied.) McCluskey’s devices and his actions convinced the tellers he had a gun and a bomb, so that they felt forced to put $10,000 in a bag without sounding a silent alarm, and then lie on the floor.

In Moody v. State, 258 Ga. 818, 819 (375 SE2d 30) the appellant said “ ‘Wait, let me get my gun,’ ” and then stuck something in the victim’s back which she never saw but assumed was a gun; the jury asked whether this came under the definition of “ ‘the appearance of such weapon.’ ” The Supreme Court approved the trial court’s instruction that “ ‘appearance means any concept that is obtained through the use of any of the senses.’ ” Id.

Decided December 1, 1993.

Sherrod & Bernard, John W. Sherrod, for appellant.

George C. Turner, Jr., District Attorney, Jeffrey L. Ballew, As sistant District Attorney, for appellee.

In 1968 the legislature deleted from the law the reference to “any replica, article or device having the appearance of such weapon.” This resulted in decisions which excluded from prosecution as armed robbery crimes based on “the reasonable apprehension of the victim concerning the true nature of the weapon-like object being pointed at him or her”; the legislature then amended the statute to reinstate this language so “armed robbery now can be committed either with a real weapon or with a toy or replica weapon having the appearance of being real.” (Emphasis supplied.) Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305); Moody, supra. “The key words . . . are ‘reasonable apprehension.’ What a victim can reasonably apprehend necessarily must depend upon the circumstances of each case.” Id. at 820. Although “appearance” may be defined as referring to what is seen visually, it may also refer to that which can look like or seem like another object. The purpose of the statute is to capture, as armed robbery, those situations which create a reasonable apprehension in the victim that an offensive weapon is being used; hence, “it is immaterial whether such apprehension is created by use of the sense of vision or by any other sense, provided that the apprehension is reasonable under the circumstances.” (Emphasis supplied.) Id.

The evidence authorized a finding that McCluskey used a “replica, article or device having the appearance of [an offensive] weapon,” to persuade the bank tellers that he had a bomb and a gun and to create a reasonable apprehension on their part that he had such offensive weapons; therefore, the evidence is sufficient to enable the rational trier of fact that he committed armed robbery under the definition of the statute. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See also Nicholson v. State, 200 Ga. App. 413 (408 SE2d 487); Johnson v. State, 195 Ga. App. 56 (392 SE2d 280).

Talbot, supra, and Tate, supra, involved other circumstances.

3. McCluskey contends he was entitled to a new trial because there was a fatal variance in the indictment and the evidence proven at trial.

This issue is raised for the first time on appeal and may not be considered. Miller v. State, 201 Ga. App. 374, 375 (411 SE2d 112). In any event, there was no fatal variance.

Judgment in Case No. A93A2511 affirmed. Judgment in Case No. A93A2512 reversed.

Pope, C. J., and Andrews, J., concur.


author: Pope, Chief Judge.

text:
    A93A1405, A93A1406.
    MIKART, INC. v. MARQUEZ (two cases).
    (438 SE2d 633)
   Pope, Chief Judge.

Plaintiff/appellant Mikart, Inc. is a small, closely held pharmaceutical company. Defendant Jose Marquez was a long-time friend of the Arteche family which founded Mikart. He was one of the first employees of the company and was an officer and director of the company from 1975 until 1984.

On January 8, 1976, Marquez executed a $40,000 promissory note in exchange for shares of stock in Mikart. Under the terms of the note, Marquez was to repay the note over a period of ten years by making $4,000 annual installments. It is undisputed that Marquez made the first installment payment but failed to make the other payments. Marquez claims that the remainder of the indebtedness was forgiven by the company. Mikart disputes the note was forgiven and in 1984 cancelled 72,000 shares of stock held in Marquez’s name. Mikart did not sue Marquez on the note. Marquez claims Mikart improperly cancelled his shares and that he owns 135,000 rather than 63,000 shares.

In April 1991, Mikart filed its complaint seeking declaratory judgment concerning the number of shares owned by Marquez and also seeking expenses of litigation.

Case No. A93A1405

1. In this case Mikart filed five enumerations of error, four of which complain that the trial court committed reversible error by dismissing Mikart’s action for declaratory judgment. Mikart charges that the dismissal was sua sponte by the trial court and erroneous for several reasons. We do not agree. A declaratory judgment may not be granted in the absence of a justiciable controversy. “The plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.” (Citations and punctuation omitted.) Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992). We agree with the trial court that plaintiff’s declaratory judgment action merely seeks judicial confirmation of its decision to cancel 72,000 of Marquez’s shares in Mikart. Since Mikart made that decision in 1984, it has acted consistently with the position; for example, only allowing Marquez to vote 63,000 shares at shareholders’ meetings. Mikart contends its claim for declaratory relief is proper because it needs direction concerning dividend payments with regard to the disputed shares. During the deposition of the President of Mikart, he testified that dividends have not been paid to Marquez because “we believe that he had some shares and we didn’t know exactly how many shares actually were owned by [Marquez]. It was sort of a misunderstanding. We decided that we better not pay until we get a clear view of what he actually owns.” By letter dated September 24, 1991, however, Marquez received notice via a letter to his attorney that because he disputed the number of his shares, Mikart placed the dividends into escrow, in an interest-bearing account, the dividends declared in 1990 for the 63,000 undisputed shares and future dividends would be treated the same way. The record reveals that all dividends for the 63,000 undisputed shares were set aside and that Mikart made no arrangements for dividends on the 72,000 disputed shares. Thus, that action too is consistent with Mikart’s position that Marquez owns 63,000 shares. A decision by the trial court will be affirmed if it is right for any reason. Because Mikart has not shown it is in a position of uncertainty, it is not necessary that we examine the trial court’s alternative bases for dismissing Mikart’s declaratory judgment claim.

Mikart’s reliance on our decision in Morales v. Sevananda, Inc., 162 Ga. App. 854 (293 SE2d 387) (1982) is misplaced. In that case three board members of a corporation sought to have declared invalid the action of the remaining four board members of amending both the articles of incorporation and bylaws to provide for a nine-member board instead of seven. The controversy concerned whether the action of the four board members to change the number of directors was properly presented as a declaratory judgment action because until the proper membership of the board was determined, the corporation could not act through its board of directors. In this case, however, there is no uncertainty concerning who may act for the corporation, at most there is concern by Mikart about its decision to cancel 72,000 shares of shareholder Marquez’s stock. However, it took action to cancel that stock in 1984 and has consistently taken the position that Marquez owns only 63,000 shares. We cannot give judicial confirmation to a party’s defense under the guise of a declaratory judgment action.

With regard to Mikart’s argument that the trial court’s dismissal of its declaratory judgment claim was sua sponte, the trial court’s order reflects and the parties do not dispute that the trial court contacted Mikart and informed it that its action for declaratory judgment was improperly brought and requested that Mikart reform its complaint. Instead, Mikart filed a second amendment to its complaint but did not dismiss its declaratory judgment claim. Furthermore, the record reflects that Marquez set forth as an affirmative defense the propriety of an action for declaratory judgment under the facts of this case. Under the circumstances, the trial court did not err in dismissing Mikart’s claim for declaratory judgment absent a motion by Marquez for dismissal.

2. Mikart charges the trial court improperly denied its motion for a protective order. Marquez as a stockholder of Mikart made a demand pursuant to OCGA § 14-2-1602 to review certain corporate records. One of the documents made available during that record production was a letter dated August 1, 1985 from the attorney who represented Mikart at that time to the President of Mikart. Although communications between a client and attorney are privileged, that privilege can be waived by the client. We hold that the trial court properly held Mikart waived the privilege with regard to the document in dispute. We find particularly compelling with regard to this issue that Mikart had made the letter from its attorney a part of the corporation’s minutes.

Case No. A93A1406

Mikart filed this appeal from' the trial court’s order granting Marquez partial summary judgment on Count 1 of his counterclaim and denying Mikart’s cross-motion for partial summary judgment.

3. We deny Mikart’s motion to amend its enumerations of error filed on June 25, 1993. This appeal was docketed on March 31, 1993. Mikart was required to file any enumerations of error within 20 days of that date. Enumerations of error may not be amended after the original filing time has expired. Parham v. State, 166 Ga. App. 855, 856 (2) (305 SE2d 599) (1983).

4. Three of Mikart’s enumerations of error in this appeal are the same as those raised in Case No. A93A1405. Those arguments are controlled adversely to Mikart by our holdings in Divisions 1 and 2 above.

5. Mikart argues the trial court erred in granting Marquez partial summary judgment as to Count 1 of his counterclaim seeking dividend payments on the 135,000 shares of stock he claims to own in Mikart and denying Mikart’s cross-motion for partial summary judgment on that issue. The trial court considered the 63,000 undisputed shares separately from the 72,000 disputed shares. With regard to the 63,000 shares that Mikart does not dispute Marquez owns, the trial court correctly held that there remains no issues of material fact and Marquez is entitled to payment of accrued dividends on those shares.

With regard to the 72,000 disputed shares we must reverse the trial court’s decision. We hold that any claim Marquez might have with regard to those shares is time barred by the four-year statute of limitation applicable to actions for the recovery of personal property, damages for the conversion or destruction of such property, or for injuries to personalty. OCGA §§ 9-3-31 and 9-3-32; see E. F. Hutton & Co. v. Weeks, 166 Ga. App. 443 (1) (304 SE2d 420) (1983). Marquez filed his counterclaim on June 17, 1991. Although Marquez’s shares were cancelled in 1984, Mikart does not contend that Marquez was made aware of the cancellation immediately. Instead, Mikart argues Marquez had notice at least by November 7,1986. The minutes of the November 7, 1986 meeting of the annual meeting of shareholders contains the following language: “Mr. Marquez objected to the number of shares he was allowed to vote. He contended that he held 135,000 shares of stock as evidenced by stock certificates in his possession. The Secretary explained to him that the corporate records reflected that he owned 63,000 shares not 135,000 shares and that the certificate in question was improperly issued to him and should not be in his possession. Following discussion, Mr. Marquez was allowed to vote only 63,000 shares.” Marquez does not dispute the events of that meeting. Instead, Marquez argues that his claim is not time barred because rather than challenging the cancellation of the shares, he seeks only dividend payments, which first became payable in 1990. We find this argument to be without merit. It is axiomatic that only record owners of stock are entitled to dividend payments. Marquez knew at least by 1986 that Mikart disputed he was the record owner of more than 63,000 shares and disputed that the certificate showing Marquez owned 122,000 shares was properly in his possession. Marquez cannot avoid the consequences of his decision not to challenge the cancellation of his shares for approximately five years by couching his claim as an action seeking dividends. Because any claim concerning the cancelled shares is time barred, we will not address Marquez’s arguments that the cancellation was improper.

6. Mikart’s failure to pay Marquez dividends cannot support a claim for punitive damages. “Well established is the principle that when a corporation issues its shares and these shares have been accepted by a subscriber, a simple contract has been consummated between the corporation and such shareholder.” Kaplan et al., Nadler, Ga. Corporations & Limited Partnerships, § 5.3 (1992). It is axiomatic that the obligation to pay dividends to a stockholder arises from that contract, any action to enforce that obligation is ex contractu and punitive damages are not recoverable for breach of contract, even if the breaching party acted in bad faith as Marquez contends in this case. OCGA § 13-6-10; Horne v. Drachman, 247 Ga. 802, 809 (280 SE2d 338) (1981); Builders Transport v. Hall, 183 Ga. App. 812 (3) (360 SE2d 60) (1987). Accordingly, the trial court erred in refusing to grant Mikart’s motion for partial summary judgment on Marquez’s punitive damages claim set forth in Count 2 of his counterclaim.

Decided October 21, 1993

Reconsideration denied December 2, 1993

Troutman Sanders, June A. Sanders, Jeffrey R. Nickerson, for appellant.

Whitner K. Livingston, for appellee.

7. We hold the trial court did not err in denying Mikart’s motion for partial summary judgment as to Count 3 of Marquez’s counterclaim seeking expenses of litigation. At trial, the finder of fact may find that Mikart’s failure to pay Marquez dividends on the 63,000 undisputed shares caused Marquez to incur substantial and unwarranted expense and find in Marquez’s favor on this claim.

8. In light of our holdings in the previous divisions, it is not necessary to address Mikart’s remaining enumerations of error.

Judgment affirmed in Case No. A93A1405. Judgment affirmed in part and reversed in part in Case No. A93A1406.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1870.
    MEREDITH v. THE STATE.
    (438 SE2d 644)
   Birdsong, Presiding Judge.

Appellant James Meredith was convicted of aggravated assault and possession of a firearm by a convicted felon. The evidence shows appellant shot Matthew Thompson while Thompson was engaged in a fistfight with appellant’s friend, Joe Armstrong. Although the victim tried to back away from the fistfight, appellant pulled out his gun from a distance of about 70 or 80 feet and, although another person tried to dissuade him, appellant said, “No, I’m going to get him, I’m going to get him this time.” Appellant then ran forward and shot twice, hitting Thompson in the leg on the second shot. Appellant claimed he was acting in defense of his friend Armstrong because Thompson had a knife, and appellant and his daughter testified that Thompson had a knife. A deputy testified that after the shooting he searched for a knife but did not find one. In the deputy’s opinion, based on appellant’s description of where Thompson threw the knife in relation to where he lay after being shot, it was impossible for Thompson to have had a knife. An employee of appellant testified he found a knife and turned it over to appellant, but appellant did not turn it over to the State. Appellant enumerates five errors on appeal. Held:

1. Appellant contends that even without a motion by trial counsel, the trial court was required by law to bifurcate the trial of aggravated assault from the trial of possession of a firearm by a convicted felon, under Head v. State, 253 Ga. 429 (322 SE2d 228). However, Head did not announce such a rule. In Head, the trial court’s failure to sever the counts upon a motion was found error because the incriminating evidence, though sufficient to uphold the conviction, was only the uncorroborated testimony of one witness; so, the evidence of three prior convictions for similar offenses in that case might easily be seen by a jury as bolstering the only incriminating witness’ testimony, when in fact they had nothing to do with any element of the robbery charge. That is not the case here. The evidence against appellant as to aggravated assault was not the uncorroborated testimony of one witness but was based on overwhelming evidence.

On the same day that it decided Head, the Supreme Court in Stone v. State, 253 Ga. 433 (3) (321 SE2d 723) held that as the evidence of murder was overwhelming, a refusal to sever for trial the two counts of an indictment was not harmful error, for proof of a prior conviction to establish that defendant’s status as a convicted felon did not place his character in issue to such an extent as to affect the verdict on the murder count. We find a similar situation here. The failure to sever the count for possession of a firearm by a convicted felon probably did not affect the verdict in this case. Id.; Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59 (230 SE2d 869).

2. Appellant contends the trial court erred in admitting evidence of similar transactions concerning prior acts of violence by appellant. See Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3). This is not an accurate statement of the procedural facts. The State did not introduce the certified evidence of appellant’s prior conviction to prove a similar transaction, but to prove his status as a convicted felon for proof under the second count of the indictment. The trial court specifically limited the jury’s consideration of that evidence to proof of that status and forbade the jury to consider the prior conviction as evidence of a similar transaction.

Appellant contends the prosecutor converted the prior conviction evidence into evidence of a similar transaction by saying in closing argument that appellant had a history of taking care of things with a gun, had been in trouble with the law before and had already shot one man in Mississippi. However, these statements were within the evidence and all reasonable inferences therefrom. Assuming that the jury concluded that appellant’s felony crime was “similar” to the shooting in this case so as to serve as corroborating evidence, nevertheless, this probably did not affect the verdict because the evidence of guilt as to this shooting was overwhelming. See Johnson, supra. Moreover, the statements in closing argument did not convert the proof of a prior conviction into “similar transaction evidence” so as to invalidate the conviction merely because a hearing of similarity was held within the meaning of Superior Court Rule 31.1.

Further, no objection was made to the argument. A party cannot ignore at trial what may be an injustice, take a chance on a favorable verdict and complain later; he must object at the time the alleged error is made so the trial court can correct it. See Spivey v. State, 253 Ga. 187, 191 (319 SE2d 420).

3. The trial court did not err in permitting the victim and prosecuting law enforcement officer to remain in the courtroom despite invocation of sequestration. This is a matter within the trial court’s discretion, and no abuse of that discretion is shown. Jefferson v. State, 159 Ga. App. 740 (285 SE2d 213). Further, appellant has not suggested how he was harmed by these persons’ presence in the courtroom. An appellant must show error which has hurt him. We are not expounders of theoretical law, but administer practical law, and correct only such errors as have practically wronged the defendant. Stamey v. State, 194 Ga. App. 305, 309 (390 SE2d 409).

4. We have examined appellant’s claim of prosecutorial misconduct based on statements in the prosecutor’s closing argument allegedly implying that defense trial counsel coached witnesses to lie and hide evidence. We do not find the prosecutor’s statements arose to the level of implying such, and we find no incident or remark arising to the level of prosecutorial misconduct. A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority. Appellant cites one federal case but has cited no Georgia law on the issue of prosecutorial misconduct. Although technically appellant may not have abandoned this enumeration under Court of Appeals Rule 15 (c) (2), he has not borne his burden to show error affirmatively and to persuade us that such error demands a reversal of the conviction. See Mapp v. State, 204 Ga. App. 647, 648 (420 SE2d 615).

5. Appellant’s allegations of ineffective assistance of trial counsel are without merit. To prevail on such a charge, a criminal defendant must show that trial counsel was deficient and that the deficiency created a reasonable probability of a different result in the verdict. Jowers v. State, 260 Ga. 459 (396 SE2d 891). He has shown no such reasonable probability of a different verdict. Moreover, it is not true that trial counsel failed to investigate the case to prove the victim’s blood/alcohol content, for that evidence was fully presented to the jury and explored by trial counsel on examination. Although appellant complains that the criminal records of a witness should have been admitted, he does not suggest what they would have disclosed, so we cannot determine whether the failure to introduce them was harmful.

Decided November 10, 1993

Reconsideration denied December 2, 1993

Conger & Fryer, Paul Fryer, for appellant.

J. Brown Moseley, District Attorney, for appellee.

As to trial counsel’s failure to object to any error enumerated above, we have found no reversible error so it cannot be said there would have been a different verdict, as required to be shown by Jowers.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A93A1282.
    MARSH v. RESOLUTION TRUST CORPORATION.
    (439 SE2d 75)
   Cooper, Judge.

This appeal arises from a judgment entered on a dispossessory warrant.

In April 1989, appellant entered into an agreement to purchase real property from Signature Homes, Inc. (Signature). Signature allowed appellant to take possession of the premises prior to closing. In November 1990, appellee Resolution Trust Corporation (RTC) acquired the subject premises through a foreclosure action, and promptly recorded a Deed Under Power of Sale. Although the sale between appellant and Signature never closed, appellant was still in possession of the premises after the deed was recorded. RTC demanded that appellant relinquish the premises but appellant refused. Consequently, RTC sought a dispossessory warrant against appellant, alleging that appellant was a tenant at sufferance. Appellant, proceeding pro se, answered the dispossessory and filed a counterclaim, seeking to recover damages for various repairs and improvements made to the premises and for damages to her personal property which resulted from a fallen tree. After hearing evidence, the trial court entered a judgment in favor of RTC on its dispossessory and dismissed appellant’s counterclaim. Although a transcript of the proceedings before the trial court is not included in the record, a supplemental record includes RTC’s proposed narrative of the facts pursuant to OCGA § 5-6-41 (i) and a letter from appellant’s counsel indicating his agreement with those facts.

1. Appellant first contends that the trial court should have dismissed the dispossessory warrant because the relationship of landlord and tenant did not exist between appellant and RTC. “[I]t is well established that ‘(w)here the grantor, or his privy, in a security deed remains in possession of the premises after lawful foreclosure of the deed, he is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale, or by his privy.’ [Cits.]” Hyman v. Leathers, 168 Ga. App. 112, 114 (2) (308 SE2d 388) (1983).

2. Appellant next contends that the trial court erred in failing to grant her motion to transfer the case to a court of equity. The record does not reflect that appellant made a motion to transfer. “ ‘It is the duty of the party asserting error to show it by the record; mere assertions of error in briefs cannot satisfy this duty. (Cit.)’ [Cit.]” Jarallah v. Schwartz, 202 Ga. App. 32, 34 (1) (413 SE2d 210) (1991). Accordingly, this enumeration presents nothing for review.

3. Appellant also contends that the trial court lacked authority to try the case because the order designating the judge who tried her case was signed by a magistrate rather than the Chief Judge of the State Court. OCGA § 15-1-9.1 (b) (2) provides: “If assistance is needed from a judge from the same county, the chief judge of any court within such county of this state may make a written request for assistance to the chief judge of any other court within such county. . . .” (Emphasis supplied.) A supplemental record includes an order signed by the Chief Magistrate of DeKalb County on November 2, 1992, designating Magistrate Judge Mary Whiteman to serve as a judge in the State Court of DeKalb County to preside over non-jury matters on the 2nd and 4th days of November 1992. That order acknowledges that the designation was made pursuant to a request for assistance received from the State Court of DeKalb County. Contrary to appellant’s argument, the statute does not require that the designation be made by the chief judge of the requesting court. Also, since this request is from a judge within the same county, the statute does not require that the administrative judge of the district make the designation. Compare OCGA § 15-1-9.1 (b) (1) (request for assistance by a judge outside the county must be made to the administrative judge of the judicial administrative district in which the requesting judge’s court is located).

Appellant also argues that the designation was not valid because it was not filed in the court minutes until the day after her trial. There is a presumption that “ ‘a public official, including a trial judge, performed faithfully and lawfully the duties devolving upon him by law. (Cit.)’ [Cit.]” Morris v. Clark, 189 Ga. App. 228, 229 (1) (375 SE2d 616) (1988); accord Hernandez v. Resolution Trust Corp., 210 Ga. App. 538 (436 SE2d 534) (1993). The statute does not require a specific time within which the order of designation must be filed, and we cannot conclude that the filing of the designation order in the minutes one day after the hearing completely vitiated the authority of the designated judge such that the entire proceeding would be rendered void. The written designation of Mary Whiteman to preside as a state court judge was in substantial compliance with OCGA § 15-1-9.1 (b) (2) and, in the absence of a timely objection, we conclude this is sufficient despite the fact that such order was not filed until after the commencement of trial. See Cheely v. State, 251 Ga. 685 (1) (309 SE2d 128) (1983). This enumeration is without merit.

Decided December 2, 1993.

C. Samuel Rael, for appellant.

Mattie Marsh, pro se.

Long, Aldridge & Norman, Andrew R. Pachman, Phillip A. Bradley, for appellee.

4. In her final enumeration of error, appellant complains that she was prejudiced because the trial was not transcribed. The record does not reflect, and appellant does not contend, that a court reporter was requested and denied. Consequently, this enumeration presents nothing for review. Jarallah, supra.

5. RTC’s motion for damages for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A1515.
    FERGUSON v. THE STATE.
    (438 SE2d 682)
   Smith, Judge.

Eugene Ferguson was charged with thirteen crimes resulting from two incidents in which two women were raped in their apartments in the same complex. Two counts of burglary and a robbery count were dead-docketed. The trial court directed a verdict as to an armed robbery charge. A jury acquitted him of one count of rape, aggravated assault, one count of burglary, and one count of kidnapping, and found him guilty of one count of rape, OCGA § 16-6-1 (a), one count of burglary with intent to commit rape, OCGA § 16-7-1 (a), one count of kidnapping, OCGA § 16-5-40 (a), aggravated sodomy, OCGA § 16-6-2 (a), and financial transaction card theft, OCGA §§ 16-9-31 (a) (1); 16-8-2. The trial court merged the charges of rape and burglary with intent to commit rape for sentencing. Ferguson’s motion for a new trial was denied.

The evidence presented at trial showed that the two victims, E. P. and H. P., lived in separate apartments at an Atlanta complex. On the afternoon of December 19, 1991, E. P., who was 76 years old at the time of the incident, heard someone knocking on the door to the apartment across the hall and opened her door to inform the visitor that her neighbor was not at home. A man grabbed her, pushed her into her apartment, forced her into her bedroom, threatened her life, and raped her. In the late afternoon on February 25, 1992, H. P., who was 68 years old at the time, left her apartment to retrieve her mail from her box in the mail house. As she was returning to her apartment, she noticed a man following her. She began hurrying and struggled to unlock her door quickly. When she had unlocked' the door, the man placed his hand over her mouth and pushed into the apartment with her. He released his grip long enough to close- the door, and the victim screamed. He then pushed her to the floor and attempted to choke her before releasing her. He pulled her to the bedroom, where he raped and sodomized her. Before he left, H. P. gave him her ATM card in order to get him out of her apartment.

Detective R. T. Ford of the Atlanta Police Department was able to obtain photographs taken by a hidden camera at an ATM machine of the person attempting to use H. P.’s card. These photographs were publicized, and through past employment, the man in the photograph was identified as Ferguson. Then, using a better photograph, a photographic lineup was composed. It was made up of eight photographs, including that of Ferguson. It was shown to H. P., and she positively identified the photograph of Ferguson. On the strength of that identification, H. P. signed a warrant for Ferguson’s arrest, and he was arrested. On March 12, 1992, a physical lineup was held at which E. P. also identified Ferguson as the perpetrator of the earlier crimes against her.

At trial, the State introduced evidence of a similar crime in the form of the testimony of the victim of that crime. L. C., a 74-year-old woman living in an apartment complex in DeKalb County, had been raped by an intruder in July 1990. Shortly after the rape, she had viewed a photographic lineup and had identified one photograph as resembling her attacker, but she was unable to identify him positively. She had viewed a physical lineup in March 1992, and she was certain of her identification of the man in position number four as her attacker. Detective Ford testified that the man in position number four at the lineup was Ferguson.

1. Ferguson contends the lineup identifications of him by E. P. and L. C. should have been suppressed. He argues his right to counsel under the United States and Georgia Constitutions was violated when the lineup proceeded in the absence of Ferguson’s counsel, despite his earlier and repeated request that she be present. We do not agree.

Although the lineup in issue was conducted after Ferguson was arrested and after a preliminary hearing had been held on the charges stemming from the crimes against H. P., H. P. did not view that lineup. He had not been charged with any crimes against either E. P. or L. C. at the time of the lineup. No constitutional right exists to have counsel present at a pre-indictment lineup. Johnson v. State, 198 Ga. App. 316 (2) (401 SE2d 331) (1991). See Thornton v. State, 238 Ga. 160, 161 (1) (231 SE2d 729) (1977). The constitutional right to counsel is “offense-specific.” Phillips v. State, 204 Ga. App. 698, 700 (1) (420 SE2d 316) (1992). Although Ferguson had been charged with crimes against H. P., no adversarial proceedings had been commenced against him in connection with crimes committed upon the other two victims for whom the lineup was arranged. As to those victims, the lineup was a pre-indictment proceeding. Id. The trial court did not err by failing to suppress the lineup identification evidence.

2. Ferguson asserts the similar transaction evidence was erroneously admitted because the lineup identification by L. C. was inadmissible, and therefore no evidence existed that Ferguson was L. C.’s attacker. As we have held in Division 1 that the lineup identification evidence was admissible, this enumeration has no merit.

“[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the [S]tate must make three affirmative showings as to each independent offense or act it seeks to introduce.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). It must show that it seeks to introduce the evidence for a proper, permitted purpose; that sufficient evidence exists to establish that the accused committed the independent offense; and that there is a sufficient similarity between the independent offense and the crime charged, “so that proof of the former tends to prove the latter.” Id. The trial court must then make a determination that each of the three showings was made. Id.

The State asserted that it sought to introduce evidence of the rape of L. C. “to explain the nature of the crime, to prove his [Ferguson’s] identity, and to establish his motive.” This is a permissible purpose. Guyton v. State, 206 Ga. App. 145, 146 (1) (424 SE2d 87) (1992). Ferguson’s identity as the perpetrator of the independent crime was shown by L. C.’s identification of him at the lineup, and the crimes were extremely similar. All were committed against elderly women during daylight hours by entering their apartments forcibly after the women had opened the doors. All the victims were raped and otherwise harmed physically, either by choking or hitting. The trial court properly found that all three required showings had been made. We find no error in the admission of the similar transaction evidence.

3. Ferguson maintains the trial court erred in failing to merge the kidnapping conviction with either the rape or the aggravated sodomy conviction. He argues that here, as in Fredrick v. State, 181 Ga. App. 600 (2) (353 SE2d 41) (1987), the kidnapping offense was included within the rape or aggravated sodomy offense as a matter of fact because, although the body of the indictment charged him with kidnapping with bodily injury, it was styled only as kidnapping, and the trial court did not charge the jury on kidnapping with bodily injury. He asserts, therefore, that the jury was permitted to consider only kidnapping, not kidnapping with bodily injury, and that the State used up all the evidence showing kidnapping in proving the two other offenses.

Decided December 2, 1993.

John R. Mayer, Robert M. Whaley, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Shawn E. Lagrua, Assistant District Attorneys, for appellee.

First, Ferguson may not enlarge his enumeration regarding the merger of offenses to assert error in the trial court’s failure to charge on bodily injury. See Bridges v. State, 205 Ga. App. 664, 665 (1) (423 SE2d 293) (1992). Moreover, although the court did not define the term “bodily injury,” the term is commonly understood. Edwards v. State, 197 Ga. App. 51, 52 (397 SE2d 559) (1990). The jury was informed that Ferguson was charged with kidnapping with bodily injury and that the basis for the charge was his choking of H. P. This was sufficient. Id.

Second, there was sufficient evidence from which the jury could have found that Ferguson’s action in choking H. P. before forcing her from the living room to the bedroom constituted the bodily injury necessary to establish all the elements of kidnapping with bodily injury. This crime was completed before Ferguson committed either the rape or the aggravated sodomy. Accordingly, he was properly convicted and sentenced for all three offenses. Olsen v. State, 191 Ga. App. 763, 764-765 (1) (382 SE2d 715) (1989).

Judgment affirmed.

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


text:
    A93A1702.
    GOODING v. BOATRIGHT.
    (438 SE2d 685)
   Cooper, Judge.

Richard Boatright died testate, nominating his daughter, appellant Margaret Boatright Gooding, as executrix of his estate. She filed Boatright’s will for probate in solemn form. Before letters testamentary were issued to Gooding, the decedent’s surviving spouse, appellee Dorothy Boatright, brought a petition against the estate of her late husband for year’s support. In her application to the probate court, appellee listed appellant as the nominal executrix of the estate under Richard Boatright’s will and caused citation of the petition to be served upon her by mail. Appellant did not file any timely objection to appellee’s petition and on October 22, 1992, the probate court entered an order awarding appellee certain property of the estate as year’s support. On November 9, eighteen days after the entry of the order awarding appellee year’s support, appellant made her first appearance of record in that proceeding by filing a caveat. On November 10, she moved to vacate the award of year’s support and on November 17 she filed a motion for new trial. In a single order, the probate court denied both of appellant’s motions and she brings this direct appeal.

We must initially determine whether the jurisdiction of this court has been properly invoked by the filing of a notice of appeal from the single order of the probate court denying both appellant’s motion for new trial and her motion to vacate judgment. “It is the duty of this court on its own motion to inquire into its jurisdiction.” (Citation and punctuation omitted.) Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230) (1992). The basis for both motions is the allegation that appellant did not receive proper notice of appellee’s petition for year’s support prior to the entry of judgment, although, in her motion to vacate, appellant admitted that she had received actual notice of the application for year’s support. According to OCGA § 9-11-60 (c), a motion for new trial “must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings.” A motion for new trial generally is not a proper procedural vehicle to set aside a judgment. See, e.g., Hightower v. Krystal Co., 204 Ga. App. 823 (420 SE2d 762) (1992). Compare Nova Group v. M. B. Davis Elec. Co., 258 Ga. 7 (364 SE2d 833) (1988) (motion for new trial proper procedural vehicle to assert error in failure of trial court to conduct hearing on unliquidated damages, after defendant admitted liability by default). “ ‘Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial, A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.’ [Cits.]” Barber v. Barber, 157 Ga. 188 (1) (121 SE 317) (1924). “Where a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity. . . .” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986). A jurisdictional defect such as the lack of notice alleged by appellant is properly the subject of a motion to set aside a judgment brought pursuant to OCGA § 9-11-60 (d) (1). See Hawkins v. Walker, 158 Ga. App. 562 (281 SE2d 311) (1981). However, appeal from the denial of a motion to vacate and set aside a judgment brought pursuant to OCGA § 9-11-60 (d) must be made by application to this court for discretionary appeal. OCGA § 5-6-35 (a) (8). An order which simultaneously denies both a motion for new trial and a motion to vacate or set aside a judgment is not directly appealable. “A careful reading of OCGA § 5-6-35 leads ... to the inescapable conclusion that the legislature never intended for the application procedure to be circumvented [by coupling the motion to set aside with a motion for new trial].” State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989). There being no viable motion for new trial in this proceeding for year’s support and no compliance with the discretionary appeals provisions as to the motion to set aside the judgment, this court has no jurisdiction to consider the appeal. Nova Group v. M. B. Davis Elec. Co., 187 Ga. App. 403 (370 SE2d 626) (1988). The appeal is accordingly dismissed.

Decided December 2, 1993.

Karen D. Barr, for appellant.

Bignault & Associates, Lori A. Carter, for appellee.

Appeal dismissed.

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


text:
    A93A2070.
    MAJESTIC HOMES, INC. v. SIERRA DEVELOPMENT CORPORATION.
    (438 SE2d 686)
   Pope, Chief Judge.

On or about June 14, 1989, plaintiff Majestic Homes, Inc. and defendant Sierra Development Corporation entered into an assignment agreement. Pursuant to that agreement a lot contract between Majestic and a third party was to be assigned to Sierra. That agreement also provided for $25,000 to be held in escrow. The assignment was not completed, allegedly due to the default of Sierra.

On November 17, 1989, the escrow agent under the assignment agreement filed an interpleader action, naming the parties in this action as defendants and seeking to determine which of the parties should receive the escrow funds (“the prior action”). Both Majestic and Sierra answered and filed a cross-claim against the other defendant. In the cross-claim filed by Majestic, it sought only a determination that it was entitled to the escrow funds rather than Sierra. Sierra filed a similar cross-claim against Majestic and both parties moved for summary judgment. Although in its brief in support of its motion for summary judgment Majestic argued that it was entitled to additional funds from Sierra under the terms of the assignment agreement, the only relief it sought in both its cross-claim and motion for summary judgment was the escrow funds. The trial court granted Majestic’s motion for summary judgment and awarded the escrow funds to it. Thereafter, the escrow agent in that action filed a dismissal with prejudice and the defendants both filed dismissals of their cross-claims without prejudice.

On December 19, 1991, Majestic filed suit against Sierra seeking additional funds it claims it is entitled to receive under the terms of the assignment agreement. The incorporators of Sierra filed a timely response to the complaint styled a “Special Appearance and Answer,” in which they answered, set forth defenses and stated that based on their knowledge, information and belief, Sierra was now a defunct corporation. After learning Sierra had not been dissolved by the Secretary of State, Sierra on March 13, 1992 filed a document styled “First Amendment to Answer” in which it answered and asserted the same defenses previously set forth by the incorporators in the Special Appearance and Answer. Sierra then moved for summary judgment. Thereafter, but on the same day, Majestic moved for entry of default against Sierra and Sierra moved to open default. The trial court granted both Sierra’s motion to open default and for summary judgment. Majestic appeals.

1. Majestic argues the trial court erred in denying its motion for entry of default and granting defendant’s motion to open default. “The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law.” (Citations and punctuation omitted.) Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 48 (2) (424 SE2d 338) (1992). The sole function of an appellate court reviewing a trial court’s grant of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case. In this case, a timely answer was filed by the incorporators of Sierra explaining why Sierra was not answering as a party and setting forth an answer to all allegations of the complaint and the same defenses later asserted by Sierra itself. In its motion to open default, Sierra complied with all the conditions set forth in OCGA § 9-11-55 (b). Under the circumstances of this case, the trial court did not err in determining that this was a proper case for the default to be opened.

2. We reject Majestic’s argument that the trial court erred in granting summary judgment to Sierra because its motion for summary judgment was filed while Sierra was in default. After the trial court opened default in this case, it was proper for it to then consider Sierra’s motion for summary judgment.

3. Majestic further argues the trial court erred in granting summary judgment to Sierra because any claim Majestic had against Sierra would have merely been a permissive cross-claim in the prior action and because it voluntarily dismissed its claims against Sierra in the prior action. These arguments have been decided adversely to Majestic by our Supreme Court in Fowler v. Vineyard, 261 Ga. 454 (405 SE2d 678) (1991) and Citizens Exchange Bank &c. v. Kirkland, 256 Ga. 71 (344 SE2d 409) (1986). Majestic’s claim against Sierra asserted in this action is barred by the doctrine of res judicata, which provides that a judgment on the merits is conclusive as to all matters that were or could have been put in controversy between identical parties or their privies in another cause of action. “For a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction, [cit.]; the two actions must have an identity of parties and subject matter, [cit.]; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action, [cits.]” Fowler, 261 Ga. at 455-456. All of those requirements are present in this case. The parties are identical in this case and the cross-claim was asserted by Majestic against Sierra in the prior action. The subject matter, the assignment agreement, is also identical. Majestic also had a full and fair opportunity to litigate the issue in the prior action. At the time Majestic asserted its cross-claim, its claim for enforcement of all provisions of the assignment agreement had matured. Indeed, the argument that Sierra was entitled to additional funds other than the escrow funds under the terms of the assignment agreement was made in Majestic’s brief filed in support of its motion for summary judgment, although the brief made it clear that the only relief Majestic sought in that motion was the escrow funds. Majestic’s argument that because the claim giving rise to this action would have been a permissive cross-claim in the prior action it is not barred by res judicata is without merit. “[R]es judicata bars a party who forgoes an opportunity to file a permissive cross-claim from bringing the claim in a subsequent action. Citizens Exchange Bank of Pearson v. Kirkland, [supra].Fowler, 261 Ga. at 459 (5).

Furthermore, Majestic’s argument that this claim is not barred by res judicata because it voluntarily dismissed its cross-claim in the prior action against Sierra without prejudice must fail. Majestic’s dismissal without prejudice of its cross-claim against Sierra was of no effect since at the time Majestic filed its voluntary dismissal, the trial court had granted it summary judgment on the only claim it had asserted against Sierra.

Decided December 2, 1993

Don C. Huprich, for appellant.

Flynn, Gottlieb '& Kachmarsky, Edward D. Flynn III, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Although it was argued to this court that the dismissals were filed after this case was erroneously placed on a trial calendar after summary judgment had been granted to Majestic, the record of the prior action does not reflect that this case was placed on a trial calendar.


author: Blackburn, Judge.

text:
    A93A2289.
    YODER et al. v. STATE OF GEORGIA.
    (438 SE2d 689)
   Blackburn, Judge.

This appeal arises out of a civil forfeiture action brought by the State pursuant to OCGA § 16-13-49 against $1,047. Appellants’ sole enumeration of error is that the trial court erred in denying their motion to set aside the default judgment entered against them.

On August 23, 1992, an investigator with the Gwinnett County Police Department seized $1,047 from appellant Samual Yoder. Appellee filed an in rem petition for condemnation of the currency on October 26, 1992. Samual Yoder was served on October 30, 1992, and the action was properly published on November 5 and 12, 1992. No answer was filed to appellee’s petition; therefore, after the expiration of the time for filing an answer, the trial court entered a default judgment in favor of appellee. On July 21, 1993, appellants filed their motion to set aside the judgment, alleging that the appellee’s petition for condemnation contained a non-amendable defect. The trial court denied appellants’ motion and this appeal followed.

OCGA § 16-13-49 (h) (2) provides that “[wjithin 60 days from the date of seizure, a complaint for forfeiture shall be initiated as provided for in . . . this Code section.” Subsection (h) (3) of the same Code section provides that “[i]f the state fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified . . . , the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.” (Emphasis supplied.) “All the words of the legislature, however numerous, ought to be preserved, and effect given to the whole, if it can be done. [Cits.]” Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 743 (152 SE2d 768) (1966). In the present case, the State admits that it did not file its complaint until 64 days after the seizure. However, it is also undisputed that no request for the return of the property was made by its owner or interest holder. The in rem forfeiture action proceeded to a judgment. Thereafter, the trial court ruled that the property owner’s only remedy was to request return of the property, pending further proceedings. However, as no request for the property was filed, the continuation of the in rem forfeiture action was proper.

This is a case of first impression interpreting OCGA § 16-13-49 (h) (1)-(3) as enacted by the Georgia legislature in 1991. Ga. L. 1991, p. 886, § 1. Under prior law, the State was required to file an action in condemnation of the property seized within 30 days from notice of the seizure. Ga. L. 1982, p. 2325, § 2. The previous statute did not provide a remedy for the owner of the seized property in circumstances in which the State failed to file the condemnation action within the time allowed; therefore, a remedy for such a failure was fashioned by the appellate courts. See State of Ga. v. Ellis, 156 Ga. App. 779 (275 SE2d 361) (1980) (the trial court’s grant of the defendant’s motion for return of the seized property was proper where the State failed to file a libel for condemnation within the time allowed) and State of Ga. v. Luke, 183 Ga. App. 182 (358 SE2d 272) (1987) (the trial court’s grant of summary judgment to the owner of the seized property was proper due to the State’s failure to comply with the time requirement for filing the forfeiture action). It is presumed that the legislature enacted OCGA § 16-13-49 (h) (3) with full knowledge of the existing law. Nat. Svc. Indus. v. Transamerica Ins. Co., 206 Ga. App. 337, 340 (425 SE2d 327) (1992); Hadley v. Bd. of Trustees &c., 171 Ga. App. 614, 617 (320 SE2d 620) (1984). Nevertheless, under the present Code section, the legislature provided the remedy for the State’s failure to timely file a forfeiture action against seized property, rather than leaving that issue open for the court’s interpretation. Compare OCGA § 16-13-49 (h) (3) with OCGA § 16-13-49 (o) (5) (the legislature did not provide a remedy for the State’s failure to comply with this Code section). See also Henderson v. State of Ga., 205 Ga. App. 542 (422 SE2d 666) (1992) aff’d State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993) (interpreting OCGA § 16-13-49 (o) (5) and requiring dismissal of the forfeiture action for the State’s failure to hold a hearing within 60 days of service of the complaint and the absence of a continuance for good cause). “From the addition of words it may be presumed that the legislature intended some change in the existing law. . . .” Undercofler, supra at 743.

The previous Code section was strictly construed by the courts; however, pursuant to the legislation, the present “Code section must be liberally construed to effectuate its remedial purposes.” OCGA § 16-13-49 (z). Compare Lang v. State of Ga., 168 Ga. App. 693, 695 (310 SE2d 276) (1983) with OCGA § 16-13-49 (z). The purpose of the Code section is “(1) the prompt disposition of property subject to forfeiture under the statute; and (2) the protection of property interests of innocent owners, as defined by the statute.” (Citations and punctuation omitted.) Alford v. State of Ga., 208 Ga. App. 595, 596 (431 SE2d 393) (1993). A property owner has the right to possess his property. Therefore, the remedy fashioned by the legislature in OCGA § 16-13-49 (h) (3) protects the property owner’s right to possession where the State fails to promptly dispose of the property.

Decided December 2, 1993.

Ronald J. Doeue, for appellants.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

“ ‘Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cit.)’ [Cit.]” Nat. Svc. Indus., supra at 339. Accordingly, appellants sat on their rights by waiting until after a judgment was rendered in the State’s in rem forfeiture action, i.e., the “further proceedings” contemplated in the statute. Had appellants requested a return of the property prior to the entry of judgment, the State would have been forced to dismiss its action in rem and file an in personam action. However, under the facts of this case, the appellants are precluded from asserting their claim to the property.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       In Robinson v. State of Ga., 209 Ga. App. 446 (433 SE2d 707) (1993) we interpreted the effect of the provisions of OCGA § 16-13-49 (n) on the requirements contained in OCGA § 16-13-49 (h) (2).


author: Johnson, Judge.

text:
    A93A2301.
    MERRITT v. THE STATE.
    (438 SE2d 691)
   Johnson, Judge.

Ronnie Merritt appeals from his conviction of selling cocaine.

1. Merritt complains that the court erred in denying his motion for a directed verdict of acquittal. The State presented an undercover police officer who testified that Merritt sold him cocaine. The State also presented Merritt’s four prior convictions for cocaine offenses as similar transaction evidence. Merritt admitted during his testimony that he sold cocaine to the officer, but claimed that he was entrapped. Reviewing this evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Merritt guilty beyond a reasonable doubt of selling cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Merritt’s motion for a directed verdict of acquittal. Fowler v. State, 201 Ga. App. 417, 419 (2) (411 SE2d 335) (1991) .

2. Merritt alleges that the trial court erred in denying his motion for a mistrial because the jury may have seen him in the custody of deputies in the court’s holding cell. This allegation is mere conjecture as there is no evidence in the record indicating that any juror actually saw Merritt in the holding cell. Keith v. State, 186 Ga. App. 273, 274 (1) (367 SE2d 255) (1988). In fact, Merritt’s attorney twice conceded while making the motion in the trial court that he did not believe the jurors actually saw Merritt in custody. “This court will not consider factual allegations in the briefs of parties which are not supported by evidence contained in the record.” (Citations and punctuation omitted.) Mercier v. State, 203 Ga. App. 494, 495 (4) (417 SE2d 430) (1992) .

Even assuming the jury was aware that Merritt was in the holding cell, this would not have been harmful because testimony at trial showed that he had been taken into custody. Keith v. State, supra. “Furthermore, evidence that an accused is presently confined in jail does not place his character in evidence.” (Citations and punctuation omitted.) Edwards v. State, 180 Ga. App. 177 (348 SE2d 725) (1986). The trial court did not err in denying Merritt’s motion for a mistrial. Compare Hicks v. State, 200 Ga. App. 602 (409 SE2d 82) (1991).

3. Merritt contends that the court erred in denying his motion to suppress the undercover police officer’s in-court identification of him as the person who sold cocaine. Merritt argues that the officer’s in-court identification was tainted because he had seen a photograph of Merritt prior to the sale. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Talley v. State, 209 Ga. App. 79, 80 (1) (432 SE2d 667) (1993). However, “even if the pretrial identification was tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citations and punctuation omitted.) Sanders v. State, 208 Ga. App. 725, 726 (431 SE2d 725) (1993). Here, pretermitting the issue of whether the officer’s pretrial identification was tainted, the in-court identification was admissible because it had an origin independent of the prior identification. The officer’s in-court identification of Merritt was not based on the photograph but on the officer’s opportunity to observe Merritt at the time of the crime. Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988); Mozier v. State, 207 Ga. App. 264, 268 (4) (427 SE2d 551) (1993). The trial court properly denied Merritt’s motion to suppress the officer’s in-court identification. Smith v. State, 192 Ga. App. 144, 145 (2) (384 SE2d 677) (1989).

Decided December 2, 1993.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

Moreover, Merritt did not raise misidentification as a defense; his sole defense at trial was entrapment. Because Merritt’s identity as the seller was not in dispute, any error in allowing identification testimony would have been harmless. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Snider v. State, 200 Ga. App. 12, 13 (1) (406 SE2d 542) (1991).

4. Merritt claims that the court erred in allowing the similar transaction evidence because it was irrelevant. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation omitted.) Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386) (1992). The trial court found that the similar transaction evidence was relevant to show Merritt’s motive, intent and identity. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The trial court’s admission of the evidence based on this finding was not an abuse of discretion and will not be disturbed by this court.

5. Merritt enumerates that the court erred in admitting into evidence the indictment for his prior offenses, in its jury charge on entrapment and in imposing a life sentence. Because Merritt has not supported these enumerated errors with argument or citation of authority, they are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Guyton v. State, 206 Ga. App. 145, 148 (8) (424 SE2d 87) (1992).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2567.
    STREET v. THE STATE.
    (438 SE2d 693)
   Johnson, Judge.

This is a direct appeal from the trial court’s denial of Street’s motion for discharge and acquittal made on the ground that the State had failed to try him within the time prescribed by statute after he filed a demand for trial. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985); compare Smith v. State, 207 Ga. App. 762 (429 SE2d 149) (1993).

Street was indicted on March 9, 1993, for the offenses of burglary, first degree forgery and theft by taking. After he failed to appear at arraignment on March 19, 1993, the State learned that Street was incarcerated at the Lowndes County Correctional Institute. The trial court entered an order dated March 23, 1993, directing the Department of Offender Rehabilitation to produce Street for arraignment on June 4, 1993, and for trial on June 14, 1993. On March 26, 1993, Street forwarded a demand for speedy trial to the Superior Court of Muscogee County and served a copy on the district attorney’s office by U. S. mail. A copy of the demand, bearing a stamp indicating it was filed on March 30, 1993, is included in the record on appeal.

It is undisputed that the case was not tried during the February or April terms of court. The State acknowledges in its brief that “for some unexplained reason . . . the Department of Corrections did not produce [Street] for the scheduled arraignment and trial.” On June 8, 1993, Street filed a motion for discharge and acquittal. At a hearing on the motion, the trial judge found that the court’s March 23 order substantially complied with the definition of a detainer. Therefore, it concluded, Street should have followed the procedure outlined in OCGA § 42-6-3 for ensuring a trial date and his demand for speedy trial pursuant to OCGA § 17-7-170 was ineffective.

A detainer is “a written instrument executed by the prosecuting officer of a court and filed with the department requesting that the department retain custody of an inmate pending delivery of the inmate to the proper authorities to stand trial upon a pending indictment or accusation. . . .” (Emphasis supplied.) OCGA § 42-6-1 (3). Detainer statutes are in derogation of the common law and must be strictly construed. This court has not been called upon to interpret this particular section of the statute. However, the Attorney General has opined that officers and employees of a county probation department are not prosecuting officers of a court within the meaning of the Georgia Detainer Act. Op. Atty. Gen. 69-268. The order in this case was issued by the trial judge, and not by the prosecuting officer in the case. Therefore it cannot be considered a detainer pursuant to OCGA § 42-6-1 et seq., and Street was not required to follow the procedures outlined in OCGA § 42-6-3 to obtain a final disposition of subsequent charges within two terms of court.

Decided December 2, 1993.

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

The State argues that even if the detainer statutes do not apply, Street is not entitled to acquittal because there was not strict compliance with the three-prong requirement recently reiterated in State v. Moore, 207 Ga. App. 677 (428 SE2d 815) (1993). In Moore, the appellant was charged with armed robbery, a capital crime. The Moore case examines the requirements of OCGA § 17-7-171 (b) which are inapplicable to this case because Street was indicted for burglary, first degree forgery and theft by taking, all felonies, but none are crimes for which he could receive the death penalty. See generally White v. State, 202 Ga. App. 370 (414 SE2d 296) (1991).

Street’s demand for speedy trial was timely filed and unequivocal in meaning. Green v. State, 191 Ga. App. 873, 875 (383 SE2d 359) (1989). His motion for discharge and acquittal should have been granted.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       For a comprehensive discussion of history of development of OCGA § 17-7-170 and how it interfaces with detainer statutes, see Judge Andrews’ special concurrence in State v. Collins, 201 Ga. App. 500, 501-506 (411 SE2d 546) (1991).

       That Street had not been arraigned at the time his speedy trial demand was filed did not toll the time within which his case should have been tried. See Smith v. State, supra, in which this court noted: “[I]f a speedy trial demand is timely entered, the State must act to arraign and try the defendant within the allotted time or else he is entitled to discharge and acquittal.” Id. at 763.


text:
    A93A1471.
    ATHENS-CLARKE COUNTY v. WALTON ELECTRIC MEMBERSHIP CORPORATION.
    (439 SE2d 504)
   Birdsong, Presiding Judge.

Athens-Clarke County appeals from a judgment declaring that it was not authorized to charge and collect franchise fees from Walton EMC in the previously unincorporated areas of Athens-Clarke County. This issue arises from Athens-Clarke County’s efforts to collect franchise fees from the EMC after consolidation of municipal and county governments in what was formerly the City of Athens and Clarke County.

Before creation of Athens-Clarke County, utilities operating in the City of Athens paid franchise fees to the City, but Clarke County was not authorized to collect such fees. As Walton EMC operated only in unincorporated Clarke County, it paid no franchise fees to the City.

The unification of Athens and Clarke County was achieved through consolidation of the governmental and corporate powers, duties, and functions vested in the City of Athens with the governmental and corporate powers, duties, and functions of Clarke County. The intended result was a single county-wide government with powers and jurisdiction throughout the territorial area of Clarke County which would supersede and replace the governments of the City of Athens and Clarke County. The county-wide government would be a new political subdivision of the state and would have all the governmental and corporate powers, duties, and functions formerly held by the City of Athens and by Clarke County, as well as the powers, duties, and functions provided in the unified charter. Section 1-101 (a) of the Charter of the Unified Government. It was to be both a municipal corporation and a county (Section 1-103) and was granted all rights, powers, duties, privileges and authority conferred or enlarged in the unified charter; those necessary and proper for carrying out the functions granted or enlarged therein; and also those, expressed or implied, that would-then be vested in or hereafter granted counties and cities by the constitution, laws of the state, and/or the unified charter. Section 1-104 (c). Moreover, the unified charter provides that “in construing the applicability of provisions of the constitution and the general laws of Georgia which apply in general terms to either counties, municipalities or both, and local acts of the General Assembly that apply specifically to Clarke County, the City of Athens, or both, the following terms as used in such laws shall be construed to include the unified government as follows: (1) ‘County’ shall be construed to include Athens — Clarke County, Georgia; (2) ‘City,’ ‘Town,’ ‘Municipal Corporation’ or ‘Municipality’ shall be construed to include Athens-Clarke County, Georgia.” Section 8-101 (c). Held:

Athens-Clarke County contends the trial court erred by declaring that Athens-Clarke County was a new governmental entity not authorized to charge and collect franchise fees from public utilities, including Walton EMC, erred by finding provisions of the charter of Athens-Clarke County ambiguous and striking the ambiguous provision, and also erred by declaring that the Georgia Territorial Electric Service Act (Territorial Act) (OCGA § 46-3-1 et seq.) prevented Athens-Clarke County from collecting the franchise fees.

Athens-Clarke County contends it is a municipal corporation and a county because the unified charter provides that the unified government shall be deemed a municipal corporation and a city throughout the territory of the unified government, and particularly in the formerly unincorporated area of Clarke County. See Section 1-103. This is supported by other provisions of the unified charter which grant Athens-Clarke County the duties, powers, and authority of a municipal corporation and specifically authorized granting franchises to public utilities. Sections 1-104 (c) and 8-114 (10). Therefore, Athens-Clarke County argues that as the new governmental entity is both a municipality and a county, it is authorized to collect these fees as is any other municipality. The trial court, however, found that for Athens-Clarke County to exercise municipal powers throughout territorial limits of the former Clarke County, the legal entity of Clarke County could no longer exist. As the trial court found that neither the unified charter nor the enabling act could abolish Clarke County as a political entity (Troup County EMC v. Ga. Power Co., 229 Ga. 348 (191 SE2d 33)), the trial court concluded that the requisite county abolition did not occur.

We reject this rationale but, for other reasons, we affirm the trial court’s judgment. Under the authority granted in the 1983 Georgia Constitution, Art. IX, Sec. Ill, Par. II (a), the legislature consolidated the governmental and corporate powers and functions vested in the City of Athens with the governmental and corporate powers and functions vested in Clarke County, and the unified charter was drafted so that the power and functions of the county survived the consolidation of the governments.

For example, Section 1-103 of the charter provided that the unified government was to be both a municipal corporation and a county throughout the territory of the unified government, and numerous county functions are retained in the charter, e.g., the court system, the sheriff, the tax commissioner, etc. Thus, the unified charter did not attempt to abolish Clarke County, and the trial court correctly found that Clarke County continues to exist throughout the area of the county. See Columbus, Ga. v. Troup County EMC, 143 Ga. App. 118 (237 SE2d 603). Consequently, the result of the consolidation is the creation of a new political entity which is a hybrid of Clarke County and Athens. However, no portion of the Athens-Clarke County unified charter was ambiguous as the continued existence of Clarke County as a political entity was the intended result of the unified charter.

Additionally, the charter of the unified government differs materially from that considered in Troup County EMC v. Ga. Power Co., supra at 353, in that this charter plainly states that the county government would continue after the consolidation and that the unified government would be a municipality throughout its area. As municipalities are creatures of the legislature, the legislature has the authority to alter, amend, or enlarge municipalities as contemplated by the unified charter. Id.

Although we do not adopt the trial court’s reasoning on the status of the unified government, it does not follow that the unified government is authorized to charge a franchise fee. Under the Territorial Act neither a county performing or authorized to perform multiple and substantial municipal functions, including granting franchise rights to electric suppliers (OCGA § 46-3-3 (5)), nor a wholly new municipality resulting from the merger, consolidation, or combination of counties or municipalities (OCGA § 46-3-3 (13)) is a municipality under the Territorial Act. Since Athens-Clarke County plainly falls into both of these categories, it is not a municipality within the meaning of the Territorial Act which is authorized to charge franchise fees. Thus, appellant’s argument based upon OCGA § 46-3-7 is misplaced.

Decided October 29, 1993

Reconsideration denied December 3, 1993

Denny C. Galis, Ellen L. Whitaker, for appellant.

Lambert & Roffman, E. R. Lambert, Sutherland, Asbill & Brennan, James A. Orr, Paul, Hastings, Janofsky & Walker, Janet L. Kishbaugh, for appellee.

Additionally, the authority to charge franchise fees granted in the unified charter also fails because it is in conflict with provisions of the general law. Ga. Const. 1983, Art. III, Sec. VI, Par. VI (a). The authority granted electric membership corporations to use highways, rights-of-ways, or easements (OCGA § 46-3-201 (b) (10)), the allocation of service areas pursuant to electric utilities in the Territorial Act, and the right to continue service under OCGA § 43-3-8 (b) all conflict with the grant of authority in Section 8-114 of the unified charter to grant or make franchises or contracts with public utilities and to prescribe conditions for those franchises and contracts. Therefore, to the extent any provision of the general law conflicts with the authority to grant franchises and charge franchise fees in the unified charter, those provisions of the charter are void. Silverman v. Mayor &c. of Savannah, 125 Ga. App. 41 (186 SE2d 447).

Further, although the issue was not raised on appeal, even if we were to find that Athens-Clarke County had the authority generally to charge franchise fees, for the reasons stated in City of Calhoun v. North Ga. EMC, 209 Ga. App. 547 (433 SE2d 698) and City of LaGrange v. Troup County EMC, 200 Ga. App. 418 (408 SE2d 708) it does not follow that the unified government can require Walton EMC to pay franchise fees in the absence of an agreement to do so.

Accordingly, although for different reasons, we find that the trial court correctly declared that Athens-Clarke County is not authorized to collect franchise fees from Walton EMC.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.