text:
    A01A0362.
    HOWARD v. ESTATE OF HOWARD et al.
    (548 SE2d 48)
   Smith, Presiding Judge.

Sarah Frances Howard, the widow of Hilton William Howard, brought suit against her late husband’s estate, Donald Little, the executor of the estate, and Annie M. Phillips, her late husband’s daughter from a prior marriage, who was her father’s guardian. Howard sought certain monies she claimed were promised to her by her late husband and designated as bequests to her in his will. Cross-motions for summary judgment were filed, and the trial court granted that of the defendants and denied that of Howard. Howard appeals, contending that the trial court misapplied the law, made assumptions of fact unsupported by the record, and erred in construing certain statutes. We find that the trial court correctly applied the Statute of Frauds in ruling that no enforceable contract existed between the decedent and Howard. But we also find that the trial court failed to consider whether clear and convincing evidence existed of the intent of the decedent to make a testamentary gift to Howard of certain funds, and we therefore reverse the judgment and remand to the trial court for such a determination.

The record shows that Howard was married to Truman D. Howard in 1941 and lived with him until his death in 1980. Nine years after Truman Howard died, Howard married Truman’s brother, Hilton William Howard, the decedent in this case, a widower whose second wife had died in 1986. Both parties to the marriage had adult children from their previous marriages.

Before he and Sarah Frances married, Hilton William Howard promised to look after her and to provide for her should he die before her. On the day after their marriage, Hilton William Howard changed one of his existing bank accounts to a joint account in both their names. At that time, the account held over $33,000. In 1991, Hilton William Howard executed a will, bequeathing to his wife a life estate in the marital residence and all funds in “the joint bank account.” The residue of the estate was bequeathed to his daughters. In February 1992, Hilton William Howard purchased an annuity in the original amount of $5,000 with funds withdrawn from the joint account, naming Howard as sole beneficiary.

Hilton William Howard’s health deteriorated with the onset of Alzheimer’s disease. His daughter, Phillips, petitioned for guardianship in August 1994, and, after a hearing at which Howard was present, letters of guardianship were issued on October 3, 1994.

On October 4, 1994, Phillips took control over the property of Hilton William Howard, including his bank accounts. In so doing, she closed the joint account and transferred the funds to a guardianship account in her name. At that time, the account held over $41,500. Phillips assisted Howard in opening her own bank account with $5,000 given to her by Hilton William Howard. Phillips also ascertained that Howard had contributed only $400 to the joint account. She then wrote a check, as guardian, to Howard for that amount, which Howard deposited in her own account.

Phillips learned of the annuity after conducting an inventory of her ward’s property. On April 20,1995, she filed a petition in the probate court seeking permission to liquidate the annuity so that the funds could be placed in a federally insured account, as then required by law. Permission was granted, and Phillips withdrew the funds from the annuity and placed them into a bank certificate of deposit in her name as guardian.

Hilton William Howard died on June 26,1996. The will was duly probated, Phillips submitted a final return showing she had turned over all remaining funds to the executor, and letters of dismission were issued to Phillips on January 3, 1997.

Howard maintains her life estate in the marital residence. But since no joint account was in existence at the time of Hilton William Howard’s death, the specific bequest to Howard of funds in “the joint account” was not honored. The annuity, of course, was no longer in existence.

Howard filed this suit in the superior court, seeking recovery of the proceeds of the annuity and an amount equal to the funds in the joint account at the time it was taken over by Phillips, as well as attorney fees and expenses. She alleged that Phillips had acted improperly as guardian because she was also a residuary legatee under the will. She argued that because adequate funds existed in the estate without invading the funds in the joint account, Phillips’s actions were taken to benefit the residuary legatees. She also alleged that the actions taken by Phillips amounted to conversion or breach of contract. Howard appealed the superior court’s grant of summary judgment to the defendants to the Supreme Court of Georgia, which transferred the appeal to this court, finding that because no will construction was required for resolution of the issues presented and the only relief sought was money damages, this court had jurisdiction.

1. Howard contends the trial court erred in granting summary judgment to appellees by applying law inconsistent with the factual circumstances of the case. This enumeration refers specifically to the trial court’s application of the Statute of Frauds, codified at OCGA § 13-5-30, in ruling that no breach of contract existed. The court ruled that any contract between the decedent and Howard was made in consideration of marriage and therefore required to be in writing. Since no writing was shown, any such contract was unenforceable.

Howard argues that the cases interpreting that statute and relied upon by the trial court involved instances in which a mere promise was made and specific performance would be required to enforce the contract. She maintains that, in this case, the promises were memorialized in a will executed after a joint account was created and before an annuity was acquired. She argues that the promises therefore had been fulfilled, removing the oral contract from the Statute of Frauds. Howard maintains that Hilton William Howard could have changed his will when he was competent to do so but did not. She argues that when he was declared incompetent, his will became inviolate, as did his intent, as expressed in his actions.

This argument was. not raised below, and we therefore cannot consider it. It is well established that issues raised for the first time on appeal may not be considered. Busbee v. Chrysler Corp., 240 Ga. App. 664, 666 (524 SE2d 539) (1999). Moreover, the contract itself must be in writing; a subsequent writing evincing intent will not suffice, particularly when that writing itself could have been changed by the decedent.

The part performance referred to in the Code, ... as forming an exception to the requirements of [OCGA § 13-5-30], means part performance of the contract. The doing of an independent thing, even though the act would not have been done but for the contract, is not sufficient. The part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.

(Citations and punctuation omitted.) R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 583 (1) (b) (451 SE2d 812) (1994) (physical precedent only). It is clear that the “writings” here do not satisfy those requirements. The trial court correctly applied the Statute of Frauds.

2. Howard also maintains that the trial court erred in making assumptions of fact not supported by the record. In this enumeration, Howard argues that the trial court did not consider that Phillips’s actions as guardian unjustly enriched the residuum of the estate, to her benefit as a legatee.

But Phillips stated in her affidavit, which was uncontradicted, that she was not aware of her status as a legatee under her father’s will until after his death. Her expenditures on behalf of her ward were entirely appropriate. As to Phillips’s actions, it was her duty, as the guardian of Hilton William Howard, to provide for his support and care and the support and care of those dependent upon him. OCGA § 29-5-5. Howard does not dispute that the funds from the joint account were expended for the care of the decedent, as well as for her own support and care. The probate court approved Phillips’s actions by approving the annual returns filed by Phillips.

Although specific bequests existed in her husband’s will, these could be honored only if the property bequeathed was in existence at the time of his death. “A legacy ... is adeemed or destroyed . . . when the testator . . . places it out of the power of the executor to deliver over the legacy.” OCGA § 53-2-105. If no joint account or annuity was in existence at the time of Hilton William Howard’s death, it was not within the power of the executor of his estate to deliver them. And Howard did not contest the will or demand the property at the time of the testator’s death.

3. Howard next claims that Phillips converted the annuity and the funds in the joint account. “The tort of conversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” (Citation omitted.) Parker v. Kennon, 242 Ga. App. 627, 630 (2) (530 SE2d 527) (2000). Phillips’s action in liquidating the annuity was expressly approved, in advance, by the trial court. It cannot have been a conversion, since it was authorized.

Phillips’s actions as guardian in closing the joint account and placing the funds in a guardianship account present a more complicated question. Phillips was authorized under OCGA §§ 29-2-2 and 29-2-3 to take such actions. Although those Code sections provide that approval of the probate court is necessary to invade the corpus of the estate, it is well established that the probate court may “approve” such action by ratifying and approving annual returns. Shipp v. McCowen, 147 Ga. 711, 715 (95 SE 251) (1918); Bailey v. McElroy, 61 Ga. App. 367, 368 (6 SE2d 140) (1939). Compare Hayes v. Clark, 242 Ga. App. 411, 412-413 (2) (530 SE2d 38) (2000) (when corpus expended for care and maintenance of ward, guardian could have obtained approval from probate court via prior order or filing annual returns). The probate court in this case approved Phillips’s annual returns.

Nevertheless, the appointment of a guardian did not necessarily terminate the joint tenancy and destroy the survivorship right possessed by Howard. Moore v. Self, 222 Ga. App. 71, 72-73 (1) (473 SE2d 507) (1996). Howard’s authority to withdraw funds from a joint account does not equate to “ownership” of those funds. “A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” OCGA § 7-1-812 (a). Howard clearly had the right to withdraw funds from the joint account, but because she admitted she contributed only $400 to the joint account, she did not “own” the funds unless “clear and convincing evidence of a different intent” existed. Id. Howard was repaid $400 by Phillips, undoubtedly for the purpose of ensuring that ownership of the entire joint account was in the ward. And ordinarily, repayment of Howard’s contribution to the account would have accomplished precisely that.

Decided April 19, 2001.

Douglas D. Middleton, Max D. Kaley, for appellant.

Hawkins & Parnell, Michael W. Kitchens, Moore, Ingram, Johnson & Steele, Melissa W. Gilbert, Jean E. Johnson, Jr., for appellees.

But here, the $400 repayment may or may not have accomplished this end. A guardian stands in the ward’s shoes in many respects and is empowered to act for the ward. But a guardian is not authorized to change the ward’s will. A will may be changed at any time up to the testator’s death. But Hilton William Howard lost the capacity to change his will when he was declared incompetent. The bequest in Hilton William Howard’s will was therefore, in a sense, “inviolate,” as argued by Howard.

The trial court never considered whether the will, which made a specific bequest to Howard of “the joint account,” constituted clear and convincing evidence of a “contrary intent” — that Hilton William Howard fully intended to make a testamentary gift to his wife of the funds in the joint account. If so, the funds in the joint account belonged to Howard, and Phillips’s appropriation of them as guardian was contrary to that intent and therefore a conversion.

Regardless of Phillips’s knowledge, or lack thereof, of the terms of the will at the time she closed the joint account, when she gained such knowledge it was not too late to carry out the wishes of the testator. The resolution of this issue therefore depends upon a determination of whether the specific bequest in the will constituted clear and convincing evidence that Hilton William Howard intended to gift his wife with ownership of the joint account. Because the trial court did not address this determinative issue, which was raised below, we remand this case to the trial court for its resolution.

Judgment reversed and remanded.

Barnes and Phipps, JJ, concur.

       Howard also alleged that a car given to her by the decedent was taken improperly by the guardian, but this claim was abandoned at the hearing on the motion for summary judgment.

       Although Head is a physical precedent only, it has been cited with approval numerous times. See, e.g., James v. Safari Enterprises, 244 Ga. App. 813, 814 (537 SE2d 103) (2000); Witty v. McNeal Agency, 239 Ga. App. 554, 563 (6) (521 SE2d 619) (1999).

       OCGA § 29-2-44 (c) provides, in pertinent part, that once the probate judge orders the return to be recorded, “[t]he return thus allowed and recorded shall be prima-facie evidence in favor of the guardian of its correctness.”


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A0436.
    WILLIAMS v. THE STATE.
    (548 SE2d 63)
   Blackburn, Chief Judge.

Antonio Monteith Williams appeals his convictions of rape, burglary, sodomy, and robbery by force. After the State challenged Williams’ use of peremptory strikes, the trial court determined that Williams, a black male, failed to provide race-neutral explanations and seated three potential jurors originally struck by Williams. On appeal, Williams contends that the trial court erred, claiming that the State failed to carry its burden of persuasion. See Georgia v. McCollum., extending the principles established in Batson v. Kentucky, and holding that a criminal defendant may not engage in “purposeful discrimination on the ground of race in the exercise of peremptory challenges.”

In Purkett v. Elem the United States Supreme Court established a three-step test for evaluating challenges to peremptory strikes[: (1)] [t]he opponent of a peremptory challenge must make a prima facie showing of racial discrimination; [(2)] the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; [and (3)] the trial court then decides whether the opponent of the strike has proven discriminatory intent.

(Punctuation omitted.) Mitchell v. State.

In the present case, the State objected to Williams’ use of 11 of his 12 peremptory strikes against white potential jurors. The State pointed out that the venire panel consisted of 20 white people and 16 people of other races. The jury initially selected consisted of ten black jurors and two white jurors. Pursuant to the first step in the analysis, the trial court determined that the State had made a prima facie showing of racial discrimination. This determination is not challenged on appeal.

Under the second step in the analysis, Williams explained the reasons for each of his strikes. Williams struck juror no. 3, a white female, because she lived in a rural environment and her husband was retired. Williams thought that she would have a lack of contact with people who lived in downtown Macon, like himself. Juror no. 4, a white female, was struck because she lived in north Macon and had previously dealt with the law firm representing Williams. Juror no. 5 was struck because she worked with the probate court, and Williams thought there was a potential that she would be more favorable to the prosecution. Williams struck juror no. 6, a white male, because he was an architect who lived in north Macon and he would not be familiar with Williams’ culture. Juror no. 10, a white male, was struck because he worked with the Department of Revenue, and Williams did not think he would be tolerant of law breakers. Williams struck juror no. 11 because the juror’s wife was an employee of an obstetrics/gynecology office, and it might make the juror more sensitive to the concerns of the victim in this case, where graphic female evidence would be introduced. Juror no. 13 worked at Robins Air Force Base and Williams struck him to get to a subsequent juror who was more desirable. Williams struck juror no. 16 because his wife worked at Charter Medical and that might give the juror a sensitivity to the victim. Juror no. 21 was struck because she was a doctor who worked in the clinic next to Williams’ lawyer’s office. Juror no. 25 was struck because she worked for GEICO Insurance, and Williams thought that insurance agents had a lack of tolerance for wrong behavior. And finally, Williams struck juror no. 31 because her husband was a police officer, she was a victim of a sexual assault, and the trial court had denied Williams’ motion to strike her for cause.

After Williams had explained his reasons for striking the jurors, the trial court allowed the State to rebut Williams’ explanations. The State’s general response to most of the explanations was, “I fail to see how those factors alone could constitute a race-neutral reason, given the facts of this case.”

The trial court granted the State’s motion with regard to juror nos. 3, 6, and 21. With regard to juror no. 3, the trial court quibbled with Williams’ factual determination that the juror lived in a rural area. The trial court specifically disagreed with Williams’ characterization of the area where the juror lived as rural and determined that there was no evidence whether the crime being tried was committed in downtown Macon or in an apartment close to the city limits. As to juror no. 6, the trial court stated that it agreed with the State’s proposition that simply because the juror was an architect and his wife was a retired RN “does not carry the day in the Court’s view.” The trial court stated: “And, finally, on . . . No. 21, just the fact that she works for an orthopedist does not carry the day in this Court’s judgment.”

The purpose of the third step in the Batson analysis is to determine whether the opponent of the strike, in this case, the State, has proven discriminatory intent. Smith v. State. This analysis involves the motive of the proponent of the strike. It does not involve the factual basis of the strike. In fact, a strike may be based on mistake, ignorance, or idiosyncracy, provided that the reason for the strike is neutral. Gamble v. State.

Even where . . . it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive, the law protects the strikes. . . . [T]he explanations given were facially valid and evidenced no discriminatory intent, i.e., were race-neutral. None was based on a characteristic or stereotype peculiar to any race.

Decided April 19, 2001.

Randall, Nestor & Spivey, Brian T. Randall, for appellant.

Charles H. Weston, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Smith, supra at 460 (1).

In these matters, the findings of the trial court are entitled to great deference and should not be disturbed unless clearly erroneous. Gamble, supra. “In evaluating the persuasiveness of the [defense counsel’s] explanation, we are concerned only with whether the trial court’s credibility determination that racial motivation did . . . exist was clearly in error.” (Punctuation omitted.) Jones v. State. Here, however, the trial court failed to make any determination with regard to discriminatory intent. Instead, the trial court focused on the factual basis for the strike. “Where, as here, the court combines steps two and three of Batson, it prematurely evaluates the persuasiveness of counsel's explanations, thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike.” (Punctuation omitted.) Smith, supra at 460. “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Punctuation omitted.) Id. The trial court’s reseating of the jurors in question forced Williams to trial with an illegally constituted jury. Therefore, Williams must be given a new trial. See Jackson v. State; Malone v. State; Gilbert v. State; Pickett v. State

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 2359, 120 LE2d 33) (1992).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Purkett v. Elem, 514 U. S. 765, 766-769 (115 SC 1769, 1770-1771, 131 LE2d 834) (1995).

        Mitchell v. State, 230 Ga. App. 149 (495 SE2d 626) (1998).

        Smith v. State, 232 Ga. App. 458, 459 (1) (501 SE2d 622) (1998).

        Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792) (1987).

        Jones v. State, 240 Ga. App. 339, 342 (1) (523 SE2d 402) (1999).

        Jackson v. State, 265 Ga. 897, 900 (463 SE2d 699) (1995).

        Malone v. State, 225 Ga. App. 315, 316-317 (1) (484 SE2d 6) (1997).

        Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997).

        Pickett v. State, 226 Ga. App. 743 (487 SE2d 653) (1997).


text:
    A01A0450.
    BELL v. STATE OF GEORGIA.
    (548 SE2d 35)
   Blackburn, Chief Judge.

In conjunction with his arrest for driving under the influence and possession of cocaine with intent to distribute, the State seized cocaine and $1,583 in U. S. currency from Brian Bell’s vehicle. The State filed a complaint for forfeiture in rem of the currency. After a bench trial, the trial court ruled that the currency was contraband and therefore forfeited. Bell appeals, contending that the trial court erred because there was no competent evidence showing the purity of the cocaine found in the vehicle. We agree and reverse.

“Because the evidence at [a] forfeiture hearing was uncontroverted and no question regarding the credibility of witnesses was presented, we conduct a de novo review of the trial court’s application of law to the undisputed facts.” (Punctuation omitted.) Migliore v. State of Ga.

OCGA § 16-13-49 (e) permits the forfeiture of property in drug cases involving more than “one gram of cocaine.” In State of Ga. v. Foote, the State argued that OCGA § 16-13-49 (e) does not require more than one gram of “pure” cocaine to support forfeiture. We disagreed and ruled that the State must demonstrate that a seized sample of cocaine must consist of “more than ‘one gram of cocaine’ in order to sustain forfeiture under OCGA § 16-13-49, not simply that the sample, more than a gram, is ‘positive’ for some undetermined amount of cocaine.” (Emphasis in original.) Id. at 223.

At the trial, an investigator testified that the seized substance tested positive for cocaine and that the substance, including the bag, weighed 6.8 grams. Bell contends that, under Foote, this testimony was insufficient to show that the seized substance constituted more than one gram of cocaine because the substance was not tested for purity.

The State concedes that a reversal is warranted under Foote, but urges this court to revisit that decision “ [i] n view of the administrative inconvenience to state crime lab personnel entailed in dragging them away from their work to testify in matters of this kind.” This argument has previously been raised and decided adversely to the State:

We are aware, as [the State] advises, that testing for purity levels in order to meet the State’s burden of proof under OCGA § 16-13-49 may place an additional strain upon crime laboratory resources, as well as State funds. Nonetheless, the State’s interpretation of the statute cannot be engrafted upon the plain language of the act simply to avoid the potential for added responsibility and expense. Further, [the State’s] invitation to this Court to so interpret the statute judicially must be declined as such matters are, perforce, addressed to the legislature.

Decided April 19, 2001.

William J. Sussman, for appellant.

Daniel J. Craig, District Attorney, Rebecca A. Wright, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Foote, supra at 224. We are compelled to reverse.

The State further argues that Bell did not testify at the forfeiture proceeding and did not dispute the State’s allegation that he was in possession of the quantity of cocaine contended by the State. The State apparently contends that it does not have the burden of proof on this issue and that Bell has a duty to disprove the State’s contentions. The State goes on to argue that reversing the decision of the trial court and remanding this case back to that forum for a new forfeiture proceeding (the propriety of such new proceeding is not before us) will be an utter and complete waste of law enforcement, prosecutorial, and judicial resources. Any waste of law enforcement, prosecutorial, and judicial resources that might result from this reversal is directly attributable to the failure of the State to meet its burden, notwithstanding the clear mandate of Foote, supra.

This court is not free to ignore the plain language of OCGA § 16-13-49, and the State should address its request to modify that statute to the legislature. Neither are we permitted under the federal and state constitutions and the statutory law of Georgia to relieve the State of its burden and to place same on the defendant. Aldridge v. Fed. Land Bank of Columbia

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Migliore v. State ofGa., 240 Ga. App. 783, 784 (525 SE2d 166) (1999).

        State of Ga. v. Foote, 225 Ga. App. 222-223 (1) (483 SE2d 628) (1997).

        Aldridge v. Fed. Land Bank of Columbia, 203 Ga. 285, 289 (46 SE2d 578) (1948).


author: Miller, Judge.

text:
    A01A0513.
    RUFFIN v. BANKS et al.
    (548 SE2d 61)
   Miller, Judge.

The primary question on appeal is whether a party’s express refusal to participate in the takedown costs of a civil trial precludes that party from later compelling the court reporter to transcribe the trial. Since the parties who paid the takedown costs objected to the transcription, we hold that the trial court did not err in refusing to order the transcription.

In her 1996 will, Elma P. Ruffin bequeathed her husband Clifford V. Ruffin a life estate in her home and furnishings. A 1995 warranty deed, however, purportedly executed by Elma B. Ruffin, gave Elma’s son and grandson fee simple title to the home. After Elma’s death in 1997, the son initiated dispossessory proceedings to evict Clifford from the home. Claiming the deed was a forgery, Clifford filed an action against the son and grandson to set it aside. The son counterclaimed to have Clifford removed from the home.

In his portion of the proposed pre-trial order, Clifford announced that he did not want the case reported. A bench trial ensued, at the beginning of which Clifford expressly refused to participate in the takedown costs. The defendants stated that they wanted it reported and paid the takedown costs. The court found the deed was valid and ordered Clifford to leave the home. Clifford appealed, and the defendants moved for a supersedeas bond, which the court granted.

Over the defendants’ objections, Clifford moved the court to order the court reporter to transcribe the trial. Finding that the defendants owned any potential transcript, the court denied the motion. Consequently, Clifford was unable to file a transcript with the trial court clerk, whom he had directed to include the transcript in the appellate record. The appeal languished in the trial court until the defendants moved to dismiss the appeal under OCGA § 5-6-48 (c). The trial court held a hearing, found Clifford had caused an unreasonable delay in the transmission of the record, and dismissed the appeal. Clifford amended his notice of appeal to include an appeal from this order also.

1. In his second enumeration of error, Clifford contends that since he was willing to pay transcription costs, the court erred in not ordering the court reporter to transcribe the trial. Harrington v. Harrington held that where the defendant expressly refused to participate in the takedown costs, “the defendant could not compel the reporter to transcribe his stenographic notes even though the defendant offered to pay the entire cost of reporting the case and the cost of transcribing the same. . . .” Thus, Harrington affirmed the trial court’s refusal to order the transcription. Subsequent cases have held similarly. If, however, the transcript is already prepared and filed with the trial court, it becomes part of the public record to which all members of the public have reasonable access.

Here Clifford filed a pre-trial pleading announcing he did not want the case reported, and according to his attorney and to the trial court’s recollection, he expressly refused to participate in takedown costs. He indicated to the court that he consciously did so because of financial concerns in paying the takedown costs. Thus, there is no question that by “inadvertence or mistake” Clifford failed to participate in takedown costs; rather, he made this conscious and express decision based on his finances. In view of defendants’ objections, who had paid for the takedown, the trial court did not err in refusing to compel the court reporter to transcribe the trial.

2. The first and fourth enumerations of error require a consideration of the evidence adduced at trial. Without a transcript of the evidence, we cannot consider them.

3. The third enumeration asserts that the court erred in hearing a motion for attorney fees filed by an attorney that the court had earlier disqualified and in issuing an order requiring a supersedeas bond after the notice of appeal was filed. As conceded in Clifford’s brief, the court did not rule on the attorney fees motion. Thus, there is nothing for us to review. Regarding the order requiring a supersedeas bond, OCGA § 5-6-46 (a) authorizes a trial court to rule on such motions even though filed after the notice of appeal is filed and after the appeal is docketed in the appellate court. This enumeration is accordingly without merit.

4. In his fifth enumeration, Clifford argues that the court erred in dismissing his appeal of the principal judgment. As set forth above, we have considered the appeal on its merits and concluded that the enumerations lack merit. This renders the fifth enumeration moot.

We express no opinion on the effect of the valid warranty deed on Elma’s bequest to Clifford of a life estate in the household furnishings.

Judgment affirmed.

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

Decided April 19, 2001.

Betty S. Frazer, for appellant.

Robert J. Pinnero, for appellees.

       224 Ga. 305-306 (2) (161 SE2d 862) (1968).

       Id. at 306 (2).

        Tow v. Reed, 180 Ga. App. 609, 610 (349 SE2d 829) (1986); Giffen v. Burrell, 176 Ga. App. 278, 280 (335 SE2d 616) (1985) (on motion for rehearing); Nixdorf Enterprises v. Bell,
        127 Ga. App. 617 (1) (194 SE2d 486) (1972); Master Mtg. Corp. v. Craven, 127 Ga. App. 367, 368 (1) (193 SE2d 567) (1972).

        Ga. American Ins. Co. v. Varnum, 182 Ga. App. 907, 908 (1) (357 SE2d 609) (1987).

       Compare Giddings v. Starks, 240 Ga. 496, 497 (241 SE2d 208) (1978) (silence is not an express refusal).

       Id. (decision must be expressly made at beginning of trial so that right to transcript is not lost by mistake or inadvertence).

        Harrington, supra, 224 Ga. at 306 (3); Nixdorf, supra, 127 Ga. App. at 617 (1).

        McGuire v. Norris, 180 Ga. App. 383, 385 (2) (349 SE2d 261) (1986).


author: Johnson, Presiding Judge.

text:
    A01A0640.
    PAPADOUPALOS v. THE STATE.
    (548 SE2d 59)
   Johnson, Presiding Judge.

Eric Papadoupalos was charged with trafficking in cocaine. The state agreed to let him plead guilty to the lesser included offense of possession of cocaine with intent to distribute. Papadoupalos entered a nonnegotiated guilty plea to possession of cocaine with intent to distribute. The sentencing was then scheduled for a later date. At the sentencing hearing, the state introduced copies of a prior North Carolina drug conviction and a prior federal drug conviction. Both convictions were for possession with intent to sell cocaine. The trial court considered these convictions and sentenced Papadoupalos under the recidivist statute, OCGA § 17-10-7 (a), and the sentencing statute for possession of cocaine with intent to distribute, OCGA § 16-13-30 (d), to the maximum sentence of 30 years, 15 years to serve and 15 years suspended.

1. Papadoupalos primarily argues that the trial court erred in sentencing him to 30 years under OCGA §§ 17-10-7 (a) and 16-13-30 (d). We agree.

OCGA § 17-10-7 (a) provides that a defendant convicted of a felony punishable by confinement in a penal institution may be sentenced to the longest period of time prescribed for the punishment of the offense if he had previously been convicted of a felony offense in Georgia, in another state, or in a federal court, which offense, if committed in this state would be a felony and punishable by confinement in a penal institution. OCGA § 16-13-30 (d) provides that any defendant who manufactures, delivers, distributes, dispenses, administers, sells, or possesses with intent to distribute any controlled substance in Schedule I or Schedule II of OCGA § 16-13-24 (b) shall be guilty of a felony and, if convicted, shall be punished by imprisonment for not less than five years nor more than thirty years. This Code section specifically provides that the provisions of OCGA § 17-10-7 (a) shall not apply to a sentence imposed for a second offense.

Papadoupalos argues that OCGA § 17-10-7 (a) does not apply to a sentence imposed under OCGA § 16-13-30 (d). Because we agree that the trial court erroneously sentenced Papadoupalos using OCGA § 17-10-7 (a), we vacate Papadoupalos’ sentence and remand the case for resentencing in accordance with his plea to possession of cocaine with intent to distribute.

The state admits that the trial court errantly treated this case as though it were a possession of cocaine charge under OCGA § 16-13-30 (a) rather than a possession of cocaine with intent to distribute charge under OCGA § 16-13-30 (b). At sentencing, even the state treated this offense as a mere possession case. This is important because OCGA § 16-13-30 (d), and its prohibition against using OCGA § 17-10-7 (a), does not apply to a simple possession case but does apply to a possession of cocaine with intent to distribute charge.

The state concedes in its appellate brief: “[i]f the charge is the greater offense of possession with intent to distribute, the judge may not use [OCGA] § 17-10-7 and also may not use any other jurisdiction’s conviction as the enhancement sections of OCGA § 16-13-30 only apply to subsequent convictions of the Georgia Controlled Substances Act.” The record shows that Papadoupalos pled guilty to possession of cocaine with intent to distribute, but was sentenced as if he pled guilty to simple possession of cocaine. The sentencing transcript shows that the trial court sentenced Papadoupalos to 30 years “pursuant to O.C.G.A. Section 17-10-7.” This was clearly error.

According to the state, even if the trial court did err by considering Papadoupalos as a recidivist under OCGA § 17-10-7 (a), any error was harmless since it was within the trial court’s discretion to sentence Papadoupalos to 30 years for the offense of possession of cocaine with intent to distribute. The state cites case law establishing that this Court will not review for legal error any sentence which is within the statutory limits. However, while the case law relied on by the state is undoubtedly a correct statement of the law, it does not properly address the enumerations of error raised by Papadoupalos.

Papadoupalos’ enumerations of error not only call into question the excessiveness of the sentence, but also the propriety of the process the trial court used in considering evidence in aggravation of punishment. Because procedural matters relating to sentencing are subject to review even though the sentence itself is within the statutory limit, Papadoupalos is entitled to a review of his enumerations of error concerning the evidence taken at the sentencing hearing and the trial court’s consideration of the evidence in rendering its sentence.

Based on the record before us, it is clear that the trial court erred in sentencing Papadoupalos pursuant to the recidivist statute. Accordingly, we hereby remand this case to the trial court for resentencing. We note that the trial court is authorized to use its discretion in resentencing Papadoupalos to a term of imprisonment within the statutory range provided for in OCGA § 16-13-30 (d).

Decided April 19, 2001.

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

J. Thomas Durden, Jr., District Attorney, Richard E. Braun, Jr., Assistant District Attorney, for appellee.

2. Based on our holding in Division 1, Papadoupalos’ remaining enumerations of error are rendered moot.

Sentence vacated and case remanded for resentencing.

Ruffin and Ellington, JJ, concur.

       (Emphasis in original.)

       OCGA § 16-13-30 (b), (d).

        Harden v. State, 239 Ga. App. 700, 702 (3) (521 SE2d 829) (1999); Taylor v. State, 232 Ga. App. 825, 827 (7) (502 SE2d 540) (1998).

        Sinkfield v. State, 262 Ga. 239 (1) (416 SE2d 288) (1992).


text:
    A01A0821.
    WATKINS v. THE STATE.
    (548 SE2d 56)
   Blackburn, Chief Judge.

Following a jury trial, Paul Watkins appeals his convictions for burglary and false imprisonment, contending that (1) the evidence was insufficient to support the burglary conviction; (2) the trial court erred by denying his directed verdict on the false imprisonment count; and (3) the trial court erred by allowing the victim’s identification of him in a photographic lineup into evidence.

In reviewing the denial of a directed verdict or whether the evidence is sufficient to support a conviction,

we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient.

(Citation and punctuation omitted.) Yarbrough v. State.

So viewed, the evidence shows that, on the evening of March 5, 1996, Stephanie Stolz was alone in her trailer. At about 11:45 p.m., Stolz heard a knock at her front door, but did not answer it because her porch light was not working and she could not see anyone at the door. About ten minutes later, Stolz heard a “pop, pop” sound coming from the bedroom.

Stolz walked toward the bedroom and saw Watkins standing in her hallway with a metal pipe in his hand. Stolz turned and ran to escape, but the door jammed and Watkins grabbed her by the hair. Watkins told Stolz he wanted her money, but she told him she only had two or three dollars. Watkins then asked Stolz whether she had anything else of value. She told him she had a television set, stereo, and VCR. Watkins said he did not have any interest in those items because they were traceable. Watkins ordered Stolz to lie on the floor and lift her night shirt and masturbate while he masturbated. Watkins threatened to “bash” Stolz’s head with the pipe and a knife if she refused to cooperate.

Although Stolz did not know Watkins’ name, she had seen him at the trailer park before. She recalled that he lived next to her aunt and uncle, a few trailers down from her. Stolz noticed that, during the invasion, Watkins wore a mechanic’s uniform with a patch with the name Paul on it.

As soon as Watkins left the trailer, Stolz attempted to call the police, but her phone line had been cut. She then ran to her aunt and uncle’s trailer. After she told them what had happened, Stolz’s uncle, Jim Haynes, called the police, who later arrested Watkins. Stolz later picked Watkins from a photographic lineup and at trial.

1. Watkins argues that the evidence was insufficient to support the burglary conviction because there was no evidence that he intended to commit a felony. We disagree.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters . . . the dwelling house of another.” OCGA § 16-7-1 (a). “Whether [Watkins] intended to commit a felony inside the victim’s house was for the factfinder to determine based on the facts and circumstances proved.” Littleton v. State The requisite intent to commit a felony need not be formed at the moment of entry but could have been formed while the perpetrator remained on the premises. Hewatt v. State.

A jury could infer that Watkins intended to commit theft either when he entered or remained at Stolz’s home from Stolz’s testimony that Watkins asked her for money and for anything of value. The fact that he decided not to take the television set, stereo, and VCR because the items were traceable further supports the inference that Watkins intended to steal from Stolz.

2. Watkins asserts that he should have received a directed verdict on the false imprisonment charge because the evidence supporting the charge was not separate and distinct from the evidence supporting the burglary charge. The enumeration is without merit.

“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). The evidence that supported the false imprisonment charge was Stolz’s testimony that Watkins prevented her from escaping her home by grabbing her by the hair and then ordering her to lie on the floor while threatening her with a lead pipe. None of this evidence overlaps with the evidence supporting the burglary conviction. Thus, “it cannot be said that the state ‘used up’ the evidence establishing false imprisonment” in proving the charges of burglary. See Gilbert v. State

3. Watkins argues that the trial court erred by allowing the State to present Stolz’s out-of-court identification of him in a photographic lineup because Stolz was able to identify him only with the help of her uncle, Haynes. Watkins misstates the facts. “Convictions based on a pretrial identification by photograph and a subsequent identification at trial 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.’ ” Williams v. State (quoting Neil v. Biggers ).

Immediately after the offense, Stolz told Haynes what happened and gave him a physical description of her assailant. Haynes told her it must have been Watkins. The detective who interviewed Stolz and later showed her the lineup testified that Stolz did not initially know her assailant’s name, but she said she could identify him if she were to see him again.

At a hearing held before trial, Stolz testified that the trailer was well lit, she had a clear look at Watkins’ face, and that Watkins was in the trailer for 15 to 20 minutes. She testified at the hearing and at trial that she identified Watkins in the photographic lineup without hesitation. No one had prompted her to pick Watkins, whom she picked because she was 100 percent positive that he was the man who attacked her. Stolz also identified Watkins in the courtroom.

The evidence is uncontroverted that Stolz did not base her identification of Watkins on Haynes’ identification. Rather, Stolz based her identification on her own recognition of Watkins.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided April 19, 2001.

Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

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

        Littleton v. State, 225 Ga. App. 900, 902 (3) (485 SE2d 230) (1997).

        Hewatt v. State, 216 Ga. App. 550, 551 (2) (455 SE2d 104) (1995).

        Gilbert v. State, 176 Ga. App. 561, 563 (2) (336 SE2d 828) (1985).

        Williams v. State, 272 Ga. 828 (2) (537 SE2d 39) (2000).

        Neil v. Biggers, 409 U. S. 188, 196 (93 SC 375, 34 LE2d 401) (1972).


author: Mikell, Judge.

text:
    A01A0391.
    TUCKER v. SMITH et al.
    (547 SE2d 604)
   Mikell, Judge.

Sandra E. Tucker appeals the trial court’s grant of summary judgment to Marion Smith II and Linda Pacer on Tucker’s legal malpractice claim. Because Tucker’s action is barred by the applicable statute of limitation, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that in September 1984, Tucker, upon the recommendation of members of her church, Dunwoody Baptist Church, Inc. (the “Church”), gave $225,000 to William Russell and Phillip Mayeux to invest in low-risk income-producing investments for her benefit. Russell and Mayeux were agents of Titan Capital Corporation (“Titan”). In February 1989, Tucker learned that Russell and Mayeux had invested her money in high-risk, highly speculative funds. In June 1989, Tucker contacted Smith to discuss her possible causes of action against Russell, Mayeux, Titan, and the Church. On February 8, 1990, Tucker and Smith signed a written retainer agreement, which provided that Smith and Fortson & White (the “Firm”) would represent Tucker in her claims against Russell, the Church, and Dunwoody Baptist Church Foundation, Inc.

On February 15, 1990, Smith sent a letter and memorandum to the Church regarding Tucker’s proposed action against Russell and the Church. On February 20, 1990, Pacer, Smith’s associate, sent a letter to Titan’s lawyer in which she states that they, she and Smith, represent Tucker in her claims against Russell, Mayeux, the Church, and Titan. In response to the February 20, 1990 letter, Titan’s attorney indicated that Titan was not interested in settling the case.

Pacer deposed that when she sent the letter to Titan’s attorney, she and Smith did not represent Tucker in her claims against Titan. They simply sent the letter to see if they could procure a settlement from Titan on Tucker’s behalf. Further, Pacer deposed, Tucker knew that the Firm had not agreed to represent her against Titan. During Tucker’s deposition, she was asked:

Q. So even though you had not retained them to represent you as to Titan, it was decided at this point, well, heck let’s try and see what we can get, see if we can talk them into coming into this, too?
A. Yes, because my original understanding was that Titan would be involved.
Q. Originally, but then you did not retain them originally to represent you against Titan?
A. Right.

On June 8, 1990, Pacer wrote a letter to Tucker explaining the terms of Russell’s offer of settlement. In the letter, she states: ‘Your acceptance of [Russell’s] offer would not preclude any action which we may decide to file against either the Church and/or Titan.” Russell and the Church reached a settlement of $110,000 with Tucker in March 1991. On March 27, 1991, Tucker retained Smith and the Firm to represent her in an arbitration proceeding against Titan before the National Association of Securities Dealers (“NASD”). Tucker deposed that she understood when signing the agreement that it was not for representation to pursue a federal claim.

On July 15, 1991, Tucker wrote a letter to Pacer which stated: “Please update me on where you are with Titan.” On August 9, 1991, Smith and Pacer responded. They advised Tucker that in light of the United States Supreme Court’s June 20, 1991 decision in Lampf Pleva, Lipkind &c. v. Gilbertson, her claim against Titan should have been filed no later than mid-September 1987. They wrote: “The Supreme Court’s decision effectively prevents us from pursuing any securities fraud claim which you may have had against Titan.”

After receiving the letter, Tucker continued to inquire about her Titan claim. On October 8, 1991, Tucker wrote: “Are you still considering a common law claim against Titan, and where do we stand?” On February 15, 1992, Tucker requested a meeting with Smith and Pacer to discuss her case against Titan. She wrote: “I am anxious to have an update on where we stand and what progress if any has been made.” Pacer deposed that Tucker never called about the meeting and that at that time, Pacer did not believe that Tucker thought they were pursuing claims against Titan.

On April 2, 1992, Tucker wrote:

It was your plan to seek further recovery from Titan after winning the agreement from Mr. Russell. As we discussed last summer, I remain very disconsolate over the U. S. Supreme Court ruling, which seemed to end any hope of future recovery of the monies invested by . . . Titan. Also, subsequent to the Supreme Court [sic] ruling!,] you said this may not be as exclusionary as it first seemed. You were planning to look into this and let me know how we were to proceed.

Pacer deposed that she did not tell Tucker that the Lampf decision may not be as exclusionary as it first seemed or that they were planning to look into the matter. Instead, Pacer recalled that she told Tucker that they were monitoring the post -Lampf legislation and developments. Pacer deposed that she did not write to Tucker to discuss her misconceptions and could not recall if she telephoned Tucker to discuss them.

On August 11, 1992, Tucker wrote: “I am anxiously awaiting to hear when you plan to resume efforts on my case.” On November 16, 1992, she wrote: “With only a little more than one year remaining on the six-year statute of limitation, I am relieved to know that you have plans to move forward with litigation.” Pacer could not recall discussing a six-year statute of limitation with Tucker and deposed that she said nothing to Tucker about moving forward with the litigation.

On June 10, 1993, Tucker wrote: “I am eager to know when you will begin the process of moving forward on the third stage of my case against Bill Russell and Titan Capital. . . . Please let me know when and how you plan to approach Titan Capital.” On July 19,1993, Pacer forwarded Russell’s final settlement payment to Tucker and wrote: “We . . . will be contacting you within the next few weeks to discuss your claim against Titan.” However, Pacer did not contact Tucker again in 1993. On December 21, 1993, Tucker wrote: “It is important for me to know when you plan to press forward with litigation.”

Tucker next wrote to Pacer and Smith on February 16, 1994, stating: “I wrote to you in December and to date I have not received a reply. It has become an important issue to know when and how you will proceed with litigation against Titan.” Upon receipt of this letter, Pacer deposed that she became worried that “perhaps we were operating under a different premise from [Tucker].” Pacer did not call Tucker after receiving the letter. Instead, she and Smith responded in a letter dated June 15, 1994. In that letter, the attorneys referenced their August 9, 1991 letter wherein they stated that they were unable to file a claim against Titan, advised Tucker that they were unable to do anything further for her, and suggested that she pick up her file from their office. They also stated that because of Tucker’s fragile state of mind, they agreed to research the possible, but doubtful, claim against Titan, and if their research yielded no hope, they stood by their August 9, 1991 letter.

Tucker hired counsel to pursue a malpractice claim against Smith and Pacer in April 1996. On March 16, 1998, Tucker filed a complaint against Smith and Pacer. In exchange for Tucker’s dismissal of the action, Tucker’s counsel and counsel for Smith and Pacer entered a tolling agreement. During oral argument, Smith and Pacer’s counsel stated that they entered the tolling agreement because of the possibility that the Supreme Court might adopt the “continuous representation” rule in Hunter, Maclean, Exley &c., P. C. v. Frame

Tucker refiled her complaint on November 13, 1998. On December 6, 1999, Smith and Pacer moved for summary judgment on the grounds that Tucker’s malpractice claims were barred by the applicable statute of limitation. In a detailed order, the trial court granted Smith and Pacer’s motion. Because our holding on Tucker’s second enumeration of error makes it unnecessary to consider her first enumeration of error, we address it first.

1. Tucker contends that the trial court erred in determining that her claim was time-barred because the statute of limitation expired in February 1997. We disagree.

Legal malpractice claims are subject to a four-year statute of limitation. Tucker concedes that her potential claims against Titan expired no later than February 1993. Thus, her malpractice claims against appellees should have been filed by February 1997. However, she argues, the statute was tolled by the appellees’ fraud, which she discovered on June 15, 1994. Even if we assume, without deciding, that Tucker is correct, the statute of limitation on her claim against appellees expired four years from her discovery of the fraud. However, Tucker did not file her complaint until November 13, 1998, almost four years and five months after she discovered the alleged fraud. Thus, Tucker’s claim is time-barred. If the tolling agreement provided additional time for the filing of her complaint, it is Tucker’s burden to show it affirmatively by the record. Since she did not, we affirm the trial court’s decision.

Decided March 28, 2001 —

Reconsideration denied April 20,2001.

Eidson & Brennan, Timothy R. Brennan, for appellant.

Arnall, Golden & Gregory, Ann S. Infinger, Anthony IF Morris, for appellees.

2. Based upon our holding in Division 1, we need not consider Tucker’s first enumeration of error.

Judgment affirmed.

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

       Linda Pacer was formerly known as Linda Luchowski.

       (Citations omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       501 U. S. 350 (111 SC 2773, 115 LE2d 321) (1991). On December 19, 1991, President Bush signed Congress’ bill amending the Securities Act of 1934 (to be codified as Securities Exchange Act of 1934, § 27A, 15 USC § 78aa-l), which overruled the retroactivity aspect of the Lamp/'holding. Dept. of Economic Dev. v. Arthur Andersen & Co., 1992 U. S. Dist. LEXIS 4586 (April 7, 1992). In Plaut v. Spendthrift Farm, 514 U. S. 211 (115 SC 1447, 131 LE2d 328) (1995), however, the Supreme Court held that § 27A of the Securities Exchange Act was unconstitutional.

       This complaint is not included in the record.

       The tolling agreement is not included in the record.

       269 Ga. 844 (507 SE2d 411) (1998).

        Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 647 (1) (518 SE2d 704) (1999).

       OCGA § 9-3-96.

       Even considering appellees’ counsel’s statement during oral argument on the motion for summary judgment that they entered the tolling agreement pending the Supreme Court’s decision in Frame, supra, Frame was decided on September 14, 1998. We cannot assume that the tolling agreement permitted Tucker to file her complaint as late as November 13, 1998. See Smith v. Davis, 76 Ga. App. 154, 159 (2) (45 SE2d 237) (1947).

        Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990).


text:
    A01A0410.
    ALIABADI et al. v. McCAR DEVELOPMENT CORPORATION.
    (547 SE2d 607)
   Mikell, Judge.

On January 29, 1998, Dr. Shahrouz K. Aliabadi, and his wife, Jeanel Carlson, (“appellants”) purchased a home in a DeKalb County subdivision from McCar Development Corporation (“MDC”), the builder of the home and developer of the subdivision. After the closing, appellants discovered that their house encroached upon a DeKalb County easement for an underground water line. Seeking rescission of the contract and damages for fraud, they sued MDC. MDC was granted summary judgment, and this appeal followed. We affirm.

On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the nonmovant.

So viewed, the record shows that on January 28, 1998, the day before the closing, a piece of construction machinery, digging on a lot located across the street and somewhat diagonally from appellants’ lot, pierced an underground water line, 30 inches in diameter. A column of water began shooting from the ground. The MDC construction supervisor who was working nearby reported the problem to DeKalb County, then left shortly after county workers arrived. DeKalb County personnel worked into the night and had repaired the pipe by the time the MDC supervisor arrived for work the next day. When appellants met with MDC for the closing later that day, MDC failed to disclose the incident.

Shortly thereafter, DeKalb County hired a surveying company to survey the entire subdivision because of its concern that some of the houses encroached upon its easement for the underground water line. The surveyor deposed that DeKalb County came to the subdivision and physically located and staked the water line. In preparing a plat, the surveyor plotted the water line’s physical location. A deed recorded at the DeKalb County courthouse showed that in 1941, DeKalb County had been granted a 20-foot-wide easement for the water line. The surveyor deposed that in adding the easement to the plat, he was unable to use the metes and bounds description contained in the deed because the beginning point of the legal description was “way the heck off.” He stated, “It’s a description trying to describe the location of the easement. Again, back in [1941], it did not necessarily meet a met[e]s and bounds. . . . But the pipe is on the ground. . . . [With] that pipe [there is] a 20-foot wide easement.” The surveyor therefore plotted the easement ten feet on either side of the physical location of the center of the water line.

When the surveyor added the existing structures within the subdivisions to the plat, he discovered that a corner of appellants’ house was located only 5.15 feet from the center of the water line. The surveyor also determined that another house was situated only 9.79 feet from the center and that a third house was located directly atop the water line. According to the surveyor, “[s]omeone didn’t ask to have the existing water line located before they built the structure. . . . It’s standard policy to have the utilities locate their stuff on the ground before you start digging. I think it’s a state law.”

The surveyor provided the plat to DeKalb County, which took the position that the easement is defined by the actual location of the water line. On April 24, 1998, the county advised Aliabadi that his house had to be removed.

Meanwhile, on April 9, 1998, appellants’ home was damaged by a tornado. Within a week, an adjuster for appellants’ homeowner’s insurance carrier met with MDC representatives and appellants. The adjuster averred that all parties agreed that the house was a total loss as a result of the tornado damage and that MDC could demolish and rebuild the house for approximately $160,000, which reflected the original purchase price less $80,000 for the land. The insurance company issued a check in that amount to settle the loss, which included the surrounding fence, landscaping, and various household items. Thereafter, Aliabadi offered MDC $120,000 to demolish and rebuild the house in a different location. When MDC refused, Aliabadi paid $75,000 to a contractor to repair the house in its existing location.

Appellants subsequently filed this suit. The original complaint sought rescission of the contract as well as damages for fraud, breach of warranty, breach of the warranty deed, and negligence. MDC denied liability and filed a third-party complaint against DeKalb County, alleging that any damages to appellants were caused by the county’s error in installing the underground water pipes outside the easement.

Pursuant to OCGA § 9-11-41, appellants later voluntarily dismissed their claims of breach of warranty, breach of warranty deed, and negligence and filed an amended complaint, seeking rescission of the sale and damages for fraud in the amount of the difference between the purchase price and the value of the property. MDC moved for summary judgment, which was granted. The trial court also dismissed the amended complaint with prejudice, dismissed MDC’s third-party complaint without prejudice, and thereafter denied appellants’ motion for reconsideration.

1. Appellants contend that the trial court erred in granting MDC summary judgment on their fraud claim. For a claim of actual fraud to survive summary judgment, some evidence must support each of the following five elements: a false representation by the defendant, scienter, intent to induce plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.

MDC argues that appellants failed to produce any evidence of scienter and that MDC demonstrated as a matter of law that it was unaware of the encroachment before the closing. It relies on evidence showing that the physical locations of the underground water line and its accompanying easements were not determined until after the closing.

Appellants assert that the evidence raises a fact issue as to whether MDC knew of the encroachment before closing and then failed to disclose that fact. However, the affidavits of appellants’ neighbors coupled with the deposition testimony of the MDC construction site supervisor, the surveyor hired by DeKalb County, and the DeKalb County Associate Director of Public Works for Water and Sewer demonstrate conclusively that MDC did not learn of the exact location of the easement, and the resulting encroachment upon it by appellants’ residence, until after the closing.

Aliabadi contends that his affidavit testimony, that when the underground pipe was exposed for repair, it was obvious that the pipe ran “close” to their house, is some evidence MDC had actual knowledge of the encroachment. We do not agree. The MDC construction site supervisor deposed that after the water line break, he instructed MDC’s contracted surveyors to restake the easement line to make sure that MDC was not encroaching upon it. However, it was not until approximately a week thereafter that the surveyors determined that the water line ran outside the described easement.

“Where there is no evidence of scienter, that is, that the false statement was knowingly made with false design, there can be no recovery.” Further, appellants’ claim of fraud based upon concealment, or an omission of a material fact, fails for the same reason.

Appellants also contend that MDC’s representation at closing that the property was unencumbered was reckless and thus equivalent to actual knowledge of the false representation. At the closing, MDC presented appellants with an affidavit that provided as follows:

[S]aid property is free and clear from every kind and description of . . . encumbrances except as follows: NONE. . . . AFFIANT(S) further say(s) on oath . . . that Owner’s possession is peaceable and undisturbed, that to affiant’s knowledge title to said property has never been disputed or questioned. . . .

“Reckless representation of facts as true without knowledge is actionable as a species of fraud without scienter.” However, we do not reach this argument as appellants failed to raise it in the trial court. No such allegation appears in the complaint, the amended complaint, or appellants’ brief submitted in opposition to MDC’s motion for summary judgment. The argument was not raised at the hearing nor in appellants’ motion for reconsideration.

Finally, appellants contend that the evidence gives rise to a triable claim of constructive fraud. Constructive fraud consists “of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.” However, this theory is an equitable doctrine and cannot be asserted as a means to recover damages.

2. Appellants next contend that the trial court erred in granting summary judgment to MDC on their rescission claim. They contend that even absent evidence of fraud, they are entitled to rescind the contract pursuant to OCGA § 23-2-24 because of a mistake of fact. Appellants urge that they did not receive what they bargained for — a home that was free and clear of all encumbrances. But, even if that is so, the remedy of rescission is foreclosed by appellants’ actions subsequent to their demand.

Where a party who is entitled to rescind a contract. . . does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he cannot avoid or rescind such contract.

Decided March 28, 2001

Reconsideration denied April 20, 2001.

Arthur F. Millard, Stanley M. Lefco, for appellants.

Morris, Manning & Martin, Ann R. Schildhammer, Claudia Anders, for appellee.

Aliabadi deposed that he had demanded rescission before the tornado hit on April 9, 1998. But improvements appellants made while repairing the home are inconsistent with an intention to repudiate the contract. The record reveals that appellants added French doors between the den and exercise room, changed the damaged kitchen counters from laminate to Corian, added a kitchen cabinet, replaced the damaged kitchen fluorescent lights with can lights, removed all the damaged carpeting and replaced it with a better grade of carpeting, and in the case of the stairs, replaced the pine under the carpet with exposed hardwood oak. “These actions, in the aggregate, show that [appellants] intended to treat the home as [their] own and are indicative of [their] affirmation of the contract, not rescission.” Consequently, they cannot now rescind.

Judgment affirmed.

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

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Bendock v. Traton Corp. of Cobb, 244 Ga. App. 110 (534 SE2d 849) (2000).

         Sheffield v. Darby, 244 Ga. App. 437, 438 (2) (535 SE2d 776) (2000).

       (Citations and punctuation omitted.) Coffee Butler Suc. v. Sacha, 208 Ga. App. 4-5 (1) (430 SE2d 149) (1993). See also Lau’s Corp., supra, 261 Ga. at 491 (to survive summary judgment, plaintiff as nonmovant is obligated to “point to specific evidence giving rise to a triable issue”).

        ReMax North Atlanta v. Clark, 244 Ga. App. 890, 894 (537 SE2d 138) (2000).

       (Citations and punctuation omitted.) Stinson v. Artistic Pools, 236 Ga. App. 768, 769 (2) (513 SE2d 510) (1999).

        Herndon v. Ajayi, 242 Ga. App. 193, 195 (532 SE2d 108) (2000).

       OCGA § 23-2-51 (b).

        Wall v. Century 21 Winnerville Realty, 244 Ga. App. 762, 765 (2) (536 SE2d 798) (2000); Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187 (4) (450 SE2d 452) (1994). Although constructive fraud may authorize the rescission of a contract, we have determined that appellants are not entitled to rescission, as set forth in Division 2, infra.

       “In all cases of a mistake of fact material to the contract or other matter affected by it, if the complaining party applies within a reasonable time, equity will grant relief.”

       (Citation omitted.) Paden v. Murray, 240 Ga. App. 487, 488-489 (1) (523 SE2d 75) (1999).

       Id. at 489 (1).


text:
    A01A0565.
    SEIDENFADEN v. THE STATE.
    (547 SE2d 578)
   Mikell, Judge.

William Franklin Seidenfaden was convicted of child molestation, aggravated sexual battery, and cruelty to children for sexually abusing his niece’s nine-year-old daughter, S. R. The jury acquitted Seidenfaden of similar charges involving the victim’s 11-year-old brother. Seidenfaden appeals his conviction, asserting that the trial court erred in denying his motion for new trial on the grounds of prosecutorial misconduct, judicial bias, insufficient evidence, and merger. We affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that S. R.’s mother, Seidenfaden’s niece, regularly allowed her two young children to spend weekends with the defendant during the period from February 1996 to June 1997. S. R.’s family first realized that Seidenfaden had been mistreating her in June 1997 when she adamantly refused to attend a scheduled visit with Seidenfaden. Because S. R. appeared frightened, her mother allowed her to visit her adult stepsister Staci Carosi instead.

That night S. R. told Carosi that Seidenfaden had been molesting her. Carosi testified that S. R. told her that Seidenfaden had watched S. R. take showers and that he pushed her down on the bed and “played with her.” Carosi further testified that when she asked S. R. what she meant, she said Seidenfaden played with her “on her private area, and he had touched her boobies.” According to Carosi, S. R. was extremely upset, and she told Carosi that she was afraid of the defendant.

Carosi immediately contacted S. R.’s mother and drove the child home. S. R.’s mother testified that her daughter said that the defendant had touched her and watched her shower “just about every time she went over there.” The child told her mother that the abuse started around the time her grandmother died, in February 1996. When S. R.’s mother asked why she had not told anyone, S. R. said that Seidenfaden had threatened her and her parents. S. R.’s mother contacted the Smyrna Police Department the next morning.

Detective Michael Moore interviewed S. R. He testified that she told him that after watching her shower, Seidenfaden would often touch her private parts. Detective Moore further testified that when asked, S. R. confirmed that Seidenfaden “put his fingers inside of her.” S. R. told Detective Moore that in addition to threatening her, Seidenfaden tried to bribe her with gifts like money and clothing.

Dr. David P. McGauley, S. R.’s physician, examined her on June 17, 1997. Dr. McGauley testified that during the course of the examination, S. R. told him that a relative “stuck his finger in her, inside her vaginal area. She said it was uncomfortable . . . and that this was happening, probably, she said on like one to two times a month.”

At trial, S. R. testified that “[the defendant] touched me in my private parts, and tried to make me get close to him in a way like sex, basically, but I always resisted, and stuff.” When the prosecutor asked what she meant by “private parts,” S. R. responded that “[h]e would feel on them, and just in the lower one, he would feel on them. . . .” S. R. testified that Seidenfaden would reach under her clothing and underwear to touch her.

1. On appeal, Seidenfaden argues that his conviction should be reversed based on prosecutorial misconduct, asserting that the state made improper comments during its closing argument. This enumeration is without merit.

First, Seidenfaden argues that the following statement was improper: “Adult women victims of rape go through tremendous problems when dealing with something like that, and they are adults. They feel guilty that they didn’t fight back.” Defense counsel apparently objected to this statement by saying, “Judge, that’s not allowed,” and the court gave a curative instruction. No further objection was made.

Next, Seidenfaden contends that the prosecutor acted improperly when she stated, “[i]f you believe the children then he is guilty. It’s really that simple.” Defense counsel responded that it was a misstatement of the law, and the court told counsel that it would charge the jury on the definition of reasonable doubt. Finally, Seidenfaden contends that it was improper for the state to argue the following:

[I]f you are prepared to bring back a verdict of not guilty, if you are prepared to say that the defendant did not do this, you must also be prepared to look those children in the eye and tell them that they are lying because that’s what you are doing if you find him not guilty. You are, by your verdict, saying very clearly that you believe they are lying.

The defendant did not object to this portion of the argument.

Because Seidenfaden failed to adequately preserve these issues for appeal, we find that this enumeration of error presents nothing for review. “The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error.” Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991). While Seidenfaden seemed to object to the prosecutor’s statements regarding adult rape victims and the veracity of the children, he did not renew his objection or move for a mistrial following the court’s rulings or curative instructions. Therefore, he failed to preserve the issue for appeal. Miller v. State, 240 Ga. App. 18, 19 (2) (522 SE2d 519) (1999); Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996).

Seidenfaden never objected to the remaining portion of the state’s argument that he now challenges on appeal. The Supreme Court has held that

[w]hen no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.

Todd, supra at 767-768 (2) (a). Even assuming that the portions of the state’s argument challenged by Seidenfaden were objectionable, we find no harm sufficient to overcome the procedural default, particularly considering the overwhelming evidence of Seidenfaden’s guilt. See id.

2. Next, Seidenfaden alleges that the trial court displayed judicial bias against him based on certain rulings it rendered and statements it made during closing arguments. We reject this argument.

The first instance Seidenfaden raises in support of his allegation of judicial bias is the court’s response to a defense objection during the state’s closing argument. As we discussed above, during her closing argument, the prosecutor referred to adult women who are victims of rape. Defense counsel told the court, “Judge, that’s not allowed.” The court responded as follows:

Jurors, the purpose of closing argument is for counsel to argue to you what they believe the evidence in the case has shown. It is for you to determine whether the argument that is being made by counsel matches the evidence that you have heard in the case. Go ahead.

Additionally, Seidenfaden alleges that when the court ruled on two objections by the state during the defendant’s closing argument, it essentially “instruct [ed] the jury to disregard the comments of defense counsel.” Specifically, on one occasion, the state objected to defense counsel’s argument as mischaracterizing the evidence. The court responded that “[i]t is for the jury to recall what the evidence was, and decide whether the arguments that counsel are making meet the evidence that has been presented to you in the case.” Seidenfaden criticizes another ruling on an objection by the state, when the court stated:

He can argue inferences from the evidence. It is for the jury to determine whether the inference is correct or not. Just as you can argue inferences from the evidence presented. It is for the jury to determine what inferences can properly be drawn from the evidence that you have heard.

As a preliminary matter, we find that Seidenfaden failed to preserve these issues for appellate review because he did not object to the court’s rulings and curative instructions or move for a mistrial. See Pickren v. State, 272 Ga. 421, 426 (8) (530 SE2d 464) (2000). Seidenfaden contends that he preserved the arguments raised in this enumeration by generally reserving objection to the court’s jury instruction; however, a general reservation of the right to object will preserve the issue for appeal only if the alleged improper comments were made during the jury charge. Id. In this case, Seidenfaden alleges that the court displayed bias during closing arguments.

According to OCGA § 17-8-57, it is error for a judge to “express or intimate his opinion as to what has . . . been proved or as to the guilt of the accused.” Until a recent Supreme Court decision, the question of whether OCGA § 17-8-57 has been violated would not be reached on appeal unless an objection or motion for mistrial was made. Lucas v. State, 197 Ga. App. 347 (1) (398 SE2d 417) (1990). However, in Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000), the Supreme Court held that when a judge expressed his or her opinion of a case in violation of OCGA § 17-8-57, the reviewing court should apply the plain error rule to determine whether the court committed an obvious error even if the defendant failed to object or move for a mistrial. Before Paul, the Supreme Court had applied the plain error rule only to death penalty cases; however, with that decision it extended the rule to all criminal cases. Therefore, despite counsel’s failure to preserve this issue, we must consider whether the court violated OCGA § 17-8-57 and, if so, whether the violation constituted an obvious error or one that “seriously affected the fairness, integrity, and public reputation of these judicial proceedings.” (Punctuation omitted.) Paul, supra, citing Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986).

Contrary to Seidenfaden’s argument, the court’s rulings challenged by the defendant were not improper expressions of its opinion of the case; rather, they provided accurate statements of the law. Unlike the judge in Paul who “intimated his opinion as to the credibility of witnesses and the guilt of the defendant,” the court in the case sub judice simply ruled on the objections raised and instructed the jury on the applicable law without commenting on the evidence or the guilt of the defendant. Likewise, the trial court did not display judicial bias or provide any basis for questioning its impartiality. See Kelly v. State, 238 Ga. App. 691, 693 (1) (520 SE2d 32) (1999).

3. Seidenfaden challenges the sufficiency of the evidence presented of his intent to commit child molestation, which requires acting “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

We find the evidence summarized above sufficient to authorize a rational trier of fact to find Seidenfaden guilty beyond a reasonable doubt of child molestation. OCGA § 16-6-4 (a). Seidenfaden’s claim that the state failed to prove intent is without merit.

Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6. (Cit.) A reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous.

(Citations and punctuation omitted.) Ney v. State, 227 Ga. App. 496, 497-498 (1) (489 SE2d 509) (1997), citing Branam v. State, 204 Ga. App. 205-206 (1) (419 SE2d 86) (1992). See also Baker v. State, 241 Ga. App. 666, 669 (2) (527 SE2d 266) (1999).

There was evidence that Seidenfaden repeatedly fondled S. R.’s vaginal area and her breasts. The jury was authorized to infer that Seidenfaden committed these acts to satisfy his own sexual desires. See Ney, supra at 498.

4. Finally, Seidenfaden essentially argues that his convictions of child molestation and aggravated sexual battery merged and that the trial court erred in sentencing him as to each count. This argument is without merit.

Count 3 of the indictment charged Seidenfaden with the offense of child molestation, alleging that he committed an immoral and indecent act with the intent to arouse and satisfy his own sexual desires and those of S. R. “by touching, rubbing, and fondling the buttocks, breasts, chest, vagina, and vaginal area of the child. . . .” OCGA § 16-6-4 (a). Count 4 charged him with aggravated sexual battery, alleging that he penetrated the sexual organ of S. R. with a foreign object, his finger, without S. R.’s consent. OCGA § 16-6-22.2.

“Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.” (Citation and punctuation omitted.) Davis v. State, 214 Ga. App. 360, 361 (4) (448 SE2d 26) (1994). The evidence summarized above demonstrates that Seidenfaden’s convictions of child molestation and aggravated sexual battery were supported by separate facts. The child molestation conviction was supported by evidence that Seidenfaden fondled S. R.’s breasts and the exterior of her vagina on numerous occasions. The aggravated sexual battery conviction was based on evidence that Seidenfaden penetrated S. R.’s vagina with his finger. Therefore, the crimes did not merge, and the trial court was correct in sentencing Seidenfaden on each count. See id. at 361. See also Veasey v. State, 234 Ga. App. 795, 796 (2) (507 SE2d 799) (1998).

Judgment affirmed.

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

Decided March 5, 2001

Reconsideration denied April 20,2001.

Nicholas Pagano, for appellant.

Patrick H. Head, District Attorney, Frances D. Hakes, Dana J. Norman, Assistant District Attorneys, for appellee.


text:
    A01A0647.
    FARIST v. THE STATE.
    (547 SE2d 618)
   Mikell, Judge.

Michael Edsel Farist appeals from the dismissal of his extraordinary motion for new trial, which was filed three years after he entered a guilty plea to seven counts of theft by taking. Because the superior court lacked jurisdiction to entertain the motion, we affirm.

The Superior Court of Gwinnett County accepted Farist’s negotiated guilty plea on June 3, 1996. The court imposed an aggregate sentence of fifty years: six years in prison on Counts 1 and 2, to be served concurrently, ten years probation on Counts 3-6, and four years probation on Count 7, to be served consecutively. As a special condition of probation, Farist was ordered to pay $934,425.26 in restitution to the victim. Subsequently, the court became concerned about the amount of funds available for restitution. After a hearing on June 27, the court vacated Farist’s sentence and ordered the state to conduct a presentence investigation. On December 10, 1996, the court resentenced Farist, increasing his sentence on Counts 1, 2, and 7 to ten years.

Farist subsequently applied for a writ of habeas corpus in the Superior Court of Butts County, challenging the trial court’s authority to increase his sentence. During the hearing held on the application on May 15, 1998, defense counsel requested that the habeas court vacate the increased sentence and reimpose the original sentence. The court granted the requested relief. No appeal was taken from this proceeding. Instead, on September 15, 1999, Farist filed an extraordinary motion for new trial in the Gwinnett court, claiming that trial counsel and habeas counsel rendered ineffective assistance and that his sentence was void. The court dismissed the motion.

1. Enumerations one, two, and five challenge the trial court’s dismissal of Farist’s extraordinary motion for new trial without hearing evidence on various claims. There was no error. “One who has entered a plea of guilty cannot move for a new trial, as there was no trial.” Downs v. State, 270 Ga. 310 (509 SE2d 40) (1998). Moreover, to the extent that Farist’s motion could be construed as seeking to withdraw his guilty plea, the court lacked jurisdiction to consider it. It is well established that, after the expiration of the term of court in which a guilty plea is entered and of the time for filing an appeal from the conviction, the only remedy available to a defendant for withdrawing his guilty plea is through habeas corpus proceedings. Jarrett v. State, 217 Ga. App. 627, 629 (1) (458 SE2d 414) (1995).

Decided March 28, 2001

Reconsideration denied April 20, 2001.

David W. Griffeth, Richard L. Dickson, for appellant.

2. Farist’s third enumeration of error alleges that the statute of limitation barred Counts 1-4 of the accusation. “[A] knowing and voluntary plea of guilty acts as a waiver of all defenses, known or unknown.” Sample v. State, 232 Ga. App. 690, 693 (2) (503 SE2d 576) (1998). Such a waiver includes all defenses to the indictment. Harper v. State, 225 Ga. App. 510, 512 (2) (484 SE2d 307) (1997). This enumeration is meritless.

3. We construe Farist’s fourth enumeration of error as attacking the validity of his sentence. Farist is correct that a superior court retains jurisdiction to correct a void sentence even after the expiration of the term of court in which the judgment of conviction is rendered. Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998); Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). If the sentence is void, the superior court is authorized to impose a valid sentence, although the court may not allow the defendant to withdraw his plea. Baldwin v. State, 242 Ga. App. 205, 207 (529 SE2d 201) (2000).

As Farist had already begun serving his sentence in December 1996, the trial court was not authorized to increase it. Wright v. State, 213 Ga. App. 626, 627 (445 SE2d 377) (1994). Accordingly, as the habeas court recognized, the sentence was void. Farist is now subject to his original sentence, and the punishment imposed therein falls within the range set out in OCGA § 16-8-12 (a) (1).

4. Farist’s sixth enumeration of error claims habeas counsel rendered ineffective assistance. However, the Sixth Amendment right to counsel does not attach to habeas corpus proceedings. Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). In any event, to the extent that Farist was dissatisfied with the relief afforded by the habeas court, he could have appealed from that proceeding. OCGA § 9-14-52; Brasuell v. State, 243 Ga. App. 176, 177 (531 SE2d 732) (2000). Accordingly, this enumeration is meritless.

Judgment affirmed.

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

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A01A0254.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MEYERS et al.
    (548 SE2d 67)
   Eldridge, Judge.

Georgia Farm Bureau Mutual Insurance Company brought a declaratory judgment action to determine coverage in an underlying tort action, Meyers v. Clarke Cattle Co., docketed in Jenkins Superior Court, Civil Action No. 1J98CV029W, because the tort occurred away from the insured location and to an excluded employee. Georgia Farm Bureau insured Clarke Cattle Company, and Jimmy Meyers was Clarke Cattle Company’s employee, although not a resident employee within the terms of the policy. The policy contained an exclusion for bodily injuries sustained by “any employee (other than a resident employee) as a result of his or her employment by the insured.” The policy also contained the endorsement “Custom Farming Liability Coverage” that stated, “[exclusion h does not apply,” but that “all other provisions of this policy apply.” The trial court denied Georgia Farm Bureau’s motion for summary judgment because there was an ambiguity in the endorsement language, “all other provisions of this policy apply,” and the endorsement expanded coverage so that the policy covered “any custom farming operations performed” by the insured. The trial court granted summary judgment to the defendants, finding coverage. We affirm.

On July 15, 1997, Meyers was injured while an employee of Clarke Cattle Company acting within the scope of his employment when struck by a wooden pole that was knocked into him by power equipment operated by Robert Jenkins, Jr. In the policy the “insured location” was 954 Highway 23 North, Millen, where Clarke Cattle Company was located, but the injury occurred elsewhere at the John Brett farm; Meyers was working for Brett under an agreement between Clarke Cattle Company and Brett to “swap work for work” or payment, as was needed or required by the kind of work done.

Georgia Farm Bureau contended that farm work away from the covered location did not come within the policy. However, the endorsement “Custom Farming Liability Coverage” provided:

Coverage for Bodily Injury and Property Damage Liability and Medical Payments is extended to apply to any custom farming operations performed by you for others for a charge. Such custom farming operations include the operation, maintenance, use, loading or unloading of farm tractors, trailers, implements, draft animals or vehicles you use while under contract. Exclusion h of Coverage H does not apply. . . . All other provisions of this policy apply.

Under “Farm Liability Coverage Part H, I, J, and L,” custom farming is defined to “mean farming for others for a charge.”

The exclusion “p” relied upon by Georgia Farm Bureau, “Coverage H-Bodily Injury and Property Damage Liability,” excludes injury sustained by: “[a]ny employee (other than a resident employee) as a result of his or her employment by the insured.”

The policy had a second endorsement, “Farm Employers Liability and Farm Employees Medical Payment Insurance,” which covered farm employees’ injuries arising out of and in the course of their employment. The exclusion to this endorsement states that the insurance does not apply to: “[b]odily injury sustained by any farm employee unless the employee brings suit no later than 24 months after the date of the accident for damages because of the bodily injury.” The trial judge found that, when these two endorsements were read together, there was ambiguity in the policy as to whether employees had liability coverage.

Georgia Farm Bureau contends that the trial court erred in denying its motion for summary judgment and in granting the defendants’ motion by finding that an ambiguity was created in the policy by the custom farming and medical coverage endorsements so that the exclusions did not apply to custom farming.

The endorsement for medical coverage contemplates coverage of all employees; when an employee was employed in custom farming under that endorsement, the medical coverage of employees would extend to a situs beyond the insured location. While the custom farming endorsement provides that “all other provisions of this policy apply,” when construed with the medical coverage endorsement and exclusion “p,” the insurance policy is unclear and ambiguous. Whether the employee is covered for liability while engaged in custom farming, but excluded at the insured location only, or whether the employer only is insured at either location, with the employee excluded at all locations constitutes an ambiguity when the medical endorsement provides coverage at all locations.

The insured and the employees have familiarity with the risks and dangers inherent in the operation of the insured’s farm location, but lack equal familiarity with any custom farming location. Therefore, the difference in coverage, with an exclusion at the insured location, but not an exclusion at the custom farming location, would be reasonable because of the different risks of injury from negligence over which the insured and the employee have less control and familiarity. Thus, the contract should be construed to mean what a reasonable person in the insured’s position would understand the terms to mean. Ga. Farm &c. Ins. Co. v. Huncke, 240 Ga. App. 580-581 (524 SE2d 302) (1999). This means that the contract must be construed in accordance with the reasonable expectations of the insured. Anderson v. Southern Guaranty Ins. Co. &c., 235 Ga. App. 306, 309 (508 SE2d 726) (1998).

To determine the insurer’s extent of liability under a policy of insurance, a consideration must be made of all those essential provisions which fix, create, limit, or enlarge liability. Fisher v. American Cas. Co., 194 Ga. 157, 159 (21 SE2d 68) (1942). The insurer, in preparing the language of its policy, has the burden of using language that is clear and precise. Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 440 (287 SE2d 226) (1981). Where the terms and conditions of an insurance contract are clear and unambiguous, such terms must be given their literal meaning. Adams v. Atlanta Cas. Co., 235 Ga. App. 288, 289 (1) (509 SE2d 66) (1998).

Ambiguity in an insurance contract is duplicity, indistinctiveness, uncertainty of meaning of expression, and words or phrases which cause uncertainty of meaning and may be fairly construed in more than one way. Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 422 (3) (454 SE2d 616) (1995). Where a term of a policy of insurance is susceptible to two or more constructions, even when such multiple constructions are all logical and reasonable, such term is ambiguous and will be strictly construed against the insurer as the drafter and in favor of the insured. OCGA § 13-2-2 (5); Ga. Farm &c. Ins. Co. v. Huncke, supra at 580; Peachtree Cas. Ins. Co. v. Kim, 236 Ga. App. 689, 690 (512 SE2d 46) (1999); Cole v. Life Ins. Co. &c., 236 Ga. App. 229 (511 SE2d 596) (1999). Where the phrasing of the policy is so confusing that an average policyholder cannot make out the boundaries of coverage, the policy is genuinely ambiguous. Ga. Baptist Children’s Homes &c. v. Essex Ins. Co., 207 Ga. App. 346, 347 (1) (427 SE2d 798) (1993).

Exceptions and exclusions to coverage must be narrowly and strictly construed against the insurer and liberally construed in favor of the insured to afford coverage. Nationwide Mut. Fire Ins. Co. v. Erwin, 240 Ga. App. 816, 817 (525 SE2d 393) (1999); Furgerson v. Cambridge Mut. Fire Ins. Co., 237 Ga. App. 637, 639 (1) (516 SE2d 350) (1999). While insurance is a matter of contract, not sympathy, the policy is to be construed liberally in favor of the object to be accomplished. Cincinnati Ins. Co. v. Gwinnett Furniture Mart, 138 Ga. App. 444, 446 (226 SE2d 283) (1976); Moore v. Allstate Ins. Co., 108 Ga. App. 60 (1) (131 SE2d 834) (1963). A contract of insurance is construed most strongly against the insurer and liberally in favor of the insured, particularly where the insurer seeks to deny coverage based upon a policy exclusion. Hartford Life Ins. Co. v. Crumbley, 169 Ga. App. 847, 849 (315 SE2d 54) (1984); Travelers Indem. Co. v. Whalley Constr. Co., supra at 438. Thus, the trial court properly construed the contract to provide coverage.

Decided April 20, 2001

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellant.

Russell M. Stookey, James W. Brown, for appellees.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.