author: Ruffin, Judge.

text:
    A97A1721.
    PINE TIMBER TRUCKING COMPANY et al. v. TEAL.
    (496 SE2d 270)
   Ruffin, Judge.

Eugene C. Teal was injured on October 12, 1995, while working for Pine Timber Trucking Company (“Pine Timber”). Pine Timber paid Teal temporary total disability benefits through January 12, 1996. Teal subsequently filed a workers’ compensation claim against Pine Timber and its workers’ compensation insurer, Old Republic Insurance Company (“Old Republic”), seeking reinstatement of disability benefits from January 12, 1996, forward and payment of certain medical bills. The ALJ denied the claim and the Appellate Division of the Board of Workers’ Compensation (“Appellate División”) affirmed the ALJ’s decision. Teal appealed to the superior court, which held a hearing on December 18, 1996, and reversed the Appellate Division’s decision in a January 9, 1997, order. Pine Timber and Old Republic applied for discretionary appeal to this Court, asserting that the superior court’s judgment was a nullity because its judgment was not entered within 20 days of the superior court hearing and thus the Appellate Division’s decision was affirmed by operation of law pursuant to OCGA § 34-9-105 (b). We granted the appellants’ application, and for reasons which follow, reverse the judgment of the superior court.

1. The record shows that on October 12, 1995, Teal injured his arm, shoulder and neck while performing employment duties for Pine Timber. Pine Timber timely started payment of disability benefits. Teal was treated by several different physicians from Pine Timber’s panel of approved physicians. After three of the treating physicians released Teal to return to work, Pine Timber suspended Teal’s benefits as of January 12, 1996.

Thereafter, Teal began treatment with his unapproved family physician without authorization from Pine Timber. The family physician concluded Teal was still disabled. Teal’s workers’ compensation claim was for continuation of benefits past January 12, 1996, as well as for payment of the family physician’s medical expenses.

The ALJ denied the claim, and the Appellate Division affirmed the decision on October 29, 1996. Teal appealed to the superior court on November 8, 1996. The superior court issued its order reversing the Appellate Division on January 9, 1997, the twenty-second day after the court’s hearing on Teal’s appeal.

Under OCGA § 34-9-105 (b), “the legislature conferred a limited jurisdiction on the superior courts to review the decisions of the State Board and provides, in part, ‘the decision of the [Appellate Division] shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 20 days of the date of the hearing.’ [Cit.]” MacKenzie v. Sav-A-Lot Food Store, 226 Ga. App. 32, 33 (1) (485 SE2d 559) (1997). Because the superior court’s judgment in this case was rendered on the twenty-second day after the hearing, it was a nullity. See Buschel v. Kysor/ Warren, 213 Ga. App. 91, 93 (1) (444 SE2d 105) (1994). Accordingly, the decision of the Appellate Division was affirmed by operation of law on the twenty-first day after the hearing, and the superior court lost jurisdiction to enter any order. See Mackenzie, supra. It follows that the superior court’s judgment must be reversed.

Decided January 7, 1998

Reconsideration denied January 28, 1998.

2. Our resolution in Division 1 makes unnecessary consideration of the appellants’ other enumeration of error concerning the propriety of the superior court’s order. Teal argues, however, that because we granted Pine Timber’s discretionary appeal, we should decide whether the Appellate Division’s award should be affirmed under the any evidence standard. While Teal is correct in stating that an award of the Appellate Division affirmed by operation of law is appealable on the merits, Pine Timber’s appeal was not from the decision of the Appellate Division but from the untimely order of the superior court. See Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991), and Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996). In order to dispose of this appeal, we merely needed to ascertain whether the superior court’s order was erroneous. In Division 1, we concluded that the order was not only erroneous, but a nullity. A review of the Appellate Division’s award, which was affirmed by operation of law, was not necessary in disposing of Pine Timber’s appeal.

We note that Teal could have applied for a discretionary appeal from the statutory affirmation of the Appellate Division’s decision. Teal was cognizant of OCGA § 34-9-105 (b) and concedes that the language of the statute is clear. Teal was not required to wait until Pine Timber contested the superior court’s untimely order before appealing the affirmance by operation of law. Were we to grant an appeal of the statutory affirmance, we would then have been required to address the merits of the Appellate Division’s decision. However, Teal did not seek such an appeal, and thus nothing remains for our consideration.

Judgment reversed.

Birdsong, P. J, and Eldridge, J., concur.

Clyatt, Clyatt, Wallace & DeVaughn, Russell C. Wallace, for appellants.

Dozier, Lee, Graham & Sikes, Stephen M. Welsh, for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A2572.
    GILMAN PAPER COMPANY et al. v. DAVIS.
    (496 SE2d 469)
    Decided January 14, 1998
    Reconsideration denied January 28, 1998
   Pope, Presiding Judge.

Bobby Davis sustained a work-related injury by exposure to chlorine gas on July 15, 1994. His employer, Gilman Paper Company, originally accepted the injury as compensable and paid workers’ compensation benefits until January 31, 1995, when it suspended benefits based upon a change in condition.

Davis subsequently filed a motion to reinstate benefits, and on October 24, 1996, the ALJ issued an interlocutory order granting the motion because Gilman Paper improperly suspended benefits without giving ten days’ advance notice as required by Board Rule 221 (i). The Appellate Division upheld the ALJ’s award, specifically noting that the award was “an interlocutory order, pending hearing for a final determination.” The superior court affirmed, and this discretionary appeal followed.

However, “[njowhere in our [workers’ compensation] statute is there provision for an interlocutory appeal.” Garner v. Owens-Illinois &c., 134 Ga. App. 917, 920 (2) (216 SE2d 709) (1975). The statute “plainly, clearly, and unambiguously prescribes that only a final award, order, judgment, or decision of the board is subject to appeal to the superior court. . . . [T]he Workers’ Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation.” (Citation and punctuation omitted.) Fasher Painting &c. Co. v. Bordelon, 204 Ga. App. 196 (419 SE2d 82) (1992).

In the instant case, as the State Board’s interlocutory ruling that reinstated benefits pending final hearing in the matter did not constitute a final order or judgment, “the superior court was without jurisdiction to entertain the appeal. The judgment of the superior court is accordingly reversed with direction that the appeal be dismissed as premature.” Conwood Corp. v. Guinn, 190 Ga. App. 595, 596 (379 SE2d 621) (1989).

Judgment reversed and case remanded with direction.

Johnson and Blackburn, JJ, concur.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Gregory T. Carter, for appellants.

Phillip M. Eddings, for appellee.


author: McMURRAY, Presiding Judge.

text:
    A97A1690.
    MURPHY v. THE STATE.
    (496 SE2d 512)
   McMURRAY, Presiding Judge.

Defendant Murphy filed this appeal after his conviction for trafficking in cocaine. Defendant contends the trial court erred in denying his motion to suppress cocaine which drug enforcement agents seized from his pants during a warrantless search at Atlanta International Airport. We reverse because defendant’s consent to this search was coerced and the search was not supported by probable cause. “When an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused’s consent is invalid. Code v. State, 234 Ga. 90, 95 (214 SE2d 873) (1975).” Darby v. State, 216 Ga. App. 781, 783 (2) (455 SE2d 850).

The trial court’s order denying defendant’s motion to suppress includes the following findings of fact: “The testimony at the [motion to suppress] hearing included that of [Special Agent] Roderick Jordan of the Georgia Bureau of Investigation. Agent Jordan is a member of the Drug Enforcement Task Force stationed at the Atlanta Airport. Agent Jordan testified that he has 22 years of experience in narcotics, including seven years stationed at the airport. Agent Jordan’s training includes] six months on-the-job training with Agent Paul Markonni and several training schools. Agent Jordan stated that he had interviewed hundreds or thousands of people in regards to drugs and had found concealed drugs.

“The evidence shows that on November 16, 1995, [Special] Agent Robert Johnson [of the Drug Enforcement Administration] relayed to Agent Jordan information that he had received. This information indicated that a man, who identified himself as Jeffrey Murphy, had purchased a round-trip cash ticket from Atlanta to Newark. The ticket was purchased at 6:21 p.m. for a flight that left Atlanta at 8:00 p.m. No reservation had been made. The flight was scheduled to arrive in Newark at 10:07 [p.m.] Murphy’s return flight was scheduled for 7:00 a.m. the next morning. The Agents realized that, according to his itinerary, Murphy could only have spent approximately nine horns in Newark. The description obtained of Mr. Murphy was of [an African-American] male, approximately thirty, 5'10" or 5' 11" with gold in his teeth, wearing a mid-length leather coat. Murphy did not check any luggage.

“Agent Jordan testified as to the significance of the flight to Newark. He stated that New York City is considered a drug-source city and Newark is a gateway to New York. Drug couriers frequently fly to Newark when they cannot get a flight into one of the two New York airports. Jordan testified that Newark airport is in fact closer to New York City than one of the New York airports.

“Agent Jordan testified the [significance] of a ticket purchased shortly before a flight is that it is typical of the drug trade. People in the drug business are in a hurry and do not make prior plans or prior reservations. Further, drug couriers often do not check any luggage because they are not staying long and try to travel as light as possible. Drug couriers often pay with cash to prevent showing a trail of their travel and because drugs are generally a cash business.

“Agents Jordan and Johnson identified a man getting off the plane from Newark who fit the description of Jeffrey Murphy. He was walking very quickly. The Agents caught up to him by the escalator. Agent Johnson approach[ed] the man and identified himself. Agent Jordan positioned himself so as to hear the conversation. Agent Johnson asked to speak with the man who later identified himself as Jeffrey Murphy. Murphy agreed to speak with the Agents and Agent Johnson asked to see his ticket. Defendant patted his pants and pockets looking for his ticket. According to Agent Jordan, Murphy patted himself down eight times looking for his ticket. Finally, he told Agent Johnson that he must have left his ticket on the plane. (The ticket was subsequently found in his coat pocket after Defendant was searched.)

“Agent Johnson asked Defendant for his name and identification. Defendant provided a New York driver’s license with the name Jeffrey Murphy. After possibly noting some information on a newspaper, [Agent] Johnson returned the license to Murphy. The agent questioned Murphy about his trip. Murphy stated that he had gone to see a friend and later added that the friend was sick. Murphy could not provide the friend’s name. Murphy later stated that he went to visit his sick son in the hospital, but could not provide his son’s name or the name of the hospital.

“Agent Johnson asked Defendant for permission to search him. Defendant refused consent and responded, ‘Isn’t it my right not to be searched?’ After more questioning, the Agents again asked for permission to search, Defendant said no. Agent Jordan asked him why hé did not want to be searched and if it was because he was embarrassed. Defendant said he just did not want to be searched. The Agents then advised Defendant that they were detaining him so that they could apply for a search warrant. Defendant told the Agents to go ahead and search. Agent Jordan testified he asked Murphy two or three times if he was sure it was alright. Murphy turned and put his hands on the wall. Agent Jordan told him that was unnecessary. The ensuing search revealed a brick of cocaine in the Defendant’s pants just below the waistline.

“Agent Jordan testified that during the encounter (prior to the search) the Defendant had become increasingly nervous. His breathing was heavy and shallow. Defendant had trouble speaking and avoided eye contact. His hands shook. After Defendant gave the agents his identification, he put his hands in his coat pocket and kept pulling the coat closed as if he was trying to hide something in the area of his waist. Murphy’s shirt was not tucked into his pants. [Agent] Jordan testified this is typical of drug couriers transporting drugs on their body. [Special] Agent Robert Johnson . . . testified to essentially the same facts as [Agent] Jordan.” Held:

1. The articulable suspicion which will authorize an airport stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), has been defined as whether under the totality of the circumstances the law enforcement officer has “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474). Evidence in the case sub judice that defendant deplaned in Atlanta after an 11-hour round-trip to Newark, New Jersey, via an air route known to be used by drug couriers for access to a nearby drug-source city (New York, New York), with no luggage and with a ticket purchased with cash shortly before departure; that defendant was sloppily clad in the type of loose-fitting garb typically used by drug couriers to conceal drugs; that defendant appeared nervous during his encounter with the drug enforcement agents and that defendant gave conflicting and incomplete accounts of his reasons for going to New Jersey authorized reasonable suspicion that defendant was transporting illegal drugs. See Morris v. State, 220 Ga. App. 818, 819 (470 SE2d 458); State v. Grant, 195 Ga. App. 859, 861 (2), 862 (394 SE2d 916). Special Agent Jordan and Special Agent Johnson were thus authorized in briefly detaining defendant under Terry v. Ohio, 392 U. S. 1, supra. But to expand the scope of this intrusion to a full scale search the agents must have had either probable cause or defendant’s voluntary consent. Scott v. State, 253 Ga. 147, 149 (317 SE2d 830).

The trial court found the rule in Darby v. State, 216 Ga. App. 781, 783 (2), supra, inapplicable in the case sub judice because the drug enforcement agents did not outright threaten defendant with a search warrant if he did not consent to an on-the-scene search. The trial court reasoned that the agents merely informed defendant that he was being “temporarily detained so that they could get a search warrant.” The circumstances reflected in the trial court’s findings of fact render it difficult to justify this logic.

Defendant explicitly refused Special Agent Johnson’s initial request for him to submit to an on-the-scene search and responded by saying, “ ‘Isn’t it my right not to be searched?’ ” Instead of answering this question, Special Agent Johnson and Special Agent Jordan ignored the subject of constitutional rights and pressured defendant to give up his resistance. Defendant nonetheless stood his ground and only gave up his right (absent probable cause) to be free from an intrusive body search when “[t]he Agents . . . advised Defendant that they were detaining him so that they could apply for a search warrant.” Under these circumstances, we cannot affirm the trial court’s finding that defendant’s consent was not the product of the type of intimidation reproved in Darby v. State, 216 Ga. App. 781, 783 (2), supra. In the case sub judice, the totality of circumstances points to but one plausible end. Special Agents Johnson’s and Jordan’s statements to defendant, “that they were detaining him so that they could apply for a search warrant,” were nothing more than last ditch ploys aimed at avoiding the requirement for a probable cause determination before a detached and impartial magistrate. We must, therefore, address the issue of probable cause.

In McAdoo v. State, 164 Ga. App. 23 (295 SE2d 114), this Court held that reasonable suspicion for a brief Terry stop is established when factors satisfying the “drug courier profile” (such as traveling under an alias, dressing casually, spending a short time in a known drug source city, and paying cash for a hotel room) are shown by the investigating officer to be “of such import as to support a reasonable suspicion that an individual was involved in drug smuggling. . . .’ [Cit.]” Id. at 25 (1), 27, supra. See Bothwell v. State, 250 Ga. 573, 575 (1) (300 SE2d 126). But the same factors, even when combined with possible deception by the suspect, are insufficient to establish probable cause for an arrest or a search. DiSanti v. State, 190 Ga. App. 331, 334 (1) (378 SE2d 729). Concrete evidence of smuggling activities, such as an alerting police dog trained to detect illegal drugs, unusual clothing bulges, or flight from an investigating officer with reasonable suspicion for a Terry-type encounter, is required for probable cause to search. See Bothwell v. State, 250 Ga. 573, 579 (6), supra; State v. Richardson, 187 Ga. App. 456, 459 (370 SE2d 762); Alex v. State, 220 Ga. App. 754, 757 (3) (470 SE2d 305). Such concrete factors do not exist in the case sub judice.

Other than matching several aspects of the drug courier profile, defendant’s conflicting and incomplete accounts of his reasons for going to New Jersey were the only other factors observed by Special Agents Jordan and Johnson. “While these factors give rise to reasonable and articulable suspicion [for a brief detention of defendant], they do not give rise to probable cause for arrest or search.” DiSanti v. State, 190 Ga. App. 331, 334 (1), 335, supra. Accordingly, the trial court erred in denying defendant Murphy’s motion to suppress.

Decided January 28, 1998.

Garland, Samuel & Loeb, Donald F. Samuel, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

2. Our holding in Division 1 renders it unnecessary to address defendant’s remaining enumeration of error.

Judgment reversed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A97A1915.
    CALLAWAY v. THE STATE.
    (496 SE2d 349)
   Smith, Judge.

A DeKalb County jury convicted Derrick Callaway of theft by receiving a stolen motor vehicle. On appeal, Callaway claims the trial court erred by admitting similar transaction evidence and by giving confusing or misleading similar transaction jury instructions. We disagree and affirm.

1. Callaway contends the trial court erroneously admitted as a similar transaction his guilty plea to theft by receiving a motor vehicle, a plea entered about one month before the incident charged in the present case. The trial court admitted the prior conviction to show “state of mind, knowledge, or intent.”

Similar transaction evidence is admissible when, after a hearing, the trial court finds that “the State wishes to introduce evidence of the independent offense for an appropriate purpose; that the defendant committed the independent act; and that the independent act and the act for which the accused is being tried have a ‘sufficient connection or similarity . . . that proof of the former tends to prove the latter.’ [Cit.]” Andrews v. State, 267 Ga. 473, 475 (2) (480 SE2d 29) (1997). The similar transaction does not have to be identical to the crime for which the defendant stands accused. In fact, the admissibility of a similar transaction is not dependent on the number of similarities between the prior act and the crime charged. Rather, admissibility turns on whether the similarities tend to show that the prior act is relevant to a proper issue at trial. Maggard v. State, 259 Ga. 291, 292-293 (2) (380 SE2d 259) (1989); Jones v. State, 226 Ga. App. 721, 723 (487 SE2d 618) (1997).

In the case appealed, Callaway was stopped after midnight for speeding. The officer noticed the Jeep’s steering column was broken. When the officer checked the tag, he found it belonged on a Ford Gran Torino. In the prior case, Callaway pled guilty to theft by receiving a stolen Taurus. Callaway was arrested late in the evening in response to a call regarding a driver who was seen slumped over the wheel while stopped at an intersection. The arresting officer could not check the status of the Taurus’s tag because it was a dealer “drive-out” tag; however, a check of the VIN number revealed the car to be stolen. The prior offense occurred in the same neighborhood as the crime charged. The trial court found these incidents similar because in both cases Callaway was driving a car that did not belong to him, the cars had improper tags, the cars were of a like class and value, both incidents occurred in the same area of the county, and in both cases Callaway claimed he borrowed the car from a third party. The trial court did not err in admitting the similar transaction evidence because it was relevant to show Callaway’s state of mind, that is, whether he intended to retain a car he knew or should have known was stolen. Uniform Superior Court Rule 31.3; Maggard v. State, supra.

2. The trial court gave limiting instructions after the similar transaction evidence was admitted and in its final charge to the jury. Callaway argues these instructions were inadequate, confusing, and misleading because they did not limit the jury’s consideration of the similar transaction evidence to the only purpose for which the evidence was admitted, that is, to show Callaway’s knowledge that the Jeep was stolen. Rather, when the evidence was admitted the court charged the jury that “you are strictly limited in your consideration of this evidence as to the issues of state of mind, an element of the offense charged in this indictment.” And, in the final jury instructions, the court charged that the similar transaction evidence may be considered for “the limited purposes of showing if it does, the state of mind and knowledge of the intent or intent of the defendant in the crimes charged in the case before you now on trial.” Callaway argues that “state of mind” and “knowledge” and “intent” are sufficiently dissimilar concepts such that their use in this context would mislead and confuse the jury. Specifically, he argues that “state of mind” can be interpreted to mean a general criminal propensity rather than a present intent to knowingly retain a stolen vehicle. Reading the charges as a whole, we cannot agree.

“Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. [Cits.]” English v. State, 202 Ga. App. 751, 757 (10) (415 SE2d 659) (1992). In the present case, the court fully charged the jury on the elements of theft by receiving stolen property and the knowledge required on the part of the defendant. Moreover, the similar transaction charges given substantially tracked that included in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 24 (2nd ed.). We do not believe that jurors of ordinary intelligence would believe they were authorized to consider the similar transaction evidence for any purpose other than whether Callaway knew or should have known at the time of the incident that he was in possession of a stolen car. We find that the trial court’s instructions fulfilled the purpose of limiting the jury’s consideration of the similar transaction evidence to issues both proper and relevant to the case. See Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997).

Decided January 28, 1998.

John O. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Anne Long, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A2068.
    HOLLOWAY et al. v. NORTHSIDE HOSPITAL.
    (496 SE2d 510)
   Birdsong, Presiding Judge.

Ruth and Austin Holloway appeal the dismissal of their complaint for failure to attach the affidavit required by OCGA § 9-11-9.1 in professional negligence actions. Ruth Holloway sought damages for her injuries sustained in a fall at Northside Hospital, for mental and emotional distress, and for medical expenses. Her husband, Austin Holloway, seeks damages for his loss of consortium. They contend that the affidavit was not required in their case because their complaint alleged acts of simple negligence only. Northside Hospital, however, contends that the complaint asserts a claim for professional negligence because the issue is whether the nurses who were to assist Mrs. Holloway exercised proper professional judgment in assessing the degree of support she required. Held:

“In any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). Further, failure to file the required affidavit requires dismissal because of failure to state a claim. OCGA § 9-11-9.1 (e).

A § 9-11-9.1 affidavit is required when the issue is a defendant’s compliance with a professional standard of conduct (Roebuck v. Smith, 204 Ga. App. 20, 22 (418 SE2d 165)), but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required. Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (413 SE2d 720). Further, an action against a hospital can require a § 9-11-9.1 affidavit if the action is against the hospital because of alleged negligence of professionals through the doctrine of respondeat superior. Legum v. Crouch, 208 Ga. App. 185 (430 SE2d 360).

Decided January 28, 1998.

Hillman J. Toombs, for appellants.

Goldner, Sommers, Scrudder & Bass, Susan V. Sommers, Tammy S. Skinner, Tiffany T. Norman, for appellee.

In this appeal, we find that the trial court did not err by finding that a professional affidavit was required. Mrs. Holloway’s complaint sounds in professional negligence because she alleges that, even though the nurses who were assisting her knew or should have known that she was subject to falling, they failed to exercise proper care to prevent her from falling. Under these circumstances, this case is a professional negligence action. Robinson v. Medical Ctr. of Central Ga., 217 Ga. App. 8 (456 SE2d 254); Bulloch County Hosp. Auth. v. Parker, 196 Ga. App. 438 (396 SE2d 37); Sparks v. Southwest Community Hosp. &c., 195 Ga. App. 858 (395 SE2d 68). In these cases we found that expert testimony would be required to determine whether the hospital employees’ actions deviated from the applicable standard of care. As the same is true here, Mrs. Holloway’s case is also a professional negligence action, and her complaint was subject to dismissal because a § 9-11-9.1 affidavit was required. Mr. Holloway’s action is a derivative one, stemming from the right of the other spouse to recover for her injuries. When the other spouse cannot recover from the alleged tortfeasor as a matter of law, however, the alleged tortfeasor also is not liable for loss of consortium arising from those injuries. Here, Mrs. Holloway cannot recover because of her failure to attach a professional negligence affidavit, and thus Mr. Holloway has no claim for the loss of consortium. White v. Hubbard, 203 Ga. App. 255, 257 (416 SE2d 568).

Therefore, the trial court did not err by dismissing the Holloways’ complaint.

Judgment affirmed.

Blackburn and Ruffin, JJ, concur.


text:
    A97A2410.
    BENTON v. GAUDRY et al.
    (496 SE2d 507)
   Ruffin, Judge.

Harriet Conneff Gaudry, individually and as executrix of the will of William T. Gaudry, sold certain real property (“the property”) to John Haupt on November 23, 1987. Prior to the sale, attorney Rebecca Benton, who was hired by Haupt to conduct a title search, located no outstanding liens or taxes on the property. After the sale, Benton learned that Chatham County had a notice of levy against the property for unpaid 1986 taxes. Benton voluntarily paid the taxes and then sued Gaudry for unjust enrichment and breach of warranty of title. The trial court granted Gaudry summary judgment, concluding that there was no evidence to support Benton’s unjust enrichment claim and that Benton lacked standing to bring the breach of warranty claim. Benton appealed, and for the following reasons, we affirm.

The evidence reveals that on November 13, 1987, Haupt entered into a sales contract for the purchase of the property from Gaudry. Benton performed the title search, locating no outstanding liens or taxes. By general warranty deed, Gaudry conveyed the property to Haupt. The deed provided that Gaudry “does warrant and will forever defend the right and title to the [property] unto [Haupt], his successors and assigns, against the lawful claims of all persons whomsoever.” Also, in an Owner’s Affidavit, Gaudry averred “[t]hat there [were] no pending suits, proceedings, judgments, bankruptcies, liens or executions against said owner either in [Chatham County] or any other county in the State of Georgia.” Haupt purchased the property on November 23, 1987, and on that same day, sold it by general warranty deed to George and Marie Backus.

On August 5, 1988, Chatham County’s notice of levy regarding the 1986 delinquent taxes was sent to the Backuses. Benton learned of the overdue taxes and contacted Gaudry and her attorney requesting that Gaudry pay the taxes. When Gaudry declined to pay, Benton inexplicably paid the taxes on August 29, 1989.

Subsequently, on August 23, 1993, Benton sued Gaudry for breach of warranty of title, unjust enrichment and attorney fees. On November 3, 1993, Haupt assigned “his claim for breach of warranty and all his rights, title, privileges and powers” in the property to Benton. Benton amended her complaint to include a claim based on the assignment. Benton, however, did not obtain an assignment of the property’s current owners’ interest in the breach of warranty claim until February 27,1997, after the pretrial order in the case had been filed. According to the trial court, Benton never moved to amend the pretrial order or the complaint to incorporate this latter assignment from the Backuses.

Benton and Gaudry filed cross-motions for summary judgment. In granting summary judgment to Gaudry, the trial court ruled that the unjust enrichment claim failed because Benton “was never the owner of the property, and she has shown no evidence whatsoever that she was compelled in any way to pay the debt of the defendant.” As for the breach of warranty claim, the court found that because Benton never owned the property, she had no standing. Furthermore, the court said, when she amended her complaint to add Haupt’s assignment, Haupt no longer owned the property and thus had no interest to assign to her. Accordingly, because “at the time of filing, at the time of the amended complaint, and at the time of the pretrial order [Benton] did not have standing,” the trial court also granted summary judgment to Gaudry on Benton’s breach of warranty claim.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Initially we note that although Benton claimed she paid the taxes “[u]nder coercion and threat of power of government and figuratively speaking ‘gun at head’ by employees of the Tax Assessors office,” we know of no statute, rule, regulation or duty that required her to pay someone else’s delinquent taxes. While Haupt, who apparently employed her to perform the title search, might have a viable action against her for negligence or malpractice, Benton had no obligation to pay the taxes for the benefit of Haupt, the Backuses, or Gaudry. See Wright v. Swint, 224 Ga. App. 417 (480 SE2d 878) (1997); Centrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394 (469 SE2d 466) (1996).

2. Turning to the breach of warranty claim, we first note that it is possible for an assignee of a purchaser of property to pursue a breach of warranty claim against the seller. See Northside Title &c. v. Simmons, 200 Ga. App. 892 (409 SE2d 885) (1991). However, it is imperative that the assignor have a viable interest to assign.

In the instant case, the evidence shows Gaudry’s general warranty deed and owner’s affidavit amounted to a general warranty of title against all persons, which included “covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.” OCGA § 44-5-62. Chatham County’s notice of levy against the property for outstanding 1986 taxes was clearly an encumbrance on the title. Accordingly, Haupt would have had the right to pursue a breach of warranty claim against Gaudry, had he not conveyed his interest in the property to the Backuses. In Haupt’s general warranty deed to the Backuses, he conveyed to them the “property, together with all and singular the rights, members, hereditaments, improvements, easements, and appurtenances. . . .” Furthermore, under OCGA § 44-5-60 (a), “[t]he purchaser of lands obtains with the title ... all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.” Thus, by selling the property to the Backuses, Haupt conveyed to them any interest he had in pursuing a claim for breach of warranty of title. Accordingly, Haupt’s assignment of his right to pursue the breach of warranty claim was of no value to Benton.

Instead, the Backuses, as current owners of the property responsible for payment of the delinquent taxes, had the right to sue for breach of warranty, and they could have sued either Haupt or Gaudry. In Haupt’s deed to the Backuses, he warranted “a good and marketable title to said property with a full general warranty of title to said property against the claims of all persons whomsoever.” In light of Haupt’s general warranty of title, the Backuses could have sued Haupt pursuant to OCGA § 44-5-62. Or they could have sued Gaudry in accordance with OCGA § 44-5-60 (a). “Where there has been a breach of the warranty of title to land the last grantee has a right of action against and may sue his immediate warrantor, the remote or original warrantor, or any intermediate warrantor, or any or all of them in one action. [Cits.]” Smith v. Smith, 129 Ga. App. 618 (200 SE2d 504) (1973). Here, there were no restrictions on Gaudry’s warranty of title to Haupt, nor on Haupt’s warranty of title to the Backuses. Accordingly, the Backuses had all rights that Haupt possessed regarding his warranty of title, and so it was possible for them to have pursued a claim against Gaudry.

However, in this case the record does not show that the Back-uses sued either Haupt or Gaudry. Rather, Benton, with an assignment of Haupt’s interest, sued Gaudry for breach of the warranty. Benton never owned the property and thus could only pursue a claim through an assignment of another’s interest who had a viable right of action. Haupt, by selling the property, no longer had the right to sue for breach of warranty, and thus his assignment provided no avenue by which Benton could pursue the breach of warranty claim.

Decided January 28, 1998.

Rebecca C. Benton, pro se.

Karsman, Brooks & Callaway, Dana F. Braun, for appellees.

Over three years after Benton filed suit and six months after the pretrial order was filed, she finally obtained an assignment from the Backuses. However, as the trial court pointed out, Benton never sought to amend her complaint to include a claim based on the assignment or to add herself in the capacity of an assignee of the Backuses. Thus, at the time the trial court ruled on the parties’ motions for summary judgment, Benton had no standing to sue for breach of warranty. Accordingly, summary judgment to Gaudry was appropriate.

3. Benton’s unjust enrichment claim fails as well. “ Where money is paid on the debt of another by a person who is under no legal or moral obligation to pay the debt, and he does not do so at the instance, request, or consent of the debtor, and the debtor does not ratify his act as one done in his behalf, or does not otherwise become liable therefor, it is a voluntary payment, and the person making the payment cannot recover from the debtor.’ [Cits.]” Ginsberg v. Termotto, 175 Ga. App. 265, 267 (1) (333 SE2d 120) (1985).

There is no evidence that Gaudry asked Benton to pay the taxes or consented to Benton’s payment. There is further no indication that Gaudry ratified Benton’s payment as one done on Gaudry’s behalf. Finally, and most importantly, as we pointed out in Division 1, we find no evidence that Benton was under any legal or moral obligation to pay the debt. She paid the taxes voluntarily, and thus cannot recover from Gaudry. Ginsberg, supra.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       OCGA § 48-5-9 provides that “[t]axes shall be charged against the owner of the property if the owner is known.”


author: Judge Harold R. Banke.

text:
    A98A0317.
    WALKER v. THE STATE.
    (497 SE2d 12)
   Judge Harold R. Banke.

John David Walker was convicted of driving under the influence (less safe to drive) (“DUI”), driving without insurance, and an equipment violation. In his sole enumeration, he challenges the sufficiency of the evidence on the DUI count.

Decided January 28, 1998.

Deborah N. Bedsole, for appellant.

Kenneth W. Mauldin, Solicitor, Donna M. Dunn, Assistant Solicitor, for appellee.

As the arresting officer patrolled a commercial district in his marked car, Walker passed him on the right, traveling approximately 60 mph. When the officer followed, Walker weaved, changed lanes and crossed the centerline in an attempt to pass three vehicles. At that point, the officer activated his lights and Walker stopped. When questioned, Walker admitted he had no license or insurance. After the officer noticed the smell of an alcoholic beverage in the car, Walker also admitted he had consumed several beers. Appeáring agitated, Walker refused to perform any field sobriety tests, but agreed to take an alco-sensor test, which registered positive for alcohol. The officer then arrested Walker and took him to the jail for a breath test, in which he gave an inadequate breath sample. Held:

The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements required to establish a violation of OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). That statute prohibits driving while “under the influence of alcohol to the extent that it is less safe for the person to drive.” OCGA § 40-6-391 (a) (1). Evidence of an unsafe act is not required to establish this offense, which may be proved by circumstantial evidence. Apperson v. State, 225 Ga. App. 804, 805 (2) (484 SE2d 739) (1997).

The arresting officer testified that Walker was speeding, weaved while changing lanes, crossing the centerline, smelled like he had been consuming alcohol and, in fact, admitted such. Knox v. State, 216 Ga. App. 90, 92 (453 SE2d 120) (1995); Grant v. State, 215 Ga. App. 10, 12 (449 SE2d 545) (1994). This evidence is bolstered by the fact that Walker, after performing ineffectively on his initial breath test and refusing to take another, stated he “just wanted to lay [sic] down.” Further, the arresting officer offered his opinion based on his experience in handling DUI cases during his nine-year police career that Walker was under the influence to the point he was less safe to drive. This evidence was sufficient to satisfy the requisites of Jackson v. Virginia, supra.

Judgment affirmed.

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


text:
    A97A1914.
    HALL v. THE STATE.
    (496 SE2d 475)
   Judge Harold R. Banke.

Jarvis K. Hall was tried as an adult and convicted of armed robbery along with his co-defendant Richard C. Dye. On appeal, Hall enumerates five errors.

The evidence, when viewed in a light most favorable to the verdict, shows that Hall and Dye robbed a convenience store at gunpoint. Dye pointed a .25 caliber handgun at the store clerk and ordered her to lie down. Hall jumped over the counter to empty the cash register. When he could not open the register, Hall fired several shots at it then fled into the night with the still unopened register, which was later found abandoned. The clerk reported that both robbers were black males and that one was wearing a white tee shirt and the other a black tee shirt. She recognized Dye, the robber in the white tee shirt, as the son of a former store employee.

Based on the clerk’s description of her assailants and her observation that one robber was a certain ex-employee’s son, police picked up Dye and Hall about an hour after the robbery. At that time, Hall was wearing á black tee shirt and Dye a white one. Chief investigator Mac McCracken telephoned their parents and secured their consent to fingerprint and photograph them. When both denied involvement in the robbery, they were released to their mothers. Later, the clerk recognized Dye from a photo array but was unable to identify Hall. After his arrest, Dye denied his involvement and provided a false story. Then, at the behest of his mother who urged him to tell the truth, Dye made a full confession implicating himself and Hall. Based on Dye’s confession, police arrested Hall. After Investigator McCracken advised Hall of his Miranda rights in the presence of his mother, Hall confessed. Police were not able to lift fingerprints from the register or to obtain positive gunpowder residue results.

The trial court denied Hall’s motion to sever and Hall and Dye were tried jointly as adults. The trial court determined that both confessions were freely and voluntarily made. Both statements were redacted so that neither confession necessarily implicated the other defendant. Neither Dye nor Hall testified or presented any evidence at trial. During its charge, the court gave a limiting instruction that the statements were to be considered only as evidence against the particular defendant who made the statement. Held:

1. We reject Hall’s contention that the admission of Dye’s confession violated the Confrontation Clause and constituted a violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) and Cruz v. New York, 481 U. S. 186 (107 SC 1714, 95 LE2d 162) (1987) (Confrontation Clause bars admission of non-testifying co-defendant’s extrajudicial statement which expressly implicates defendant). A co-defendant’s interlocking confession or incriminating statement can be admitted against a defendant who has also confessed when the court gives appropriate limiting instructions, as was done here. Freeman v. State, 265 Ga. 709, 710-711 (1) (462 SE2d 139) (1995). Moreover, no Bruton violation occurs unless the non-testifying co-defendant’s statement, standing alone, clearly implicates a defendant. Owen v. State, 266 Ga. 312, 314 (4) (467 SE2d 325) (1996). Here, Dye’s confession, standing alone, did not clearly incriminate Hall. Clark v. State, 226 Ga. App. 176, 179-180 (4) (486 SE2d 393) (1997). See Kesler v. State, 215 Ga. App. 553, 555 (1) (451 SE2d 496) (1994) (no Bruton violation when testimony presented in co-defendant’s confession is supported by complaining defendant’s own statement).

2. The trial court did not err in denying Hall’s motion for severance notwithstanding Hall’s assertion that the joint trial confused the evidence and resulted in antagonistic defenses. “In considering whether a trial court abused its discretion in denying a severance, a defendant ‘must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.’ [Cit.]” Owen, 266 Ga. at 314 (2). Hall failed to meet this burden. Hall made no showing by the record of any antagonistic defense or confusion. The evidence against Hall and Dye was not complicated and was nearly symmetrical with the exception of the eyewitness identification of Dye. Nor did Hall establish that his co-defendant would have been more likely to testify if he had been tried separately; or that his co-defendant’s testimony would tend to exculpate him. See Cain v. State, 235 Ga. 128, 129-130 (218 SE2d 856) (1975). Because Hall failed to show how he was prejudiced by a joint trial, there was no denial of due process. Owen, 266 Ga. at 314 (2).

3. The trial court did not err in denying Hall’s motion to suppress a juvenile confession. Unless clearly erroneous, a trial court’s findings relating to admissibility of an incriminating statement will be upheld on appeal. Berry v. State, 267 Ga. 605, 610 (7) (481 SE2d 203) (1997). Whether or not a juvenile’s statement is admissible depends upon whether under the totality of the circumstances, a knowing and intelligent waiver was made. Berry, 267 Ga. at 610 (8).

During the Jackson-Denno hearing, McCracken testified that Hall agreed to make a statement after both he and his mother signed a waiver of rights form. According to McCracken, no promises were made and Hall was not threatened in any way. The questioning was of short duration and Hall’s mother was present at all times. Hall was fifteen, had completed the ninth grade and could read and write. At no time during the questioning did Hall or his mother request that the interview cease. See Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). After McCracken reduced Hall’s confession to writing, Hall initialed it and also signed his name to the bottom of the statement. Although McCracken did acknowledge that he offered to provide some assistance to Hall with securing bond and obtaining employment, he stated that he did so only after Hall had already confessed and signed the statement.

Hall denied making the statement, a claim supported by his sister. He contended that he only said “whatever” and did not provide any details of the crime to McCracken. Inasmuch as the trial court is the sole judge of witness credibility, we cannot say that the court clearly erred in admitting Hall’s statement. Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996); Watkins v. State, 264 Ga. 657, 660 (2) (449 SE2d 834) (1994).

4. The record belies Hall’s contention that he was deprived of a fair trial in that the trial court improperly restricted his counsel’s summation. After defense counsel pointed out that police had tested both of Hall’s hands for gunpowder residue and received a report back from the GBI crime lab, counsel then argued, “Now, if you are alleging this young man, Jarvis Hall, fired a gun at any time during this, then you have got to doubt as to why he does not have gunpowder residue or no positive results on his hands. And that’s why I asked some of you on the jury about your experience with firearms.” At this point, the State objected to the exploration of the specifics relating to gunpowder residue testing because no witness had testified about the methodology or particulars of this testing. The trial court determined that argument along this line was improper. Notwithstanding Hall’s claim to the contrary, the record shows that defense counsel was able to point to the State’s lack of positive evidence of gunpowder residue on Hall’s hands. Precluding defense counsel from going into matters beyond the facts in evidence was not error. Morgan v. State, 267 Ga. 203, 207 (4) (476 SE2d 747) (1996) (argument must be derived from evidence properly before jury).

5. Hall contends that the trial court inflicted an unduly harsh sentence and “heaped additional punishment” on him because he refused to admit his guilt or to exhibit any remorse. Notwithstanding Hall’s claim to the contrary, the trial court did not fail to conduct a pre-sentence hearing as mandated by OCGA § 17-10-2 (a). After the verdict, the court recessed for an hour. Hall neither objected to the timing of the hearing nor requested additional time to prepare for it. During the pre-sentence hearing, the court afforded Hall an opportunity to offer evidence in mitigation. The trial court asked Hall if there was anything he wanted to say. When pronouncing sentence, the trial court observed that Hall had opted to say nothing on his own behalf. From a fair reading of the transcript, we conclude that the court’s comment was not addressed to Hall’s exercise of a constitutional right but rather to the lack of evidence of any remorse. Wakily v. State, 225 Ga. App. 56, 60 (8) (483 SE2d 313) (1997). The absence of any showing of remorse is a legitimate consideration at sentencing. Cottingham v. State, 213 Ga. App. 637 (1) (445 SE2d 384) (1994).

Decided January 16, 1998

Reconsideration denied January 29, 1998

Michael O. Horgan, James C. Bonner, for appellant.

Dennis C. Sanders, District Attorney, William L. Hale, Assistant District Attorney, for appellee.

Finally, we do not agree that Hall’s sentence of 20 years’ imprisonment which falls within the statutory limit shocks the conscience. See Gordon v. State, 257 Ga. 439, 440 (2) (360 SE2d 253) (1987). Any question as to the excessiveness of a sentence which is within the legal limits should be addressed to the sentence review panel, as provided in OCGA § 17-10-6. Hill v. State, 212 Ga. App. 386, 390 (7) (441 SE2d 863) (1994).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A97A2053.
    ALLEN v. THE STATE.
    (496 SE2d 526)
   Johnson, Judge.

A jury rejected Joelynn Allen’s coercion defense and found her guilty on two counts of selling crack cocaine. She appeals from the judgment entered on that conviction, asserting the trial court erred in denying her motion for mistrial when her character was impermissibly placed in evidence.

The motion for mistrial came as a police officer was describing how Allen had been identified as the person seen on a videotape selling drugs to undercover officers. “During the trans — actual transaction, we were unaware of the defendant’s true name. We show, we turned over our video tape to our RNS which is the Regional Narcotics Specialist, who is actually the coordinator of these undercover investigations, our boss, in essence. And he took [the] video tape and showed it to the Metro Drug Task Force, which is also in Glynn County, and some of their agents recognized [her].”

Testimony that individuals in law enforcement were able to identify Allen on a videotape did not place her character into evidence. Despite all of Allen’s protestations to the contrary, the law in this area is clear: The fact that a defendant is known to police simply does not put his character in evidence. Bradford v. State, 182 Ga. App. 337, 339 (8) (355 SE2d 735) (1987). See also Gooden v. State, 204 Ga. App. 62, 64 (2) (418 SE2d 632) (1992); McKenzie v. State, 187 Ga. App. 840, 845-846 (6) (371 SE2d 869) (1988). The trial court did not err in denying Allen’s motion for mistrial.

Decided January 29, 1998

James J. Lacy, Timothy L. Barton, for appellant.

Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Judge.

text:
    A97A2125.
    MESERVEY v. THE STATE.
    (496 SE2d 518)
   Beasley, Judge.

Rene Meservey was accused of driving under the influence of alcohol (OCGA § 40-6-391) and failing to maintain his lane (OCGA § 40-6-48). He moved for discharge and acquittal for failure to give him a speedy trial under OCGA § 17-7-170, which the court denied upon concluding his demand for a speedy trial was premature. Meservey seeks reversal.

On August 2, 1996, Meservey was issued Uniform Traffic Citations (UTCs), which were received and stamped by the clerk of the court on August 9 and then forwarded to the solicitor. Meservey filed a demand for a speedy trial on October 9. The solicitor did not file a formal accusation against Meservey until February 4, 1997. The case was not tried within two terms of the speedy trial demand.

OCGA § 17-7-170 provides: “(a) Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial. . . . (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” OCGA § 40-13-1 provides that a UTC “shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged.” A person against whom a UTC has been filed may make a demand for a speedy trial. But the mere issuance of a UTC, without its subsequent filing, does not trigger a defendant’s right to demand a speedy trial.

The issue is whether Meservey’s UTCs were “filed with the clerk” pursuant to OCGA § 17-7-170 (a). If so, his right to demand a speedy trial arose then. If no UTCs were filed with the clerk, then he had no right until the State filed its formal accusation in February, which would render Meservey’s demand of the previous October premature and a nullity.

OCGA § 15-18-66 (b) (10) provides: “No accusation, citation, or summons shall be considered filed unless such filing has been done with the consent, direction, or approval of the solicitor-general.” It is the State’s attorney, not the clerk, who is authorized to institute criminal proceedings and choose the means to employ as well as the charges to pursue. The arrival of traffic citations in the clerk’s office from the arresting authority does not make them pending in court just because the clerk stamps them for administrative purposes. But “[a] prosecution is ‘commenced’ when an accusation ... is filed, and continues until final disposition'of the case on appeal. OCGA § 16-1-3 (14); [cit.].”

Oral testimony showed the clerk’s office received the UTCs on August 9, 1996. Normally, the clerk’s office in Rockdale County transmits UTCs to the solicitor’s office within a couple of days. The solicitor then formally consents to the filing of the UTCs by signing and filing a specified form. Because the solicitor did not sign or file this form, and because the solicitor denied consenting to the filing of the UTCs, the trial court found the solicitor did not consent and that no filing of the UTCs occurred.

Meservey argues that the solicitor’s failure expressly to tell the clerk’s office not to file the UTCs until consent was given implies the solicitor consented to their filing upon receipt by the clerk. Whether the solicitor has provided the requisite “consent, direction, or approval” to the clerk’s office to file UTCs as accusations is a question of fact. When a trial court sits as the trier of fact, its findings will not be set aside unless clearly erroneous, i.e., unless there is no evidence to support the trial court’s findings. There being supportive evidence here, Meservey had no right to demand a speedy trial until the formal accusation was filed on February 4, 1997. A premature demand is not resuscitated when the formal accusation is filed.

State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996), and Tyler v. State both of which held the defendant was entitled to acquittal, are distinguishable. OCGA § 15-18-66 (b) (10), requiring consent of the solicitor before filing, was not in effect until after the Gerbert and Tyler v. State, 224 Ga. App. 550 (481 SE2d 228) (1997), facts arose.

Decided January 29, 1998.

Patterson & Patterson, Jackie G. Patterson, for appellant.

Cheryl F. Custer, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.

“The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance [by the defendant] with the statute.” Here as in Shire v. State, 225 Ga. App. 306 (483 SE2d 694) (1997), the procedures followed by the defendant in filing a premature demand “did not strictly comply with the requirements of the Code section.”

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

        State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996).

        Ghai v. State, 219 Ga. App. 479, 480 (465 SE2d 498) (1995).

        Grier v. State, 198 Ga. App. 840, 841 (403 SE2d 857) (1991).

        State v. Risk, 222 Ga. App. 729, 731 (1) (476 SE2d 50) (1996).

        State v. Rustin, 208 Ga. App. 431, 433 (430 SE2d 765) (1993).

        Ghai, supra, 219 Ga. App. at 480.

        Grier, supra; State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987).

       224 Ga. App. 550 (481 SE2d 228) (1997).

       Ga. L. 1996, pp. 748, 767, § 30 (a).

       (Citation and punctuation omitted.) Shire v. State, 225 Ga. App. 306, 310 (2) (483 SE2d 694) (1997).

       Id.


text:
    A97A2142.
    KOLODKIN v. COHEN.
    (496 SE2d 515)
   Johnson, Judge.

Alan Kolodkin filed this action against Stuart Cohen and Amalgamated T-Shirts, Inc. (“Amalgamated”) to, among other things, recover rent due for the month of November 1995 and damages for writing a bad check. The trial court granted Kolodkin’s motion for summary judgment as to Amalgamated, but denied his motion for summary judgment as to Cohen. Kolodkin filed an application for interlocutory appeal regarding the trial court’s order as to Cohen, and we granted the application. For reasons which follow, we reverse the trial court’s order denying Kolodkin’s motion for summary judgment against Cohen.

Summary judgment is appropriate only when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following: Kolodkin and Amalgamated entered into a lease agreement dated August 8, 1994, involving real property. The parties amended the lease by an addendum on August 18, 1994. Cohen executed the lease and addendum as president of Amalgamated.

The addendum provided that the monthly rental from November 1, 1995 to December 31, 1996 was $2,200 per month. The lease provided that rental was to be paid on the first day of each month in advance and that any rent payment not paid within ten days after the due date subjected Amalgamated to a late charge equal to ten percent of the overdue amount. On November 27, 1995, Kolodkin received a check for the November 1995 rent in the amount of $2,420. The check was executed by Cohen. Kolodkin deposited the check, but it was returned to him for insufficient funds in Amalgamated’s bank account.

Cohen was president, sole stockholder and director of Amalgamated. Wachovia Bank, where Amalgamated had its checking account, forwarded monthly checking account statements to Amalgamated for the months of October, November and December 1995. The October 1995 bank statement showed that Amalgamated’s account had a closing balance of $690.58. Cohen testified that Amalgamated closed its business in October 1995 and did not receive any more payments from its customers thereafter. There were no deposits in Amalgamated’s bank account during November or December 1995. Cohen admitted receiving letters from Kolodkin’s attorney regarding the check that was returned for insufficient funds.

There is no question that Amalgamated did not have sufficient funds in its bank account to honor the check executed by Cohen and tendered to Kolodkin in November 1995. Nor is there any dispute that Amalgamated did not pay the November 1995 rent to Kolodkin. Giving Cohen the benefit of every doubt, the question presented is whether Cohen may be held personally liable to Kolodkin even assuming that Cohen signed the check in a representative capacity and even assuming that he did not know that there were insufficient funds to cover the check.

In this regard, OCGA § 13-6-15 (a) provides as follows: “Notwithstanding any criminal sanctions which may apply, any person who makes, utters, draws, or delivers any check, draft, or order upon any bank, depository, person, firm, or corporation for the payment of money, which drawee refuses to honor the instrument for lack of funds or credit in the account from which to pay the instrument or because the maker has no account with the drawee, and who fails to pay the same amount in cash to the payee named in the instrument within ten days after a written demand therefor, as provided in subsection (c) of this Code section, has been delivered to the maker by certified mail shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of double the amount so owing, but in no case more than $500.00, and any court costs incurred by the payee in taking the action.” Although this Code section has yet to be interpreted in Georgia, the statute appears to create a limited exception to the general corporate principle that an individual who signs in a representative capacity is not personally liable. See OCGA § 11-3-403. The statute implicitly recognizes that an individual who is authorized to sign a check, whether out of his own account or out of a corporate account, has the opportunity to check the account and ensure that the account contains sufficient funds before signing the check.

While the term “any person” is not defined in the statute and its commonly understood meaning could include either an individual or a corporation, as well as a person signing on behalf of the corporation, had the General Assembly intended to limit liability of persons signing in a representative capacity, it could have so stated. See OCGA § 11-3-404, which pertains to all persons purporting to act as or on behalf of a corporation without authority to do so, and OCGA § 11-3-403, limiting liability of an authorized representative who signs his or her own name to an instrument. The statute does not contain language limiting liability for a maker acting in a representative capacity. Furthermore, it also appears from the statute that whether the maker knew there were insufficient funds to cover the check at the time it was written is irrelevant. The maker is given notice and an opportunity to pay the amount represented by the check.

This interpretation is bolstered by our prior opinions in criminal cases involving deposit account fraud. Pursuant to OCGA § 16-9-20 (a), “[a] person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” We have previously upheld convictions under this statute for individuals signing in a representative capacity. See Ledford v. State, 184 Ga. App. 556 (362 SE2d 133) (1987) (defendant, acting on behalf of company, signed a check issued on a company account, which was returned due to insufficient funds); Parish v. State, 178 Ga. App. 177 (1) (342 SE2d 360) (1986) (president of corporation signed and issued a check drawn on the corporate account, which was returned due to insufficient funds). It is clear that in limited circumstances, a person signing a check in a representative capacity can be personally liable, both in criminal and civil cases, notwithstanding the general corporate principle that a person who signs in a representative capacity usually is not personally liable.

Decided January 29, 1998.

Gershon, Olim, Katz & Loeb, Max Olim, for appellant.

Dearing & Klauber, Scott M. Klauber, Deborah F. Weiss, for appellee.

Contrary to Cohen’s argument, this interpretation does not constitute a piercing of the corporate veil. Rather, it is merely an acknowledgment that only a person can draft a check and that the drafter is personally responsible for assuring that the account upon which the check is drawn contains sufficient funds. This statute places the burden on the maker of a check to ensure that sufficient funds are in the account before signing the check or to make the check good after notice to him that the check was returned for insufficient funds, thereby protecting innocent third parties who do not have access to an individual’s or a corporation’s accounts. If Cohen had drafted no check at all, then Kolodkin’s only recourse would have been against the corporate debtor and not Cohen personally. However, Cohen’s affirmative act in making a check which the corporation’s bank account was without sufficient funds to cover renders Cohen personally liable for the face value of the check plus other damages authorized under OCGA § 13-6-15.

We thus conclude that the trial court erred in failing to find Cohen individually liable under ÓCGA § 13-6-15 and in denying Kolodkin’s motion for summary judgment against Cohen. Based on this holding, we need not address Kolodkin’s remaining enumerations of error.

Judgment reversed.

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


text:
    A97A2180.
    MEADOWS MOTORS, INC. et al. v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (496 SE2d 355)
   Johnson, Judge.

Meadows Motors, Inc., and its insurer, Universal Underwriters Insurance Company (“Universal”), bring this appeal from the grant of summary judgment to United Services Automobile Association (“USAA”) in this declaratory judgment action. Meadows Motors and Universal also appeal the denial of their motion for summary judgment. We affirm.

On June 14, 1994, Diane Chastain and Hector Hood were involved in an automobile accident. At the time of the accident, Hood was an employee of S & H Produce (“S & H”) and was driving the van in the course of his employment, making deliveries for S & H. After the accident, Chastain filed an action for personal injuries, suing Hood, S & H, and Virlyn Slaton, secretary and part-owner of S & H. As a result of the litigation against Slaton, USAA filed a declaratory judgment action seeking a determination of its rights under an automobile personal liability policy issued to Slaton on December 20, 1993. Because S & H, Chastain, and Slaton each asserted that Meadows Motors, the dealership from which Slaton acquired the van, still owned the van at the time of the accident, Meadows Motors and Universal were permitted to intervene.

Virlyn. Slaton took possession of the van involved in the accident from Leonard Meadows of Meadows Motors in late May 1994. No documents memorializing a sale were signed at that time and no money was exchanged. Slaton did not attempt to obtain financing for the van until June 14, 1994, the day the accident occurred. The only documents evidencing a sale were signed on June 30, 1994. However, when Slaton took the van in May, he and Meadows had agreed upon a $15,000 sale price. Meadows believed that a sale had been consummated and understood Slaton would mail him a check for the purchase price. In fact, Meadows sold Slaton four cars in the same manner prior to the sale of the van. Although Slaton described his taking possession of the van in May as “a very swift transaction,” he explained he believed he was using the van for a trial period and could return it if it did not suit his business purposes.

At the time of the accident, Slaton was the named insured under a personal automobile liability insurance policy issued by USAA. The van was not listed on the declarations page of the policy. Slaton stated in his deposition that he never had any intention of insuring the van with USAA. Under the USAA policy, a “covered auto” is defined as either: (1) “any vehicle shown in the Declarations”; or (2) “a private passenger auto” or “a . . . van, not used in any business or occupation other than farming or ranching” if the vehicle is both acquired during the policy period and the insured asks the insurer to “insure it within 30 days after” the insured became the owner of the vehicle.

1. Viewed in the light most favorable to the non-movants, the record establishes that even if S & H owned the van involved in the accident, it was not a covered vehicle under Slaton’s USAA policy. The van was admittedly used to make deliveries for S & H, a business. Thus, the van does not fit within the definition of “covered auto.” Appellants’ attempt to characterize S & H’s wholesale produce delivery business as farming in order to bring it within the policy must fail. S & H did not cultivate crops, raise livestock, or engage in activity historically deemed to be farming. See Ga. Power Co. v. Fletcher, 113 Ga. App. 559, 562 (2) (a) (148 SE2d 915) (1966). Accordingly, the trial court properly granted USAA’s motion for summary judgment.

Decided January 29, 1998.

Fain, Major & Wiley, Charles A. Wiley, Jr., Kim M. Jackson, for appellants.

Bovis, Kyle & Burch, John A. Love, for appellee.

2. Meadows Motors and Universal also moved for summary judgment, contending that S & H owned the van when the accident occurred. However, whether title to the van passed to S & H when Slaton took possession of it remains an issue of fact for the jury under these circumstances. The evidence authorizes a finding that although Slaton intended to buy the van in May, he took it for a trial period believing he could return it if it did not suit his business purposes. If the jury so found, Slaton and Meadows Motors would not have had the requisite mutuality of assent to form an oral contract for sale sufficient to pass title. OCGA § 13-3-2; State Farm &c. Ins. Co. v. Sargent, 162 Ga. App. 127, 128 (354 SE2d 833) (1982). Although evidence of a prior course of business dealing between Meadows Motors and Slaton exists, that evidence is not dispositive of whether a sale was consummated. Rather, it is a factor for the jury to consider when making that determination. Accordingly, the trial court did not err in denying Meadows Motors’ and Universal’s motions for summary judgment.

Judgment affirmed.

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


text:
    A97A2335.
    BRESNAHAN v. LIGHTHOUSE MISSION, INC.
    (496 SE2d 351)
   Johnson, Judge.

On February 22, 1996, Shawn Bresnahan purportedly entered into a real estate purchase agreement with Lighthouse Mission, Inc. (“Lighthouse”). Under the terms of the agreement, Lighthouse was to sell certain real estate to Bresnahan for the lesser of $66,000 or a price to be determined based on an appraisal of the property. The agreement was signed by Bresnahan and Dorothy Pinkerton, who was then president of Lighthouse. No other officer or director signed on behalf of Lighthouse, and Pinkerton’s signature did not specify whether she signed as president on behalf of Lighthouse or individually. Subsequently, Lighthouse refused to sell the property.

Bresnahan filed an action against Lighthouse, seeking specific performance of the agreement. Specifically, Bresnahan asked the court to require Lighthouse to tender the property subject to the purchase agreement for the agreed upon amount. Lighthouse filed a motion for summary judgment, claiming that the agreement was unenforceable because Article III of Lighthouse’s by-laws provided that, “[a]ny sale or transfer of any stock, bond, security, or other property standing in the name of the Corporation, shall be valid only if sighed by the Corporation acting through any two (2) officers.” The trial court granted Lighthouse’s motion for summary judgment, and Bresnahan appeals, alleging that Pinkerton had apparent authority to enter into the agreement and that Lighthouse ratified the agreement. We affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

1. OCGA § 10-6-21 provides that “[t]he agent shall act within the authority granted to him, reasonably interpreted; if he shall exceed or violate his instructions, he does it at his own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate.” In this case, Lighthouse showed that Pinkerton acted outside the scope of authority that had been granted to her by Lighthouse. Lighthouse had an express provision in its by-laws requiring any sale of property to be signed by two officers acting on behalf of Lighthouse. According to the record, every document authorizing the sale or transfer of property standing in the name of Lighthouse has always included the signature of two officers of Lighthouse acting in their official capacity. Clearly, the agreement at issue was signed only by Pinkerton and did not even show that she was signing in a representative capacity. “[0]fficers appointed by the directors are clothed with only such powers and authority as are expressly conferred upon them by the charter or the by-laws, or as may be implied by usage and acquiescence. [Cit.]” Henderson Lumber Co. v. Chatham Bank &c. Co., 33 Ga. App. 196, 197 (1) (125 SE 867) (1924). Pinkerton lacked the actual authority to bind Lighthouse.

Even if Pinkerton lacked actual authority, Bresnahan contends that Pinkerton, as president of Lighthouse, had apparent authority sufficient to bind Lighthouse. “Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent’s acts on account of the principal’s conduct, reasonably construed by third parties acting in innocent reliance thereon. [Cit.] Where there were no manifestations of authority by the principal to a third party, apparent authority is not in issue. [Cit.]” Morris v. Williams, 214 Ga. App. 526, 527 (2) (448 SE2d 267) (1994).

While Bresnahan offered evidence that Pinkerton informed the real estate broker at the time the purchase agreement was presented that Pinkerton had the authorization and approval of the Lighthouse Board of Directors to sign the agreement on behalf of Lighthouse and that this information was conveyed by the broker to him, Bresnahan failed to offer evidence of any conduct by Lighthouse that clothed Pinkerton with apparent authority. The evidence is undisputed that Lighthouse has never held Pinkerton out as anyone who, on her sole signature, could bind the corporation on the sale or transfer of any property. Pinkerton did not have apparent authority to bind Lighthouse in this transaction.

While Bresnahan argues that Pinkerton, as president of Lighthouse, necessarily had apparent authority to enter into the agreement, this argument lacks merit. “A president of a corporation does not, by virtue of his office alone, have authority to contract in its behalf, although being the alter ego of the corporation he may be presumed to have power to act for it in matters within the scope of its ordinary business.” (Citations and punctuation omitted.) Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 221 (1) (322 SE2d 533) (1984) (physical precedent only). In the present case, the agreement was not executed in Lighthouse’s name, was not executed by Pinkerton “as president of” or “on behalf of” Lighthouse, and did not involve matters within the scope of Lighthouse’s ordinary business. Lighthouse has successfully rebutted the presumption of Pinkerton’s apparent authority as president of Lighthouse. The cases cited byBresnahan are inapposite. As stated in Farmers & Merchants Bank v. Stovall Investment Co., 50 Ga. App. 277, 282-284 (177 SE 882) (1934), in cases holding that the president of a corporation possesses apparent authority to bind the corporation, the corporation received a benefit from the unauthorized act or ratified the unauthorized act. As stated below in Division 2, Lighthouse did not receive any benefit from Pinkerton’s act and did not ratify Pinkerton’s act.

2. Bresnahan next contends that Lighthouse ratified the agreement signed by Pinkerton. Once again, however, Bresnahan has failed to point to any evidence that Lighthouse ratified the agreement in any way. For ratification to be effective, the principal must know of the agent’s unauthorized act and, with full knowledge of all the material facts, accept and retain the benefits of the unauthorized act. Southtrust Bank &c. v. Parker, 226 Ga. App. 292, 295 (1) (486 SE2d 402) (1997). Contrary to Bresnahan’s assertion, the realtor, not Lighthouse, retained the earnest money deposit, and there was no evidence that Lighthouse authorized the realtor to keep the deposit. Therefore, the retention of the earnest money by the realtor was not ratification by Lighthouse. Furthermore, we do not find that the opportunity to wait and see if the appraisal brought back a better sale figure was a benefit to Lighthouse.

Decided January 29, 1998.

Lovett, Cowart & Ayerbe, James D. Cowart, for appellant.

Sell & Melton, Edward S. Sell III, for appellee.

While we do not know exactly when Lighthouse learned of the agreement signed by Pinkerton, Lighthouse repudiated the agreement approximately one month after its execution and approximately one month prior to the scheduled closing. It was not “unjust, unfair, or inequitable” to allow Lighthouse to repudiate the contract under the circumstances. Stovall Investment, supra at 283.

Based on the foregoing, the trial court did not err in granting Lighthouse’s motion for summary judgment.

Judgment affirmed.

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


author: Andrews, Chief Judge.

text:
    A97A1736.
    THE STATE v. BURKE.
    (496 SE2d 755)
   Andrews, Chief Judge.

The State appeals from the trial court’s grant of the motion to suppress/in limine filed by Daniel Vincent Burke in this case. Burke was charged with driving under the influence; driving with an unlawful drug present in his blood; driving with a suspended license; and driving with no license.

In reviewing a ruling on a motion to suppress, the trial court’s ruling on questions of fact and credibility must be accepted unless clearly erroneous and will not be disturbed if there is any evidence to support them. Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992). This Court must construe the evidence most favorably to upholding the trial court’s judgment in this regard. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Alex v. State, 220 Ga. App. 754 (1) (470 SE2d 305) (1996).

So viewing the evidence here, it was that Gwinnett County Officer Merry stopped to investigate a number of people walking around in bushes on the side of the road around 9:30 p.m. A motorcycle was in the ditch, and Officer Merry joined the people looking for the driver. Shortly after the officer arrived, Elliot drove up to the scene in a pickup truck and said the motorcycle was his and that Burke had been driving it. Elliot told Officer Merry Burke’s address, and the officer followed Elliot there after helping load the motorcycle into Elliot’s truck.

Upon arriving at the residence, Officer Merry saw Burke walking around in the yard with a limp. He shone his flashlight on Burke’s leg and saw blood. Burke then sat down, and Officer Merry asked if he had been driving the motorcycle. Burke said he had been and that someone pulled out of a driveway or road and hit the back end of the bike. While talking to Burke, the officer did not detect any odors or other manifestations that indicated intoxication. The officer then asked Burke if he had been drinking, and Burke said he had had two or three beers sometime before the accident. Asked for his driver’s license, Burke told Merry he did not have it because it had been suspended for DUI.

The officer acknowledged that there were no outward indicia of intoxication and that he placed Burke under arrest for DUI based on the fact of the accident and his statement that he had had two or three beers. No field sobriety tests were administered by the officer. Officer Merry testified he requested the State-administered test pursuant to OCGA § 40-5-55 because Burke’s license had previously been suspended for DUI and he had apparently left the scene of an accident. He also acknowledged, however, that since Burke was apparently injured in the accident, it would have been reasonable for him to go to his nearby residence for aid.

The State contends that there was probable cause to arrest for DUI or, in the alternative, that arresting Burke for driving with a suspended license allowed Officer Merry to give the implied consent warnings and obtain a chemical test under Davis v. State, 187 Ga. App. 517, 518 (1) (370 SE2d 779) (1988).

We conclude, as did the trial court, that there were insufficient facts and circumstances within the knowledge of Officer Merry or of which he had reasonably trustworthy information sufficient to warrant a prudent man in believing that Burke had been driving under the influence. Hall v. State, 200 Ga. App. 585, 586 (409 SE2d 221) (1991). Burke displayed none of the telltale signs of inebriation — he was not slurring his speech, he did not smell of alcohol, his eyes were not bloodshot, he was not staggering, he was not given any of the field sobriety tests, and he had an explanation for the wreck. Compare Singleterry v. State, 227 Ga. App. 155 (489 SE2d 42) (1997) (glassy, watery eyes; smell of alcohol; erratic driving observed by officer; refusal to take field sobriety tests); Martin v. State, 214 Ga. App. 614 (1) (448 SE2d 471) (1994) (Martin rear-ended a truck at 8:00 a.m. on Georgia 400; could not explain doing so; was wearing dark sunglasses which, when removed, revealed dilated eyes which remained dilated in daylight, which the officer’s training taught was a sign of drug use).

Decided January 30, 1998.

Gerald N. Blaney, Jr., Solicitor, Jeffrey R Kwiatkowski, Assistant Solicitor, for appellant.

Gregory E. Lundy, for appellee.

Davis holds that one need not be under arrest for DUI before the implied consent law applies as long as one is “under arrest for ‘any offense’ arising out of the acts concerning which the officer has at least ‘reasonable grounds’ to believe that a violation of OCGA § 40-6-391 occurred, [in which case] he may request the chemical test, even if then short of probable cause to arrest for substance-influenced driving.” Davis, supra at 518-519 (1).

While Officer Merry did properly arrest Burke for driving with a suspended license, that alone does not supply the “reasonable grounds” required pursuant to OCGA § 40-5-55 (a) and Davis. Davis, for example, was involved in a head-on accident on the wrong side of a highway at 2:00 a.m. The officer, upon arriving at the hospital where Davis was taken, observed that his eyes were a little bloodshot and smelled the odor of alcohol on his breath. Here, only Burke’s statement that he had had beer sometime that day and that his license was previously suspended for DUI were the only facts available to Officer Merry, and we conclude, as did the trial court, that these alone do not provide reasonable grounds under Davis. See Martin, supra.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

       One count each for driving under the influence of alcohol, drugs, alcohol and drugs, and unlawful drug present in blood or urine.

       These latter two charges were not affected by the motion and are not at issue here.

       Officer Merry could not recall whether he was dispatched to the scene or stopped while on routine patrol.


author: McMurray, Presiding Judge.

text:
    A97A1795.
    HILL v. THE STATE.
    (496 SE2d 526)
    Decided January 30, 1998.

      Sharon L. Hopkins, for appellant.

      Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

After a bench trial, the trial court found defendant guilty of aggravated assault by assaulting, cutting and stabbing the victim with a knife and also aggravated assault by burning the victim with an iron. This appeal followed the trial court’s denial of defendant’s motion for new trial. Held:

Defendant challenges only his conviction for aggravated assault by burning the victim with an iron, arguing that the State did not prove that the iron he used to assault the victim is an offensive weapon as required by OCGA § 16-5-21 (a) (2). This assertion is without merit.

“Even in the absence of a description of the offensive weapon, evidence as to the nature, kind, and location of wounds inflicted is sufficient to allow the jury to infer the character of the weapon. Wade v. State, 157 Ga. App. 296, 297 (277 SE2d 292) (1981).” Wright v. State, 211 Ga. App. 474 (1), 475 (440 SE2d 27). In the case sub judice, the victim testified that defendant struck her legs and face with a hot iron. Photographs of the victim’s wounds reveal that defendant used this iron as an offensive weapon as proscribed by OCGA § 16-5-21 (a) (2). The evidence adduced at trial was sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault by burning this victim with an iron. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A2411.
    In the Interest of A. C., a child.
    (496 SE2d 752)
   Johnson, Judge.

Michelle Hanson challenges the termination of her parental rights, asserting there was insufficient evidence to support a finding that her child, A. C., was deprived, that the deprivation was caused by a lack of parental care and control, that the deprivation is likely to continue, and that the continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. She also contends that the form of the juvenile court’s order failed to comply with the statutory requirements necessary to terminate her rights in the child.

1. In March 1996, the Fayette County Department of Family & Children Services was contacted by A. C.’s paternal grandmother who reported that Hanson had left A. C., then approximately six weeks old, with her. The grandmother stated that she was unable to care for the child and asked DFCS to take custody of A. C. Hanson was incarcerated at that time, and the whereabouts of the father were unknown. DFCS was awarded temporary legal custody of A. C. and placed the child with a paternal aunt and her husband with whom the child still resides. Shortly thereafter, Hanson moved away without telling DFCS her whereabouts.

DFCS developed 30-day reunification plans for Hanson and A. C.’s father, which required establishment of a safe and stable home for A. C., that they remain drug- and alcohol-free, seek counseling for their drug problems, visit A. C. on a regular basis, abide by all laws, resolve any outstanding criminal matters, and seek stable employment. A. C.’s father surrendered his parental rights to the child on February 18, 1997. Following Hanson’s failure to comply with the terms and conditions of the case plan and various orders of the juvenile court, DFCS filed a termination petition on April 15, 1997. A termination hearing was held on June 3, 1997. The court heard testimony from the child’s DFCS caseworker, Hanson, and A. C.’s father. Based on the evidence presented at the hearing and prior orders entered in the case, the juvenile court terminated Hanson’s parental rights by written order entered June 13, 1997.

“The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997). After examining the evidence in this light, we conclude that there is sufficient clear and convincing evidence in this case for a rational factfinder to determine that Hanson’s parental rights should be terminated and that such termination is in A. C.’s best interest.

OCGA § 15-11-81 (a) delineates a two-step procedure to be followed in termination of parental rights cases. The trial court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. This conduct or inability may be proved by showing: (1) that the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). Hanson concedes that she is precluded from contesting the legal effect of a prior deprivation order which was not appealed, satisfying the first criterion above. See In the Interest of C. D. F., 222 Ga. App. 905, 907 (1) (476 SE2d 654) (1996).

In determining whether a child is without parental care and control, OCGA § 15-11-81 (b) (4) (A) (ii), the trial court shall consider whether the parent without justifiable cause failed significantly for a period of one year or longer (1) to communicate or make a bona fide attempt to communicate with the child, (2) to provide for the care and support of the child as required by law or judicial decree, and (3) to comply with a court-ordered plan to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C). Evidence introduced at the hearing established that Hanson fled to Alabama with A. C.’s father to avoid arrest on an outstanding warrant. Hanson did not see A. C. for a year. It was only after she had been arrested and brought back to Georgia that she requested DFCS to arrange supervised visitation sessions with the child. Six such visitations had occurred at the time of the hearing. Hanson acknowledges that she provided no support for the child, but now asserts that there was no court order requiring her to do so. This argument is specious in light of OCGA § 19-7-2, which obligates each parent to provide for the maintenance, protection, and education of his or her child. Finally, the evidence establishes that Hanson did not comply with the terms of the reunification plan which are outlined above. Hanson admitted that during that time she failed to submit to drug and alcohol assessment, failed to provide a safe and stable home for A. C. for the first year of the child’s life and attempted to resolve outstanding criminal matters by fleeing the jurisdiction. Having established that A. C. is deprived and that such deprivation is caused by Hanson, we next consider the third factor, whether the deprivation of A. C. is likely to continue. OCGA § 15-11-81 (b) (4) (A) (iii). “In addition to evidence of present parental misconduct or inability, evidence of past, conduct may be considered in determining whether the deprivation would be likely to continue. Such an inference is appropriate, since the juvenile court is not required to reunite [A. C.] with [Hanson] in order to obtain current evidence of deprivation or neglect.” (Citations and punctuation omitted.) In the Interest ofE. C., supra, 225 Ga. App. at 16. The evidence shows that Hanson used cocaine while pregnant with A. C., and they both tested positive for the drug at the time of A. C.’s birth. Hanson has continued her relationship with A. C.’s father, who describes himself as a “serious” drug user who used illicit drugs for nearly 28 years and, despite having been through several drug rehabilitation programs, has failed to stay drug-free for longer than six to eight months at a time. Hanson testified that she plans to marry A. C.’s father despite these admissions of drug use and the voluntary surrender of his parental rights.

Furthermore, as noted above, Hanson submitted to a single drug screen since the development of the reunification plan. The caseworker testified that for a year Hanson did not contact DFCS regarding the child, obtain a drug and alcohol assessment, or provide any support for the child, despite plan requirements that she do so. This evidence supports a finding that A. C. would continue to be deprived if reunited with Hanson.

Finally, we consider whether the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iv). Despite several supervised visits between A. C. and Hanson immediately prior to the termination hearing, the DFCS caseworker noted that she observed no bond between A. C. and Hanson. In contrast, she testified that the child has bonded to the aunt and uncle with whom she has resided for all but the first two or three months of her life and who want to adopt her. This evidence supports a finding that A. C. would suffer serious harm if returned to Hanson.

We are satisfied that there is clear and convincing evidence of “parental misconduct or inability” as contemplated by OCGA § 15-11-81 (a) and next turn to the trial court’s determination that termination of Hanson’s parental rights “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of E. C., supra, 225 Ga. App. at 18. The abandonment of the child for the first year of her life and the total noncompliance with the DFCS reunification plan for over a year are sufficient to establish by clear and convincing evidence that termination of Hanson’s parental rights is in A. C.’s best interest.

2. Because the juvenile court’s order clearly delineated the basis for its decision, Hanson’s argument that it failed to meet the statutory requirements necessary to terminate her rights in the child is without merit.

Judgment affirmed.

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

Decided January 30, 1998

Bischoff & White, Lloyd W. Walker, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Burn & Schell, Glen P. Burn, Edea M. Caldwell, for appellee.

       Hanson submitted to one drug screen, five days prior to the termination hearing. She testified that she had scheduled a drug and alcohol assessment, but that the evaluation had not heen conducted prior to the termination hearing.