text:
    77559.
    PINKSTON v. THE STATE.
    (377 SE2d 864)
   Banke, Presiding Judge.

The appellant was found guilty of rape, motor vehicle theft, loitering and prowling, and two counts of burglary. He filed this appeal from the denial of his motion for new trial.

Walt Porterfield testified that his house was burglarized on the evening of April 5, 1987, and that among the items taken was an Intratec nine-millimeter Luger handgun. Porterfield’s testimony that the burglary had occurred on April 5, 1987, contradicted the date alleged in the indictment, which was April 4, 1987. Porterfield testified that he discovered the burglary upon returning home from a trip to the video store. He further testified that upon leaving his residence to go to the video store approximately an hour earlier, he had observed the appellant standing on the street nearby.

The rape victim testified that she awoke at approximately 1:30 a.m. on April 5, 1987, to find a man standing beside her bed wearing a yellow stocking cap and carrying a handgun. The man ordered her to shut her eyes and do what he said, warning her that “he had a nine millimeter and that it packs a wallop.” He then forced her to engage in sexual intercourse with him. When he was finished, he took from her a “rope chain with a Nefertete on it” and drove away in her automobile. Police were summoned to the scene almost immediately; and a radio lookout was broadcast for the automobile, which was spotted shortly thereafter outside a convenience store. A chase ensued which ended when the suspect drove the automobile into a tree and fled on foot. An Intratec nine-millimeter pistol and a yellow stocking cap were recovered from inside the vehicle, and a size 8-V2 Nike tennis shoe for the right foot was found on the ground a few feet away.

On April 8, 1987, an individual carrying a Georgia driver’s license issued in appellant’s name and bearing his photographic likeness entered a local pawn shop and pawned a gold chain with a queen head pendant. The pawn shop clerk testified that she gave the appellant a yellow receipt evidencing the transaction. The pawned items were recovered from the shop and were identified at trial by the rape victim as being the necklace and pendant the appellant had taken from her.

At approximately 1:30 a.m. on April 9, 1987, Officer Eskew of the Clayton County Police Department was patrolling the Lake Regency Apartments when he observed a black male wearing a white sweatshirt and dark pants standing behind one of the buildings. Officer Eskew testified that this individual dropped to the ground as he approached and then ran when he stopped and exited his patrol car. The officer immediately broadcast a radio lookout for the individual.

Minutes later, Officer Aeree of the Clayton County Police Department observed the appellant walking along a road which ran behind the Lake Regency Apartments. Noticing that the appellant matched the description of the suspect identified in the radio lookout, Officer Aeree immediately confronted him and questioned him about his identity and destination. The appellant gave his correct name and address and explained that he was returning home from a friend’s house. This explanation heightened Officer Acree’s suspicions in that, based on his knowledge of the area, he believed the route by which the appellant had elected to return home was unnecessarily circuitous. Consequently, he contacted Officer Eskew by radio and asked him to come to the scene to attempt an identification. However, Officer Eskew replied that he had detained a suspect of his own and that he could not immediately leave his current location. Officer Aeree thus placed the appellant in the back of his patrol car and transported him to Officer Eskew’s location. Before doing so, however, he conducted a pat-down search of the appellant’s person.

During the course of this search, Officer Aeree “felt what felt like some folded up money or paper in [the appellant’s] left rear pocket . . .” and removed it. Observing that the object was a piece of yellow paper similar in appearance to a traffic citation, he unfolded it in hopes of verifying the correctness of the name and address the appellant had given him. The document proved to be the pawn ticket for the rape victim’s chain and pendant. Officer Aeree testified that he was “familiar with an item like this that had been taken several days prior in a rape” and immediately suspected “this possibly [might] be one and the same.”

The appellant was subsequently identified by Officer Eskew as the individual who had fled from behind the apartment complex. He was thereupon given the Miranda warnings and placed under formal arrest for loitering and prowling. The following day, a search warrant was issued for his home, describing the item to be seized as a “white leather Nike tennis shoe, approximate size 8-V2, left shoe.” Such a shoe was in fact discovered and seized during the subsequent execution of the search warrant. During the trial, the rape victim positively identified the appellant as her assailant. Held:

1. The appellant contends that the seizure of the pawn ticket from his pocket violated his Fourth Amendment rights and that the trial court consequently erred in refusing to suppress this evidence, along with all other evidence stemming from its discovery. We disagree. Officer Aeree clearly was authorized to detain the appellant briefly for the purpose of questioning him regarding his identity and his purpose for being in the area. It was, after all, approximately 1:30 in the morning, and the appellant matched the description of the individual who was the subject of the lookout to which the officer was responding. Moreover, Officer Aeree testified that he was aware that the area had been the source of a large number of rape, burglary, and peeping-tom complaints in the recent past.

When the appellant was not able to offer a credible explanation for his presence in the area, the facts and circumstances within Officer Acree’s knowledge became amply sufficient to establish reasonable ground for a belief on his part that the appellant was the same individual who had earlier fled from Officer Eskew, with the result that probable cause existed for the appellant’s arrest at that point on the charge of “loitering or prowling.” OCGA § 16-11-36 (a). See Bell v. State, 252 Ga. 267 (1) (313 SE2d 678) (1984) (upholding the constitutionality of the statute against a void-for-vagueness challenge). We consequently hold that the ensuing search of the appellant’s person was authorized as a search incident to a lawful arrest. See generally Eberhart v. State, 257 Ga. 600 (2), 602 (361 SE2d 821) (1987); Paxton v. State, 160 Ga. App. 19, 20 (285 SE2d 741) (1981).

2. While the appellant complains that he was not advised of his Miranda rights until after he was identified by Officer Eskew, we have been cited to no evidence suggesting that he made any statement to Officer Aeree between the time he was searched and placed in the patrol car and the time the Miranda warnings were given; and we are aware of no authority for the proposition that the legality of a search conducted incident to a lawful arrest is contingent upon the giving of the Miranda warnings.

The questions which Officer Aeree asked the appellant prior to searching him were not required to be preceded by the Miranda warnings because they were mere threshold questions asked at a time when the appellant was not in custody to ascertain his identity and purpose for being in the area. Accord Aldridge v. State, 247 Ga. 142 (2) (274 SE2d 525) (1981); New v. State, 171 Ga. App. 392 (1) (319 SE2d 542) (1984); Hudson v. State, 171 Ga. App. 181, 182 (1) (319 SE2d 28) (1984). See generally Shy v. State, 234 Ga. 816, 818-23 (218 SE2d 599) (1975). To the extent that this court’s decision in Division 2 of Shoemaker v. State, 165 Ga. App. 124 (299 SE2d 414) (1983), may be interpreted as authority for the proposition that a person suspected of loitering and prowling must be advised of his Miranda rights before such threshold questioning may occur, it is hereby overruled.

3. The appellant contends that the warrant for the search of his residence was invalid because it was issued by a magistrate who had represented him some five years previously in a juvenile court case and who was therefore incapable of being neutral and detached. However, the magistrate testified without dispute at the hearing on the motion to suppress that he did not recognize the appellant’s name at the time he issued the warrant but instead recalled his previous association with the appellant only after the appellant’s trial counsel raised the issue in connection with the motion to suppress. Under these circumstances, the trial court clearly did not err in rejecting this attack on the validity of the search warrant.

4. The appellant contends that the warrant was additionally invalid because the information presented to the magistrate failed to establish probable cause for a belief that a search of his residence would result in the discovery of the mate to the sneaker which had been found outside the rape victim’s wrecked automobile. We disagree.

The task of the issuing magistrate is simply to decide whether, under the totality of the circumstances, “ ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.’ ” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), quoting Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 2332, 76 LE2d 527) (1983). The information available to the magistrate in the present case established a substantial basis for a belief that the appellant was the individual who had fled the rape victim’s vehicle. Consequently, there was a substantial basis for a belief that the mate to the shoe found outside that vehicle would be discovered inside his residence.

5. The appellant contends that the trial court erred in not requiring the state to produce certain allegedly exculpatory information in response to his Brady motion. A portion of the information in question concerned the identity of another rape victim who had previously identified the appellant from a photographic display. However, it was apparent that this victim’s identification of the appellant had been mistaken, inasmuch as her rape had occurred at a time when the appellant was serving a prison sentence for another offense. The state had made the fact of this misidentification known to the defense counsel but had declined to disclose the woman’s identity to him.

While the appellant acknowledges that evidence concerning this misidentification would not itself have been relevant in tshe present case, he argues that the woman’s identity should nevertheless have been disclosed to him because it might have led to material, exculpatory evidence supporting his defense that a misidentification had occurred in the present case. Such speculation clearly is insufficient to constitute a showing that the information in question was “beneficial evidence which was so important that its absence prevented [the appellant from] receiving a fair trial. . . .” Rose v. State, 249 Ga. 628, 629 (292 SE2d 678) (1982).

6. The appellant contends that the state should also have been required to disclose to him the identity of an Atlanta police officer whom Officer Eskew had pursued and detained shortly after his confrontation with the prowler at the Lake Regency Apartments. The facts surrounding the detention of this officer were brought out at the hearing on the motion to suppress, at which time defense counsel could have, but chose not to, inquire into his identity. Similarly, the appellant’s counsel did not raise this issue during the pre-trial discussion of what information he was still seeking pursuant to his Brady motion. In light of these circumstances, and because the appellant failed to show how the information in question would have been materially beneficial to him, we hold that the trial court’s failure to order the disclosure of this information also establishes no ground for reversal.

7. The appellant contends that the trial court erred in admitting evidence that he had committed a prior burglary and motor vehicle theft approximately a year before the events for which he was on trial. The prior burglary was similar to the burglary of the rape victim’s home in the present case in several respects: Both had occurred at night, access to both dwellings had been obtained by removing a screen and entering through an open window as the victim lay asleep inside, a gold chain with a pendant had been taken from both victims, and on both occasions the appellant had departed the premises driving the victim’s automobile. While the appellant points out that the circumstances surrounding the two burglaries were dissimilar in that it was not shown that he had used a weapon or raped the victim during the prior burglary, we hold that the similarities were amply sufficient to render evidence of the prior offenses admissible as proof of modus operandi, bent of mind, and course of conduct. Accord Holloman v. State, 167 Ga. App. 683 (1) (307 SE2d 266) (1983). See also Bryant v. State, 164 Ga. App. 555 (2) (296 SE2d 792) (1982). We must reject the appellant’s argument that such proof was irrelevant because the victim in the present case directly identified him. Identity was clearly an issue in the present case, as noted by the appellant in his argument in support of the enumeration of error addressed in Division 5 of this opinion. Indeed, if the possibility of misidentification was not an issue in the present case, it is difficult to fathom how any harm could have resulted to the appellant from this or any of the other alleged errors enumerated in this appeal.

8. The appellant contends that the trial court erred in allowing the circumstances of the prior burglary and motor vehicle theft to be established before evidence had been presented (in the form of a certified copy of the indictment and guilty plea in that case) establishing that he was in fact the perpetrator of those offenses. This contention is without merit.

9. The appellant contends that the evidence was insufficient to support his conviction on any of the counts of the indictment and that it was particularly insufficient to support his conviction for the burglary of the Porterfield residence. We must agree that the evidence was insufficient to support the latter conviction. The evidence presented in support of this count of the indictment consisted in its entirety of Porterfield’s testimony that he had observed the appellant standing outside his residence when he left to go to the video store about an hour before he discovered the burglary, his testimony that an Intratec nine-millimeter Luger had been taken during the burglary, and the evidence that an Intratec nine-millimeter Luger was found inside the rape victim’s vehicle after the vehicle was stolen. However, it appears without dispute from the evidence that the discovery of the Luger inside the rape victim’s vehicle occurred prior to the burglary of Porterfield’s home. Moreover, Porterfield was never asked whether the weapon which was recovered from the vehicle appeared to him to be identical to the weapon taken from his home. Even assuming that the weapon introduced at trial was of precisely the same make as the weapon taken from Porterfield’s home, it might possibly have been distinguished by its serial number, by the absence of scratch marks, or by other such characteristics. Under the circumstances, we must conclude that the evidence introduced in support of Count 6 of the indictment was insufficient to support a conviction thereon.

Decided January 3, 1989 —

Rehearing denied January 19, 1989

John A. Beall IV, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

With respect to the remaining convictions, it is fair to say that the evidence of guilt was overwhelming. The remaining convictions are accordingly affirmed. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed in part and reversed in part.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    77596.
    PEEPLES INDUSTRIES, INC. et al. v. PARKER HANNIFIN CORPORATION et al.
    (377 SE2d 691)
   Banke, Presiding Judge.

The appellees, Parker Hannifin Corporation and Parker Fluidpower Group Cylinder Division (hereafter referred to together as “Parker Hannifin”), manufactured a hydraulic cylinder installed in a crane used by the Georgia Ports Authority. The cylinder allegedly failed, resulting in damage to the crane in the amount of $123,900. The crane was owned by Peeples Industries, Inc., and Southern Bulk Industries, Inc. As reimbursement for the loss, Peeples and Southern Bulk were paid $98,900 by their casualty insurers, Holland-America Insurance Company and California Union Insurance Company (hereinafter referred to as the appellants). This payment represented the $123,900 cost of repairing the crane, less a deductible amount of $25,000.

Peeples, Southern Bulk, and the appellants thereafter filed suit against Parker Hannifin to recover for the loss, with the appellants asserting a subrogation claim to the extent of the insurance benefits they had paid. Parker Hannifin failed to answer the complaint and consequently suffered default judgments for the entire amount sought. It subsequently attempted to have these judgments set aside, but without success.

Parker Hannifin was insured under a $5,000,000 liability insurance policy issued by Integrity Insurance Company. However, during the pendency of Parker Hannifin’s efforts to set aside the default judgments, Integrity Insurance Company was declared insolvent. Being a resident of Ohio, Parker Hannifin thereafter sought to have the judgments paid by the Ohio Insurance Guaranty Association, which administers an insurance company insolvency fund pursuant to the laws of that state. The Ohio fund paid the default judgments entered in favor of Peeples Industries and Southern Bulk Industries; but, in accordance with a provision of Ohio law prohibiting the use of the insolvency fund’s resources to pay subrogation claims brought by insurers, it refused to pay the default judgments entered in favor of the appellants.

Georgia also has an insurance company insolvency fund, known as the Georgia Insurers Insolvency Pool. See OCGA § 33-36-1 et seq. It is undisputed that the appellants are authorized to write property and casualty insurance policies in this state and consequently are members of the Georgia pool. See OCGA § 33-36-5. The parties appear to be in further agreement that subrogation claims such as those asserted by the appellants in this case are not recoverable from the Georgia pool. See OCGA § 33-36-3 (2) (F).

Contending that the Georgia Insurers Insolvency Pool Act prohibits insurers from asserting subrogation claims not merely against the Georgia insolvency pool itself but also against the insureds of insolvent insurers, Parker Hannifin brought the present action against the appellants and their insureds (Peeples and Southern Bulk) seeking both declaratory and interlocutory injunctive relief which would prevent the collection of the default judgments previously entered against it. Several months after the complaint was filed, the trial court entered an order granting the prayer for interlocutory injunctive relief, ruling as follows: “Defendants are prohibited from executing, levying or otherwise attempting to enforce the judgment at question against the plaintiffs until such time as this court has considered and ruled upon plaintiff’s complaint for declaratory judgment, or until further order of the court.” Several months later, the trial court granted summary judgment to Parker Hannifin on its request for declaratory relief, ruling as follows: “It is considered, ordered and adjudged that plaintiffs were the insureds of an insolvent insurer; that therefore defendants Holland-America and California Union are prevented by statute from maintaining a cause of action directly against plaintiffs; that, as such, defendants are also prevented from enforcing their judgment directly against plaintiffs; that plaintiffs’ motion for summary judgment is hereby granted.” This appeal was taken from that order. Although the notice of appeal names Peeples and Southern Bulk as appellants along with the Holland-American and California Union insurance companies, it is evident that those defendants have no further interest in the action, due to the fact that the default judgments which they obtained against Parker Hannifin have already been satisfied by the Ohio insurer insolvency fund. Held:

“While our declaratory-judgment statute [OCGA § 9-4-1 et seq.] itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest.” Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567) (1947).

“The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. (Cits.)” Rowan v. Herring, 214 Ga. 370, 374 (105 SE2d 29) (1958). “The Declaratory Judgment Act of this State is not intended to be used to set aside, modify, or interpret judicial decrees or judgments of courts having jurisdiction of the subject matter and parties, but is to be used to obtain a declaration of rights not already adjudicated.” Lawrence v. Lawrence, 87 Ga. App. 150 (1) (73 SE2d 231) (1952). Accord Burgess v. Burgess, 210 Ga. 380, 383 (80 SE2d 280) (1954); Fourth Street Baptist Church v. Bd. of Registrars, 253 Ga. 368, 369 (320 SE2d 543) (1984).

The fact that the appellants herein have secured default judgments against Parker Hannifin which they are now threatening to enforce does not place Parker Hannifin in need of judicial guidance to determine what course of conduct to pursue in the future. “[It] is clear that all rights have accrued to the parties; that no adjudication of the plaintiffs’ rights is necessary in order to relieve them from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interest — no necessity for direction as to future action is alleged, and the plaintiffs have an adequate remedy either at law or in equity.” Rowan v. Herring, supra, 214 Ga. at 372. We accordingly hold that Parker Hannifin’s claim for declaratory relief was not justiciable, with the result that the trial court was without jurisdiction to grant such relief. See Kaylor v. Kaylor, 236 Ga. 777, 778 (225 SE2d 320) (1976). The order appealed from is accordingly vacated. Accord Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987).

Judgment vacated.

Birdsong and Beasley, JJ., concur.

Decided January 3, 1989 —

Rehearing denied January 19, 1989

Fred S. Clark, for appellants.

Kenneth L. Royal, W. C. Brooks, for appellees.


text:
    77632.
    In the Interest of A. O. S. II.
    (377 SE2d 870)
   Banke, Presiding Judge.

This is an appeal from an order terminating the appellant’s parental rights with regard to her minor child, A. O. S. II.

The child was just over three years old at the time of the hearing, which took place on February 22, 1988. The appellant, who was 20 years old at the time of the hearing, testified that she believed her stepfather, Doyle Huneycutt, was the child’s father. She stated that Mr. Huneycutt (who appeared at the hearing just long enough to deny being the child’s father) had, with her mother’s knowledge and consent, forced her to engage in sexual relations with him when she was a teenager. The child was named after another man with whom the appellant had been living at the time of the child’s birth.

The child required medical attention for a congenital defect known as club feet. In July of 1986, the appellant hitchhiked with the child to the Atlanta area from her home in North Carolina in the company of a man named Donnie Layton, whom she had known only for a week. The appellant maintains that her reason for coming to the Atlanta area was to seek better medical care for the child, but there is no indication in the transcript that she did so. On September 17, 1986, she voluntarily surrendered custody of the child to the Cobb County Department of Family and Children Services (DFCS), stating that she could no longer care for him and wanted to release him for adoption. She signed the necessary release documents at that time but returned within 10 days, announced that she had changed her mind, and reclaimed custody of the child.

On September 30, 1986, the appellant’s hitchhiking companion, Layton, brought the child to a local hospital seeking emergency medical attention for him. The child was admitted to the hospital and placed in the protective custody of the DFCS at that time. He has remained in the custody of the DFCS since then, living in foster care.

The DFCS caseworker to whom the case was assigned testified that the appellant had visited the child on only four occasions since he had been in DFCS custody — once in October of 1986, once in December of 1986, and twice in February of 1987, when he was hospitalized for surgery on his feet. The caseworker further stated that, with the exception of one $5 payment made in December of 1986, the appellant had contributed no funds towards the support of the child. It was shown that since September of 1986 the appellant had provided the DFCS with 12 different home addresses.

The case was scheduled for an administrative review before a DFCS review panel in April of 1987; however, the appellant telephoned the DFCS office shortly before the scheduled meeting and informed the caseworker that she would not be able to attend because she did not have bus fare to get to Cobb County from Clayton County, where she was evidently living at that time. The review was rescheduled for the following month, but the department was unable to notify the appellant of that meeting date because she had moved without leaving a forwarding address. Consequently, the review was again postponed.

The appellant testified that she had lived with a man in Forest Park, Georgia, from January of 1987 until around March 1st of that year, when she had moved to Mexico. She married a Mr. Gonzalez in Mexico on April 1, 1987; however, she returned to Georgia two days later and wrote to the Mexican authorities seeking an annulment of that marriage. The appellant was pregnant at this time with Gonzalez’s child, who was born prematurely later in the year but died soon thereafter due to physical problems which the appellant attributed to beatings she (the appellant) had received at Gonzalez’s hands after he learned she was pregnant. The appellant testified that since August of 1987 she had been living in North Carolina with a 53-year-old man named Page, whom she planned to marry. Page was unable to be at the hearing due to a heart problem which made travel inadvisable for him.

It was shown that the appellant had worked at several Waffle House restaurants between late August and mid-November of 1986, but there was no indication that she had held a job since then. She testified, however, that Page had a job which paid him $140 per week and that she had been supplementing that income by earning approximately $20 per week as a babysitter. There was testimony that the DFCS had attempted to locate relatives in Georgia or North Carolina who might be capable of raising the child but had not been successful in this effort. Held:

1. The evidence in this case clearly and convincingly demonstrated that throughout the approximately one and one-half years the child had been in DFCS custody, the appellant had been unable or unwilling either to establish a stable home environment in which to raise the child or to secure a source of income through employment from which to provide for the child’s basic needs. Cf. In the Interest of S. G., 182 Ga. App. 95, 101 (354 SE2d 640) (1987). The trial court could reasonably have rejected the appellant’s contention that her relationship with Page had cured these deficiencies, given the somewhat fleeting nature of her past relationships with men, the somewhat precarious nature of Page’s health, and the fact that she and Page were not married. Based on the totality of the evidence, we hold that the juvenile court was authorized to terminate the appellant’s parental rights pursuant to OCGA § 15-11-81 (a) and (b). Accord In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).

Decided January 3, 1989

Rehearing denied January 19, 1989.

Reagan W. Dean, for appellant.

Grayson & Freidewald, Robert J. Grayson, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

2. We reject the appellant’s contention that the trial court failed to comply with subparagraph (4) (C) of OCGA § 15-11-81 (b), which provides, in pertinent part, as follows: “[W]here the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.”

The latter of these three factors was not applicable in this case, since there had been no court ordered plan designed to reunite the child with the appellant. (The DFCS had asked the appellant to agree to such a plan voluntarily, but she had declined to do so.) With respect to the first two factors, the court made specific findings based on the undisputed evidence which reveal a virtual, though not quite total and complete, lack of effort on the appellant’s part to communicate with the child or provide for his care and support during the year prior to the filing of the petition. While the court’s findings in this regard would not in and of themselves have supported a termination of the appellant’s parental rights, neither can it be said that they militated against such a disposition.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    77683, 77684.
    SPECIALIZED ALARM SERVICES, INC. v. KAUSKA; and vice versa.
    (377 SE2d 703)
   Beasley, Judge.

Specialized Alarm Services, Inc. (SAS) sued Kauska for breach of an employment contract by soliciting business from its potential customer and fraudulently procuring business with the customer. Kauska denied that he was ever the company’s employee, denied soliciting customers, and contended that the subject contract was void and unenforceable because of the lack of an employer/employee relationship and because the contract did not have any geographical restrictions in its non-competition clause. He counterclaimed for abusive litigation, seeking damages, attorney fees and expenses of litigation.

The case went to trial. At the close of the case in chief, defendant’s counsel indicated to the court that he had a motion to make. Although counsel did not state what the motion was it was apparent from the beginning of argument that defendant was moving for a verdict in his favor. Discussion between defendant’s counsel and the court ensued. The court voiced its concern about the lack of geographical restriction in the contract, and then said to defendant’s counsel, “If you’re making a motion to dismiss the complaint I’ll grant it.” Counsel indicated he was “making the motion.” Plaintiff was given opportunity to respond.

Following further discussion, the court told defendant’s counsel it would “grant [his] order.” The court stated, “If you take an order dismissing the complaint, you dismiss the counterclaim.” Counsel responded that defendant wanted to proceed on the counterclaim. The court insisted that if defendant dismissed his complaint, the court would dismiss the counterclaim. Counsel then moved for a directed verdict on the complaint stating that he had not moved to dismiss it. The court informed counsel that he could not move for a directed verdict at that point because all the evidence had not been completed, that defendant would have to move for a nonsuit which would dismiss the counterclaim as well. Counsel acquiesced, stating that defendant would move for a nonsuit and to dismiss. The trial court granted a nonsuit.

The judgment stated that defendant had moved for a directed verdict and was entitled to a verdict on plaintiff’s complaint as a matter of law, and it ordered that both the complaint and the counterclaim be dismissed.

Case No. 77683

Plaintiff SAS appeals the judgment contending, inter alia, that the trial court erred by granting a nonsuit and not allowing the issues to go to the jury.

1. “ ‘The remedy of nonsuit as formerly available under Code § 110-310 no longer exists.’ [Cit.] Code § 110-310 was specifically repealed by the Civil Practice Act. Code Ann. § 81A-201 (dd). . . [Under the Civil Practice Act, OCGA § 9-11-50,] [i]n jury cases the defendant has an analogous right to move for a directed verdict. [Cit.]” National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 851 (1) (297 SE2d 740) (1982); see also Todd v. Waddell, 120 Ga. App. 20, 22 (1) (169 SE2d 351) (1969). Therefore, the trial court erred in determining that Kauska should have moved for a non-suit rather than a directed verdict.

Although the court termed its action the grant of a nonsuit, the essence of the decision and its legal effect as to the complaint was to grant a directed verdict in favor of Kauska. The question then becomes whether or not Kauska was entitled to a directed verdict on SAS’s claims.

The claims rested on the validity of the non-competition provision in what it contended was a signed employment agreement with Kauska. The contract consisted of a “non-disclosure/confidentiality agreement” and a “supplemental employment agreement” and was introduced into evidence.

The non-competition provision in the supplemental agreement provided in part, “Employee further agrees that for a period of six (6) months following the termination of his employment by SAS, for whatever reason, not to contact or solicit any customer of SAS for the purpose of providing to such customer of SAS any security equipment, installation or services of the type provided or which may be provided by SAS.” While restricted in time, the provision contained no territorial parameter.

“Although a covenant prohibiting solicitation of the employer’s customers is less restrictive than a covenant prohibiting competition, both must specify the territory in which the employee is to be foreclosed. A covenant prohibiting solicitation of the employer’s customers which does not specify the territory is unenforceable.” Guffey v. Shelnut & Assoc., 247 Ga. 667, 670 (278 SE2d 371) (1981).

Inasmuch as the covenant at issue was unenforceable, SAS’s complaint for breach of it could not prevail, as a matter of law. Nor could the claim of fraud stand. Kauska had no valid contractual obligation to SAS not to solicit its customers; therefore, it could not claim damage from Kauska’s procurement of work from the potential customer. Any evidence of possible fraud in the transaction with the customer would not enliven SAS’s claims for there was no evidence that any misrepresentations were made with the intention and purpose of deceiving SAS, that SAS relied on the representations, or that SAS was damaged thereby. Under the evidence presented, SAS could not recover for fraud, as a matter of law. See Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (1) (270 SE2d 249) (1980).

Kauska was properly due a verdict in his favor on the main claim at the close of plaintiff’s case.

2. SAS’s contention that the trial court failed to rule on its motion to strike the counterclaim pursuant to OCGA § 9-11-12 (f) provides no basis for reversal. The motion was an inappropriate one to accomplish the apparent purpose of dismissal of the counterclaim. OCGA § 9-11-12 (f) provides that upon a party’s timely motion or on the court’s own initiative, “the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The subsection does not embrace the striking of the substance of an entire claim. OCGA §§ 9-11-12 (b) (6), (c) and 9-11-56 are statutory vehicles for this.

3. It is unnecessary to address SAS’s remaining contentions because of the ruling in Division 1.

Case No. 77684

Defendant Kauska cross-appeals contending that the court erred in failing to grant his motion for directed verdict and in dismissing his counterclaim.

1. We have already held above that Kauska merited the grant of a directed verdict on SAS’s complaint and that the effect of the trial court’s action was to grant Kauska judgment on the main claim.

2. The trial court erred in concluding that a verdict for Kauska on the main claim required the dismissal of his counterclaim for abusive litigation. It erred in compelling Kauska to choose between prevailing on the complaint with dismissal of his counterclaim or foregoing the favorable verdict at that point in the case. The directed verdict on SAS’s claim did not extinguish Kauska’s claim or, by his moving for the directed verdict, waive Kauska’s claim.

Following the court’s removal of the main case from the jury’s consideration, the court should have permitted Kauska to present his evidence in support of his claims of abusive litigation. Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The trial court’s judgment dismissing the counterclaim must be reversed and Kauska given the opportunity to litigate his claim.

Judgment affirmed in Case No. 77683. Judgment reversed with direction in Case No. 77684.

Banke, P. J., and Birdsong, J., concur.

Decided January 4, 1989 —

Rehearing denied January 19, 1989

George P. Graves, for appellant.

D. Nicholas Winn, for appellee.


text:
    77697.
    LEDFORD et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (377 SE2d 693)
   Banke, Presiding Judge.

At issue in this declaratory judgment action is whether a foster child living with the holder of a policy of motor vehicle accident insurance issued in this state may be considered a “relative” of the policyholder, so as to be entitled to liability coverage under the terms of the policy.

Appellants Donna T.. Ledford and Billy J. Ledford sued to recover for the alleged wrongful death of their son resulting from a three-car collision. Named as a defendant in that action was Bobby Shane Bruce, a minor child who had been driving a van insured by the appellee, State Farm . Mutual Automobile Insurance Company. Also named as a defendant was Bobby Garrett, who, as the owner of the van, was the named insured under the State Farm policy. At the time of the accident, Bruce was in the legal custody of the Hall County Department of Family & Children Services and was living in Garrett’s home as a foster child. It is undisputed that he was driving the van without the knowledge or consent of Mr. Garrett or his wife.

The term “insured” is defined by the policy to mean: “1. you; 2. your spouse; 3. the relatives of the first person named in the declarations; 4. any other person while using such a car if its use is within the scope of consent of you or your spouse. . . .” (Indention omitted.) Since it is undisputed that Bruce did not have the Garretts’ consent to drive the van, it follows that the only way he could be considered an “insured” under the liability provisions of the policy is if he could be considered a “relative” of Mr. Garrett. The trial court determined that he could not be and granted State Farm’s motion for summary judgment in this declaratory judgment action brought to determine its obligations in the matter. Held:

The appellants argue that because Mr. Garrett, as a foster parent, stood in loco parentis towards Bruce, the equivalent of a parent-child relationship existed between them, making them “relatives” in a functional sense. See OCGA § 49-5-3 (11). Cf. Brown v. Phillips, 178 Ga. App. 316 (1) (342 SE2d 786) (1986) (holding that in the absence of wilful or malicious misconduct, foster parents are immune from tort liability to a foster child pursuant to the doctrine of intra-family tort immunity). The appellants also point to the public policy of this state, as manifested by its mandatory motor vehicle insurance laws, “that ‘innocent persons who are injured should have an adequate recourse for the recovery of their damages.’ [Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983)].” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (329 SE2d 136) (1985). However, not all policy exclusions are invalidated by this public policy; and the general rule still obtains that in the absence of a specific statutory mandate to the contrary, the courts cannot expand a contract of insurance beyond its plain language. See generally Ga. Farm &c. Ins. Co. v. Fire & Cas. Ins. Co., 180 Ga. App. 777 (350 SE2d 325) (1986).

The term “relative” is not defined in the insurance policy under review. Generally speaking, of course, relatives are acquired by birth, marriage or adoption. The question of whether a foster child may nonetheless be considered a “relative” within the contemplation of a liability insurance policy such as the one before us has not previously been addressed in Georgia. Indeed, only one other state appears to have rendered a decision on the issue. See Allstate Ins. Co. v. Tate, 389 NW2d 512 (Minn. Ct. App. 1986) (holding that a 21-year-old who had lived with the named insureds as a foster child for six years prior to the accident and who continued to live with them after reaching the age of majority could not be considered a relative under the terms of the foster parents’ policy, notwithstanding that the equivalent of a parent-child type relationship existed between them).

The Garretts were receiving compensation from the DFCS for caring for Bruce, as well as for two other foster children who had been placed in their home. They were thus engaged in the operation of a “family boarding home,” which is defined by OCGA § 49-5-3 (7) to mean “a home operated by any person who receives therein for pay for supervision, care, lodging, and maintenance, with or without transfer of legal custody, three or more children under 17 years of age who are not related to such person and whose parents or guardians are not residents of the same house.” (Emphasis supplied.) We are persuaded by the language of this statute as well as by the common understanding of the word “relative” that the existence of a foster parent-child relationship between Garrett and Bruce did not operate to make them relatives within the contemplation of the policy. Being unwilling to expand the insurance contract “beyond what is fairly within its plain terms,” Ga. Farm &c. Ins. Co. v. Fire Cas. Ins. Co., 180 Ga. App. 777, 778, supra, and believing that the mandatory insurance laws of this state do not operate to require motor vehicle accident insurers to provide liability coverage to non-relatives of a named insured who acquire liability while operating the named insured’s vehicle without his knowledge or permission, express or implied, we consequently hold that the trial court did not err in granting State Farm’s motion for summary judgment in the present action.

Decided January 3, 1989 —

Rehearing denied January 19, 1989

Stone & Williams, Wesley Williams, for appellants.

W. Allan Myers, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


author: Birdsong, Judge.

text:
    77486.
    TANN v. THE STATE.
    (377 SE2d 915)
    Decided January 19, 1989.
    Armed robbery, etc. Fulton Superior Court. Before Judge Lang-ford.
   Birdsong, Judge.

Appellant, Carlton Tann, appeals his conviction of armed robbery and aggravated assault and his sentence.

The manager and two employees of a local Taco Bell identified appellant as the perpetrator of the offenses.

Appellant asserted an aggressive alibi defense. In his behalf, he presented the testimony of three alibi witnesses, five witnesses whose testimony directly or indirectly corroborated the testimony of the alibi witnesses, a local pastor character witness, and his own testimony refuting the commission of the offenses and claiming alibi. Held:

Appellant’s enumeration of error on the general grounds is without merit. Three witnesses for the State positively identified the appellant. “ ‘ “Identity is a question for the trior of fact, and where a witness identifies a defendant (whether the identification be based on the defendant’s eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by” ’ ” an appellate court. Lowe v. State, 185 Ga. App. 606 (2) (365 SE2d 479). “The weight of the evidence and the credibility of the witnesses are questions for the factfinder.” Patterson v. State, 181 Ga. App. 68 (2) (351 SE2d 503). The evidence presented at trial was sufficient to enable a rational trier of fact to find appellant guilty of both offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

M. Muffy Blue, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John M. Turner, Richard E. Hicks, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    77582.
    RONDALE BUS SERVICE, INC. v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA.
    (377 SE2d 726)
   McMurray, Presiding Judge.

American Casualty Company of Reading, PA (“American”) brought an action against Róndale Bus Service, Inc. (“Róndale”) to recover an insurance premium allegedly owed by Róndale for motor vehicle liability insurance provided by American. Róndale denied the material allegations of the complaint and counterclaimed, seeking a “refund of [its] deposit premium.” American subsequently filed a motion for summary judgment. The undisputed facts are as follows:

Róndale is in the business of renting and chartering buses. In the fall of 1985, Róndale discovered that its insurance carrier intended to increase Rondale’s annual insurance premium by approximately $50,000. As a consequence, Róndale contacted Sorrier Insurance Agency, Inc. (“Sorrier”), an independent insurance agency, and was informed by a Sorrier representative that motor vehicle liability insurance could be provided to Róndale through “[t]he Georgia Automobile Insurance Plan” (the assigned risk plan) at an annual premium rate of $44,000. Relying on this “quote,” Róndale executed an application entitled, ‘‘COMMERCIAL/TRUCKERS GEORGIA AUTOMOBILE INSURANCE PLAN.” The application provided a “Total Estimated Premium [of] $42,153.00” and indicated a “Deposit Premium” of “$14,310.00.” The application further indicated that Rondale’s coverage was to be effective October 23,1985, and disclosed that “the premium shown on [the] application is an estimated premium”; that “[t]he [insurance] company reserves the right to adjust the premium either prior to or after the issuance of the Policy, whenever applicable”; and that “the applicant may be able to obtain insuranee coverage in the voluntary market by making inquiry of more than one source.”

Sorrier mailed Rondale’s application and deposit premium to the assigned risk plan on October 22, 1985. The assigned risk plan assigned Rondale’s application to American and American received an “illegible” copy of the application on November 4, 1985. On November 25, 1985, American received a “legible copy” of the application and, applying a formula prescribed by the assigned risk plan, American determined that Rondale’s annual premium was $111,266. (American later submitted evidence showing that its original premium calculation was in error and that Rondale’s annual premium was $110,405.) On January 3, 1986, American mailed an insurance policy, effective October 23, 1985, and a premium notice to Róndale. On January 27, 1986, Róndale requested that its coverage with American be cancelled due to the difference between the premium charged by American and the premium “quote” made by the Sorrier representative. American cancelled Rondale’s policy on March 31, 1986, and demanded an earned premium of $40,193. American later amended its demand, seeking to recover an earned premium of $19,090 for coverage provided through January 31, 1986. From this and other evidence, the trial court entered summary judgment in favor of American in the principal amount of $19,090. Róndale now appeals. Held:

1. Róndale first contends the trial court erred in granting American’s motion for summary judgment as a genuine issue of material fact remains as to whether a contract for insurance existed. In this regard, Róndale argues that there was no “meeting of the minds” as to an essential element of the contract, i.e., the amount of the insurance premium.

It is generally true that “[t]he premium to be charged on a policy of insurance is one of the essential terms so that no contract exists until agreement is reached with respect to it. Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 491 (37 SE2d 393) (1946).” All American Assur. Co. v. Brown, 177 Ga. App. 402, 404 (339 SE2d 611). This rule stems in part from the principle that “‘[tjo constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate.’ Section 20-107 [now OCGA § 13-3-1].” (Emphasis supplied.) Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 491 (2), supra. These essential elements are normally the subject of direct negotiations between the contracting parties. This is not true when insurance coverage is provided through the assigned risk plan.

“Generally, any insurer to whom a particular risk is assigned [by the assigned risk plan] must accept the assignment and provide coverage, but is allowed a higher premium commensurate with the risk. [Compare Harrison v. American Liberty Ins. Co., 155 Ga. App. 226 (1) (270 SE2d 389).] The premium is determined by a rating system approved by the Insurance Commissioner which is keyed to the nature, number and severity of convictions for law violations applicable to motor vehicles. This rating and premium information is available to ‘producers’ (insurance agents) in what is called the ‘Automobile Insurance Plan Manual.’ ” Employers Commercial Union Cos. v. Waldrop, 124 Ga. App. 746, 747 (1) (186 SE2d 134).

In the case sub judice, American submitted a copy of the “Georgia Automobile Insurance Plan” (manual) and an examination of the manual reveals that coverage is to be made effective to qualified applicants at “12:01 a.m. on the day following the date of mailing of the application to the Plan . . .” or at 12:01 a.m. on a day designated by the applicant, “not to exceed 30 days from the date of application,” or, “in the event there is in force a policy terminating . . .” more than 30 days from the date of application, “the Plan shall fix when the coverage becomes effective at 12:01 a.m. on the desired date of coverage.” From this perspective, it is apparent that insurance coverage under the assigned risk plan is not the subject of normal negotiations between contracting parties, but is made effective by operation of law to serve the best interests of the general public. See Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115). It thus follows that the general rule of “mutual assent” as to the amount of the premium does not apply under the circumstances of the case sub judice. This conclusion is supported by undisputed evidence showing that Róndale was a qualified applicant under the assigned risk plan; that Sorrier was not acting as an agent of American; and that there was no communication by either Róndale or Sorrier with American before the effective date of the policy. See Morris v. Fidelity & Cas. Co. of N. Y., 169 Ga. App. 883 (1) (315 SE2d 451). Consequently, since Róndale was aware that it was obtaining motor vehicle liability insurance under “[t]he Georgia Automobile Insurance Plan” and since American was required to provide coverage to Róndale, effective October 23, 1985, Róndale is bound by the mandatory premium prescribed by the assigned risk plan. See Lynn v. Farm Bureau &c. Ins. Co., 264 F2d 921, 925, 926 (4th Cir. 1959).

2. Next, Róndale contends that it should be relieved of liability for the premium prescribed by the assigned risk plan because of a mutual mistake of fact as to the amount of the premium. We do not agree.

“It is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract.” Williams v. Lockhart, 221 Ga. 343, 344 (2) (144 SE2d 528). “Ignorance of fact will not justify the rescission of a contract. [Cits.] Ignorance, as the term is here used, means a lack of knowledge concerning a subject-matter, a failure to inform oneself; and results directly from negligence.” Prince v. Friedman, 202 Ga. 136, 140 (2) (42 SE2d 434). In the case sub judice, Rondale’s president testified that she was advised by Rondale’s former insurance agent to investigate the Sorrier agent’s premium “quote.” Rondale’s president also testified that she did not read the assigned risk plan’s application she executed on behalf of Róndale and that she did not investigate the nature of the assigned risk plan because “at the time [she] was just glad to get a better quote ... .” Under these circumstances, we find that Rondale’s misunderstanding as to the amount of the premium was not the result of a “mutual mistake of fact” between Róndale and American, but was the result of Rondale’s president’s ignorance as to the nature of the assigned risk plan. Consequently, neither law nor equity will relieve Róndale of the consequences of its submission to the assigned risk plan. See Walsh u. Campbell, 130 Ga. App. 194, 197 (202 SE2d 657).

3. Next, we address Rondale’s argument that there remains a genuine issue of material fact as to whether American acted within a reasonable time in notifying Róndale of the terms of its insurance policy.

The assigned risk plan allows an applicant to reject a policy of insurance provided through the plan for any reason. “If . . . the applicant refuses to accept the policy, the designated company shall retain the short rate earned premium for the period of coverage or the minimum premium per car or policy as shown in the Manual of Rules and Rates, whichever is greater, and return the balance to the applicant.”

An applicant’s right of refusal becomes more meaningful when read in conjunction with Section 14 (A) of the manual. This section requires “the designated company” to notify an applicant of the terms of the policy no later than 30 days after the company’s “receipt of the notice of designation and the premium or deposit from the Plan. . . .’’In the case sub judice, the record shows that American failed to notify Róndale of the terms of the policy within 30 days of American’s receipt of Rondale’s application and deposit premium. Consequently, there remains a genuine issue of material fact as to the effect of this breach of duty on Rondale’s liability for coverage under the plan.

4. It is unnecessary to address Rondale’s final enumeration of error in the light of this court’s holding above.

Decided January 19, 1989.

Newton, Smith, Durden & Kaufold, Howard C. Kaufold, for appellant.

Ronald C. Thomason, for appellee.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.

       The assigned risk plan was organized by Georgia’s insurance commissioner to reduce “exposure of the motoring public to injury and damage at the hands of financially irresponsible drivers. The enactment of the assigned risk plan found in Code Ann. § 68C-601 [now OCGA § 40-9-100] indicates a determination by the General Assembly that the innocent should not bear the loss.” Young v. Allstate Ins. Co., 248 Ga. 350, 351 (282 SE2d 115). To this extent, the plan “caters only to those who are not able for various reasons to obtain automobile liability insurance in the open market. Such people are usually classified as ‘high risks.’ The plan is not an insurer, rather, it receives and equitably apportions applications for automobile liability insurance among all such insurers doing business in the State.” Employers Commercial Union Cos. v. Waldrop, 124 Ga. App. 746, 747 (1), supra.

       Rondale filed a “THIRD PARTY COMPLAINT” against Sorrier, seeking indemnification “for any sum that may be recovered against [Róndale] in favor of [American] together with costs of this action.” Róndale alleged that Sorrier was “negligent” and “committed a fraud and conceit” in estimating the insurance premium.


author: Benham, Judge.

text:
    77699.
    ROCKDALE COUNTY v. WATER RIGHTS COMMITTEE, INC. et al. WATER RIGHTS COMMITTEE, INC. et al. v. ROCKDALE COUNTY et al.
    77700.
    (377 SE2d 730)
   Benham, Judge.

The trial court permitted The Water Rights Committee (WRC) and an individual to intervene in the lawsuit Rockdale County had filed against the City of Conyers. A week later, the trial court dismissed the lawsuit and directed the parties to arbitrate. Following the trial court’s denial of motions to set aside and to reconsider, Rockdale County, the WRC, and the individual filed these appeals.

“The initial issue for resolution is whether this court has jurisdiction to consider [these] appeal [s]. The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Cit.J” In the Interest of C. S. M., 184 Ga. App. 125 (361 SE2d 16) (1987).

In the case at bar, the trial court entered its final judgment on March 28, 1988. On April 7, the WRC and the individual filed motions to set aside the judgment; to reconsider; and to extend the time for filing an appeal. On April 15, the trial court granted to all parties an extension to file an appeal “for thirty (30) days from the date rulings on the motions [to set aside and to reconsider] are signed and filed with the Superior Court Clerk. . . .” The trial court denied the motions to set aside and reconsider on June 6; Rockdale County filed its notice of appeal on June 30, and the WRC and the individual filed their notice of appeal on July 1.

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a). “Any judge of the trial court . . . may, in his discretion, . . . grant extensions of time for the filing of: . . . Notice of appeal . . . Only one extension of time shall be granted for filing of a notice of appeal . . . , and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” OCGA § 5-6-39 (a), (c).

Decided January 19, 1989.

Maddox, Starnes & Nix, John A. Nix, for Rockdale County.

Lance & Associates, F. Jack Lance, D. Suzanne Moon, for Water Rights Committee.

Barksdale & Barksdale, Wales F. Barksdale, Mary Carole Cooney, for City of Conyers.

“Under [OCGA § 5-6-39], neither the trial court nor this court has jurisdiction to grant an extension of more than 30 days for the filing of a notice of appeal.” Smith v. Smith, 113 Ga. App. 111 (2) (147 SE2d 466) (1966). The trial court’s order of April 15 “was an ineffective nullity insofar as it purported to grant an extension for a period of time greater than 30 days. Such an extension in excess of 30 days would be in violation of [OCGA § 5-6-39].” Parker v. State, 156 Ga. App. 299, 300 (274 SE2d 694) (1980). Thus, the parties cannot rely on the trial court’s order as authority for extending the time for filing their notices of appeal. Cf. Cranman Ins. Agency v. Wilson Marine &c. Svc., 147 Ga. App. 590, 591 (249 SE2d 631) (1978).

The WRC and the individual also filed a motion to reconsider and a motion to set aside the judgment. Neither motion is enumerated in OCGA § 5-6-38 as one which extends the time for filing a notice of appeal. “An appeal from a judgment denying a motion for reconsideration of a [final] judgment order rendered more than 30 days before the notice of appeal is not timely.” Bartlett v. Hembree, 177 Ga. App. 253, 254 (339 SE2d 338) (1985). A motion to set aside, while not enumerated in OCGA § 5-6-38, “is itself, when overruled, appealable. . . .” Johnson v. Barnes, 237 Ga. 502, 503-04 (229 SE2d 70) (1976). However, “[a] motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record on pleadings, unless the defect involves a jurisdictional error. . . .” OCGA § 9-11-60 (d). The motion to set aside filed by the WRC and the individual “was not predicated upon a nonamendable defect or a lack of jurisdiction. The motion was nothing more than a request for a reconsideration of the trial court’s [final] judgment award. [Cit.] Accordingly, the motion did not extend the time for the filing of a notice of appeal from the [March 28] order . . . Inasmuch as the appeal is not timely, it must be dismissed.” Miller v. Bank of the South, 177 Ga. App. 42 (1) (338 SE2d 436) (1985).

Appeals dismissed.

McMurray, P. J., and Pope, J., concur.


text:
    77222.
    JONES v. WINNERS CORPORATION et al.
    (377 SE2d 705)
   Birdsong, Judge.

We granted this workers’ compensation case discretionary appeal to correct misstatements of law by the ALJ.

The issue is the “dependency” of the claimant widower on his deceased wife. OCGA § 34-9-13 provides: “(b) The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: (1) A wife or husband who had not voluntarily abandoned her or his spouse at the time of the accident resulting in the death of the spouse, except that, if the surviving spouse was employed for a period of 90 days next prior to the accident which resulted in the death of the deceased employee, the presumption of total dependence shall be rebuttable. . . (Emphasis supplied.)

Under this code section, since the claimant widower may have worked 90 days next prior to his wife’s death, there is no “conclusive presumption” that he was wholly dependent on his wife, although the ALJ said there was such a conclusive presumption because he “was dependent on the deceased employee to maintain his lifestyle.” The ALJ cited Insurance Co. of North America v. Russell, 246 Ga. 269 (2) (271 SE2d 178) and Neese v. Subsequent Injury Trust Fund, 164 Ga. App. 136 (296 SE2d 427), both of which predate the present enactment of OCGA § 34-9-13.

There is some evidence to support a possible finding that the presumption of total dependence was not rebutted; but because of the erroneous application of a conclusive presumption, based on the claimant’s dependence on her to “maintain his lifestyle,” the ALJ obviously did not appropriately reach a decision that the rebuttable presumption had in fact been rebutted. Therefore, the judgment of the superior court reversing and remanding the issue is correct.

It should be noted that the employer claims, as important or determinative, that “at all times pertinent hereto the deceased never sent money to her spouse [a Navy man].” This implies a contention that the “times pertinent hereto” is the time element stated in the code section (90 days prior to death), and that if she did not send him any money during those 90 days, the presumption of dependency was rebutted. There is no basis for such a theory of “sending or providing money” 90 days prior to death in the code section; the only provision regarding the time “pertinent” (90 days) refers to whether the surviving spouse was employed during that time, not to whether the deceased gave him money. However, whether the deceased sent or gave claimant money may be a fact, like any other, to consider in determining whether the presumption of total dependency has been rebutted.

Decided January 4, 1989 —

Rehearing denied January 23, 1989.

James W. Smith, for appellant.

Woodson & Hanofee, Timothy V. Hanofee, Jefferson J. Davis, for appellees.

On remand, the ALJ should determine whether the presumption of total dependency was rebutted. We must re-emphasize, however, that the code section does not provide that the fact claimant worked 90 days prior to his wife’s death conclusively rebuts a presumption of total dependency; it merely provides the presumption is rebuttable. Thus, other facts, such as those the ALJ considered, might authorize a finding of total dependency, even though the spouse worked 90 days prior to his wife’s death.

The trial court’s remand of the case to the board for renewed consideration is affirmed, for proceedings not inconsistent herewith and with the code section.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

On Motion for Rehearing.

On motion for rehearing, the claimant widower contends essentially that the ALJ’s finding (that there was a conclusive presumption the claimant was totally dependent on deceased to maintain his lifestyle) constitutes a proper finding as we have directed in this opinion. Claimant thus says, in essence, that whatever the ALJ’s reasoning, the ALJ did find the rebuttable presumption to have been conclusively rebutted. This may or may not be so, but if it is so, in legal import it is by coincidence only, because the ALJ clearly used the wrong law and applied prima facie a conclusive presumption. The result might well be different if the ALJ follows the current statute in determining claimant’s dependency. Legal errors in these cases require remand or reversal, wherever it may have been harmful.

Motion for rehearing denied.


text:
    77232.
    MASSENGALE v. THE STATE.
    (377 SE2d 882)
   Birdsong, Judge.

Appellant, James Roy Massengale, Jr., appeals his conviction of voluntary manslaughter and sentence.

In the early morning of September 12, 1987, appellant’s father, James Massengale, Sr., called the Dade County Sheriff’s Office and reported a homicide on his property. Deputy James White was dispatched to the scene. Deputy White went to the home of James Massengale, Sr., and knocked on the door. James Massengale, Sr., answered the door and admitted Deputy White into his home. Mr. Massengale introduced his son, the appellant, to Officer White, and stated that appellant “had shot someone down in the woods and believe [d] him to be dead.” Deputy White asked where the weapon was located, and the appellant said “in here” and went into his bedroom. Appellant returned with the shotgun, which he handed to Deputy White. Appellant then took Deputy White to the crime scene, an area used for camping.

Deputy White found the victim, Tony Troxtel, dead and wedged between some rocks. The victim’s head had been pushed into the sleeve of a jacket, and the garment was tightly wrapped around the head.

GBI Investigator, John Wakefield, recovered one expended shotgun shell from a spider web at the scene, and found two metal shell ends and a hatchet head in a campfire. Laboratory analysis revealed that the intact expended shotgun shell and one of the burned shells were fired from the shotgun. One burned shell could not be analyzed. The shotgun was a .12 gauge shotgun with a “folded stock,” the type of weapon generally used in a law enforcement field.

The victim had been shot four times. Each shot had been fired into the body at an upward angle. The wounds were such that the victim could have been standing straight up and the shooter standing at a lower level. One wound was to the front of the victim; it started to the right of the pubic rim and moved upwards lacerating the abdominal wall. The nature of this wound suggested that the victim could have been laying on his back at the time he received it. Two of the wounds entered the back; one near the lower right side of the back and the other near the upper left side of the back. The fourth and last shot fired entered the victim’s mouth upward into the cranial cavity.

Russell Bolen testified that the appellant admitted to him that he had killed the victim, but claimed that he shot in self-defense. Bolen testified that appellant and Troxtel had been friends. Appellant told Bolen that Troxtel had told him his uncle had loaned Troxtel some credit cards and that the two men had gone to Chattanooga to shop. Appellant said the two men had separated, but about 30 minutes later he was rapidly approached by Troxtel who said they must leave immediately. Troxtel later told appellant that the credit cards had been stolen and that he had almost been caught using them. Subsequently, Troxtel camped out in hiding on the property of appellant’s father. Appellant visited Troxtel at the campsite. Troxtel said he could go to jail for 20 years for taking the credit cards across a state line. The appellant stated, he told Troxtel that if questioned by the police, he would tell them he had nothing to do with the credit cards and that it was just Troxtel. Troxtel replied that he would “fix it where you can’t,” and attacked appellant with a hatchet. Appellant had to shoot Troxtel, who fell back with his intestines on the ground. Troxtel was shaking his arms and screaming. Appellant wanted to stop Troxtel’s pain so he shot him “two more times.” Appellant said that during the shooting Troxtel dropped the hatchet in the fire. Appellant later told his parents that he had put the shotgun shells into the fire. However, appellant later remembered and told Bolen that he had shot Troxtel four times. On cross-examination, Bolen admitted that he had earlier testified that appellant had told him that all of the shots were fired real fast.

Appellant testified that only Troxtel used the credit cards, once to buy dinner for appellant and a man named Kevin and again when they went to J. C. Penney’s at Northgate Mall. Appellant denied using the cards himself. The appellant recounted the incident at J. C. Penney’s and stated that a couple of days later, Troxtel, who had no other place to stay, borrowed his camping equipment. Troxtel carried the camping gear and a hatchet. Appellant, at Troxtel’s request, brought along his shotgun as a protection against snakes. At the campsite the two men talked. Troxtel said he could get 20 years for taking the cards across a state line. Appellant testified he told Troxtel that he did not want to get mixed-up in anything like that, and that if asked by the police, he would tell them what happened. Troxtel stated that he would make sure that the appellant did not say anything, and attacked appellant with the hatchet. Appellant “moved to the side and shot at the same time, and [he] kept shooting.” The first shot straightened Troxtel up and kind of turned him. Appellant was not sure exactly how the shots hit Troxtel, but one shot struck and caused him to flip backward off the rock he was on. Appellant could hear Troxtel screaming but could not see him. All the shots were fired in a five or six second time span. Appellant blacked-out and fell on his back. When he awoke, appellant saw the shells and could only think about cleaning up the area. He picked up the shells near him and threw them in the fire. Appellant was in a sitting position when the attack began. Appellant testified that he did not want to or mean to kill Troxtel; he was acting in self-defense. Prior to this time he was good friends with Troxtel. Appellant does not know how or when Troxtel was shot in the mouth. He did not turn Troxtel over and shoot him either in the back or in the mouth. Appellant also denied putting Troxtel’s head into the sleeve of his jacket; and he testified that he did not know how the hatchet got into the fire. Held:

1. Appellant asserts the general grounds and the trial court’s failure to grant his motion for a directed verdict as error. We disagree. Only where there is no evidence to support a verdict to the contrary is a directed verdict of acquittal authorized. Bradley v. State, 180 Ga. App. 386 (2) (349 SE2d 263). “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). Reviewing the evidence in the light most favorable to the verdict, Adams v. State, 255 Ga. 356 (1) (338 SE2d 860), we conclude that the jury could rationally have found that it excluded every reasonable hypothesis except that of appellant’s guilt, Smith v. State, 257 Ga. 381 (359 SE2d 662), and that any rational trier of fact could have found the appellant guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that the trial court erred in charging the jury that the requisite scienter for voluntary manslaughter could be established by a mere showing of criminal negligence. In charging the jury, the trial court employed the language of OCGA § 16-2-1. Reviewing the charges in their entirety, we find that the trial court did not err. See Smith v. State, 238 Ga. 146 (2) (231 SE2d 757); Harper v. State, 182 Ga. App. 760 (7) (357 SE2d 117).

3. Appellant asserts that the trial court erred in overruling the motion to suppress physical evidence, specifically the shotgun. There was no error. No search occurred in this instance. James Massengale, Sr., had summoned the police voluntarily to his home, and he admitted Deputy White therein. After being told appellant had shot someone, Deputy White asked where the weapon was located, under the circumstances, a reasonable preliminary question solely to insure his safety. Compare State v. Overby, 249 Ga. 341 (290 SE2d 464). Appellant voluntarily left the room and returned with the weapon in plain view which he gave to the deputy. “ ‘ “A police officer may seize what is in plain sight if, as here, [he] is in a place where [he] is constitutionally entitled to be. [Cits.] And where such a plain-view seizure takes place, there is in effect no search at all.” ’ ” May v. State, 181 Ga. App. 228 (1) (351 SE2d 649). Moreover, at the time of the seizure, Deputy White “had probable cause” to suspect that the shotgun was connected with criminal activity, Illinois v. Andreas, 463 U. S. 765, 771 (103 SC 3319, 77 LE2d 1003), and thus under these circumstances was “presumptively reasonable,” Texas v. Brown, 460 U. S. 730, 741-742 (103 SC 1535, 75 LE2d 502) (plurality opinion).

Moreover, assuming that error occurred in denying the suppression motion, we are convinced that in view of appellant’s judicial admission of shooting the victim with a shotgun with his steadfast reliance on self-defense, any error would be harmless beyond a reasonable doubt. Moody v. State, 244 Ga. 247 (6) (260 SE2d 11).

4. Appellant asserts that certain information which should have been disclosed to him was not disclosed by the State. Linda Ingle testified as the State’s rebuttal witness that appellant had used a credit card at Eastgate Mall to purchase some men’s shoes and signed the name Kevin LeFever, and that subsequently the appellant attempted to obtain a cash refund for one of the pair of shoes. Appellant previously had testified that Steak & Ale and Northgate Mall were the only two places where he knew that the credit cards were passed. He also had testified that he and the victim only went to the J. C. Penney’s store in Northgate Mall. The appellant also testified in surrebuttal, denying that he was involved in the incident testified to by Ms. Ingle.

Subsequently, appellant placed on the record that he had asked the State if it possessed “any Brady material which might contradict their rebuttal testimony.” In essence, this constituted a general Brady request for “anything exculpatory.” See Tribble v. State, 248 Ga. 274 (1) (280 SE2d 352). The State denied being in possession of any such information. Previously, the appellant in an omnibus motion filed another type of general Brady motion, see generally Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), and the trial court had conducted an in camera inspection of the district attorney’s case file. A sealed record was made of all information contained in that file that was not released to appellant.

Appellant asserts that in closing argument the State attempted to portray appellant as the lone culprit in the credit card venture, thereby undermining appellant’s affirmative defense, notwithstanding its possession of undisclosed information which would rebut this theory. At the hearing on appellant’s motion for new trial, Rex Blevins testified that he was the victim’s probation officer. Several days prior to the victim’s death, Blevins contacted the Dade County Sheriff’s Office and was informed that the victim was being sought for questioning regarding some “credit cards violations.” The defense apparently was informed of this information before trial. Investigator Don Hicks of the Dade County Sheriff’s Office testified that before, trial he informed appellant’s attorney that there currently was insufficient information to charge anyone with the theft of the credit cards. Hicks also testified that before Troxtel’s death, he was contacted by a Chattanooga detective who requested photographs of Troxtel, the photographs were mailed, and subsequently Hicks was informed that “witnesses” had identified Troxtel as using the card in a business in Chattanooga. Appellant’s attorney was not informed of this information by the sheriff’s office. However, the record at most reveals a negligent failure to make a voluntary full disclosure of this information to the defense.

Our review of the sealed case file of the district attorney’s office, pertaining to this case, reveals that the above information is not included in any of the undisclosed portions thereof. Further, appellant has made no sufficient showing that the district attorney’s office was actually aware of this information at trial time, or that the probation officer or sheriff’s office wilfully and intentionally concealed this particular information from the defense.

At the onset, we observe “that counsel for the State can make available only such evidence as it has in its file, or of which it has knowledge, and ‘is under no requirement to conduct an investigation on behalf of a defendant. . . .’ [Cit.] Nor is an accused, as a matter of right, entitled to receive copies of police reports and investigations made in the course of preparation of a case against a suspect. [Cit.] Further, . . . ‘there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” ’ ” Fuqua v. State, 183 Ga. App. 414, 417-418 (359 SE2d 165). Certainly, a prosecutor has no obligation to contact local law enforcement and judicial agencies on behalf of the defense to uncover any information which might be remotely relevant. See Keller v. State, 253 Ga. 512 (2) (322 SE2d 243).

“ ‘There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . .’ [Cit.] Brady cannot be read as requiring that ‘as a matter of constitutional law everything must be disclosed which might influence a jury.’ ” (Emphasis supplied.) Castell v. State, 250 Ga. 776, 782 (301 SE2d 234).

In the absence of a clear showing that this information was wilfully and intentionally concealed from the defense, we are inclined not to impute to the prosecutor knowledge possessed by the local police and probation authorities. Compare Castell v. State, supra at 782, n. 6 with Freeman v. State of Ga., 599 F2d 65, 69 (5th Cir. 1979). However, pretermitting this question is the question whether disclosure of any previously nondisclosed information actually possessed by the probation officer and sheriff’s office would have given rise to a reasonable doubt that did not otherwise exist. See Castell v. State, supra at 782. In this regard, “a prosecutor’s nondisclosure of evidence may impair a defendant’s right to a fair trial only if the evidence not disclosed is material in the sense that it might create in the minds of the jurors a reasonable doubt that did not otherwise exist.” Rogers v. State, 257 Ga. 590 (3) (361 SE2d 814). The proper test for determining materiality when the prosecutor has failed “to disclose favorable evidence pursuant to no request, a general request, or a specific request for evidence by the accused” is that “ ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’ ” Id. at 592.

Decided January 5, 1989 —

Rehearing denied January 23, 1989

Herbert E. Franklin, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Assistant District Attorney, for appellee.

We find that this nondisclosed information was not material in the sense that there was a reasonable probability that its disclosure could have caused a different outcome in this trial.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Carley, Chief Judge.

text:
    77361.
    KINNEY v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY et al.
    (377 SE2d 900)
   Carley, Chief Judge.

Appellee-plaintiffs brought suit against appellant-defendant, seeking to recover for unpaid insurance premiums. Appellant answered, denying the material allegations of appellees’ complaint. Thereafter, appellant was served with a set of interrogatories and requests for admission. One of appellees’ interrogatories asked appellant to state “the factual basis for each and every defense you have to this presently pending action.” In his sworn response to this interrogatory, appellant stated, in pertinent part, that he had not “authorized the coverage for which premium is sued upon.”

Appellees filed a motion for summary judgment and supported their motion with the affidavit of their collection accountant. Appellees’ affiant swore that she was familiar with the records of appellant’s account and that those records reflected that appellant owed appellees for unpaid insurance premiums. Attached to the affidavit were copies of the records of appellant’s account. Appellant did not respond to appellees’ motion for summary judgment. Subsequently, the trial court entered an order granting appellees’ motion. Appellant appeals from the trial court’s order granting summary judgment in favor of appellees.

1. Appellant enumerates the grant of appellees’ motion for summary judgment as error, urging that appellees failed to meet their burden of showing that no genuine issue of fact remained as to his liability for the indebtedness.

Decided January 10, 1989 —

Rehearing denied January 23, 1989.

Harrison & Harrison, G. Hughel Harrison, for appellant.

Stokes, Lazarus & Carmichael, Marion B. Stokes III, Michael A. Young, for appellees.

“ ‘[Appellees], as movant[s] for summary judgment, [have] the burden of establishing the absence of any genuine issue of material fact and of [their] right to recover as a matter of law. [Cit.] The [appellant], as the [party] opposing the motion, [is] entitled to all favorable inferences and the evidence is to be construed most strongly in [his] favor. [Cit.] “(A)ll the evidence adduced on the motion, including the testimony of the party opposing the motion, must be construed most strongly against the movant.” ’ [Cit.]” Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13, 14 (282 SE2d 670) (1981). Appellant, in his sworn response to appellees’ interrogatories, stated that he had not authorized the purchase of the insurance coverage for which appellees were attempting to recover premiums. Compare Clark v. Assurance Co. of America, 156 Ga. App. 526 (2) (275 SE2d 111) (1980); Ambrose v. E. F. Hutton & Co., 146 Ga. App. 403 (246 SE2d 423) (1978). Although appellees’ records showed that they had charged appellant premiums for providing certain insurance coverage, appellees presented no evidence to show that appellant had authorized the purchase of the insurance coverage. If appellant authorized the coverage, appellees are entitled to be paid premiums for providing it. If, however, appellant did not authorize the coverage, appellees are not entitled to recover simply because their own records reflect that appellant was charged premiums.

The record is devoid of any evidence showing that appellant authorized the coverage. Since appellant’s sworn statement that he never authorized the insurance coverage remains unrebutted, a genuine issue of fact exists as to appellant’s liability. Accordingly, the trial court’s grant of summary judgment was erroneous.

2. “Appellee [s have] filed with this court, pursuant to OCGA § 5-6-6, a motion for damages of ten percent of the judgment below for filing a frivolous appeal. Because we have found reversible error as to . . . the judgment, we must deny appellee[s’] motion.” Wisseh v. Bank of Credit &c. Intl., 173 Ga. App. 286, 287 (2) (325 SE2d 897) (1985).

Judgment reversed.

Sognier, J., concurs. Been, P. J., concurs in judgment only.


text:
    77434.
    HAUN v. THE STATE.
    (377 SE2d 878)
   Birdsong, Judge.

Brad Scott Haun was convicted of simple battery (OCGA § 16-5-23.1) under an indictment alleging only aggravated assault, in that he “did unlawfully make an assault upon the person of Bryon Parris Marsh with a bottle, an object which when used offensively against a person, is likely to or actually does result in serious bodily injury.”

The evidence authorized the jury to conclude that, after insulting words were exchanged among two groups of people in a restaurant parking lot, appellant ran towards Marsh and struck him in the face with a beer bottle, causing serious injury, including disfigurement.

After the close of the State and defense evidence, and before argument to the jury, the State orally requested the trial court to give a charge on simple battery. The trial court agreed, on the basis that simple battery is a lesser included offense of aggravated assault. Appellant objected strenuously. He requested the court give a charge on the offense of “affray” (see OCGA § 6-11-32), but the trial court refused to do so.

On appeal, Haun contends in three enumerations that the simple battery charge over his objection was error, the more so because the State’s request was oral, and that the trial court erred in refusing to charge “affray.” Held:

1. No error was committed on any of the grounds alleged. In the facts of this case, simple battery is a lesser included offense of aggravated assault. Mathis v. State, 184 Ga. App. 455, 456 (361 SE2d 856). Clearly the defendant, to his advantage, may be accused and have the jury instructed as to a lesser included offense than the one charged in the indictment; that the State did so for him is not a ground for complaint in this case.

2. OCGA § 5-5-24 (b) provides that in all cases, parties “may present to the court written requests [to charge]” (emphasis supplied); but since the trial court may sua sponte, that is, “of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation,” (State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354)), the appellant can hardly complain that the trial court gave the charge of a lesser offense not sua sponte, but upon an oral request of the State.

3. The'trial court’s refusal to charge the offense of “affray” was not error. While certainly there was evidence that a “fight” did occur among several persons, the indictment charged appellant with aggravated assault in striking the victim with a bottle. The fact that this offense took place in the context of an affray (“the fighting by two or more persons in some public place to the disturbance of the public tranquility,” OCGA § 16-11-32 (a)) does not require the trial court to charge the jury on that offense, to the obscuration of the one for which he was indicted. Affray, as statutorily defined, is not a lesser included offense of aggravated assault or even simple battery. In point of fact, either appellant caused “substantial physical harm or visible bodily harm” to the victim, or he did not; this is the criminal act the State chose to prosecute. If he committed this act, and the jury obviously decided he did, he has no right to a charge on a totally separate offense of “fighting.” See generally Anderson v. State, 170 Ga. App. 634, 635 (317 SE2d 877).

Decided January 4, 1989 —

Rehearing denied January 23, 1989

Alan C. Manheim, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Assistant District Attorney, for appellee.

On the whole, the appellant was the beneficiary, not the victim, of the State’s benevolent request to charge a lesser offense than aggravated assault. We find no just grounds to reverse the conviction for simple battery in this case.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    77519.
    YATES v. HALL.
    (377 SE2d 887)
   Deen, Presiding Judge.

This court granted appellant Yates’ application for an appeal to consider whether he retained his right to attorney fees under Don Mac Golf &c. Co. v. Register, 185 Ga. App. 159 (363 SE2d 583) (1987).

Following Hall’s on-the-job accident on September 3, 1982, the employer/insurer voluntarily began paying benefits. Income benefits were later suspended, and a hearing was requested by Yates, Hall’s attorney. Benefits were reinstated after the hearing, and Yates’ fee contract was approved by the Administrative Law Judge on May 24, 1983. Under the award, Yates was entitled to 33-Vs percent of “any income benefits” for 400 weeks “unless sooner terminated.” Hall received benefits until the employer/insurer filed a WC2 form with the Board of Workers’ Compensation on December 15, 1987, which suspended benefits on December 29, 1987. This action was based upon a release signed by a physician which stated that Hall could return to normal work duty.

Prior to the filing of the WC2 form, Yates was appointed an Administrative Law Judge and required to give up his law practice. The claimant chose Toporek to represent him, and Yates agreed to pay a portion of his attorney fees award to Toporek. Toporek requested a change of condition hearing after Hall’s benefits were suspended. The employer/insurer and the claimant entered into a settlement agreement, and Toporek was awarded attorney fees. This stipulation and agreement was approved by the board on February 16, 1988. Yates filed a motion to reconsider, amend and revise the award pursuant to OCGA § 34-9-103 (b), claiming that the stipulation and settlement was submitted to the board without his knowledge or approval. The board issued an order on March 4, 1988, to correct an apparent error in the order since Toporek had not filed an attorney fees contract with the board, and directed him to place the funds in an escrow account. The full board found that the attorney fees contract between the claimant and Yates had “terminated” as of December 29, 1987, when the claimant’s income benefits were suspended. Yates appealed to the Superior Court of Chatham County. That court found that the board’s refusal to grant Yates’ request for an evidentiary hearing on the issue of attorney fees was error and remanded the case to the board, pursuant to OCGA § 34-9-100 (c), to determine the validity of Yates’ claim. Hall filed a motion to reconsider, and the court vacated its previous order and held that the State Board of Workers’ Compensation was not the proper forum to determine a dispute over attorney fees and that appellant’s entitlement to attorney fees was extinguished on December 29, 1987, when the employer/insurer suspended payments.

1. In Clark v. Royal Globe Ins. Co., 116 Ga. App. 561 (158 SE2d 699) (1967), this court held that the board acted within its authority in determining that each attorney who had a fee contract approved by the board was entitled to attorney fees and made a pro tanto approval of those fees according to the contract on file. The court in Clark distinguished Feldman v. Edwards, 107 Ga. App. 397 (130 SE2d 350) (1963), holding the board’s authority was limited “to the examination and approval of such contracts, as placed before the board” and that the board could not set fees or arbitrate a dispute between attorneys as to the division of fees “when associated to represent a claimant.” Clark, supra at 563. In that case, the board had two separate contracts before it, determined that the services of each attorney were of equal value, and set the fees within the limits of each contract while approving the contract in part.

In the instant case the board, upon remand, would have the authority to determine the value of each attorney’s service and to set fees within the limits of the contracts which were on file.

Decided January 5, 1989 —

Rehearing denied January 23, 1989

Neely & Player, Andrew J. Hamilton, Joseph D. Perrotta, for appellant.

Julian H. Toporek, Robert E. Falligant, Drew, Eckl & Farnham, David A. Smith, John T. Ferguson, for appellee.

In Don Mac Golf &c. Co. v. Register, supra, an attorney was awarded attorney fees as a 25 percent add-on penalty. Before the award was issued, the attorney was discharged and new counsel settled the claim. The former attorney filed a motion seeking a continuation of his assessed attorney fees. The employer was ordered to pay him 15 percent of the settlement amount. This court affirmed, finding that the agreement, which was not appealed, was res judicata and that the parties could not challenge or contradict matters contained therein. Thus, the ex parte actions of the new attorney and other parties to the suit, without notice to the attorney who received the award, could not defeat his interest in the award. See also Bass v. Annandale at Suwanee, 187 Ga. App. 209 (369 SE2d 529) (1988).

We find that the instant case is controlled by Don Mac Golf &c. Co. v. Register, supra, and that Yates had a vested right to a fee which could not be terminated by the unilateral action of the parties. He was not a party to the settlement negotiations or agreement and had no notice that his vested right to a fee was being abrogated. Accordingly, the court below erred in vacating its order of April 13, 1988.

2. The full board and the superior court erred in holding that Yates’ entitlement to attorney fees was extinguished on December 29, 1987, when the employer/insurer suspended its payment of benefits pursuant to the filing of a WC2 form. Under Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432, 433 (124 SE2d 653) (1962), an award of the board providing for the payment of compensation for total disability is res judicata as to the existence of the disability and award of compensation until it is set aside by an approved final settlement or a subsequent award finding a change of condition under OCGA § 34-9-104. As the award was still in force, the board erred in finding a termination because Yates still had his right to 33- Ya percent of “any income benefits” “unless terminated” still vested. An award of compensation is res judicata until it is changed in the manner prescribed by law. Caldwell v. Perry, 179 Ga. App. 682 (347 SE2d 286) (1986).

Judgment reversed.

Carley, C. J., concurs. Sognier, J., concurs in the judgment only.