text:
    A91A2151.
    A91A2152.
    VICTRUM v. THE STATE. MAYCOCK-BECKLES v. THE STATE.
    (416 SE2d 740)
   Pope, Judge.

Defendant Wade Maycock-Beckles and defendant Earnest Victrum were charged jointly with trafficking in cocaine and possession of a firearm in the commission of a felony. They were also both charged separately with giving a false name to a law enforcement officer. They were jointly tried and convicted of all charges. Each defendant appeals. We combined the two appeals for purposes of this opinion.

Case No. A91A2152

1. Defendant Maycock-Beckles argues he was denied the opportunity of a full and fair hearing on his motion to suppress the evidence obtained as a result of a search of the apartment in which defendants were arrested. The affidavit in support of the search warrant for the apartment was based in pertinent part on information supplied to the affiant, who was the agent investigating the case, by Kevin Fuller, who had been arrested earlier in the evening and charged with trafficking in cocaine. The agent attested in the affidavit and in a sworn statement to the issuing magistrate that Fuller provided him with information concerning the place and persons from whom he had purchased the cocaine found on his person when he was arrested and that he had identified the apartment in question.

Defendant called Fuller as a witness with the intent of presenting his testimony denying he supplied the agent with the information contained in the affidavit. Fuller’s attorney was present at the hearing to advise him and, to every pertinent question, Fuller invoked the privilege of the Fifth Amendment. Defendant’s attorney stated it was his understanding that Fuller intended to enter a guilty plea to the trafficking charges pending against him and requested a continuance until after Fuller’s sentencing hearing at which time Fuller would, presumably, be willing to testify. The trial court denied the request.

Contrary to defendant’s contention, we hold the trial court did not err in conducting the hearing during which the witness invoked his privilege not to testify. The invocation was not made as a general objection to inquiry but was made in response to some, but not all, of defendant’s questions. As to each question, the trial court allowed argument concerning whether the answer could incriminate the witness and made a determination on whether the danger was real and appreciable, in accordance with the procedure recommended in Spivey v. State, 200 Ga. App. 284, 285 (407 SE2d 425) (1991). Here, the questions the witness refused to answer pertained to the witness’ familiarity with the defendants, whether he had ever visited the raided apartment and the statements he made to the State’s agent. Since the witness pleaded guilty to the charge arising out of his activities on the day he was arrested, it is true, as defendant argues, that the answer to these questions could not further incriminate him as to these charges. Because, however, the evidence showed defendants had a history of using the apartment for drug trafficking, it is certainly possible that the witness’ answer to that question could incriminate him in regard to other potential criminal charges. In regard to questions concerning the witness’ statements to the State’s agent, the prosecutor acknowledged he could be subject to charges for giving false statements. Thus, the trial court did not err in determining that the answers could incriminate the witness. Once it is determined that the answer could incriminate the witness, the decision whether the answer might incriminate must be left to the witness. Id. Here, the witness was rightly permitted to make that determination for himself, despite defendant’s repeated assertions that the answers would not be incriminating.

Neither did the trial court abuse its discretion in denying defendant’s motion for a continuance until after the witness had been sentenced for the charges pending against him. The witness continued to invoke his Fifth Amendment privilege and refused to testify at the hearing on defendant’s motion for new trial, long after the witness had been sentenced on the charges pending against him at the time of the hearing on the motion to suppress. Thus, it appears that defendant was not prejudiced by the refusal to continue the hearing. Moreover, defendant has no right to postpone the criminal proceeding against him until the proceeding against another accused is complete in order to have the other accused available as a witness in his defense. See United States v. Carlin, 573 FSupp. 44 (N.D. Ga. 1983), aff’d, 734 F2d 1480 (11th Cir. 1984) (in which the United States District Court ruled that a motion for a new trial on the ground of newly discovered evidence may not be based on the fact that a witness who was previously unavailable because of his invocation of the Fifth Amendment privilege is now willing to testify). To hold otherwise would permit, for example, co-defendants to avoid trial indefinitely on the ground that the testimony of the other defendant was necessary to each defendant’s case.

2. Defendant argues the trial court erred in denying his motion to suppress because the search warrant was issued without a sufficient showing of the informant’s reliability. The magistrate testified he was provided with Fuller’s name, address, telephone number and date of birth. Fuller was in custody and had been charged with trafficking in cocaine when he gave his statement to the agent identifying the apartment at which he purchased the drugs in his possession at the time he was arrested. He described an automobile with Florida license tags, which the State’s agent found parked in front of the apartment, and stated he made the purchase from the “Florida Boy” or “Florida Boys,” whom he described as armed and dangerous.

Even though the informant was not previously known by the agent and he thus could not attest to the informant’s reliability, the circumstances under which the statements were made provide the necessary indicia of reliability. “When one makes an admission against his own penal interest, he tends to be telling the truth. . . . Moreover, should he lie to the police, the person admitting a crime risks disfavor with the prosecution. ‘(O)ne who knows the police are already in a position to charge him with a serious crime will not likely undertake to divert the police down blind alleys.’ [Cit.] We thus are satisfied that an admission against penal interest may form the basis for a magistrate’s conclusion that an informant is reliable.” United States v. Davis, 617 F2d 677, 693 (D.C. Cir. 1979). See also Williams v. State, 256 Ga. 609 (1) (351 SE2d 454) (1987); Midura v. State, 183 Ga. App. 523 (4) (359 SE2d 416) (1987).

3. We reject defendant’s argument that the evidence was insufficient to sustain his conviction for possession of a firearm during the commission of a crime. The evidence shows defendant’s co-defendant, Earnest Victrum, was within arm’s reach of two pistols when the State’s agents entered the apartment to execute the search warrant. “Defendant may properly be convicted of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)) on the ground that he was a party or aider or abettor to the offense (OCGA § 16-2-20). Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986).” Perkins v. State, 194 Ga. App. 189, 190 (1) (390 SE2d 273) (1990). Contrary to defendant’s argument, this case is not controlled by Mein tosh v. State, 185 Ga. App. 612 (365 SE2d 454) (1988), in which this court held a defendant found guilty of trafficking in cocaine could not be found guilty of possession of a firearm during the commission of the crime because the gun found underneath his car seat was not on his person. The amendment to OCGA § 16-11.-106 (b) adding the phrase “or within arm’s length,” was not applicable in the McIntosh case because it was not effective at the time of the offense, but it is applicable to the case at hand. Defendant’s co-defendant was within arm’s length of two pistols during the commission of the crime; therefore, defendant is guilty of the offense as a party to the crime.

4. Defendant’s defense was that the drugs found in the apartment did not belong to him but to the woman to whom the apartment was leased, Wanda Sue Taylor. He attempted to show the investigating officer protected Taylor by tipping her off concerning the planned raid on the apártment so she could be away at the time of the raid. Both the officer and Taylor testified and denied knowing each other prior to defendant’s arrest. Defendant, however, called as a witness a former police officer who worked with the investigating officer at the time of defendant’s arrest who testified that the arresting officer had a discussion with him about Wanda Sue Taylor on a date prior to the arrest. The trial judge refused to permit the witness to testify about the content of that conversation. A proffer of evidence was made outside the presence of the jury in which the witness testified that prior to defendant’s arrest the officer told him he had a new girl friend, but would not identify who it was. The following day the witness asked the arresting officer where he had been the previous night and the officer responded by asking the witness if he knew Sue. The witness responded by describing certain physical characteristics of a woman and the location of an apartment, to which the arresting officer responded, “Yeah.”

We hold the trial judge did not commit reversible error by excluding testimony concerning the content of the conversation between the witness and the officer. First, a trial judge has wide discretion in determining the relevance or materiality of evidence. Hartman v. State, 170 Ga. App. 195 (316 SE2d 820) (1984). Secondly, the proffered evidence in no way establishes that the arresting officer was previously involved with Wanda Sue Taylor or acted improperly in notifying anyone of the planned raid on the apartment. No description of Wanda Sue Taylor is contained in the record, so, even assuming the truth of the witness’ testimony concerning the alleged conversation between him and the arresting officer, the proffered evidence does not establish that the arresting officer was referring to Wanda Sue Taylor.

Decided February 3, 1992

Reconsideration denied March 13, 1992.

William M. Shurling III, for appellant (case no. A91A2151).

Maloy & Jenkins, James K, Jenkins, for appellant (case no. A91A2152).

Willis B. Sparks, III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee

Case No. A91A2151

5. For the reasons set forth in Division 2 of this opinion, we hold the trial court did not err in denying defendant’s motion to suppress the evidence obtained through execution of the search warrant.

6. We have examined the evidence and conclude it was sufficient to enable any rational trier of fact to find defendant guilty of the offenses charged beyond a reasonable doubt.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A1585.
    A91A1700.
    MARYLAND CASUALTY INSURANCE COMPANY, INC. v. JOHNSON. MARYLAND CASUALTY INSURANCE COMPANY, INC. v. FAGLIER.
    (416 SE2d 872)
   Andrews, Judge.

The insurer appeals from the grant of the plaintiffs’ motions for partial summary judgment and denial of its own on the issue of compliance with OCGA § 33-34-5 (b) and demand for additional PIP (personal injury protection) coverage. This case previously appeared before us and was reversed due to lack of proof of demand and payment for increased benefits by the named insured, David P. Cole. Maryland Cas. Ins. Co. v. Johnson, 198 Ga. App. 328 (401 SE2d 75) (1991).

The trial court granted summary judgment to Johnson and Faglier after proof of demand and payment by Cole, finding the application for insurance defective in that David P. Cole had not personally signed the application and the statement required by OCGA § 33-34-5 (b) was not in boldface type.

The application consists of four pages and required two signatures, one at the bottom of the third page and one on the fourth. The fourth page is a one-page supplement to the application, dealing only with no-fault and optional PIP coverages. It lists the policyholder’s name and the date at the top. Immediately below the name is the following:

“This form must be attached to every new business automobile application.

“NO-FAULT COVERAGE/PERSONAL INJURY PROTECTION: You must accept one option, which applies to all vehicles.” There then appear three rectangular boxes containing amounts from $5,000 to $50,000 with space for marking the choice. The $5,000 box is marked. Below this section are three additional ones, providing choices for deductibles for collision and comprehensive coverage and acceptance or rejection of loss of use coverage. Immediately above the signature line appears the sentence at issue: “The optional coverages shown on this supplemental application have been fully explained to me at the time I signed application.”

Ms. Cole handled the insurance needs for the family and had dealt with Ms. Kitchens, the agent, before. It is not disputed that she fully understood the options available to her and that she obtained the coverage which she desired, i.e., $5,000.

1. OCGA § 33-34-5 (b) required each application for insurance sold after November 1, 1982 to contain “a statement in boldface type signed by the applicant indicating that the optional coverages . . . have been explained to the applicant.”

In Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257 (379 SE2d 778) (1989), the Supreme Court rejected the insurer’s argument that “substantial compliance” was all that is required. The statement relied upon by the insurer was “printed with a typeface of the same boldness as the three statements above it and the two statements below it.” “Boldface” was there defined as “that print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.”

Having examined the copies of the application, we agree with the trial court that the statement signed by Ms. Cole is not more conspicuous than the print which surrounds it. “ ‘The appellant had the burden of showing error and (it) has not demonstrated that the observation and conclusion (of the superior court) were incorrect. [Cit.]’ Duncan v. Amer. &c. Ins. Co., 197 Ga. App. 548, 549 (398 SE2d 759) (1990).” Auto-Owners Ins. Co. v. McCrea, 202 Ga. App. 688 (415 SE2d 294) (1992). Compare American Home Assur. Co. v. McCladdie, 200 Ga. App. 798 (1) (409 SE2d 576) (1991) with Atlanta Cas. Co. v. Powell, 200 Ga. App. 160 (407 SE2d 56) (1991).

2. Our conclusion in Division 1 makes unnecessary consideration of the remaining enumeration.

Decided March 13, 1992.

Fulcher, Flagler, Reed, Hanks & Harper, Mark C. Wilby, for appellant.

Bell & Bell, David B. Bell, for appellees.

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       Chapter 34 of the Motor Vehicle Accident Reparations Act, including this section, was repealed by Ga. L. 1991, p. 1608, § 1.12, effective October 1, 1991.


author: Pope, Judge.

text:
    A91A1952, A91A1953.
    TUCKER STATION, LTD. v. CHALET I, INC. et al.; and vice versa.
    (417 SE2d 40)
   Pope, Judge.

Plaintiff Tucker Station, Ltd. (“landlord”) was, at all times pertinent to this case, the owner of a shopping center. It entered into a lease with defendant Chalet I, Inc. (“tenant”) for space in the shopping center for the operation of a restaurant. The tenant went out of business after approximately ten months of operation, abandoned the premises and ceased paying rent. The landlord brought suit against the tenant for breach of the lease and against three individual defendants who were owners of the tenant (William J. Davidson, John Davidson and Walter R. Duke), to recover the cost of the improvements made to the leased property pursuant to a written guaranty signed by the owners. Defendants answered and filed a counterclaim against the landlord alleging fraud and breach of the lease.

The trial court granted summary judgment to the landlord and awarded damages in the sum of $28,058.34 against the tenant and $48,754.11 against defendant William J. Davidson, $10,834.25 against defendant John Davidson and $28,754.11 against defendant Duke. Approximately two months after the date the judgment was entered, defendants filed a motion to set aside the judgment on the ground that they received no notification of the judgment until after the thirty-day period for filing an appeal to the judgment had expired. The trial court granted the motion to set aside, vacated the original judgment and then re-entered the judgment, thereby giving defendants an opportunity to appeal. Defendants filed an appeal from the re-entered judgment (Case No. A91A1953) and plaintiff landlord filed an appeal from the order setting aside and vacating the original judgment (Case No. A91A1952).

Case No. A91A1952

1. In support of the motion to set aside the original judgment, defendants’ attorney submitted an affidavit attesting that he did not receive a copy of the judgment from the court and he first became aware judgment had been entered against his clients when he received a letter from the landlord’s attorney seeking to collect the judgment. In the order conditionally granting the motion to set aside, the trial court stated that it notified counsel for both parties on the day the judgment was signed and mailed copies to both counsel. Nevertheless, the trial court ruled, “in the interest of justice,” to set aside and reenter the judgment if, within 30 days, defendants posted bond in the amount of $105,000 and paid $2,000 to plaintiff for attorney fees. The conditions were met and the original judgment was vacated and reentered.

Plaintiff landlord argues the trial court erred in granting the motion to set aside because defendants failed to show they did not receive notice of the judgment and failed to show they exercised due diligence in determining when the judgment had been entered. Even though the order granting the motion to set aside indicates the court “notified” both counsel (presumably by telephone) and mailed copies to both, the undisputed evidence shows defendants did not receive notice. The Georgia Supreme Court has ruled that a trial judge should refuse to grant a . motion to set aside where the judge finds notice was sent and received, but may grant such a motion upon a finding that notice was not provided as required by OCGA § 15-6-21 (c). Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980). In this case, even though notice was sent, it is undisputed that it was not received. We find no abuse of the trial court’s discretion in granting the motion, particularly in light of the protection afforded to plaintiff by the requirement that defendants post bond and pay plaintiff’s attorney fees.

Case No. A91A1953

2. The lease between the landlord and tenant included a special stipulation whereby the landlord agreed to extend a credit allowance of $100,000 for tenant finishes to the leased premises. On the same day the lease was executed, the individual defendants executed a guaranty agreement to guarantee personally for one year the leasehold improvements set forth in the special stipulation to the lease. The guaranty agreement, defining all three owners as “Guarantor,” further provided: “in the event that for any reason, the Guarantor or its assigns and successors, default and Landlord subsequently dispossesses said Tenant or its assigns and successors, the Guarantor, to the extent of their respective interest in the corporation, do [sic] hereby guarantee to Landlord the full and prompt payment of the amount of leasehold improvements enumerated herein, Special Stipulation #1, for a period of one (1) [year] from the Commencement Date of this Lease.” (Emphasis supplied.) The landlord presented testimony that a portion of each lease payment included an amount by which the tenant finish allowance would have been repaid over the course of the five-year lease. The trial court granted judgment to the landlord in an amount equal to the amount remaining to be paid for the tenant finish allowance against the individual defendants in proportion to the interest each individual held in the tenant corporation.

First, defendants argue the trial court erred in granting summary judgment to the landlord on the breach of guaranty claim against the individual defendants because the conditions precedent to the imposition of liability under the agreement were not satisfied. Defendants first argue the agreement requires the “Guarantor” to be in default and the record shows the individual guarantors were not in default. While it is true the agreement uses the word “Guarantor,” it is obvious the document refers to the default of the tenant and not the guarantors. Because the guaranty agreement was executed at the same time and in the course of the same transaction as the lease, the two instruments should be read and construed together. See Interstate Fire Ins. Co. v. National Indem. Co., 157 Ga. App. 516 (277 SE2d 802) (1981). Despite the misuse of the term “Guarantor,” the guaranty agreement clearly indicates the intent of the individual defendants to guarantee the credit extended by the landlord for tenant finishes in the event of default by the tenant within one year of execution of the lease. Thus it was not error for the trial court to correct an obvious error and interpret the contract accordingly. See Price v. Age, Ltd., 194 Ga. App. 141 (1) (390 SE2d 242) (1990).

Secondly, defendants argue the landlord was not entitled to enforce the guaranty agreement because the tenant was not in default and the landlord had not dispossessed the tenant, as required by the guaranty agreement. Pursuant to Article X of the lease, the tenant is in default if it fails to pay rent due or vacates or abandons the premises. Upon default, the landlord is granted the immediate right to reenter the premises and take possession without service of notice or legal process. The record shows the tenant vacated the premises and the landlord notified the tenant that it was in default. Thus the facts show the tenant was in default pursuant to the terms of the lease; therefore, it was not necessary for the landlord to resort to legal process in order to pursue its rights under the contract. See Spitzer v. Selig Enterprises, 140 Ga. App. 156 (2) (230 SE2d 121) (1976); see also Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (1) (274 SE2d 620) (1980).

3. According to defendants, the principal debtor is the tenant. Because the agreement between the landlord and the individual defendants is entitled “Guaranty Agreement,” defendants argue as the guarantors they should not be held liable for an amount in excess of the amount owed by the principal debtor. For that reason, defendants argue the trial court erred in granting summary judgment to the landlord against the individual defendants in an amount substantially greater than the judgment against the tenant. The distinction between contracts of suretyship and guaranty have been abolished, however. Thomasson v. Pineco, Inc., 173 Ga. App. 794 (328 SE2d 410) (1985). Instead, the courts look to see what the instrument, whatever it is called, obligates the promising party to do. See Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 33 (16 SE2d 909) (1941). “That the parties denominated the promise a guarantee did not [ajffect its real nature. It is the substance and not the nomenclature of the agreement that determines its character.” Moate v. H. L. Green Co., 95 Ga. App. 493, 504 (2) (98 SE2d 185) (1957). The agreement expressly states that the obligation of the individual guarantors is primary and grants the landlord the right to proceed against them without having commenced an action or obtained a judgment against the tenant. Thus, the instrument obligated the guarantors as primary debtors for the sum expended on tenant finishes for a period of one year. They were liable for this sum regardless of the sum owed by the tenant under the lease.

4. In the agreement, the guarantors agreed to pay the amount expended on tenant finishes in the event of default “to the extent of their respective interest in the corporation [Chalet I, Inc.] . . . .” Relying upon their own affidavits and deposition testimony, defendants argue they intended only to obligate themselves to the extent of any equity they held in the corporation. Pursuant to the rules for interpretation of contracts, parol evidence is inadmissible to vary a written contract except to explain an ambiguity. OCGA § 13-2-2 (1). We find no merit in defendant’s argument that the terms of the guaranty agreement are ambiguous in regard to the extent of liability imposed on the individual guarantors. The landlord was aware that the three individual guarantors held unequal shares of ownership in the tenant corporation. Thus, the reference to “their respective interest” is unambiguous and is clearly intended to impose liability upon the three in relation to their ownership interest. The trial court did not err in awarding a judgment against each individual defendant in an amount proportionate to his ownership in the tenant.

5. Finally, defendants argue the landlord is not entitled to summary judgment against the tenant for breach of the lease because issues of fact remain concerning whether the landlord fraudulently induced the tenant to enter into the lease. Defendants operated a chicken and rib rotisserie restaurant on the leased premises. They claim they were unable to remain in business after a Chick-Fil-A fast food restaurant opened on a lot not owned by the landlord but immediately adjacent to the shopping center. Defendants raised the defense of fraud in the inducement and also filed a counterclaim for fraud, alleging the landlord made false representations concerning the interest of Chick-Fil-A in the shopping center and committed fraud by failing to inform the tenant that it did not own the parcel of land on which the Chick-Fil-A restaurant eventually opened. Defendants raise no error in regard to the dismissal of their counterclaim. They argue, however, that the trial court erred in granting summary judgment to the landlord because issues of fact remain in regard to the defense that the contract is not enforceable due to the landlord’s fraud in inducing the tenant to enter into the contract.

Decided March 13, 1992.

Parker, Johnson, Cook & Dunlevie, Kirk W. Watkins, Everett W. Gee III, for appellant.

Smith, Gambrell & Russell, David M. Brown, for appellees.

The record contains no evidence to support defendants’ defense of fraud in the inducement. The individual owners of the tenant testified they were told by a representative of the landlord that Chick-FilA had expressed an interest in becoming a tenant of the shopping center but ultimately did not enter into a lease. Defendant denies such a representation was made, but even if it was made, the representation was not shown to be false because Chick-Fil-A did not enter into a lease with the landlord. Moreover, the lease contains a clause indicating that the tenant did not rely on representations not contained within the written lease. We reject defendants’ argument that they were falsely led to believe that the parcel on which Chick-Fil-A opened a restaurant was owned by the landlord and was part of the shopping center and that failure to inform them that the parcel did not belong to the landlord was constructive fraud. The lease contained a legal description of the shopping center premises as well as a drawn plan of the premises which labeled the Chick-Fil-A parcel as an “outparcel . . . owned by others.” The trial court did not err in granting summary judgment to the landlord against the tenant.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A91A2229.
    LINK et al. v. DOE.
    (416 SE2d 874)
   Johnson, Judge.

The appellant Galen Link (Link) was injured in an automobile collision which occurred on November 29, 1990. Link and his wife sued James L. Smith (Smith), the operator of a vehicle which swerved into oncoming traffic and collided with Link’s vehicle. Smith responded, raising as a defense that the cause of the collision was the negligence of an unknown motorist who, by partially crossing the centerline, caused Smith to swerve and skid into Link. The Links then amended their complaint to assert an additional claim to recover uninsured motorist benefits against John Doe pursuant to OCGA § 33-7-11 (b) (2). The insurer denied liability on the ground that the circumstances of the collision precluded the Links’ recovery under the policy. The pleadings and depositions reveal that Link saw no vehicle other than the one operated by Smith which made physical contact with his vehicle. Smith and two other non-interested eyewitnesses reported that another automobile had forced Smith to swerve and ultimately collide with Link.

On this evidence, a motion for summary judgment was made by Doe based on Link’s failure to fall under the provisions of OCGA § 37-7-11 (b) (2) which permits a motor vehicle to be deemed uninsured if the owner or operator is unknown and there is no actual physical contact between the vehicle operated by the unknown person and that of the insured only “if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” The Links’ response included a request for oral argument. Despite a request for oral argument, the trial court ruled on the motion without a hearing. This is an appeal from the grant of Doe’s motion for summary judgment.

1. Uniform Superior Court Rule 6.3 states that “. . . However, oral argument on any motion for summary judgment shall be permitted upon written request if such request is made not later than five (5) days after the time for response.” (Emphasis supplied.) The Links requested oral argument in writing in their “Response to Defendant, John Doe’s Motion for Summary Judgment,” which was timely filed. The trial court improperly denied them their right to be heard. See Segrest v. Intown Hardware, 190 Ga. App. 588 (379 SE2d 615) (1989). The grant of summary judgment must be reversed and the appellant afforded the oral argument provided by the rule.

2. The above disposition renders it unnecessary for us to review the substantive issues raised on appeal at this time.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.

Decided March 13, 1992.

Kenneth L. Nelms, for appellants.

Karsman, Brooks & Callaway, Edward M. Hughes, for appellee.


author: Birdsong, Presiding Judge.

text:
    A91A1749.
    MOSS v. PROTECTIVE LIFE INSURANCE COMPANY.
    (417 SE2d 340)
   Birdsong, Presiding Judge.

Patrina Moss appeals from the grant of summary judgment to Protective Life Insurance Company in her action to collect on a group accidental death insurance policy insuring her deceased husband, Sanford Moss. She contends summary judgment was not authorized because genuine issues of material fact existed about whether her husband’s death was accidental.

Protective Life’s motion for summary judgment asserted Sanford Moss’ death was not accidental and the motion was supported with the deposition testimony of two police officers stating that they had to shoot and kill Sanford Moss because he fired at them and wounded one of the officers. Patrina Moss’ response contended that notwithstanding this testimony, issues of fact existed on whether Sanford Moss opened a door quickly, whether he was ordered to drop his weapon, and whether excessive force was used. She also contended that Sanford Moss could not appreciate the consequences of his actions because he was intoxicated with a blood alcohol content of .27 grams percent. The trial court, however, found these matters were not material and granted summary judgment to Protective Life. Held:

The question presented is whether a triable issue exists on whether Sanford Moss’ death was accidental. Although the policy defines neither accident nor accidental death, Georgia law defines an accident as “an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). Further, to recover under a policy such as this one, it must be shown that Sanford Moss’ death was the result of an unforeseen, unexpected, or unusual act. Green v. Metropolitan Life Ins. Co., 67 Ga. App. 520, 525 (21 SE2d 465). If Sanford Moss was killed while the aggressor in an assault and he knew or should have known that he might be killed as a result, his death was not accidental. Drew v. Life Ins. Co., 170 Ga. App. 147, 151 (316 SE2d 512); Metropolitan Life Ins. Co. v. Anglin, 66 Ga. App. 660 (19 SE2d 171). In these instances, the test focuses on whether he should have appreciated he was putting his life in hazard. Carolina Life Ins. Co. v. Young, 99 Ga. App. 848 (110 SE2d 67).

The police officers are the only remaining witnesses to the events surrounding Sanford Moss’ death. While Patrina Moss can testify about events occurring before the two police officers arrived and about what she heard later, the two police officers are the only surviving witnesses to the actual events resulting in Sanford Moss’ death. The officers’ depositions show they arrived in uniform at the Moss home in response to a call from Patrina Moss, and after they arrived, one of the officers spoke with Sanford Moss through a closed door. She identified herself as a police officer and asked him to come out. Sanford Moss replied, in effect, that he would come out when he was dressed.

Although nothing in the officers’ depositions or Patrina Moss’ deposition shows there was any hostility between the officers and Sanford Moss, or any other reason for his action, Sanford Moss suddenly came out of the room holding a .357 magnum pistol, loaded with hollow point ammunition, and immediately shot one of the officers. Thereafter Sanford Moss turned and fired a second shot at the other officer; he was then killed by return fire from the two officers. The record shows, without contradiction, that Sanford Moss fired first and that the wounded officer’s pistol had not left his holster when he was shot. This officer escaped serious injury or death because he was wearing a protective vest. Further, the transcript of the coroner’s inquest shows the police investigation of the shooting, including the physical evidence at the scene, and the testimony of the medical examiner who conducted the autopsy of Sanford Moss, confirmed the officers’ testimony. The record contains no facts either explicitly explaining Sanford Moss’ actions, or from which an explanation could be inferred.

Whether Sanford Moss appreciated or expected that shooting at two police officers reasonably would result in his death by return fire is usually a question for the jury. Drew v. Life Ins. Co., supra at 151; Prudential Ins. Co. v. McLellan, 76 Ga. App. 126, 132 (44 SE2d 915). Nevertheless, issues which are usually decided by the jury, “may be decided by the court in plain and palpable cases where ‘reasonable minds cannot differ as to the conclusion to be reached.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (405 SE2d 474). This is such a case.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” Id. at 491.

To collect on this accidental death policy, Patrina Moss would have the burden of proving at trial that the acts causing Sanford Moss’ death were áccidental, i.e., unforeseen, unexpected, or unusual. Liberty Nat. Life Ins. Co. v. Morris, 132 Ga. App. 631, 642 (208 SE2d 637). Since the matters supporting Protective Life’s motion showed that Sanford Moss’ death was the direct result of his unprovoked assault upon two armed police officers, Patrina Moss was obligated to respond to Protective Life’s motion with credible evidence sufficient to show there was still a substantial issue of material fact on whether his death was unforeseen, unexpected, or unusual. Since Protective Life would not have this burden at trial, on motion for summary judgment it does not have the burden of affirmatively disproving this part of Patrina Moss’ case. Its burden can be discharged by showing the absence of evidence supporting Patrina Moss’ case. Since Protective Life has done so, she must point to specific evidence showing a triable issue. Lau’s Corp. v. Haskins, supra.

Patrina Moss, however, has not shown any credible evidence creating a triable issue. The issues she attempts to create are based upon conjecture and not fact. For example, although she seeks to rely on issues considered in Prudential Ins. Co. of America v. McLellan, supra, the same issues are not presented here. This record shows Sanford Moss was the aggressor who fired first and without provocation, and there was no evidence suggesting that he was defending himself as in McLellan. The evidence supporting Protective Life’s motion for summary judgment and the other materials on file, without contradiction, show that, after speaking calmly with the police officer in a non-confrontational manner, Sanford Moss fired his .357 magnum pistol striking the first officer and then moved to where he could fire a shot at the other officer.

Moreover, as there is no evidence showing Sanford Moss did not intend to assault the police officers or that he had any reason to believe they would not return fire, merely showing he had a .27 grams percent blood alcohol level is not sufficient to create a triable issue. To create a triable issue there must be some evidence showing or from which one could infer that Sanford Moss was so drunk that he was unable to know, understand or intend to assault the officers. Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 882 (285 SE2d 566). There was none. Additionally, the evidence showed Sanford Moss drank heavily every night and other evidence showed that those who drank heavily could function better with a .27 gram blood alcohol level than those unaccustomed to drinking such amounts. Further, there was no evidence to support an inference that because of this blood alcohol level Sanford Moss could reasonably have expected or anticipated that the two police officers would not protect themselves by shooting back. In any event, as the evidence showed Sanford Moss was voluntarily intoxicated, he is held to the same standard as a sober person. Shuman v. Mashburn, 137 Ga. App. 231, 234 (223 SE2d 268). Patrina Moss’ suggestion that someone must have put something in her husband’s drink is mere conjecture which is not supported by facts in the record.

Decided February 25, 1992

Reconsideration denied March 16, 1992

Clarence L. Martin, for appellant.

Miller, Simpson & Tatum, John M. Tatum, Robert A. Lewallen, Jr., for appellee.

Although appellant might wish to raise some issue that the assault on the police officers resulted from some mental condition, there is simply no evidence Sanford Moss was suffering from any mental condition, and particularly no evidence he was suffering from such a mental condition which would have deprived him of his capacity to understand that shooting at armed police officers would result in them defending themselves with deadly force. See State Auto. Mut. Ins. Co. v. Gross, 188 Ga. App. 542, 543 (373 SE2d 789).

The opinions of this court and our Supreme Court in State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 379 (364 SE2d 62) and 258 Ga. 276 (368 SE2d 509) do not require a different result. The Morgan opinions concerned an intentional acts exclusion in a homeowner’s insurance policy on which the insurance company bears the burden of proof at trial, and there was apparently evidence creating material issues of fact on the deceased’s subjective intention. Those factors are not present in this appeal.

Accordingly, “summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, supra at 495. Here, as there is no credible evidence showing that Sanford Moss was not the aggressor or that there was any reason why he would not expect that the police would not respond to his attack by using their own deadly weapons to defend themselves, “the trial court did not err in finding insufficient credible evidence to create a substantial issue of material fact.” Roe v. State Farm Fire &c. Co., 259 Ga. 42 (376 SE2d 876).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2234.
    WILLARD et al. v. WILBURN.
    (416 SE2d 798)
   Birdsong, Presiding Judge.

David and Brenda Willard, plaintiffs below, appeal from a defendant’s judgment, based upon a jury verdict, in favor of Kimberly Holloway Wilburn on the Willards’ claim arising from an automobile accident. The record shows the case was tried before our Supreme Court’s decision in Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269), and the extract of the transcript of evidence designated by the Willards shows that collateral source evidence was introduced at trial.

Although expressed in several enumerations of error, the thrust of the Willards’ appeal is the trial court erred first by permitting evidence of collateral source insurance benefits to be introduced in evidence and then by denying the Willards’ post-trial motion based upon Denton v. Con-Way Southern, supra, because the trial court found any error was harmless. Held:

1. Our initial consideration is our jurisdiction to consider all the' issues raised by the Willards. Court of Appeals Rule 32 (d); Fabe v. Floyd, 199 Ga. App. 322, 324 (405 SE2d 265). The Willards’ third enumeration alleges that the trial court erred by denying their motion to set aside the judgment and in arrest of judgment, and the record shows that after judgment was entered in Wilburn’s favor, the Willards filed a “Motion to Set Aside the Verdict and for a New Trial and Motion to Set Aside Judgment and In Arrest of Judgment.” The record also shows this appeal is before us pursuant to the Willards’ direct appeal under OCGA § 5-6-34 (a) and not through application under OCGA § 5-6-35. “Appeals from the denial of a motion to set aside the judgment under OCGA § 9-11-60 (d) are subject to the discretionary appeals procedure (OCGA § 5-6-35 (a) (8)) even when coupled with motions for a new trial or judgment n.o.v. OCGA § 5-6-35 (d). State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39).” Fabe v. Floyd, supra at 325. Therefore, we are without jurisdiction to consider the Willards’ fourth enumeration of error. Further, a motion in arrest of judgment is not an authorized method for attacking a civil judgment under OCGA § 9-11-60 (b). Daniels v. McRae, 180 Ga. App. 732, 733 (350 SE2d 317).

2. The Willards’ remaining enumerations of error attack the trial court’s denial of their motion based upon Denton v. Con-Way Southern, because the trial court ruled that “the admission of the evidence of Mr. Willard’s group health insurance policy is not grounds to set the jury verdict aside. The evidence goes to the question of ‘special damages’ and its admission was harmless where the jury determined the question of liability in favor of the defendant. Malloy v. Elmore, 191 Ga. App. 564 [382 SE2d 395].”

The Willards contend the statement in the plurality opinion in Denton v. Con-Way Southern, supra at 43, that “[o]ur Courts have adhered to the principle that evidence of collateral sources is inherently prejudicial because its infectious nature tends to contaminate the entire trial” means the harmless error rule is eliminated in collateral source appeals. We find this argument without merit.

In the first instance, we find nothing in Denton v. Con-Way Southern that requires such a result. The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1 (b). In cases decided after Polito v. Holland, 258 Ga. 54 (365 SE2d 273), this court has consistently tested the admission of collateral source evidence for harm (e.g., Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510); Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424)). As our Supreme Court undoubtedly was aware of our treatment of this issue before its decision in Denton v. Con-Way Southern, without a specific holding to the contrary we will not interpret their failure to address this issue as a rejection of the harmless error rule. Additionally, the harmless error rule is codified in Georgia (OCGA § 9-11-61), and as long as this Code section is in effect we are not free to disregard its commands.

Therefore, we must apply the well-established appellate rule that parties seeking a reversal must show not only error, but injury arising from the error alleged. Georgia Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328). While our consideration of this appeal is hampered because the Willards designated only portions of the record and transcript, we note that the extract of the transcript provided does not show that the Willards objected to any of the testimony of which they complain. Although the Willards brief argues that such an objection was made in some unrecorded comment, we are bound by the record. Whelchel v. Thomas Ford Tractor, supra at 157. The Willards’ additional argument that no objection was required because the evidence was inadmissible also is without merit. Only those issues properly raised in the trial court can be considered on appeal. Department of Transp. v. Hillside Motors, 192 Ga. App. 637 (385 SE2d 746).

Additionally, the extract of the transcript shows that evidence of the availability of collateral sources was contained on exhibits introduced by the Willards before the testimony about the collateral source, and the resulting testimony arose from the entries on those exhibits. Under these circumstances, the admission of the collateral source evidence provides no basis for reversal. Le Twigge, Ltd. v. Wammock, & Co., 187 Ga. App. 446, 448 (370 SE2d 631).

Decided March 2, 1992

Reconsideration denied March 16, 1992

Van C. Wilks, for appellants.

Downey, Cleveland, Parker & Williams, William S. Allred, for appellee.

Further, collateral source evidence is not relevant to liability because OCGA § 51-12-1 (b) only authorized the finders of fact to consider collateral source evidence in awarding damages. Thus in appeals from defendants’ verdicts, error concerning admissibility of collateral source evidence is usually found harmless because the trial court’s charge limited the jury’s consideration of this evidence to the question of damages and this court will not assume that the jury disregarded the charge. See Malloy v. Elmore, supra; Whelchel v. Thomas Ford Tractor, supra. In this appeal, however, we cannot review the collateral source charge because the Willards did not designate as part of the record the portion of the transcript containing the charge to the jury. Therefore, we must assume that the trial court gave a proper charge on consideration of collateral source evidence, and thus the trial court’s denial of the Willards’ motion for a new trial was correct. Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160).

The recent case of Anepohl v. Ferber, 202 Ga. App. 552 (415 SE2d 9) brought to our attention by the Willards is distinguishable from this appeal because the only issue submitted to the jury in Anepohl was damages.

Accordingly, the Willards’ enumerations of error are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2047.
    GRIFFITH v. THE STATE.
    (416 SE2d 875)
   Pope, Judge.

Defendant Troy Lee Griffith appeals his conviction for driving under the influence of alcohol on the ground the trial court erred in failing to disqualify one of the jurors for cause. The transcript of the voir dire of the prospective jurors shows that one juror indicated his belief that one who has consumed any alcohol ought not to drive. Defendant’s counsel then posed the following proposition to the juror: “And if you feel like that regardless of what the Judge charges you, if the evidence shows that somebody has been drinking, you just feel constrained to think it was less safe for him to drive, and he shouldn’t be driving.” The juror answered, “Yes.” The trial judge, however, asked: “[I]f I charge you that the law in the State of Georgia is that a person must be under the influence to an extent that he is less safe to drive and if I further charge you that it is not against the law to merely drink and drive, can you put aside your personal beliefs and render a decision based solely on the facts and the law in the State of Georgia?” The juror responded: “I can.”

Decided March 16, 1992.

Hudson & Montgomery, James E. Hudson, for appellant.

Donald E. Moore, Solicitor, for appellee.

We reject the defendant’s argument that the juror was not properly rehabilitated after his initial expression of a biased opinion. Defendant argues this is not a case in which the venireman expressed merely a doubt as to whether he could be impartial, but, instead, admitted he would be biased regardless of the charge of the court. His initial statement, however, was made in response to a vague and theoretical inquiry. When the trial judge asked the venireman whether he could put aside his personal beliefs and follow the specific instruction that a person must be under the influence to such an extent that he is a less safe driver before he may be found guilty under Georgia law, the venireman unequivocally answered yes. Thus, “here, unlike in Parisie [v. State, 178 Ga. App. 857 (2) (344 SE2d 727) (1986) (relied upon by the defendant)], the juror’s subsequent [response shows] he was sufficiently rehabilitated.” Nelson v. State, 199 Ga. App. 487, 489 (5) (405 SE2d 310) (1991).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1848.
    THE STATE v. SAMPSON.
    (417 SE2d 34)
   Pope, Judge.

Defendant was indicted on four counts of sale of cocaine, one count of distribution of marijuana, and one count of sale of marijuana. The State gave defendant notice of its intent to seek life imprisonment pursuant to OCGA § 16-13-30 (d) and OCGA § 17-10-2, if defendant was convicted at trial of more than one count of sale of cocaine. At trial defendant was found guilty on all four counts of sale of cocaine and one count of distribution of marijuana. Although the State requested life sentences on the second, third and fourth convictions of sale of cocaine, the trial court entered concurrent six-year sentences on the convictions. The State contends that the trial court entered a void sentence by failing to impose a life sentence for defendant’s second, third and fourth convictions on the multi-count indictment in accordance with OCGA § 16-13-30 (d) requiring that “[u]pon conviction of a second or subsequent offense [of violating OCGA § 16-13-30 (b), a defendant] shall be imprisoned for life.”

Decided February 25, 1992

Reconsideration denied March 17, 1992

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellant.

Cecilia Toole, Charles R. Sheppard, for appellee.

In State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494) (1991), this court held that in order to apply the mandatory life sentence of OCGA § 16-13-30 (d), a defendant’s prior conviction must' necessarily have preceded his instant trial for violating OCGA § 16-13-30 (b). “Obviously, neither of [defendant’s] instant convictions can serve as the predicate for the imposition of a life sentence as to the other[s]. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), [defendant’s four] instant convictions were neither final nor convictions. ‘The position adopted by the (S)tate at the sentencing hearing was that the offenses charged in the indictment for which [defendant] was on trial could be considered in determining his status as a recidivist. . . . (T)his argument . . . was clearly erroneous. (Cits.)’ [Cit.] . . . ‘The conviction must be final before it can be included in (the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)).’ [Cit.]” Id. at 355. Thus, the concurrent six-year sentences imposed upon defendant are not void, and the State’s appeal must be dismissed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A91A1753.
    DORSEY v. THE STATE.
    (416 SE2d 879)
   Cooper, Judge.

Appellant was found guilty by a jury of aggravated assault with intent to rape, robbery by intimidation and kidnapping. Following the denial of his motion for new trial, he filed this appeal.

The crimes alleged in the indictment occurred one night following a concert which the victim and her boyfriend had attended. After the concert, the victim and her boyfriend had an argument, and the boyfriend left the car and started walking home alone. The victim left the area but later returned to look for her boyfriend when she met appellant, who under the guise of helping her look for her boyfriend, abducted the victim, forced her at gunpoint to give him her rings and withdraw money from an automated teller machine (“ATM”) and sexually assaulted her in the parking lot of the bank. The victim testified that appellant suddenly stopped his assault on her about the time she noticed that two men had approached the area. One of the men was using a nearby pay telephone, and the other withdrew money from the same ATM that the victim had used. The victim began talking loudly, and appellant backed away from her. The victim then drove away hurriedly. Shortly after the assault, the police received a call about a possible robbery in the parking lot of the bank. The officer who responded to the call stated that upon arriving at the scene, he spoke with a man who told him that while he was using the pay telephone, he saw a man and a woman who appeared to be having an argument in the parking lot. The man stated that he overheard the woman say to the man something to the effect that he already had her rings and that she did not understand why he was making her do this. The man also gave the officer a physical description of the suspect and from the description, the officer testified that he had a general idea of who the suspect was, based on his knowledge of the area where the assault occurred. The following day, the victim reported the assault to the police and gave a description of the suspect. Two days after the assault, the officer was responding to another call when he saw a man who matched the description of the suspect in the victim’s case. The officer approached the man, asked him if he had anything in his pockets, and the man produced a knife. The officer noticed that the blade of the knife was over three inches long in violation of the knife ordinance. The officer asked the man if he had anything else in his pockets, and the man took out several rings which the officer believed to have been involved in the victim’s case. The officer placed appellant under arrest for violation of the knife ordinance and then telephoned the victim and asked her to describe the rings that were taken. Appellant was subsequently arrested and charged with rape, kidnapping and armed robbery.

1. Appellant contends the trial court erred in denying his motion for continuance made on the day of trial. During their investigation of the assault, the police discovered the name of a person who withdrew money from the ATM shortly after the victim. On March 1, 1990, the State provided appellant’s counsel with that person’s name and his P. 0. Box address. On March 5, 1990, the State gave appellant’s counsel the telephone number of the witness. On March 7, 1990, an investigator for appellant left a subpoena in the witness’ dormitory room, but the witness was never personally served. When the witness did not appear at trial on March 12, 1990, appellant’s counsel moved for a continuance. Appellant made a showing that the witness had gone out of town on March 6, 1990 and was expected to return on March 22, 1990. The prosecutor argued that she informed appellant’s counsel that she had spoken to the witness, who denied having any knowledge of the alleged attack; that the witness was apparently not the same person who had called the police to report the robbery; that the person who called the police was believed to be the person who had been using the pay telephone at the time of the assault, and that the State had been unable to locate that person. The trial court denied the motion, finding that the witness had not been served with a subpoena and that there was no evidence that the witness would give testimony favorable to appellant.

Denied March 17, 1992.

Roger K. Ghai, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Carl P. Greenberg, Assistant District Attorneys, for appellee.

It appears that appellant failed in at least three respects to set forth the grounds for a continuance in OCGA § 17-8-25. Appellant failed to show that the witness was subpoenaed, that his testimony would be material, or that appellant knew any facts expected to be proved by the witness. “ ‘ “Each of (the) requirements (set forth in OCGA § 17-8-25) must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness.” (Cit.)’ [Cit.]” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986). Under the circumstances of this case, we find no abuse of discretion in the denial of appellant’s motion for continuance.

2. In his second enumeration of error, appellant contends that his arrest was illegal, therefore items seized during the arrest should have been suppressed. When the arresting officer stopped appellant, he had reasonable articulable grounds for suspicion, based on the description given by both the victim and the man who was using the pay telephone at the scene of the crime, that appellant was the person who assaulted the victim. Thus, we find that the initial investigative stop was authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The officer was then authorized to make a protective pat-down search to maintain the status quo while questioning appellant. Terry v. Ohio, supra; Stiggers v. State, 151 Ga. App. 546 (1) (260 SE2d 413) (1979). However, prior to making the pat-down search, appellant voluntarily produced the rings from his pocket. We find no merit to appellant’s argument.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1902.
    LA RONDE, LTD. et al. v. AMSOUTH BANK OF FLORIDA.
    (416 SE2d 881)
   Cooper, Judge.

Appellants appeal from the trial court’s confirmation of a foreclosure sale under the power of a deed to secure debt held by appellee. The sole issue before this court is whether the foreclosure sale’s price was at least equal to the true market value of the property as of the date of the sale.

In 1987, appellant, La Ronde, Ltd., executed a promissory note and deed to secure debt, granting appellee a security interest in certain apartments, in connection with a loan by appellee in the principal amount of $3.1 million. Appellant, Richard Felker, a general partner of La Ronde, Ltd., executed a guaranty of payment in connection with the loan transaction. In 1990, appellants defaulted under the terms of the note, and after appellants were notified that appellee was accelerating the remaining amount due on the note, the property was advertised, as required, and sold to appellee for $2.5 million in January 1991. Appellee was the sole bidder for the property at the sale. Appellee then filed an action for confirmation pursuant to OCGA § 44-14-161.

At the evidentiary hearing, a real estate appraiser, who testified on appellee’s behalf, determined that the “as is” value of the property was $2,625,000, and he testified that the value was lower than an earlier appraisal prepared in July 1990 which valued the property at $3.15 million because of the recent discovery of asbestos on the property. Appellee’s vice president, John Harrison (“Harrison”), testified that in his opinion, $2.5 million represented the fair market value of the property. Harrison’s opinion was based on his preparation of foreclosure bids for other properties held by appellee and his self-professed knowledge of the commercial real estate market and the value of comparable property. Harrison also testified that appellee’s bid reflected a decrease in the appraised value based on $900,000 in estimated costs for the partial removal of asbestos from the property. The trial court’s findings of fact indicate that the trial court also considered the purchase price contained in a sales contract entered into by appellee on May 1, 1991, four months after the foreclosure. The stated purchase price was $2.8 million, but the court allowed Harrison to explain, over objection, that the contract required appellee to deposit $350,000 into an escrow account for immediate necessary repairs to the property, and thus the net value of the contract was $2.45 million, $50,000 less than the price paid by appellee at the foreclosure sale. The trial court held that $2.5 million represented the true and fair market value of the property based on the “significant costs associated with the containment and/or removal of the asbestos” and the “significant effect the presence of asbestos would have on the market value of the Property.” The court also found that the value of the property, as reflected in the May 1, 1991 sales contract, demonstrated that the appellee’s bid amount was reasonable and constituted the true market value of the property.

1. In their first two enumerations of error, appellants contend appellee failed to present evidence upon which the trial court could find the property sold for at. least its true market value and the trial court erred in considering the May 1, 1991 contract price as evidence of the value of the property on the date of the foreclosure. Appellants point to their own appraisal which valued the property at $2.7 million and argue that appellee offered no evidence to support a value less than appellee’s appraised value of $2.65 million, which was rendered after taking into account the impact of asbestos on the value of the property. However, a review of the appraiser’s testimony reveals that his value reflects the risks associated with the uncertainty of operating the property with asbestos and does not take into account the cost of removing asbestos.

“ ‘ “In confirmation proceedings, the (superior court) sits as a trier of fact, and (its) findings and conclusions have the effect of a jury verdict. (It) hears the evidence and (its) findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. (Cits.) What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. (Cits.)” (Cits.)’ [Cit.] ‘Although (appellants present) a serious challenge to the means by which [Harrison] arrived at his opinion as to value, [Harrison] provided the court with the basis for his opinions. (As) it appears that his opinion (was) not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. (Cits.)’ [Cit.] [Even assuming error in the admission of testimony concerning the May 1, 1991 sales contract,] ‘[t]he superior court . . . had sufficient data in evidence upon which (it) could apply (its) own knowledge and ideas so as to derive (its) own opinion as to the market value of the [property] at the time of the sale.’ [Cit.]” Armstrong v. Cal. Fed. &c. Assn., 192 Ga. App. 508, 509 (2) (385 SE2d 113) (1989).

2. Appellants also enumerate as error the trial court’s grant of appellee’s motion in limine which excluded evidence regarding the value of the property based on the assumption that the property would be rezoned in the future to a classification different from its zoning on the date of the foreclosure sale. Such evidence is not probative of the value of the property at the time of the sale and would represent the “speculative market value at some indefinite time in the future.” Smith v. Andrews, 139 Ga. App. 380, 381 (228 SE2d 320) (1976). Thus, the trial court did not err in excluding the evidence.

Decided March 17, 1992.

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, for appellants.

Paul, Hastings, Janofsky & Walker, Ronald T. Coleman, Jr., John G. Parker, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2045.
    BROWN v. BUFFINGTON.
    (416 SE2d 883)
   Johnson, Judge.

This is an appeal from a grant of summary judgment in an action for fraud arising out of a short term business relationship. Truett Buffington (Buffington) was operating his own business from his garage, manufacturing and installing cultured marble lavatories. Harold Alton Brown (Brown), a neighbor of Buffington, became interested in the marble product and had Buffington install one of the lavatories in Brown’s home. Thereafter the parties agreed that Brown would invest $25,000 in Buffington’s business in return for 40 percent ownership thereof. There is disagreement over whether the parties discussed or agreed on any salary for Brown at the time the initial investment discussions were held. As a result of those discussions, however, Brown gave Buffington a check for $25,000 which Brown understood would be used to finance an expansion of the business. Some two months later, following the incorporation of the business and the purchase of some property for a manufacturing site, the parties became involved in a heated argument over the reimbursement of out-of-pocket expenses of the business and ultimately concluded that they could no longer work together. Brown subsequently sued Buffington alleging that he was indebted to Brown in the amount of $25,000 which had been procured by fraud. Buffington moved for summary judgment on the grounds that Brown had failed to prove each of the five necessary elements of fraud. The trial court, having considered “the pleadings, briefs with reference to depositions, and argument of counsel” concluded that the record did not support an action for fraud and granted Buffington’s motion for summary judgment.

Brown’s sole enumeration is that the trial court erred in its grant of summary judgment. Brown’s argument in this case rests not on any alleged misrepresentations made to him by Buffington, or his reliance upon alleged misrepresentations. Instead, Brown asserts that he was insufficiently informed of the financial status and transactions of the business and that his realization of the actual financial condition of the company convinced him that Buffington had had “fraud on his mind” when he induced Brown to invest in the business. Brown concedes that Buffington did not misrepresent “the value of B & B Marble Co., Inc. to induce him to make a capital investment of [$25,000],” nor was Brown unaware of what he was purchasing, to-wit, “a forty (40%) percent [sic] share of the idea of the marble company.” (Emphasis supplied.) Brown further acknowledges that he never represented that the business would rapidly become successful.

“An action for misrepresentation requires proof of five elements: ‘ “(1) (t)hat the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Cit.)’ [Cit.]” Ekstedt v. Charter Med. Corp., 192 Ga. App. 248 (1) (384 SE2d 276) (1989). The trial court has concluded that Buffington, relying primarily on statements made by Brown in his deposition (which has not been made a part of this record), successfully pierced Brown’s allegations of fraud and that Brown did not carry his burden to offer rebuttal evidence sufficient to show the existence of a genuine issue as to any material fact. OCGA § 9-11-56 (e). There is no evidence that, in deciding to invest in the business, Brown relied on any knowingly false representations by Buffington. Where (as in this case) Buffington did not have the burden of proof at trial, he likewise did not have the burden to affirmatively disprove Brown’s case; he needed only to point out the absence of evidence to support Brown’s allegations of fraud by reference to documents in the record (in this instance, Brown’s deposition). Having done so, Brown was obliged to “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Brown has failed to point to any evidence to prove an essential element of fraud, to-wit, that Buffington knowingly misrepresented the condition of the business to Brown. Having failed to meet that burden, there remains no genuine issue of material fact and “ ‘[although the question of fraud is ordinarily within the province of the jury, in plain and undisputed cases it is proper that the determination be made by the court. [Cit.]’ [Cit.]” Horton v. Middle Ga. Bank, 191 Ga. App. 51, 52 (2) (380 SE2d 749) (1989). We agree that the trial court did not err in granting Buffington’s motion for summary judgment on the issue of fraud.

Decided March 17, 1992.

Arthur L. Phillips, for appellant.

Charles V. Bond, Jr,, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A91A2070.
    T. L. ROGERS OIL COMPANY v. SOMMERS COMPANY.
    (417 SE2d 44)
   Andrews, Judge.

The Sommers Company sued T. L. Rogers Oil Company on open account for petroleum products.

In its answer, no denial of the debt was made, only that “defendant is unable to either admit or deny such allegations but demands strict proof thereof.”

In response to requests for admission, Rogers admitted that copies of the invoices from Sommers attached to the requests showing quantities, dates of deliveries, and cost were true and correct copies; that Rogers ordered and received the goods and services reflected thereon; that Rogers was credited with the amount representing returned goods; and that statements of account attached to the requests were true and correct copies. Rogers, in response to whether the statements accurately reflected the debts and credits and whether Rogers owed the principal sum of $13,553.36, stated only that he was without sufficient information to form a belief as to the truth of the “allegations” contained in those two requests and demanded “strict proof” thereof. Rogers denied only that Sommers was entitled to prejudgment interest.

Sommers then filed its motion for summary judgment including the affidavit of its assistant office manager that the records were business records and correctly reflected the transactions and total debt of $13,468.29 plus interest.

1. Rogers filed no affidavits in opposition but contended there were issues of material facts. There were no depositions or other factual matters contained in the record although alluded to in the response. The court correctly granted summary judgment. OCGA § 9-11-56 (c); Concept-National v. DiMattina Supply Co., 147 Ga. App. 865, 866 (250 SE2d 552) (1978).

2. Sommers’ motion for sanctions against appellant pursuant to OCGA § 5-6-6 is granted. Review of the briefs filed here and the record on appeal shows there was no reason to believe that any of the arguments would result in reversal of the trial court’s judgment. “ ‘[W]e conclude that the appeal in this case “was so palpably without merit as to admit of no other conclusion than that it was filed for purposes of delay.” (Cit.) . . . [Cit.]”’ Covrig v. Miller, 199 Ga. App. 864, 865 (4) (406 SE2d 239) (1991). The clerk is directed to enter ten percent damages upon remittitur. Id.

Decided March 17, 1992.

Richard Phillips, for appellant.

Arnall, Golden & Gregory, Lisa R. Coody, for appellee.

Judgment affirmed with direction.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper and Johnson, JJ., concur. McMurray, P. J., concurs in part and dissents in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

While I concur in the majority’s holding in Division 1 and all that is said therein, I cannot concur in the holding of the majority in Division 2, wherein a ten percent penalty is imposed, as I would decline to grant appellee’s OCGA § 5-6-6 motion.


text:
    A91A2073.
    CHATTAHOOCHEE BANCORP, INC. v. ROBERTS.
    (416 SE2d 875)
   Cooper, Judge.

Appellant appeals from an order of the trial court granting appellee’s motion to dismiss appellant’s petition for declaratory judgment.

Appellee was terminated from employment by appellant on October 16, 1989. On October 26, 1990, appellee wrote appellant requesting payment pursuant to an alleged employment contract between appellant and appellee. Appellee enclosed a copy of the contract which was allegedly signed by an officer of appellant and which provided for salary payments, salary increases, bonus payments and payments upon termination of employment. On November 8, 1990, appellant responded to appellee’s letter, stating that appellant considered the agreement to be a fraud; that appellant considered the entire matter to be frivolous and fraudulent; that appellant intended to fully defend any legal action that may be brought by appellee; and that appellant intended to seek any appropriate sanctions against appellee. In March 1991, appellant filed a petition for declaratory judgment in Gwinnett County, seeking a judicial determination that the agreement is invalid and unenforceable and the liquidated damages provision in the agreement is void. After appellant’s petition was filed, appellee filed a civil action in Fulton County for breach of contract and emotional distress against appellant and the officer who allegedly signed the agreement. Thereafter, appellee answered appellant’s petition and filed a motion to dismiss the declaratory judgment action. Appellant then filed an application for stay of the Fulton County proceedings. After a hearing, the trial court issued an order granting appellee’s motion to dismiss the declaratory judgment petition, concluding that appellant was seeking an advisory opinion because, having denied appellee’s claim, appellant was not undecided about the claim and all rights and obligations under the agreement had already accrued. Based on this conclusion, the trial court ruled that appellant’s application for stay of proceedings was moot. Appellant contends that the trial court erred in ruling that it was seeking an advisory opinion and in not granting the application for stay of the Fulton County proceedings.

“ ‘QCGA § 9-4-2 (c) provides that a “(r)elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.” However, it has been held that this provision “does not mean that a declaratory judgment (action) will lie to have just any justiciable controversy decided.” [Cit.] “(T)he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.” [Cit.] “A declaratory judgment may not be granted in the absence of a justiciable controversy. (Cits.) ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. . . .’” [Cit.]’ [Cit.]” Chastain v. U. S. Fidelity &c. Co., 190 Ga. App. 215, 216 (1) (378 SE2d 397) (1989) (Emphasis deleted.) “[A] declaratory judgment is not available to a party merely to test the viability of its defenses. [Cits.]” Allstate Ins. Co. v. Shuman, 163 Ga. App. 313, 316 (4) (293 SE2d 868) (1982). In the instant case, appellant was not uncertain of its actions and needed no direction with respect to any future conduct on its part. See Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42 (395 SE2d 287) (1990). Prior to filing the declaratory judgment action, appellant had already firmly repudiated appellee’s claim, and by doing so, now faces no future obligations under the agreement. Therefore, the rights and obligations of the parties pursuant to the agreement have accrued, appellant is seeking confirmation of actions it has already taken and declaratory relief is improper. Compare Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106 (2) (213 SE2d 150) (1975). In effect, appellant is seeking an advisory opinion to confirm the propriety of its denial of appellee’s claim in the event the denial results in future litigation. Royal Lepage &c. v. Spalding Partners, Ltd., 192 Ga. App. 284 (1) (384 SE2d 424) (1989); Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 SE2d 614) (1987). Appellant, having affirmatively established its position, may now assert its defenses in the civil action filed by appellee. Although appellant relies on Town of Thunderbolt v. River Crossing Apts., Ltd., 189 Ga. App. 607 (377 SE2d 12) (1988) in support of its position that a declaratory judgment is proper, after a review of the authority cited herein, we do not conclude that Town of Thunderbolt mandates a reversal of the trial court. The court in Town of Thunderbolt relied on the allegations in the complaint to determine that all possible legal rights had not accrued and all personal obligations had not attached, and that the court had jurisdiction to render a declaratory judgment. In the case sub judice, appellant’s complaint establishes the contrary. Accordingly, the trial court did not err in dismissing appellant’s petition for declaratory judgment and in ruling that the application for stay of proceedings was moot.

Decided March, 17, 1992.

Alston & Bird, W. Terence Walsh, T. Michael Tennant, Forrest W. Hunter, W. Glenn Viers, for appellant.

Beltran & Coffey, Frank J. Beltran, Ralph Perales, Davis, Gregory & Christy, Hardy W. Gregory, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2244.
    GATLING v. THE STATE.
    (416 SE2d 877)
   Cooper, Judge.

Appellant was tried before the court and found guilty of burglary. He appeals from the denial of his motion for new trial.

The evidence adduced at trial shows that sometime between 3:00 a.m. and 4:30 a.m. one morning, Shirley Cato arrived at the parking lot of a local fish market to pick up newspapers for delivery. Cato saw two grocery bags outside a broken window in the fish market. She also saw a man inside the fish market. Cato observed the man inside the fish market for 15 to 20 minutes before she went to the police station and reported a burglary in progress. Within three minutes after the report, several officers arrived at the fish market and saw appellant walking away from the fish market with a bag in his hand. The officer stopped appellant and discovered that the bag contained fish that resembled mullet. All of the officers noticed a strong odor of alcohol and fish on appellant. After reporting the burglary, Cato came back to the fish market and saw appellant sitting in the patrol car. She identified appellant as the man she saw inside the fish market. At trial, the State called a witness who testified that on the morning of the burglary at approximately 4:00 a.m. she saw two men walking toward the fish market and appellant looked like one of those men. The owner of the fish market testified that among the items missing from his market were mullet fish and cigarettes and that he did not give appellant permission to enter his market. Appellant presented an alibi defense through his own testimony and the testimony of several witnesses. Appellant admitted being in the neighborhood of the fish market around the time of the burglary but denied committing the burglary. Appellant also testified that he smelled like fish because he picked up a fish he saw on the ground.

1. Appellant contends in his first four enumerations of error that the State failed to prove guilt beyond a reasonable doubt. Appellant first argues that the conviction was not authorized because his alibi witnesses were unimpeached. The trial court, sitting as trier of fact, was “ ‘not bound to accept the evidence introduced of alibi as true; the [trier of fact] determines the credibility of the witnesses and weight to be given their testimony. OCGA § 24-9-80; [Cit.]’ [Cit.]” Champion v. State, 192 Ga. App. 43 (1) (383 SE2d 565) (1989). Appellant also argues that the State failed to exclude every other reasonable hypothesis other than guilt. “ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. . . . This does not mean that the [S]tate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. (T)he question of whether every other reasonable hypothesis has been excluded is generally a question for the [trier of fact].’ [Cit.]” Ranalli v. State, 197 Ga. App. 360, 363 (1) (398 SE2d 420) (1990). Appellant was caught walking away from the fish market carrying a bag of fish. The owner of the fish market testified that mullet fish and other items were missing from his market and that he did not give appellant permission to enter his market. The State proved all of the essential elements of the crime of burglary, and the trial court’s conclusion was supported by evidence sufficient to enable a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his fifth and sixth enumerations of error, appellant contends the trial court erred in not suppressing the identification made by Cato. Cato testified at trial that after reporting the burglary to the police, she returned to the scene because she was curious and saw appellant, whom she identified as the man she had seen in the fish market, in the patrol car. Appellant argues that the “show-up” identification made by Cato at the scene of the burglary was impermissibly suggestive in that appellant was seated in the back of a patrol car after being apprehended by the police. “Such on-the-scene ‘show-up’ identifications have been held not to be impermissibly suggestive but necessary due to the practicabilities inherent in such situations. [Cit.]” Carter v. State, 192 Ga. App. 726, 727 (3) (386 SE2d 389) (1989). We also find no merit to appellant’s argument that there was no independent basis for Cato’s in-court identification. Cato testified that she observed appellant for 15 to 20 minutes while he. was inside the fish market. Thus, even if the “show-up” identification was tainted, we conclude that there was an independent basis for the in-court identification. See Arnold v. State, 198 Ga. App. 449 (1) (402 SE2d 69) (1991).

Decided March 17, 1992.

Dallas, Fowler & Wills, Linda C. Simms, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn, Assistant District Attorney, for appellee. „

3. In his final enumeration of error, appellant contends the trial court erred in denying his motion for new trial. We have addressed all of appellant’s arguments in Divisions 1 and 2 of this opinion.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2250.
    HAYES v. THE STATE.
    (417 SE2d 45)
   Johnson, Judge.

Tommy Ray Hayes was convicted of possession of cocaine with intent to distribute and his motion for new trial was denied. He appeals, contending that the evidence was insufficient to authorize the verdict of guilty. The state presented the testimony of three special agents of the Valdosta/Lowndes County Drug Unit, who while on duty observed Hayes outside a place known as the Hill Street Booze. Hayes was standing close to another black male with his arm outstretched, palm upward. The other man was looking at his upturned, outstretched palm. The officers testified that this behavior was known to the officers to be consistent with the distribution of crack cocaine. When the two men saw the officers watching them they ran off in different directions, pursued by the agents. Hayes ran inside the Hill Street Booze with Agent Winningham directly behind him, and threw what he was holding in his hand into a'trash can. Agent Winningham retrieved from in and around the trash can the objects he saw Hayes throw, consisting of seven pieces of a substance which was later determined by the state crime lab to be crack cocaine. Agent Winningham testified that for personal use rather than distribution a person normally has only one or two pieces in his possession.

Decided March 17, 1992.

James F. Council, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Hayes testified at his trial that he had been waiting to shoot pool inside the Hill Street Booze for more than five to ten minutes prior to the time Agent Winningham came in and told him he was being arrested for obstruction. He was taken outside and kept there for several minutes before another officer came out with the trash can in which the cocaine was found, and then was informed he was being arrested for possession of cocaine.

The quantity of the cocaine possessed and the activity in which the officers observed the appellant engage were sufficient to show intent to distribute. This court does not weigh the evidence. Questions of the weight to be given evidence and to the credibility of witnesses are solely for the jury. The evidence at Hayes’ trial was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. See Stewart v. State, 199 Ga. App. 157, 158 (1) (404 SE2d 461) (1991). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Beasley J., concur.


text:
    A91A1812.
    DAVID JORDAN LOGGING COMPANY et al. v. SALES.
    (416 SE2d 803)
   Pope, Judge.

In this workers’ compensation case, the employer appeals the order of the Superior Court which affirmed the award of temporary total disability benefits by the Workers’ Compensation Board.

1. We reject the employer’s argument that the award is unsupported by evidence of disability. Although the medical evidence was in conflict, one of the claimant’s treating physicians testified the claimant was unable to work full-time and testified to the restrictions on the claimant’s activities which he believed were necessary. These restrictions would preclude the claimant from performing his pre-injury job as a logger. The record supports the finding that the employer has not offered the claimant limited work. Thus, pursuant to the any evidence rule, the evidence was sufficient to support an award of benefits.

2. We agree, however, that the order affirming the award of the board and the ALJ must be reversed because the ALJ improperly excluded relevant evidence which the employer attempted to present. One of the employer’s defenses to the, claim was that the claimant was malingering. The employer presented the deposition testimony of one of the claimant’s treating physicians who testified he found no physical reason for the claimant’s continued complaints, that some of the claimant’s complaints were due to a hysterical reaction to the injury and that psychological factors could be a cause of his continued complaints. At the hearing, the ALJ refused to permit the employer to cross-examine the claimant concerning the existence of a sizable IRS tax lien filed against the claimant. The employer argues the topic of the IRS lien is relevant to show motive for malingering because workers’ compensation benefits are not subject to such a lien, whereas earnings are.

Pursuant to OCGA § 34-9-102 (e) (1), in a workers’ compensation proceeding “[a] party may conduct such cross-examination as required for a full and true disclosure of the facts.” Moreover, workers’ compensation hearings are subject to the same rules of evidence that apply to civil proceedings. Id. Consequently, a party in a workers’ compensation case is entitled to a “thorough and sifting cross-examination” of adverse witnesses. OCGA § 24-9-64. “[Fundamental constitutional rights] require that every party have the opportunity to conduct a thorough and sifting cross-examination of all witnesses against him, especially where the witness is the opposite party to the cause on trial, and is testifying for the purpose of making out his own case. These rights are granted to all parties, defendants as well as plaintiffs, and are applicable in workers’ compensation proceedings.” (Citations and punctuation omitted.) Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 (302 SE2d 701) (1983).

It is true, as the claimant argues, that “[q]uestions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere.” MacNerland v. Johnson, 137 Ga. App. 541, 542 (1) (224 SE2d 431) (1976). In this case, however, we conclude that evidence relating to the employer’s defense of malingering is relevant and admissible. “ ‘Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.’ [Cits.]” Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). In Owens, evidence relating to the criminal defendant’s motive was deemed relevant. Likewise, in a workers’ compensation case in which malingering is raised as a defense, evidence tending to show a motive for malingering is relevant. We conclude the ALJ erred in preventing the employer from pursuing its right to a thorough and sifting cross-examination of the claimant in regard to the tax lien and, thus, the Superior Court erred in affirming the award. The judgment is reversed with direction to remand the case to the board for further proceedings in accordance with this opinion.

Decided March 3, 1992

Reconsideration denied March 18, 1992

Lowendick & Speed, Kenneth B. Donahue, for appellants.

Marcus, Moskowitz & Associates, David H. Moskowitz, for appellee.

Judgment reversed with direction.

Birdsong, P. J., and Cooper, J., concur.