text:
    A93A0317.
    SMITH v. JOHNSON.
    (433 SE2d 404)
   Pope, Chief Judge.

Plaintiff alleges he was injured in an automobile collision caused by defendant Sammie R. Johnson, Jr., on February 9, 1990. Plaintiff’s complaint was served upon both defendant and plaintiff’s uninsured motorist insurer, Allstate Insurance Company. The trial court dismissed the complaint as to both defendant and Allstate and plaintiff appeals.

1. Plaintiff filed his complaint against defendant October 4, 1991 and provided the sheriff with an address for service. On October 8, the return of service was filed indicating defendant could not be found and containing the notation that defendant had moved to Indiana. On February 6, 1992 plaintiff filed an amendment to the complaint alleging that after due diligence defendant could not be found in the jurisdiction of the court and requesting service by publication. In support of the request for service by publication plaintiff filed the affidavit of his attorney setting forth the steps which had been taken to locate defendant. The request was granted and the record shows service by publication was issued. Defendant then filed his motion to dismiss the complaint on the ground of insufficiency of service and laches.

The record shows, that after defendant filed the motion to dismiss, a return of service was filed on July 21, 1992 indicating defendant was personally served. Nevertheless, the trial court granted the motion on the ground that service by publication was insufficient to confer in personam jurisdiction over the defendant. The trial court did not acknowledge that defendant had been personally served and did not address the issue of whether personal service over six months after the period of limitation had expired and nine months after the complaint was filed was effective or was untimely on the ground of laches. We vacate the trial court’s order and remand for consideration of the issue of the timeliness of personal service.

Even though service by publication is insufficient to confer in personam jurisdiction over defendant (see Veal v. Gen. Accident Fire &c. Corp., Ltd., 128 Ga. App. 610 (197 SE2d 410) (1973)), “by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. See Starr v. Wimbush, 201 Ga. App. 280 (2) (410 SE2d 776) (1991).” Douglas v. Woon, 205 Ga. App. 355, 356 (422 SE2d 61) (1992). Thus, as of the date of the order granting the request for service by publication, the trial court found the plaintiff had been diligent in the attempt to locate defendant. Another six months expired before personal service was perfected, however. Although the record contains no evidence concerning the plaintiff’s efforts to serve defendant during this period, this court cannot rule as a matter of law that plaintiff was not diligent in his efforts to serve defendant because no findings or conclusions were reached on this issue by the trial court. It is for the trial court to look at the facts of the case and ascertain whether plaintiff was guilty of laches. Freemon v. Dubroca, 177 Ga. App. 745 (2) (341 SE2d 276) (1986). On remand, the trial court shall reconsider defendant’s motion to dismiss, including a determination of whether the personal service, which was apparently made on defendant, was timely.

2. At the same time plaintiff requested service by publication upon defendant, plaintiff also requested service upon his own uninsured motorist carrier, Allstate. Service upon Allstate was perfected February 14, 1992, six days after the period of limitation had expired in regard to the tort action against defendant and four months after the complaint was filed. We affirm the trial court’s dismissal of the complaint as to Allstate. “[T]he uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976).” Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989). Accord State Auto Ins. Co. v. Reese, 191 Ga. App. 818 (383 SE2d 157) (1989).

Decided June 30, 1993.

George W. Carreker, for appellant.

Harper, Waldon & Craig, Russell D. Waldon, Hilliard V. Castilla, Fain, Major & Wiley, Thomas E. Brennan, Irwin, Bladen, Baker & Russell, R. Chris Irwin, for appellee.

Judgment affirmed in part and vacated in part with direction.

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


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A93A0820.
    ATLANTA MECHANICAL, INC. v. DeKALB COUNTY. PALMER BRICK & TILE COMPANY v. DeKALB COUNTY.
    A93A0821.
    (434 SE2d 494)
   Beasley, Presiding Judge.

These appeals emanate from two lawsuits against DeKalb County by Atlanta Mechanical, Inc., a subcontractor for a public works project, and Palmer Brick & Tile Company, a material supplier for the project. Both plaintiffs appeal the award of summary judgment to DeKalb County and the denial of their cross-motions for summary judgment on like issues consolidated in the trial court.

DeKalb County entered into a public works contract with CRJ Corporation, a general contractor, to construct the DeKalb County Records Facility. Pursuant to OCGA § 36-82-101, contractors on public works projects must provide performance and payment bonds in compliance with OCGA § 13-10-1. On August 1,1990, CRJ tendered a payment bond to the county in the amount of $524,000, showing Contractors Surety & Fidelity Company, Inc. (CSFC) as surety. Because CSFC was not authorized at the time to do business in Georgia, it was required under OCGA § 36-82-102 to file with the bond an affidavit “stating under oath that [the surety] is the fee simple owner of real estate equal in value to the amount of the bonds. ...” The latter statute subjects the county to liability to all subcontractors and material suppliers on a public works contract for any loss resulting from the county’s acceptance of a bond which is not taken “in the manner and form” as required above.

The county prepared the requisite affidavit, which was executed by the president/CEO of CSFC as its attorney-in-fact and attached to the bond along with a schedule of real estate. The county admits that it did not investigate the solvency or sufficiency of the surety prior to accepting the bond. Subsequent investigation revealed that the affidavit was false in that CSFC did not own any of the scheduled real estate.

Appellants contend that the county knew in mid-July 1990, approximately two weeks before accepting CSFC’s bond for the project, that the surety was the subject of an on-going investigation by the Georgia Insurance Commissioner. The county forwarded to the commissioner at that time copies of payment and performance bonds it had previously accepted from CSFC on other public works projects. A cease and desist order against CSFC was entered by the insurance commissioner on October 23, 1990, prohibiting the surety from continuing to act as an insurance agent in the State of Georgia because of repeated violations of the Georgia Insurance Code occurring over the previous two years.

Atlanta Mechanical showed by affidavit that it fully performed all of the work required in the subcontract with CRJ, and that an outstanding balance of $54,000 remained unpaid by the general contractor. It sued both CRJ and the surety and obtained judgments against them. After discovering that both entities were insolvent, it demanded that the county pay for its work. When the county refused, Atlanta Mechanical brought the present suit alleging breach of a statutory duty to obtain a valid bond under OCGA § 36-82-102 and seeking to impose an equitable lien on any funds held in retainage for the project. (Case No. A93A0820.)

Palmer Brick & Tile Company supplied materials in the amount of $6,904.55 to the project, for which it was not paid. It sued and obtained judgment against CRJ. After discovering that CRJ and the surety were both judgment-proof, it too made a futile demand on the county for payment, resulting in the present action. (Case No. A93A0821.)

Appellants’ enumerations of error are identical and will be treated jointly.

1. “A county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. DeKalb County is statutorily subject to direct liability in this action by virtue of OCGA § 36-82-102.

2. Enumerations of error 1, 2, 3, 5, 6, 7, 8, 10: Appellants contend that the county was not entitled to summary judgment because the affidavit and attachments in support of CSFC’s payment bond failed to comply with OCGA §§ 36-82-102 and 13-10-1 (b) (2) (A).

This issue was recently decided in favor of appellants in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123 (430 SE2d 13) (1993), wherein this court considered the sufficiency of CSFC’s affidavit (identical to the affidavit in support of CSFC’s payment bond for the DeKalb County Records Facility project) in the context of a motion to dismiss. We recognized that OCGA §§ 13-10-1 (b) (2) (A) and 36-82-102 “together impose a duty on the county to require a payment bond, and provide for liability on the part of the county if it breaches this statutory duty.” Id. at 124. Failure on the part of the county to require payment bond in accordance with OCGA § 36-82-102, results in a direct right of action by subcontractors and material suppliers to recover for their losses. City of Atlanta v. United Elec. Co., 202 Ga. App. 239, 240 (2) (414 SE2d 251) (1991).

“[W]hile a county is not absolutely liable whenever a surety on a payment bond is insolvent, it may be liable under OCGA § 36-82-102 if it fails to inquire adequately into the solvency and sufficiency of the surety where the circumstances surrounding the transaction make such failure to engage in further inquiry unreasonable.” J & A Pipeline, supra at 125. Clearly, the county does not fulfill its statutory duty as a matter of law by simply obtaining a payment bond.

For the reasons stated in J & A Pipeline, the schedule of properties on its face should have put the county on notice of the possible inadequacy of the surety. “[T]he most valuable listed asset was not a fee simple interest in real estate and . . . the description of several other assets were legally inadequate for any purpose. . . . Only two of the listed parcels of real estate had adequate descriptions. One of these parcels was in Georgia but provided only $46,000 of equity for security; the other provided $3,050,000 but was in Hollywood Hills, California. Nonetheless the county accepted the bond without any further inquiry.” Id. at 123.

To prevail as defendant-movant on summary judgment, the county had the burden of showing there is an absence of evidence to support the nonmoving party’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The county contends that it fulfilled its duty as a matter of law under OCGA § 36-82-102 when it went through the formality of obtaining a payment bond and that it is not statutorily required to review the language of the bond. J & A Pipeline, supra, disposes of this issue in favor of appellants. The county was under a duty to inquire into the solvency and sufficiency of the surety. It admitted its failure to do so. Because the county did not meet its burden as movant, summary judgment was improperly granted in its favor. Lau’s Corp., supra.

Appellants contend that J & A Pipeline is merely advisory with respect to this issue, since that decision ultimately turned on jurisdictional grounds and we remanded to a court of proper jurisdiction for further proceedings. A decision on the merits was reached in J & A Pipeline to the extent that we reversed the dismissal of the action for failure to state a claim. That ruling is binding in all subsequent proceedings in that case. OCGA § 9-11-60 (h). Even if it is not binding precedent in subsequent cases such as this, we are persuaded by its reasoning and it is adopted here. See, e.g., Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987), in which dictum from another case was expressly adopted.

3. Enumeration of error 4: The trial court concluded that the 1991 legislative amendment to OCGA § 13-10-1 adding subsection (f), is inapplicable because it became effective July 1,1991, after the bond in this case was accepted. It provides: “Any bid bond, performance bond or payment bond required by this Code section shall be approved as to form and as to the solvency of the surety by the officer of the . . . county . . . who negotiates the contract on behalf of the public entity.” It is the position of the county that prior to 1991, there was no duty on its part to investigate and determine the solvency and sufficiency of the surety on the payment bond. However, as we concluded in J & A Pipeline, the “1991 amendment explicitly clarified the previously implicit understanding that a surety is not ‘good and sufficient’ unless it is solvent.” Id. at 126.

4. Enumeration of error 9: Appellants contend the court erred in refusing to impose an equitable lien on funds used by the county to complete the project, in compensation for their unpaid work. The county showed that it was no longer holding any funds as retainage or in escrow on the project. Appellants nevertheless urge this court to find entitlement to such a lien for the benefit of “future projects and claimants.” This issue is moot.

5. Enumeration of error 11: Appellants’ summary judgment motions, which they contend were erroneously denied, were predicated solely on the county’s failure to discharge its statutory duty under OCGA § 36-82-102 to ensure that the payment bond and affidavit are in compliance with the requirements of OCGA §§ 36-82-102 and 13-10-1 (b) (2) (A). J & A Pipeline requires inquiry into the solvency and sufficiency of the surety if the circumstances reasonably so warrant. Based on the knowledge available to the county prior to the acceptance of CSFC’s bond, it unreasonably failed to inquire into the solvency and sufficiency of the surety as a matter of law and is therefore liable for appellants’ losses under OCGA § 36-82-102.

Decided June 10, 1993 —

Reconsideration denied June 30, 1993 —

McReynolds & Welch, J. Michael Welch, for appellants.

Johnson & Montgomery, Harry W. MacDougald, J. Bertram Levy, Albert S. Johnson, for appellee.

However, other defenses asserted by the county were neither addressed in plaintiffs’ motions nor in the trial court’s order. “ ‘(O)n motion for summary judgment the burden was upon the plaintiff[s], as movant[s] to conclusively establish the absence or nonexistence of any defense. . . .’ [Cit.]” Scott v. Aetna Finance Co., 201 Ga. App. 81, 82 (410 SE2d 203) (1991). “ ‘The defendant’s answer raised [other] issuable defense [s] which the proof offered by the plaintiff[s] failed to effectively negate.’ [Cit.]” Scott v. Aetna Finance Co., supra at 82. For that reason, the denial of appellants’ respective motions for summary judgment was proper.

Judgments affirmed in part and reversed in part.

McMurray, P. J., and Cooper, J., concur.

       The construction contract between CRJ and DeKalb County was terminated before completion of the DeKalb Record Facility. CRJ sued the county for breach of contract; the county denied liability and counterclaimed against CRJ for damages.


author: Birdsong, Presiding Judge.

text:
    A93A0263.
    DOWDY v. THE STATE.
    (433 SE2d 293)
   Birdsong, Presiding Judge.

Eddie Dowdy appeals his conviction for possession of cocaine. His sole enumeration of error contends the trial court erred by denying his motion to suppress the cocaine because the search and seizure of the cocaine violated OCGA § 17-5-30, Ga. Const. 1983, Art. I, Sec. I, Par. XIII, and the Fourteenth Amendment to the Constitution of the United States. Held:

The record shows that Dowdy was a passenger in a car reported stolen. After police stopped the car at approximately 2:30 a.m. and verified that this car had been reported stolen, they employed what they term a felony stop, i.e., the police used extreme caution with their weapons drawn. After the driver was secured, handcuffed, and placed in the police car, Dowdy was ordered to get out of the car and place his hands on the car. One of the officers patted Dowdy down, and during the “pat down,” he felt a large object that he believed to be a key ring in Dowdy’s pocket. To be certain that the object was only a key ring and not something that could be used as a weapon, e.g., a box cutter, razor blades, etc., the officer reached in Dowdy’s pocket and removed the object. When he did so, two pieces of rock cocaine came out of the pocket with the key ring. The officer then removed another piece of cocaine from the pocket.

Decided May 10, 1993 —

Reconsideration denied July 1, 1993 —

Russell C. Gabriel, for appellant.

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

Dowdy argues that the seizure of the cocaine was unauthorized because the procedure used by the police was an unauthorized search and not a stop and frisk authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).

In this state, a Terry pat-down search is authorized when the officer reasonably believes that it is necessary to protect him from attack. Wood v. State, 224 Ga. 121, 124 (160 SE2d 368). Based upon the information known to the officers, e.g., Dowdy was a passenger in a stolen car, and the hour of the night, it was reasonable for the police officers to take precautions for their own safety, including the pat-down search. Although the information reported to the police was that only the driver had taken the car, under the totality of the circumstances, the officers need not disregard the passenger in the car given the number of cases in which police officers are attacked, sometimes fatally, by passengers in vehicles.

“As a general rule, the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.” (Citation and punctuation omitted.) Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). As the trial court’s findings of fact in this instance are adequately supported by evidence of record, Dowdy’s enumeration of error is without merit.

Judgment affirmed.

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


text:
    A93A0512.
    FOWLER-FLEMISTER CONCRETE, INC. v. SUMNER et al.
    (433 SE2d 329)
   Beasley, Presiding Judge.

Gilbert and Sherin Sumner sued Fowler-Flemister Concrete, Inc. to recover for personal injuries sustained by Mr. Sumner while working at defendant’s concrete manufacturing facility. This case is before the court pursuant to the grant of defendant’s application for interlocutory appeal from the denial of summary judgment. The issue is whether appellant/defendant is the statutory employer of appellee/ plaintiff under OCGA § 34-9-8 (a), and therefore immune from tort liability under the exclusive remedy provision of the Georgia Workers’ Compensation Act, OCGA § 34-9-11. Since the undisputed facts establish the employer’s immunity as a matter of law, we reverse.

Plaintiff worked for various businesses and individuals as a self-employed mechanic. He was employed on an as-needed basis at defendant’s four cement plants to service its trucks and loaders. He was called to defendant’s Greensboro plant to assist in removing an obstruction in the neck of a cement silo. Although his usual work involved vehicle maintenance, his assistance was sought on this occasion because he carried the necessary tools and equipment for the project in his truck.

Upon arriving he met with defendant’s plant managers, who told him there appeared to be cement clogging the neck of a silo, which they had unsuccessfully attempted to dislodge. A platform constructed of metal mesh grating encircled the upper portion of the silo, which is used in conjunction with defendant’s concrete manufacturing business. The three men discussed a method to correct the problem and it was decided to cut a hole in the auger tube about five feet above the platform and place an object inside to loosen the obstruction.

Plaintiff climbed a metal ladder which led to the platform on the silo and, after placing the required tools from his truck on the platform, he began to cut the hole. Defendant’s manager was working along with plaintiff on the platform. The two took turns attempting to dislodge the obstruction by placing a rod into the hole. When this method was unsuccessful, defendant’s manager suggested that plaintiff climb a ladder extending above the platform and use a hammer to bang on the shut box mechanism in an effort to jar it loose. He was injured when he fell from the ladder while swinging the hammer and rolled over the edge of the platform onto the ground.

Under OCGA § 34-9-8 (a), “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (1) (359 SE2d 700) (1987), established criteria to determine when an owner of premises upon which an employee of another entity is injured is subject to the statutory employer doctrine of OCGA § 34-9-8 (a). The criterion relevant to our decision provides that if “the owner is not ‘merely in possession or control of the premises’ but is actively involved in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.” Id. at 633.

When plaintiff was called to the plant for the purpose of assisting defendant’s agents in correcting an obstruction in the cement silo, he was actively engaged in defendant’s concrete manufacturing enterprise taking place on the property. After conferring with the plant managers, a course of action was agreed upon and the three embarked upon the project together. Defendant’s agents took an active role in supervising the project. Whitehead v. CHP, Ltd., 192 Ga. App. 417 (385 SE2d 124) (1989). Plaintiff’s task was essential to defendant’s cement manufacturing business. See Fennell v. Max Rittenbaum, Inc., 199 Ga. App. 619, 620 (2) (405 SE2d 546) (1991). He was injured while rendering substantial service in connection with defendant’s manufacturing equipment. Compare Gray Bldg. Systems v. Trine, 260 Ga. 252 (391 SE2d 764) (1990). Even assuming plaintiff was an independent contractor, “[t]he fact that plaintiff. . . was an independent contractor does not preclude a conclusion that defendant was his statutory employer.” Falagan v. Ga. Power Co., 205 Ga. App. 531, 532 (422 SE2d 563) (1992).

Decided June 10, 1993 —

Reconsideration denied July 1, 1993 —

Jones, Cork & Miller, Carr G. Dodson, Timothy Harden III, for appellant.

Tinkler & Groff, William P. Tinkler, Jr., David B. Groff, for appellees.

The undisputed facts show that defendant was plaintiff’s statutory employer within the meaning of OCGA § 34-9-8 (a). Wright, supra; Fennell, supra; Winn-Dixie Atlanta v. Couch, 193 Ga. App. 352 (387 SE2d 590) (1989).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0804.
    BROWN v. THE STATE.
    (433 SE2d 321)
   Beasley, Presiding Judge.

Brown appeals from the judgments of conviction and sentences entered for two counts of child molestation, OCGA § 16-6-4 (a), and from the denial of his motion for new trial and extraordinary motion for new trial.

1. Appellant contends that the trial court erred in denying his motion in limine and admitting testimony concerning the results of a State-conducted polygraph examination.

Appellant’s daughter, age 13, disclosed to a girl friend that appellant had been sexually molesting her for several years. The friend’s mother reported the conduct to the Department of Family & Children Services. As a result, a DFACS caseworker and an investigator with the sheriff’s department interviewed the victim at her home on August 13, 1991. She revealed being sexually molested by her father on numerous occasions, beginning when she was seven or eight years old.

Later that day, appellant and his wife were telephoned by the investigator and the DFACS caseworker. They agreed to come to the investigator’s office where appellant was interviewed by the investigator concerning his daughter’s complaint. Appellant denied the allegations and agreed to take a polygraph examination. The investigator presented him with a form captioned “stipulation for admissibility of polygraph examination results,” which stated that appellant is under investigation for child molestation and requests a polygraph examination concerning the allegations, to be administered by an authorized State examiner. The document further provided: “[Appellant] hereby stipulates his consent for the admission of the results of the polygraph examination in evidence at any legal proceeding including trial that may arise out of the aforementioned investigation. The District Attorney hereby stipulates on behalf of the State his consent for the admission of the results of said polygraph into evidence at any legal proceeding against [appellant] that may arise out of this investigation. [Appellant] further stipulates that if he should refuse to take the agreed upon polygraph examination subsequent to this stipulation, such refusal shall also be admissible into evidence.” The investigator testified that he explained the contents of the document and advised appellant that the results were not admissible in court unless he signed the stipulation. Appellant acknowledged that he understood the document and signed it without promise or threat by the investigator. The examination was administered two days later and appellant was thereafter arrested.

The examiner was qualified as an expert at trial and testified concerning the testing procedure. Four relevant questions were posed pertaining to the present charges. The examiner testified that the subject was being deceptive when he gave “no” answers to those questions. The examiner was thoroughly cross-examined as to the accuracy of the test. Appellant testified, denying the charges.

Appellant had filed a pre-trial motion in limine seeking to exclude the results of the polygraph examination. A hearing was conducted, but no transcript has been provided nor is available for this court’s review.

Appellant contends in the motion and on appeal that the polygraph results should have been excluded because he was inadequately informed concerning the lack of reliability of the test and was unrepresented by counsel when the stipulation was obtained and the test administered.

“[U]pon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). The undisputed evidence shows the investigating officer explained the terms of the stipulation to appellant who “said he understood and signed the form . . . freely and voluntarily.” He was told the results were not admissible at trial unless he signed the stipulation. The contents of the form clearly provide that appellant “stipulates his consent for admission of the results in evidence at any legal proceeding including trial. ...”

Nor is the stipulation invalid because it was executed without advice of counsel. Although in Ivey v. State, 203 Ga. App. 886 (1) (418 SE2d 71) (1992), defendant had been informed of his right to counsel before he underwent the examination, and caution recommends the practice, no authority has been presented that such is a prerequisite. We decline to create one because the fears of coercion and overbearing are not present, defendant was informed of his choices and the consequences of refusal or submission, he was not in custody, and it was not a critical stage of the proceedings against him. Defendant sought no counsel in the two days between being fully informed about it and the actual examination despite the opportunity to do so. Moreover, appellant was not in custody for Miranda purposes at the time the stipulation was obtained or the test administered. His freedom of action was not in any way curtailed.

Appellant also cites Miranda’s underlying principle of informed consent to support his argument that he should have been informed that the results would be inadmissible without his stipulation and that the reliability of polygraph tests is questionable. The evidence shows that appellant was advised as to the first item. As to the second, no such opinion warning is required. The value of the results and the weight to be given them is for the factfinder, not the evidence-gatherer, to judge. The stipulation and evidence of the polygraph results were properly admitted under Chambers and its progeny.

2. Appellant contends the trial court erred in denying his extraordinary motion for new trial based on the fact that the child (age 15 at trial) recanted her testimony after trial.

“The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” Drake v. State, 248 Ga. 891, 894 (1) (287 SE2d 180) (1982). See OCGA § 5-5-23. “Furthermore, motions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless [that] discretion is abused.” Jefferson v. State, 157 Ga. App. 324, 325 (1) (277 SE2d 317) (1981). After hearing evidence on the motion, the court found that the child’s trial testimony was more credible than her subsequent recantation. We find no abuse of discretion.

Decided June 8, 1993 —

Reconsideration denied July 1, 1993 —

Little & Adams, Sam F. Little, for appellant.

Jack O. Partain III, District Attorney, Bert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgments affirmed.

McMurray, P. J., and Cooper, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A93A0618.
    NATIONAL CHEMCO, INC. et al. v. UNION CAMP CORPORATION.
    (433 SE2d 691)
   Birdsong, Presiding Judge.

National Chemco, Inc. and Ivan T. Smith (collectively “Chemco”) appeal from a judgment for Union Camp Corporation, entered after a bench trial in an action for breach of contract. Smith’s liability is based on his personal guaranty of payment for purchase contracts.

The evidence shows Chemco placed two orders with Union Camp to manufacture and print bags. Union Camp accepted the orders but Chemco called to put the orders on hold; Union Camp’s representative agreed initially, but then advised Chemco the orders had been printed before they could be put on hold. Additionally, Union Camp’s witness testified that Chemco did not try to cancel the orders but instead sought to delay production.

Chemco contends, however, that the two contracts were mutually rescinded, and that the trial court erred as a matter of law by not finding that the contracts were rescinded. Held:

Although couched by Chemco as an error of law, the issue on appeal is whether, under the evidence, there were mutual rescissions of the contracts. The trial court found there were not, and now Chemco asks this court to review the evidence and reach a different result. This court, however, has no such authority. We are limited to consideration of whether the trial court’s findings are clearly erroneous and are obliged to give due regard to the trial court’s opportunity to judge the witnesses’ credibility. OCGA § 9-11-52 (a). Thus, we are bound to credit the trial court’s statement that Union Camp’s witness was the more credible.

Decided July 1, 1993.

Meadows, Ichter & Trigg, Mark G. Trigg, Lauren S. Antonino, for appellants.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

Therefore, the issue is whether any evidence supports the finding that there was no rescission implicit in the trial court’s judgment for Union Camp. As the finding is supported by testimony of Union Camp’s witness, we cannot disturb the judgment of the trial court. Smith v. Carlton Farms, 181 Ga. App. 743, 744 (353 SE2d 624). We cannot review any other alleged findings, for there are none preserved for appeal, Chemco having failed to move timely for issuance of findings of fact by the trial court. See OCGA § 9-11-52 (c).

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A0785.
    DAVIS v. DESA INTERNATIONAL, INC.
    (433 SE2d 410)
   Smith, Judge.

April Davis was injured on February 26, 1990 when a heater exploded at her workplace. She filed suit on February 26, 1992, against her employer, who was later dismissed, and DESA International, Inc., the manufacturer of the heater. The trial court granted DESA’s motion to dismiss the action based on the statute of limitation, and Davis appeals.

After a hearing on DESA’s motion, the trial court entered an order finding that the appropriate statute of limitation was OCGA § 9-3-33, and since no tolling occurred under either OCGA § 9-3-90 or OCGA § 9-3-91, the action was barred.

We reverse. OCGA § 9-3-33 provides that actions for personal injury must be brought within two years after the right of action accrues. Prior to 1985, such an action was barred if filed on the second anniversary of the injury. See, e.g., Reese v. Henderson, 156 Ga. App. 809 (275 SE2d 664) (1980). However, in 1985 the legislature amended OCGA § 1-3-1 (d) (3) to provide, in pertinent part, that “when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted.” Under this statute, Davis’ complaint was clearly filed within the time period prescribed by OCGA § 9-3-33. Hollingsworth v. Hubbard, 184 Ga. App. 121 (361 SE2d 12) (1987).

Decided July 1, 1993.

Lecora Bowen, for appellant.

Weinstein, Rosenthal, Tobin & Caldwell, A. Keith Logue, Susan L. Williams, for appellee.

Contrary to appellee’s argument, this case does not fall within the exception in OCGA § 1-3-1 (d) (3) for “time period computations specifically applying to other laws.” OCGA § 9-3-33 does not itself provide for any method of computing the two-year period provided therein. The judicially created rule, exemplified by cases such as Reese, supra, under which the day the injury occurred was included in the computation, was based not on any particular method of computation specifically applying to the statute of limitation, but on the method of computation provided in the general time computation rule included in the predecessor statute to OCGA § 1-3-1 (d) (3). The 1985 amendment expressly changed that method. See Loveless v. Grooms, 180 Ga. App. 424 (349 SE2d 281) (1986); Hollingsworth, supra. Since Davis initiated her action within the two-year period contemplated by OCGA § 9-3-33, using the computation method mandated by OCGA § 1-3-1 (d) (3), as amended, it was timely. The trial court erred in dismissing her complaint.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0812.
    DOMINICK v. THE STATE.
    (433 SE2d 405)
   Birdsong, Presiding Judge.

Michael L. Dominick appeals from his convictions for aggravated assault and possession of a firearm by a convicted felon. The record shows Dominick was tried for two counts of felony murder (one underlying felony being possession of a firearm by a convicted felon and the other being aggravated assault), two counts of aggravated assault (one on July 22, 1991, and the other on July 25, 1991), and one count of possession of a firearm by a convicted felon. The jury, however, reached a verdict only as to the aggravated assault on July 22 and the count of possession of a firearm by a convicted felon. The trial court declared a mistrial on the remaining counts, and subsequently, Dominick pled guilty to a charge of voluntary manslaughter.

Dominick contends the trial court erred by not recharging the jury on self-defense after being put on notice that the jury found self-defense on the felony murder charges, by not recharging the jury on reasonable doubt after being put on notice that the jury had found reasonable doubt on the felony murder charge, by erroneously charging on the degree of proof required, and by failing to grant his motion for a severance. Held'.

1. Because they are based upon the same false premise, Dominick’s first two enumerations of error are without merit. The jury merely advised the trial court that it had reached a verdict as to Dominick’s guilt as to two counts, but could not reach a unanimous verdict on other counts because of strong feelings regarding self-defense. The jury neither requested recharge on self-defense or reasonable doubt, asked any questions about those issues, nor expressed any doubt or confusion about these issues. Therefore, Dominick’s argument that the jury was confused about these issues is without factual support. Further, his reliance on Gidden v. State, 205 Ga. App. 245, 248 (422 SE2d 30) is misplaced. Gidden does not impose a duty upon the trial judge to sua sponte recharge the jury. On the contrary, in Gidden the jury requested a recharge which was denied by the trial court without informing counsel of the request. Nothing in this record suggests that the jury had any confusion, doubt or uncertainty. Although the trial court may sua sponte recharge the jury when it deems it necessary (Hyde v. State, 196 Ga. 475, 491 (26 SE2d 744); Litmon v. State, 186 Ga. App. 762, 763 (368 SE2d 530)), it is not required to do so absent a request from the jury. Polley v. State, 203 Ga. App. 825, 826 (418 SE2d 107). Further, the transcript shows that Dominick neither objected to the procedure used by the trial court nor requested that the jury be recharged. Accordingly, there was no error.

2. Appellant contends the trial court erred by charging the jury that “the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that can be expected in a legal investigation.” Relying upon Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339), Dominick asserts that this charge is erroneous because it might allow the jury to convict based upon a moral rather than an evidentiary certainty. Although our own Supreme Court held recently in Vance v. State, 262 Ga. 236, 238 (416 SE2d 516) that the better practice is not to use this language, the instant charge is not the charge condemned in Cage. In Cage, the trial court charged that a reasonable doubt is “ ‘one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’ ” Id. at 342. Considering this charge, the Supreme Court found that it would allow reasonable jurors to interpret the charge to allow a finding of guilt based upon less than the reasonable doubt standard because it “suggest[s] a higher degree of doubt than is required for acquittal under the reasonable doubt standard,” especially when considered with the reference to “ ‘moral certainty.’ ” Id.

Decided July 1, 1993.

Richard A. Grossman, for appellant.

Considering the charge given in its entirety, we do not find a Cage problem. Instead, the charge given relates to the upper limits of the degree of certainty that is imposed upon the State, i.e., not beyond all doubt or to a mathematical certainty. Under the circumstances, we find that the trial court accurately informed the jury of the prosecution’s burden of proving Dominick’s guilt beyond a reasonable doubt. Vance, supra. Further, we find that the court accurately informed the jury that its decision must be based upon the evidence (Bartlett v. State, 196 Ga. App. 174, 175-176 (396 SE2d 31)), and not upon moral concepts. Vance, supra.

3. The final enumeration of error contends the trial court erred by denying Dominick’s motion to sever the felony murder count based upon possession of a firearm by a convicted felon and the possession of a firearm by a convicted felon count from the other counts based upon Head v. State, 253 Ga. 429, 431-432 (322 SE2d 228). We find no error. Head does not contain an absolute requirement for bifurcation under these circumstances. Rather, Head held that charges of possession of a firearm by convicted felons should not be tried with “unrelated” other counts. Head, supra at 431. Consequently in this case in which the charges all concern the same victim and virtually the same conduct over a period of a few days, we do not find the charges to be “unrelated” within the meaning of Head. See Williams v. State, 262 Ga. 422, 423 (420 SE2d 301): Defendant charged with malice murder and felony murder of the same victim and possession of a firearm by a convicted felon; Appling v. State, 256 Ga. 36, 37 (343 SE2d 684): Defendant charged with malice murder, felony murder, voluntary manslaughter, and involuntary manslaughter of the same victim and possession of a firearm by a convicted felon. Moreover, under the circumstances of this appeal where, based upon the jury’s inability to reach a verdict on three of the counts, it is apparent that the jury did not allow the evidence of the prior felony to affect their consideration of the issues, any error in refusing to bifurcate the proceedings was harmless beyond a reasonable doubt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869).

Judgment affirmed.

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

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


text:
    A93A0813.
    GASKINS v. GAONA.
    (433 SE2d 408)
   Birdsong, Presiding Judge.

This interlocutory appeal was granted to review the denial of Burnell Gaskins’ motion for summary judgment. The record shows that after Florencio Gaona was injured in a farm equipment accident, he sued Gaskins and the owners of B.F.D. Farms. Gaona alleged that while in their employment, the defendants, “by and through other employees or servants, negligently injured [him],” by negligently engaging the power takeoff and causing his injuries when the engaged power takeoff pulled his leg into the equipment.

Subsequently, Gaskins moved for summary judgment asserting that he was not liable to Gaona because Gaona was an employee of B.F.D. Farms, and Gaskins had no connection with B.F.D. Farms, nor was he otherwise responsible for Gaona’s injuries. Gaona’s response to the motion asserted, however, there was a jury question whether Gas-kins was his employer since Gaona was injured by Gaskins’ equipment while on Gaskins’ land. After the trial court denied Gaskins’ motion this appeal followed. Held:

1. To prevail at summary judgment Gaskins was required to demonstrate that no genuine issue of material fact existed and that the undisputed facts, viewed in the light most favorable to Gaona warranted judgment as a matter of law. Gaskins could do this by showing that there was no evidence in the record creating a jury issue on at least one essential element of Gaona’s case. Once Gaskins discharges this burden, Gaona could not rest on its pleadings, but was required to point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Considering this record under this standard, we find that the trial court erred by denying Gaskins’ motion for summary judgment because Gaskins discharged his burden and Gaona failed to carry his.

2. The record not only shows there is an absence of evidence sufficient to create a jury issue (Lau’s Corp., supra), but affirmatively establishes that Gaskins is not liable to Gaona under any theory of liability asserted in or fairly drawn from the complaint. The only connection between Gaskins’ and Gaona’s injuries was that Gaona was injured on Gaskins’ land while Gaona and a fellow employee of B.F.D. Farms were attempting to connect a rotovator tiller owned by Gaskins to a tractor owned by Gaona’s employer, B.F.D. Farms. B.F.D. Farms is a partnership owned by the two other defendants and Gaskins has no interest in the partnership. B.F.D. Farms, however, rents land from Gaskins.

Gaona, however, contends that liability may be imposed under OCGA § 51-2-2 (respondeat superior) and that it is a question of fact whether Gaskins was Gaona and the other employee’s employer and also a question of fact whether liability could be imposed upon Gas-kins if the evidence at trial establishes that Gaskins’ tiller was defective. Gaona, however, has failed to point to any facts in the record supporting these contentions.

Although one may be liable for the acts of his employees or agents under OCGA § 51-2-2, to impose liability under respondeat superior, some relationship must exist between the principal and agent or employer and employee. “For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation or privity to the negligent person as to create the relation of principal and agent.” OCGA § 51-2-1 (a). In this case the unrebutted evidence shows Gaskins had no such relationship. Gaskins did not employ Gaona or authorize him to act in his behalf. See OCGA § 10-6-1. Instead, Gaona was employed by B.F.D. Farms. Moreover, Gaona does not contend that Gaskins had any right to control Gaona’s activities. See Farmer v. Ryder Truck Lines, 245 Ga. 734, 739 (266 SE2d 922). Therefore, the necessary element for imposition of liability under respondeat superior is not present.

Moreover, liability cannot be imposed upon Gaskins because he owned the rotovator tiller because Gaona has not alleged or produced any evidence showing that the rotovator tiller was defective. Gaona’s only allegation regarding defective equipment concerns the operation of the tractor, which the uncontradicted evidence shows was owned by B.F.D. Farms. Further, as Gaskins showed there was no evidence that his rotovator tiller was defective, Gaona had the burden of pointing to evidence in the record showing a jury issue {Lau’s Corp., supra), which he failed to do. Moreover, Gaona cannot wait until trial and hope evidence is somehow presented showing Gaskins’ tiller was defective; he was obliged to present this evidence in response to the motion. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173).

Finally, although Gaona sustained his injuries while on Gaskins’ property, he has not alleged any theory for imposing liability on Gas-kins that arises from the ownership of the land. Gaona’s presence on the land when he sustained his injury is not a sufficient basis for imposition of liability. Slaughter v. Slaughter, 122 Ga. App. 374, 375-376 (177 SE2d 119).

Consequently, as Gaskins demonstrated there was no triable issue on each essential element of Gaona’s case (Lau’s Corp. v. Haskins, supra at 495), the trial court erred by denying Gaskins’ motion for summary judgment. Therefore, the judgment of the trial court is reversed and the appeal remanded with direction that the trial court enter summary judgment for Gaskins.

Decided July 1, 1993.

Dillard, Bower & East, Bryant H. Bower, Jr., for appellant.

Starling & Starling, Donald A. Starling, for appellee.

Judgment reversed with direction.

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


text:
    A93A0698.
    In the Interest of A. R. B., a child.
    (433 SE2d 411)
   Beasley, Presiding Judge.

This is an appeal by a father from a final order of the juvenile court granting sole custody of the parties’ then three-year-old son to the mother, with only rights of visitation in the father for two weekends a month, five-and-one-half days at Christmas, and three weeks in the summer. “Sole custody” embraces both legal custody and physical custody. OCGA § 19-9-6 (4). The court encouraged the parties to agree to additional visitation but they are not bound by law to do so. The case is before the court from the grant of the father’s application for discretionary appeal, in which it was asserted that the court failed to properly consider the joint custody provisions of OCGA § 19-9-6.

1. At the time the application for appeal was filed, the father had also filed a motion for reconsideration of the custody order, which was pending in juvenile court. Reconsideration was sought on the same grounds asserted in the application, i.e., that the court abused its discretion in failing to award joint custody. After our grant of the discretionary appeal, the court entered a written order denying reconsideration. The parties disagree as to whether, on reconsideration, the court properly considered a joint custody arrangement.

We do not reach the merits of the second order because the juvenile court was divested of jurisdiction to act on the pending reconsideration motion after the application was filed. “The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.” OCGA § 5-6-35 (h). That extent is set out in OCGA § 5-6-46. It has the effect of depriving the trial court of jurisdiction to modify or alter the judgment. Turner v. Harper, 233 Ga. 483 (211 SE2d 742) (1975); Cohran v. Carlin, 249 Ga. 510 (291 SE2d 538) (1982). It is noted, however, that the notice of appeal does not act as supersedeas except “upon payment of all costs in the trial court by the appellant,” OCGA § 5-6-46 (a), whereas there is no such requirement upon the filing of an application. OCGA § 5-6-35. The trial court costs do not have to be paid until the application is granted and the notice of appeal is filed.

A party seeking reconsideration but desiring the reservation of appellate review in the event reconsideration does not yield favorable results is not accommodated under our appellate scheme. The filing of a motion for reconsideration does not toll the 30-day period for applying for appellate review. OCGA § 5-6-35 (d). On the other hand, the filing of the application deprives the lower court of jurisdiction to reconsider. Motions for new trial, in arrest of judgment, for judgment n.o.v., or to set aside under OCGA § 9-11-60 (d), do toll the appeal period, so the jurisdiction-depriving application need not be filed within 30 days of the original judgment when one of these courses is followed.

Of course, a trial court has the inherent power to entertain a motion for reconsideration at any time within the term of court, OCGA § 15-1-3, so long as a notice of appeal has not been filed. But only if it is ruled on within 30 days can the party complaining have benefit of the court’s reconsideration of the matter and still retain its right to appeal, which would be from the original judgment. If the movant is successful, then the respondent would have 30 days to appeal because the revised judgment would constitute a superseding one.

Abrahamsen v. McDonald’s Corp., 197 Ga. App. 624, 625 (2) (398 SE2d 861) (1990), held that the grant of the application is what acts as supersedeas. Instead, OCGA § 5-6-35 (h) provides that it is the filing of the application, which of course occurs much earlier, that acts as supersedeas. The statute prevails. Abrahamsen relies for authority on the notice of appeal statute and a case applying it, but that is not what governs this aspect of the procedure.

Since the application was filed in this court on April 14, and the juvenile court’s order was entered May 22, “nunc pro tunc, May 11” (the day of the hearing on the motion to modify and for reconsideration), the order is a nullity. We do not fault the trial court for proceeding in this regard, because unless the filing of an application was brought to the court’s attention by the parties, the court would not know of it. Although a notice of appeal must be filed in the court “wherein the case was determined,” OCGA § 5-6-37, putting that court on notice that its jurisdiction is affected, there is no such requirement regarding an application. The statute only requires it to be filed with the clerk of the appellate court. OCGA § 5-6-35 (d).

Good order and the prevention of wasted effort recommend that the statute be amended to require a copy of the application, without accompanying documents, to be filed also with the court appealed from, so as to give that court notice of the status of the case in the event it contemplates further action.

2. The custody order demonstrates that the court failed to give proper consideration to the joint custody options available under OCGA § 19-9-6.

An express purpose of the 1983 Georgia Constitution as stated in the Preamble, is to “promote the interest and happiness of the citizen and of the family. ...” This principle of government is expressly reflected in OCGA § 19-9-6, enacted July 1, 1990, which is an act of implementation specifically providing the court with options of awarding joint legal custody, joint physical custody, or both, where appropriate. Under such arrangements, both parents are given equal rights and responsibilities for major decisions concerning the child, or equal opportunity to be with and nurture the child, or both. The legislative intent is to afford greater equality between parents in fostering relationships with their children so that the best interests of each child can be served. It is correlated with the equal duty of the parents, generally, to support their child. OCGA § 19-7-2. Both evince a policy favoring equally shared parenting obligations and opportunities which places children first in the constellation of individual interests and desires.

The concept of shared parenting is further reflected in the 1990 amendment to OCGA § 19-9-3 (a), the statute relating to custody of minor children as between parents. Prior to 1990, it provided that no prima facie right of custody existed in the father. The 1990 revision states: “There shall be no prima-facie right to the custody of the child or children in the father or mother.” The amendment also added to subsection (a): “Joint custody, as defined by Code Section 19-9-6, may be considered as an alternative form of custody by the court. This provision allows a court at any temporary or permanent hearing to grant sole custody, joint custody, joint legal custody, or joint physical custody where appropriate.” OCGA § 19-9-3 was further amended in 1991, adding subsection (d): “It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage.”

It thus is evident that the stated legislative policy abandons traditional biases and favors shared parenting rights and responsibilities. Where sole custody is awarded, custodial rights, responsibilities and opportunities lie only with the custodial parent who is solely responsible for “major decisions concerning the child, including the child’s education, health care, and religious training. ...” OCGA § 19-9-6 (4). The noncustodial parent is given only the right of visitation. Id: Where both parents have demonstrated equal ability to effectively care for and nurture the child, as here, it is in the child’s best interest that a custody award be fashioned which will best encourage continuing and roughly equal contact with both parents, given the practicalities involved. Joint physical custody, OCGA § 19-9-6 (3), should not be automatically rejected simply because the parents live in places distant from each other. It involves time and contact. School time at one location and vacation time and alternating weekends at another, for example, would more closely equalize the time each parent shared. Contact, of course, includes other means of communication. Joint legal custody does not require proximity, and where practicable, it enables both parents’ involvement in making major decisions concerning the child. OCGA § 19-9-6 (2). In either aspect, cooperation is the key ingredient. If a mediator would ease the process initially or on a continuing basis, one should be employed. There is, after all, one total child, not two halves.

3. The evidence amply supports the juvenile court’s findings that both parents have shared in the responsibilities of child rearing and that either is “perfectly capable of caring and providing for the child from this time forward.” Both are highly educated, professional people who have shown deep devotion to their child and fitness as parents. It is apparent that this long-contested custody dispute is motivated by a fervent desire on the part of each parent to participate significantly in their son’s future. A joint custody arrangement in these circumstances should have been given due consideration by the juvenile court in accordance with the State’s expressed policy. Although the dispute is symbolized by a “versus” which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child’s right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents’ wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce. Whether a parent forfeits his or her portion of the relationship or any part of it, or is incapable of performance, must be determined by the factfinder.

The case is remanded for findings and conclusions which give effect to OCGA §§ 19-9-3 (d) and 19-9-6.

Judgment reversed and case remanded.

Cooper, J., concurs. McMurray, P. J., concurs in the judgment only.

Decided July 2, 1993.

Martha C. Christian, for appellant.

Lovett & Hicks, William E. Hicks, for appellee.


text:
    A93A0174.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SEEBA et al.
    (433 SE2d 414)
   Smith, Judge.

This declaratory judgment action arises out of a vehicular collision between an automobile driven by Kathryn Seeba and a Ford truck and trailer operated by Paul Wilson. The truck was owned by Metro Ambulance and leased to Edgar Pounds, its employee, who was also the sole owner of the trailer. Seeba was killed in the collision, and her husband filed a wrongful death action. Wilson sought insurance coverage and a defense from State Farm Mutual Automobile Insurance Company, which had issued to Pounds a policy covering the truck. State Farm defended the action under a reservation of rights and filed this action against all parties in the wrongful death lawsuit, contending Wilson was excluded from coverage because he was engaged in a “car business” within the meaning of a policy exclusion. Seeba and State Farm filed cross-motions for summary judgment on the coverage issue, and the trial court granted Seeba’s motion and denied that of State Farm. After entry of final judgment, State Farm filed this appeal.

The record reveals that a few weeks before the collision, Pounds had decided to sell the tractor and a horse trailer. He parked the tractor and trailer on the lot of Franklin Ford Tractor, Inc., a Cartersville business that sold and serviced tractors and other farm equipment. He and Russell Franklin, the proprietor, agreed that Franklin would market the vehicles and would keep as commission any proceeds above a minimum price set by Pounds. After several weeks, Franklin decided the tractor and trailer would get better exposure in Alpharetta. He contacted Wilson to ask his assistance in finding a suitable display location and they arranged to park the vehicles at a horse farm. Pounds consented to the arrangement whereby the vehicles would be displayed in Alpharetta and Wilson, an experienced driver, would drive the tractor and attached trailer to the intended location. The collision at issue occurred during Wilson’s drive from Cartersville to Alpharetta.

Under the terms of the liability policy at issue, Wilson was an “insured” because he was driving the truck with Pounds’ express permission. The policy also provides, however, that there is no coverage while an insured vehicle is “being repaired, serviced or used by any person employed or engaged in any way in a car business.” “Car business” is defined in the policy as “a business or job where the purpose is to sell, lease, repair, service, transport, store or park” motor vehicles.

Wilson testified by deposition that he was the proprietor of Randy Wilson Quarter Horses, Inc., a business engaged in training, showing, and selling horses. He testified that he and Franklin had agreed they would split any commission received by Franklin from the sale of Pounds’ tractor, and that they had engaged in similar transactions on the average of one a year for the last ten years. Appellant contends that because of the arrangement between Wilson and Franklin, especially in view of their history of similar transactions, Wilson was engaged in a “car business” at the time of the collision because he was transporting the tractor and trailer in furtherance of their common purpose of selling vehicles. Appellee maintains Wilson was not engaged in the car business, because his participation in the sale of the tractor was a sideline and not his primary occupation.

An ambiguity exists in the policy regarding the meaning of the phrase “engaged in any way in a car business.” It was proper for the trial court to construe it, Hirschfield v. Continental Cas. Co., 199 Ga. App. 654, 655 (405 SE2d 737) (1991), and to resolve it by construing it against the insurer. See Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983). This is particularly true when the ambiguity is contained in an exclusion, since the insurer, “having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” (Citations and punctuation omitted.) U. S. Fidelity &c. Co. v. Gillis, 164 Ga. App. 278, 281 (296 SE2d 253) (1982).

In considering a similar insurance policy exclusion, this court has held that in the absence of any indication to the contrary in the policy, the term “business” as used in the exclusionary clause means “ ‘business in the ordinary accepted sense — that is[,] an undertaking engaged in with some regularity and for profit and income.’ [Cit.] ‘[0]rdinarily the word “business” is that which occupies the time, attention, and labor of [a person] for the purpose of a livelihood or profit.’ [Cit.] Black’s Law Dictionary further defines occupation as that ‘which principally takes up one’s time, thought, and energies; especially, one’s regular business or employment; also whatever one follows as the means of making a livelihood. . . .’ ‘This conforms to the general rule of law that the words “engage in business” imply an element of continuity or habitual practice. . . [. T]he doing of a single act pertaining to a particular business is not ordinarily the equivalent of engaging in or carrying on a business. [Cits.]’ [Cit.]” State Farm Fire &c. Co. v. Thigpen, 131 Ga. App. 608, 610-611 (206 SE2d 839) (1974). This definition is consistent with the principle directing construction of the policy against the insurer as well as with the interpretation given to the term “business” in other contexts. See Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 763-764 (2) (206 SE2d 672) (1974) (“business pursuits” exclusion in homeowners’ insurance policy applies to one’s primary or regular occupation, not to an activity engaged in during one’s spare time); Novak v. Redwine, 89 Ga. App. 755, 758 (81 SE2d 222) (1954) (the term “engage in business” in retail sales tax statute means activity that habitually occupies time, attention, and labor of persons for purpose of livelihood or profit).

Decided July 6, 1993.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

Cauthorn & Phillips, Thomas E. Cauthorn III, John C. Page, Moore & Moore, W. Newton Moore, Elisa A. R. Roberts, for appellees.

Like the exclusion at issue in Cincinnati Ins. Co. v. Perimeter Tractor &c. Repair, 192 Ga. App. 243 (384 SE2d 449) (1989), the exclusion here “ ‘focuses on the person in whose charge the vehicle is at collision-time. (Cits.)’ [Cit.]” Id. at 244 (1). It is undisputed that the primary business of Wilson — that is, the activity that engages his time, attention, and labor for the purpose of livelihood or profit — is the training, showing, and selling of horses. Although he had on occasion participated with Franklin in the sale of motor vehicles, that was not his primary livelihood or occupation. Consequently, following the reasoning in State Farm v. Thigpen, supra, Wilson was not engaged in the “car business” because that was a secondary activity or hobby, not his business or livelihood. Compare Smith v. State Farm Mut. Auto. Ins. Co., 193 Ga. App. 347 (387 SE2d 623) (1989) (part owner of car wash business was deemed to be engaged in car business while in the act of returning a customer’s car to her home). Even assuming, without deciding, that Wilson was a partner or joint venturer with Franklin, who is in the car business, the focus remains on Wilson, Cincinnati Ins. Co., supra, and that partnership or joint venture is not Wilson’s primary occupation or business.

Under these circumstances, the trial court correctly denied appellant’s motion for summary judgment and granted that of appellee. See State Farm v. Thigpen, supra at 611.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A93A0729.
    DART CONTAINER CORPORATION et al. v. JONES.
    (433 SE2d 417)
   Pope, Chief Judge.

On April 14, 1988, the claimant, Samuel Jones, while working as a truck driver for Dart Container Corporation, was involved in a work-related automobile accident and was seriously injured. While his claim for workers’ compensation benefits was initially accepted, in December 1990 Dart filed notice that it intended to controvert “the medical condition of the back and the medical condition of the kidney/prostate/impotence on the ground that those injuries did not arise out of and in the course of employment.” The sole issue presented to the ALJ was whether the controverted medical treatment was for injuries arising out of and in the course of the claimant’s employment. The ALJ found in favor of the claimant. Dart and its servicing agent for workers’ compensation coverage (collectively referred to as Dart) appealed the ALJ’s award to the board on the grounds: (1) the ALJ acted without or in excess of his powers; (2) the facts found by the ALJ do not support the award; (3) there was insufficient evidence to support the ALJ’s award; and (4) the award is contrary to the law. On March 12, 1992, the board adopted the award of the ALJ as its award.

On the same day the board issued its award, this court issued our decision in Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35) (1992). Thereafter, Dart filed an appeal from the board’s award to the superior court on the same bases as it appealed the ALJ’s award. However, in its brief to the superior court Dart raised for the first time the issue that the claimant was not entitled to receive compensation for the controverted medical treatment because that treatment was provided by unauthorized doctors. Dart argued the doctors were unauthorized because the claimant did not seek a change in physicians in the manner required by OCGA § 34-9-201 (d). In support of that argument, Dart relied heavily on our decision in Lee Fabricators. Dart apparently abandoned its argument that the evidence did not support the ALJ’s and later the board’s finding that the controverted medical treatment was for injuries arising out of or in the course of the claimant’s employment because that issue was not briefed to the superior court. The superior court issued an order affirming the award of the board and further holding our decision in Lee Fabricators should be given prospective application only. Dart filed an application for discretionary appeal from the superior court’s order.

We granted the application for discretionary appeal filed by Dart to consider whether the superior court erred in holding that our decision in Lee Fabricators should be applied prospectively only. Before addressing that issue, however, we will first address Dart’s argument the superior court erred in affirming the award of the board because the claimant did not comply with the requirements of OCGA § 34-9-201 (d). As we noted above, that argument was first raised on appeal to the superior court. Issues not raised to the board cannot be considered on appeal. Carod Bldg. Svcs. v. Williams, 182 Ga. App. 340, 341 (355 SE2d 723) (1987); City of Buford v. Thomas, 179 Ga. App. 769, 772 (2) (347 SE2d 713) (1986). To the extent the superior court order affirmed the board’s award, we affirm the superior court’s judgment since a judgment should be affirmed if it is right for any reason. Spiezio v. American Gen. Finance, 204 Ga. App. 350 (5) (419 SE2d 149) (1992).

Although the issue of the application of Lee Fabricators to this case was not presented to the board and it is questionable whether the superior court should have considered this issue for the first time on appeal, because the superior court erroneously held that Lee Fabricators should not be applied retroactively we will address that issue. In Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), our Supreme Court set forth a tripart test for determining whether a decision should be applied prospectively or retroactively: “(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed[;] (2) [b]alance of the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation [; and] (3) [w]eigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.” (Indentations omitted.) Id. at 712 (citing Chevron Oil v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971)).

Our decision in Lee Fabricators did not establish a new principle of law, overrule past precedent or decide an issue of first impression that was not clearly foreshadowed. In that case we merely reiterated that OCGA §§ 34-9-200 (b) and 34-9-201 prescribe the exclusive method for changing physicians or treatment and if parties disregarded the procedures set forth clearly in those Code sections they are bound by the consequences of their actions. 203 Ga. App. at 451. As our decision in Lee Fabricators indicates, that issue had been considered in two previous Georgia appellate decisions, Holcombe v. Brown Transport Corp., 253 Ga. 719 (324 SE2d 446) (1985) and Brown v. Transamerica IMS, 200 Ga. App. 272 (407 SE2d 430) (1991). Id. Clearly, our decision in Lee Fabricators should work no hardship or injustice if applied retroactively. Accordingly we reverse the holding of the superior court that our decision in Lee Fabricators should not be applied retroactively. Abu-Khdeir v. T. J. Maxx, Inc., 191 Ga. App. 523, 524 (382 SE2d 216) (1989); Dehco, Inc. v. State Hwy. Dept., 147 Ga. App. 476, 477 (249 SE2d 282) (1978).

Decided July 6, 1993.

Saveli & Williams, Carrie L. Christie, Benjamin H. Terry, for appellants.

E. Earl Mallard, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    A93A0798.
    WADSWORTH v. THE STATE.
    (433 SE2d 419)
   Pope, Chief Judge.

Defendant appeals her conviction of driving under the influence of alcohol and of violating the duty of a driver upon striking a fixture. We affirm.

1. The evidence showed defendant drove her car off the road and struck two trees. After the accident she drove to the home of her estranged husband, who lived down the street from the accident site. The officer who arrested defendant at her husband’s house did not observe her driving the car and defendant filed a motion to suppress all evidence arising out of her warrantless arrest because she argues the arrest was unlawful. “[W]e must hold pursuant to this court’s holding in Hall v. State, 200 Ga. App. 585, 586-587 (1) (409 SE2d 221) (1991), that [the officer] had probable cause to effect a custodial arrest of [defendant] for driving under the influence of alcohol based on [the officer’s] own observations of [defendant] at her home and his investigation at the accident scene.” State v. Fleming, 202 Ga. App. 774, 775 (415 SE2d 513) (1992). Since evidence of defendant’s intoxication would dissipate during the time it would have taken for the officer to obtain a warrant for her arrest, “the warrantless arrest was proper under OCGA § 17-4-20 (a), which provides in pertinent part that ‘(a)n arrest for a crime may be made by a law enforcement officer . . . without a warrant if . . . there is likely to be failure of justice for want of a judicial officer to issue a warrant.’ ” Id. at 776. The trial court did not err in denying defendant’s motion to suppress.

2. Neither did the trial court err in denying defendant’s motion in limine concerning the results of the breath test administered to defendant. Defendant challenged the admissibility of the test on the ground the State did not show she unequivocally consented to the test. The evidence shows defendant was properly informed of her rights under the implied consent law. “[T]he State did not have to show [defendant’s] consent. The State had only to show that, after being advised of [her] rights pursuant to OCGA § 40-6-392, [defendant] did not refuse to submit to the State-administered test.” Odom v. State, 185 Ga. App. 496 (1) (364 SE2d 626) (1988). Since she took the test, she obviously did not refuse to submit to the test.

3. The trial court did not err in allowing the arresting officers to testify to their opinion concerning defendant’s state of intoxication and whether she was rendered a less safe driver. First, defendant raised no objection to the testimony and an objection not raised at trial will not be considered on appeal. See Brown v. State, 191 Ga. App. 357 (1) (381 SE2d 543) (1989). Moreover, it is settled that an officer may testify to his opinion concerning defendant’s state of intoxication and whether it was such as to render defendant a less safe driver if, as here, the testimony shows he had opportunity to observe and did observe the condition of defendant. See Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) (1989).

4. We reject defendant’s argument that the trial court erred in permitting the State to present evidence of a similar transaction and erred by not properly instructing the jury concerning the limited purposes for the admission of such evidence. The record shows that on the morning the trial began, the State filed its notice of intent to present evidence of a similar transaction occurring seven years earlier in which defendant had been arrested and charged with DUI but had not been prosecuted because defendant forfeited bond and the State had been unable to find the defendant to prosecute her. Defendant objected to the admission on the ground the two transactions were not similar and on the ground that the State had failed to give timely notice of its intent to present such evidence. The trial court ruled the State could present evidence concerning the previous transaction.

The record shows, however, that the State did not present the evidence in its case-in-chief. Instead, the State presented the testimony of the officer who arrested defendant for the previous charge of DUI to describe defendant’s state of intoxication and behavior in order to impeach the testimony of defendant and other witnesses that she did not drink much and defendant’s testimony that she had never consumed enough alcohol to cause her to show signs of intoxication. Thus, the testimony was not improperly admitted as evidence of a similar transaction and we find no merit in defendant’s argument.

5. Even though defendant had not been convicted for the previous DUI offense, the trial court did not err in admitting evidence concerning the circumstances of that arrest and defendant’s condition and behavior at the time of the arrest to impeach defendant’s testimony concerning her previous experience with alcohol. See Long v. State, 185 Ga. App. 277 (363 SE2d 807) (1987).

Decided July 6, 1993.

Lauren L. Becker, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Philip M. Goldstein, Assistant Solicitors, for appellee.

6. Defendant argues the State committed reversible error in questioning the officer who arrested defendant for the previous DUI concerning the bond forfeiture for her arrest, the bench warrant issued in response to her failure to appear to respond to the charge, and the charge of obstruction of an officer with which she was charged in addition to DUI. First, we note that the officer’s testimony concerning the bench warrant for defendant’s arrest, which was issued after she failed to respond to the charges, was elicited by the defendant’s attorney on cross-examination. Second, no objection was raised to the officer’s testimony at trial and thus defendant has waived her right to raise the issue on appeal. See Brown v. State, 191 Ga. App. at 357 (1).

7. The trial court did not err in admitting into evidence an unredacted copy of the accusation filed against defendant in conjunction with her prior DUI arrest which also showed defendant was accused of the unrelated offense of obstruction of an officer. No objection was raised to the admission of this document and defendant made no request that the reference to the obstruction charge be redacted from the document.

8. Defendant was charged with violating the duty of a driver upon striking a fixture, as set forth in OCGA § 40-6-272. Since defendant’s intent in leaving the scene of the accident was an element of this offense, the trial court’s charge concerning the legal inference that a person of sound mind and discretion intends the natural and probable consequences of their intentional acts was relevant and proper. Moreover, defendant waived any objection to this charge by failing to raise it at trial.

9. Finally, we reject defendant’s argument that it was reversible error for the State to introduce, during the arresting officer’s testimony, certain statements made by the defendant because she was not provided with a copy of the statement in response to her pre-trial request. “Where an objection pursuant to OCGA § 17-7-210 is not made at the time the testimony was offered, the objection is waived. [Cits.]” Johnson v. State, 191 Ga. App. 845 (1) (383 SE2d 346) (1989).

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A93A0527, A93A0756.
    CLINTON LEASING CORPORATION v. PATTERSON et al. (two cases).
    (433 SE2d 422)
   Cooper, Judge.

Appellant brought suit against six defendants (“appellees” herein) based on their personal guarantees of a lease. Default judgment in the amount of $34,830.11 plus interest and attorney fees was entered against appellees on January 14, 1992 upon the trial court’s determination that appellees failed to answer the duly served complaint. After the time for appeal had expired, appellant served interrogatories on each defendant by U. S. mail to their attorney on March 19, 1992. Appellees failed to respond to the discovery requests, and appellant moved the court to compel their responses. The matter was set for hearing. Notice of the hearing and appellant’s motion to compel were also served by mail. Appellees did not respond in writing to the motion to compel; however, at the hearing, appellees’ counsel made an oral motion to dismiss. The trial court invited briefs, and thereafter appellees filed a brief denominated “Defendants’ Memorandum in Support of Their Oral Motion to Dismiss for Lack of Jurisdiction,” wherein they argued that the court was without jurisdiction to compel post-judgment discovery because appellant failed to personally serve appellees with the interrogatories, motion to compel and rule nisi. Granting appellees’ motion to dismiss, the trial court acknowledged that appellant was entitled to post-judgment discovery pursuant to OCGA § 9-11-69 and concluded that the default judgment was a final judgment, therefore, at the time appellant sought post-judgment discovery, there was no longer a case pending; that service of appellant’s post-judgment pleadings by mail did not properly invoke the court’s jurisdiction; and that under the circumstances, only personal service of appellees would properly invoke the jurisdiction of the court. Appellant filed a direct appeal from the trial court’s order (Case No. A93A0527) and, in an abundance of caution, also obtained a certificate of immediate review from the trial court and sought permission to file an interlocutory appeal in the event the court viewed the court’s order as a denial of appellant’s motion to compel. Appellant’s application for interlocutory appeal was granted, and a second notice of appeal was filed (Case No. A93A0756).

Inasmuch as the trial court’s order, dismissing appellant’s post-judgment pleadings for lack of jurisdiction, was a final order and the direct appeal was timely and otherwise properly filed, we will review the error enumerated in Case No. A93A0527. Accordingly, consideration of the identical enumeration of error in Case No. A93A0756 is unnecessary, and that appeal is dismissed. Appellant contends the trial court erred in granting appellees’ motion to dismiss for lack of jurisdiction.

Decided July 7, 1993.

Fife M. Whiteside, for appellant.

Clarence A. Miller, for appellees.

The purpose of OCGA § 9-11-69 is “to aid the enforcement of a judgment or execution after it has become a final determination of the issue between the parties.” (Emphasis supplied.) McLarty v. Emhart Corp., 122 Ga. App. 677 (178 SE2d 344) (1970). OCGA § 9-11-69 allows the judgment creditor to examine any person, including the judgment debtor, by taking depositions or propounding interrogatories “in the manner provided in [Title 9, Chapter 11] for such discovery measures prior to judgment.” Service by mail upon counsel is permitted by OCGA § 9-11-5 (b). Therefore, the trial court erred in dismissing appellant’s pleadings.

Judgment reversed in Case No. A93A0527. Appeal dismissed in Case No. A93A0756.

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


text:
    A93A0627.
    HOPKINS v. THE STATE.
    (433 SE2d 423)
   Smith, Judge.

Bobby Hopkins was convicted in a nonjury trial of giving a false name to a law enforcement officer in violation of OCGA § 16-10-25.

The evidence showed that Officer J. M. Woodall of the Clayton County Police Department received a radio call regarding a suspicious person at a plant shop. The dispatch described the suspicious person as a heavy-set woman wearing a black T-shirt and blue jeans. Woodall found no such person at the plant shop, but while his patrol car was stopped at a traffic light he noticed a woman meeting the description in the parking lot of another nearby store, accompanied by a man later identified as appellant. Observing them walking through the parking lot peering into cars, with the woman on one side of a car and appellant on the other side, Woodall became concerned that they were looking for a car to enter or steal. His suspicions were further aroused when he observed the woman flag down a car and speak with the driver, who then handed her some coins.

Woodall stopped the couple, asked them to separate, stepped between them, and questioned them. In response to Woodall’s questioning, the woman gave her name. When asked for the man’s name, she responded in a louder voice while attempting to catch her companion’s attention over Woodall’s shoulder: “Bobby Johnson.” Woodall then questioned appellant. According to Woodall, appellant gave his name as Bobby Johnson as well, and informed Woodall he had no identification. However, during the ensuing pat down Woodall felt in appellant’s pocket an object he recognized immediately as a wallet. He extracted it and handed it to appellant, asking if there might be some identification inside the wallet. Appellant then produced an identification card issued by the Georgia Department of Corrections in the name of Bobby Hopkins, and Woodall arrested him for giving a false name.

At trial, appellant testified that his actual name is Grady Eugene Long, but that he told Woodall he was Bobby Hopkins because that was the name under which he was on parole. He denied telling Woodall his name was Bobby Johnson.

1. Appellant contends the trial court erred in failing to exclude evidence obtained in violation of his Fourth, Fifth, and Fourteenth Amendment rights. Citing Brooks v. State, 144 Ga. App. 97 (240 SE2d 593) (1977), he argues that because Woodall observed neither him nor his companion do anything in violation of any law, the stop, pat down, and “seizure” of the wallet were all unlawful under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

(a) An investigatory stop may not be based on a hunch or pretext, but must be justified by “ ‘some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)’ [Cit.]” Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987). In determining whether such a stop, made in the absence of an observed violation of law, was justified, the proper inquiry is not merely whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would have done so absent any invalid purpose. Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63) (1987). In Brooks, supra, this court held that an officer acted improperly in pursuing for questioning a man he observed looking into the window of one car in a shopping center parking lot and leaving when the officer approached. Id. at 97-99 (1).

The basis for the stop here is far stronger. Woodall received a police radio dispatch about suspicious behavior. He then observed two people, one of whom met the description, peering into a number of cars, rather than just one. In addition, appellant’s companion appeared to Woodall to have solicited coins from a driver. Given these circumstances, we conclude that a reasonable officer would be authorized to conduct a brief investigatory stop that included a pat down for weapons.

(b) During the pat down, Woodall felt no weapon, but felt an object he knew was a wallet. His awareness that wallets usually contain identification increased his suspicion that appellant was concealing his true identity. Woodall removed the wallet from appellant’s pocket and immediately handed it to appellant without opening it. Even assuming a seizure of the wallet occurred, as contended by appellant, no inculpatory evidence or information was gleaned from its exterior. The wallet in Woodall’s hand was no more incriminating than it had been in appellant’s pocket.

Decided July 7, 1993.

Renehan & Moody, William R. Moody, Jr., for appellant.

Appellant produced the card that led to his arrest in response to Woodall’s repeated request for identification. Such repeated requests do not result in a seizure of the identification or the person, Verhoeff v. State, 184 Ga. App. 501, 502-504 (2) (362 SE2d 85) (1987), and the card was voluntarily produced. We find no violation of appellant’s constitutional rights.

2. Although appellant maintains the trial court erred in denying his motion for a directed verdict of acquittal, there is no verdict in a bench trial. The issue is, simply, whether the evidence supported his conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lee v. State, 201 Ga. App. 827, 828 (1) (412 SE2d 563) (1991). We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty of giving a false name to an officer. Jackson, supra.

3. Appellant enumerates as error the trial court’s refusal to conduct a hearing on his motion to suppress/motion in limine.

Prior to trial, the court had entered an order permitting late filing of defense motions, including a motion to suppress/motion in limine, and indicating in a handwritten note that the motions would be heard immediately prior to trial. On the day of trial, however, the court refused to conduct a hearing on this motion, ruling that it had not been timely filed.

A motion to suppress addresses tangible physical evidence, Stephenson v. State, 171 Ga. App. 938 (321 SE2d 433) (1984), and no such evidence was introduced at trial. As to testimony regarding appellant’s statements, the subject of the motion in limine, the trial court expressly invited appellant to object to such testimony as it arose during the trial, which he did. Moreover, no jury was involved, and in a bench trial it is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible. See Morris v. State, 160 Ga. App. 50 (1) (285 SE2d 782) (1981). Even assuming error in the trial court’s failure to hold a pretrial hearing despite its earlier ruling, appellant has shown no harm, and harm as well as error must be shown to require reversal. See generally Raines v. State, 186 Ga. App. 239, 242 (4) (c) (366 SE2d 841) (1988).

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in the judgment only.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellee.


text:
    A93A0687.
    EVANS v. THE STATE. CHANNELL v. THE STATE.
    A93A0853.
    (433 SE2d 426)
   Cooper, Judge.

Henry Evans and Nathan Rex Channell were tried before a jury and convicted of criminal attempt to possess marijuana with intent to distribute. Channell was also convicted of possession of a firearm during the commission of a felony and carrying a concealed weapon. They appeal from the judgments of conviction and sentence.

The record reveals that a confidential informant advised officers of the Paulding County Sheriff’s Department that he knew someone desirous of buying marijuana. The informant was instructed by one of the officers to arrange a sale of marijuana to the interested individual. The informant called Evans, and a meeting was scheduled wherein Evans would buy two pounds of marijuana for $2,500. Evans came to the pre-arranged location with Channell, and the two were met by the confidential informant and two deputies. Evans was shown the marijuana and told that it weighed one and three quarters of a pound, not the two pounds originally planned. One of the officers stated that the price could be reduced to $2,250. Evans and Channell were asked if they had brought the money. Channell pulled a roll of what appeared to be $100 bills from his pocket. Evans smelled the marijuana and passed it to Channell. Channell also smelled the marijuana, and one of the officers then signalled to other deputies who were monitoring the transaction. Appellants were arrested and searched. At the time of his arrest, Channell had in his possession a pistol and cash in excess of $2,500.

1. Appellants enumerate as error the trial court’s failure to grant their motion for directed verdict for the State’s failure to disprove entrapment beyond a reasonable doubt.

“The entrapment defense consists of the following three distinct elements: ‘(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]’ [Cit.]” Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350) (1992). “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. That determination generally rests with the jury; however, where there is no conflict in the evidence, and all the evidence prior to the entrapment that is introduced, with all reasonable deductions and inferences, demands a verdict of acquittal, the trial judge must direct a verdict of acquittal. [Cit.]” Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

Appellants contend the evidence shows that the idea for the commission of the crime originated with the confidential ■ informant and the Paulding County Sheriff’s Department; that the crime was induced by the informant’s undue persuasion; and that there was no evidence of pre-disposition. Evans testified that he only agreed to the purchase because he thought the informant was in financial trouble and he was “fed up and tired” of the informant’s repeated calls.

The evidence shows that Evans and the informant had used marijuana together on numerous occasions in the past; that Evans obtained marijuana for his personal use from the informant; that Evans was aware of prior drug deals in which the informant participated; that over the course of their friendship the informant offered Evans the opportunity to join in various drug deals; that the informant did not know Channell; that Evans brought Channell into the deal; that Channell agreed to the deal to make extra money; and that Evans had called Channell in the past about participating in drug deals. In addition, the informant testified that Evans was buying marijuana in larger quantities than normal for personal use and that he had obtained marijuana from Evans.

It appears from the foregoing that there was evidence introduced to rebut the defense of entrapment. Although the question of witness credibility is for the jury, the evidence was sufficient to allow a rational trier of fact to find no undue persuasion and pre-disposition as to Evans and Channell. “The phrase ‘undue persuasion’ as used in [OCGA § 16-3-25] means something more than repeated requests on the part of an officer or agent for contraband goods. [Cit.]” McDonald v. State, 156 Ga. App. 143, 147 (4) (273 SE2d 881) (1980). The evidence demonstrates that Evans and Channell were willing purchasers, and even if the idea to sell the marijuana originated with the informant and the officers, “ ‘ “ ‘[t]here is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ (Cits.)” ’ ” Mason v. State, 194 Ga. App. 152, 153 (390 SE2d 246) (1990). It cannot be said that there were no conflicts in the evidence. Thus, the evidence did not demand a directed verdict of acquittal, and the trial court did not err in allowing the issue to be resolved by the jury. Newt v. State, 200 Ga. App. 262 (1) (407 SE2d 487) (1991).

2. Appellants also contend the trial court erred in refusing to charge the jury on wilful false swearing. On cross-examination, the informant was asked about his prior convictions. He admitted two prior convictions for possession of marijuana but denied having been convicted of distributing drugs. After the close of the evidence, outside the presence of the jury, defense counsel submitted evidence of the informant’s prior conviction of distribution of marijuana for impeachment, purposes. However, the informant was not confronted with or asked to explain the discrepancy between the evidence of his prior conviction of distributing drugs and his trial testimony, nor is there evidence that a case of false swearing was made during the trial of the case since evidence of the conviction was admitted after the close of testimony. See Gellis v. B. L. I. Constr. Co., 148 Ga. App. 527 (9) (251 SE2d 800) (1978). Moreover, considering the charge in its entirety and the fact that the court charged the jury on impeachment and the credibility of witnesses, any error in failing to give a charge based on OCGA § 24-9-85 (b) is harmless. Greenhill v. State, 199 Ga. App. 218, 222 (404 SE2d 577) (1991).

Decided July 7, 1993.

Jeffrey B. Talley & Associates, F. Andrew Lane, Jr., for appellant (case no. A93A0687).

T. Peter O’Callaghan, Jr., for appellant (case no. A93A0853).

George C. Turner, Jr., District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

3. Appellants argue that the trial court erred in failing to grant their motion for directed verdict on the issue of a fatal variance between the allegata and the probata. Appellants contend that contrary to what is alleged in the indictment, there was no proof at trial that marijuana was present at the time of their arrest or that the price of the alleged contraband was negotiated. However, our review of the evidence, as indicated above in the first division, demonstrates that these contentions are without merit.

4. Finally, appellants contend the trial court erred in admitting a photograph which depicts the contents of Channell’s pockets at the time of his arrest. Among the items shown in the photograph was a key fob with the letters “KKK.” Appellants argue that the prejudicial effect of the photograph far outweighed its probative value. However, the photograph depicts the money and pistol seized from Channell. These items were material evidence of Channell’s commission of the offenses of which he was convicted. “ ‘Photographs which are relevant to any issue in the case are admissible even though they may have an effect upon the jury. (Cit.)’ [Cits.]” Polke v. State, 203 Ga. App. 306, 310 (4) (417 SE2d 22) (1992).

Judgments affirmed.

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