author: Boggs, Judge.

text:
    A14A2021.
    BROWN et al. v. GEORGIACARRY.ORG, INC. et al.
    (770 SE2d 56)
   Boggs, Judge.

We granted this interlocutory appeal to consider the trial court’s denial of summary judgment on the issue of qualified immunity for government officials under 42 USC § 1983. Michael Justin Belt was arrested outside the Colonial Mall in Brunswick, Georgia in December 2008, on a charge of misdemeanor obstruction of a police officer, OCGA § 16-10-24 (a). The charge against him ultimately was dismissed in 2012, after jury selection was completed. Belt and Georgia-Carry.Org, Inc. (collectively “appellees”) then brought this action against the arresting officers, seeking damages and declaratory relief. The officers moved for summary judgment, which the trial court granted as to all of appellees’ claims except the claim for malicious prosecution under § 1983, finding that genuine issues of material fact remained on the issue of qualified immunity. Because the evidence presented meets the minimal requirement of “arguable reasonable suspicion” in the context of qualified immunity in a § 1983 action, the trial court erred in denying the officers’ motion for summary judgment. We therefore reverse.

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c). So viewed, the record shows that on December 14, 2008, Belt went to the Colonial Mall in Glynn County, Georgia, while openly wearing a handgun in a waistband holster. Before Belt reached the mall entrance, a security guard approached him, informed him that the mall had a “no-weapons policy,” and asked him to return his handgun to his vehicle, and Belt agreed and began walking to his truck. The security guard also informed Belt that there had been a shoplifting incident at the mall and that he should return his handgun to his vehicle for that reason as well. Belt testified that he was not informed that he was a suspect in the shoplifting.

As Belt returned to his truck in the mall parking lot, David O’Neal, a second security guard and off-duty police lieutenant for the City of Brunswick, approached him and demanded to see his firearms license. When Belt refused, Lieutenant O’Neal stood behind Belt’s truck, told him not to leave, and called the police. Lieutenant O’Neal then contacted the police and reported that there was an armed subject at the mall and that he needed assistance.

Officer Henry Scott of the Glynn County Police Department answered the dispatch call of “a subject who was armed with a handgun.” He testified that Lieutenant O’Neal informed him that mall security “had received some complaints about Mr. Belt having a gun inside the mall and that he had been identified as a suspect in a shoplifting incident at the . . . music store inside the mall.” Officer Scott made contact with Belt and began speaking with him. Belt told Officer Scott his name and said that he had a firearms license, but he refused to produce it, saying, “No, I don’t have to show it to you.”

Shortly thereafter, Sergeant Craig Brown of the Glynn County Police Department also arrived on the scene. Sergeant Brown had heard the police dispatch that there was “a man with a gun” at the mall and that mall security had called the police. When he arrived, Sergeant Brown spoke with Officer Scott, who told him that Belt “was trying to take a gun into the mall” and that “he was a shoplifting suspect.” Sergeant Brown asked Belt for his firearms license and his driver’s license, but Belt refused to produce them. Based upon this refusal, Sergeant Brown arrested Belt for misdemeanor obstruction.

“To establish a federal malicious prosecution claim under [42 USC] § 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution.” (Citations, footnote and emphasis omitted.) Wood v. Kesler, 323 F3d 872, 881 (III) (C) (11th Cir. 2003). The common law elements of a malicious prosecution claim under Georgia law are: “(1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.” (Citations and footnote omitted.) Id. at 882 (III) (C); see also Gooch v. Tudor, 296 Ga. App. 414, 416 (1) (674 SE2d 331) (2009).

But “malicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty.” (Citation, punctuation and footnote omitted.) Gibbs v. Loomis, Fargo & Co., 259 Ga. App. 170, 176 (576 SE2d 589) (2003). And in the context of a § 1983 claim,

qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.

(Citations and punctuation omitted.) Wood, supra, 323 F3d at 877 (III) (A).

Accordingly, we first must consider the provisions of OCGA § 16-10-24 (a). That Code section provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” In order to show misdemeanor obstruction, “the act constituting obstruction or hindering must be knowing and wilful, and . . . the officer must be lawfully discharging his official duties at the time of such act. [Cit.]” Weidmann v. State, 222 Ga. App. 796, 797 (2) (476 SE2d 18) (1996) (full concurrence in Division 2). “The statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties.” (Citations, punctuation and footnote omitted.) Berrian v. State, 270 Ga. App. 582 (608 SE2d 540) (2004).

A knowing and willful refusal to provide identification to an officer acting in the lawful discharge of his official duties may constitute obstruction under OCGA § 16-10-24 (a). See Hall v. State, 201 Ga. App. 328, 328-329 (1) (411 SE2d 274) (1991); Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989). Relying upon Kolender v. Lawson, 461 U. S. 352, 357-361 (III) (103 SCt 1855, 75 LE2d 903) (1983), appellees argue that law enforcement cannot sanction individuals for refusing to produce documentation verifying their identity, such as a driver’s license, during an investigatory stop. But in that case, the United States Supreme Court held a loitering statute void for vagueness, id. at 361 (IV), and expressly did not reach any Fourth Amendment issues. Id., n. 10.

We next consider whether officers were entitled to ask Belt for identification. In the course of a “second-tier encounter” under Terry v. Ohio, 392 U. S. 1, 21-22 (III) (88 SCt 1868, 20 LE2d 889) (1968), if an officer has a reasonable, articulable suspicion of criminal conduct, he may lawfully detain an individual for a brief time and request identification as part of the investigatory stop. State v. Beasley, 270 Ga. App. 638, 639 (607 SE2d 245) (2004). And in the context of § 1983 qualified immunity,

under Georgia case law dealing with the offense of obstruction, the standard for determining whether an officer was lawfully discharging his duties such that a refusal to provide identification would constitute obstruction is whether a reasonable suspicion existed to stop the individual charged with obstruction.

Gainor v. Douglas County, 59 FSupp.2d 1259, 1282 (III) (D) (2) (a) (N.D. Ga. 1998).

In an action for malicious prosecution under § 1983,

[a] law enforcement official who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified immunity. When an officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had “arguable” reasonable suspicion to support an investigatory stop.

(Citations omitted; emphasis supplied.) Jackson v. Sauls, 206 F3d 1156, 1165-1166 (V) (11th Cir. 2000). Therefore, if officers had “arguable reasonable suspicion” to detain Belt and request identification, they were acting in the lawful discharge of their duties when they arrested him for refusing to provide identification, and they are entitled to qualified immunity. Id.

Under the facts presented to the trial court here, this issue is resolved by the well-established rule governing circumstantial and direct evidence:

In ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence.

(Citations, punctuation and footnote omitted.) White v. Shamrock Bldg. Systems, 294 Ga. App. 340, 344 (1) (669 SE2d 168) (2008).

Here, appellees offer circumstantial evidence to support their contention that the officers were harassing Belt for carrying a firearm rather than conducting an investigatory stop based upon reasonable suspicion. They point out that the actions of the first security guard, who simply asked Belt to put his gun back in his vehicle, were inconsistent with a belief that he was a criminal suspect. They also note that neither Officer Scott nor Sergeant Brown had any independent knowledge of any shoplifting incident or any other information connecting that incident with Belt other than what they were told by Lieutenant O’Neal, and that apparently no separate police report of the shoplifting incident exists. They further note that at least one officer admitted that he “didn’t investigate the shoplifting” and that Belt was not told that he was a shoplifting suspect until after he was arrested, and then only “kind of. Not really.” Finally, they point out that officers repeatedly asked Belt only for his “gun license,” and that only after Sergeant Brown arrived on the scene and first asked Belt for his “gun license,” was he asked for his “driver’s license or ID.” From this circumstantial evidence, appellees argue that “[t]he shoplifting ‘investigation’ was nonexistent” and “a sham to justify Appellants’ wrongful prosecution of Belt.”

But Officer Scott presented positive and uncontradicted evidence that he was told by Lieutenant O’Neal both that mall security had received complaints about Belt carrying a gun inside the mall and that Belt was a suspect in a shoplifting incident in the mall. Direct evidence that the officers were informed that Belt was a suspect directly contradicts appellees’ contention, based on circumstantial evidence, that the investigation was a “sham” and a pretext for officers to harass him for carrying a firearm. See Young v. Eslinger, 244 Fed. Appx. 278, 280 (11th Cir. 2007) (report from another officer that vehicle was involved in drug transaction with subject of ongoing investigation was “arguable reasonable suspicion” to stop vehicle).

And the circumstantial evidence offered by appellees can be construed consistently with Officer Scott’s testimony. Even if Belt in fact had not entered the mall with a firearm and was not a suspect in a shoplifting incident, and even if Lieutenant O’Neal was mistaken or untruthful in giving Officer Scott that information, the circumstantial evidence is not inconsistent with Officer Scott’s direct evidence that he was so informed by Lieutenant O’Neal. It therefore is insufficient to create an issue of fact. Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (2) (688 SE2d 372) (2009) (circumstantial evidence that plaintiff did not see employee before she fell not inconsistent with employee’s positive, uncontradicted testimony that she inspected the area within two minutes before plaintiff’s fall). See also South v. Bank of America, 260 Ga. App. 91, 93-95 (1) (579 SE2d 80) (2003) (physical precedent only) (direct testimony that bank teller received call from customer authorizing transaction not inconsistent with circumstantial evidence that transaction was not properly documented and not customer’s usual practice).

The officers were entitled to rely on the information they received from Lieutenant O’Neal that Belt was a suspect in a crime. Gay v. State, 233 Ga. App. 738, 739 (2) (505 SE2d 29) (1998) (reasonable suspicion to stop suspect based on information supplied by transit supervisor, a former police officer, who observed a partially concealed weapon on his person). Having “arguable reasonable suspicion” to detain Belt and ask for his identification, the officers were acting in the course of their official duties when they asked Belt to produce identification. Summary judgment therefore should have been granted on the ground of qualified immunity from a malicious prosecution claim under 42 USC § 1983.

While we must reverse the denial of summary judgment here, the trial court did correctly note that “Georgia law does not authorize law enforcement officers to request identification from citizens for no reason and charge them with obstruction if they fail to comply.” The outcome in this appeal is applicable only in the very limited circumstances of qualified immunity in a federal malicious prosecution claim as applied to the facts of this case. We therefore take this opportunity to reiterate our support for the proposition that

in a first-tier encounter, police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave. But it is well settled that a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter. Indeed, even running from police during a first-tier encounter is wholly permissible. And an individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint.

(Citations, punctuation and footnotes omitted.) Ewumi v. State, 315 Ga. App. 656, 658 (1) (727 SE2d 257) (2012). And even in the context of a qualified immunity claim, there is

great importance placed on personal liberty by our common law tradition. The Court in Terry, while noting police officers’ wide authority to investigate crimes, gave homage to our civil liberties and dismissed the notion that any such intrusion, even a lawful one, is de minimis. Said of the original Terry stop-and-frisk, “it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless ... is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

Decided March 30, 2015

Reconsideration denied April 10, 2015

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Eric L. Bumgartner, Richard K. Strickland, for appellants.

John R. Monroe, for appellees.

(Emphasis in original.) Kapila v. Jenkins, 2009 U. S. Dist. LEXIS 38650 (IV) (S.D. Fla. 2009).

Judgment reversed.

Barnes, P. J., and Branch, J., concur.

       The trial court noted in its certificate of immediate review, “The Court is aware that there is some authority which suggests that a denial of the defense of qualified immunity is directly appealable . . . while older authority suggests a certificate of immediate review is required.” But see Turner v. Giles, 264 Ga. 812, 813-814 (1) (450 SE2d 421) (1994), dismissing appellants’ direct appeal and holding that a pretrial order denying qualified immunity to government officials in an action under 42 USC § 1983 must be appealed through the interlocutory appeal provisions of our Code. But we need not address that issue, because appellants availed themselves of the interlocutory appeal procedures.

       GeorgiaCarry.Org is a Georgia corporation “whose mission is to foster the rights of its members to keep and bear arms.” Belt is a member of GeorgiaCarry.Org.

       Lieutenant O’Neal was originally a defendant in this action, but died during the litigation. His estate was not substituted as a defendant after a suggestion of death was filed, and he was dismissed as a party with appellees’ consent. See OCGA § 9-11-25 (a).

       Appellees also cite a dictum in United States v. Brown, 731 F2d 1491, 1494 (II) (11th Cir. 1984), vacated in part on other grounds, 743 F2d 1505 (11th Cir. 1984), to the effect that the defendants in that case were entitled to refuse to furnish identification in the course of a Terry stop. But Brown does not interpret OCGA § 16-10-24 (a), as appellees contend, but rather Ga. Code Ann. § 26-2506, the predecessor to OCGA § 16-10-25, which forbids giving a false name or other false information to a law enforcement officer. 731 F2d at 1494 (II), n. 2. And Brown was a criminal prosecution that did not apply the standard of “arguable reasonable suspicion” in the context of qualified immunity from a malicious prosecution claim. As the district court observed in Gainor v. Douglas County, 59 FSupp.2d 1259, 1282 (D) (2) (a) (N.D. Ga. 1998), this dictum stands virtually alone and was not detected by the Tenth Circuit in a survey of qualified immunity cases dealing with the issue, and “it seems unfair to attribute this knowledge to a deputy [officer]... who likely does not enjoy the same legal skills as do Tenth Circuit judges.” 59 FSupp.2d at 1284 (III) (2) (b). Moreover, “[a]s Brown did not deal with Georgia’s obstruction statute, it arguably did not draw a bright line in circumstances so factually similar to those at hand that all reasonable officers in [the arresting officer’s] place would have believed the actions he took were unconstitutional and, thus, its existence does not defeat the defense of qualified immunity.” Id.

       Appellees argue from Ewumi v. State, 315 Ga. App. 656 (1) (727 SE2d 257) (2012), that Belt cannot be guilty of obstructing an investigation of which he was ignorant. But Ewumi is not persuasive here. That appeal was from the denial of a motion to suppress in a criminal prosecution, not a claim of qualified immunity in a § 1983 action. Moreover, it involved a first-not a second-tier encounter.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A14A2025.
    PARTIN et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (770 SE2d 38)
   McFadden, Judge.

Georgia Farm Bureau Mutual Insurance Company filed a declaratory judgment action seeking a determination of its obligations under a farm package insurance policy it had issued to Kendall Partin. The trial court granted summary judgment to Georgia Farm Bureau, concluding that the motor vehicle exclusion in the farm policy applied to preclude coverage to Partin for claims asserted against him by Allen Hamilton for injuries Hamilton’s granddaughter sustained while driving a four-wheeled all terrain vehicle owned by Partin. Contrary to the trial court, we hold that a jury would be authorized to find that the vehicle was “mobile equipment” as defined by the policy; that a jury would also be authorized to find that the vehicle was a “farm implement” as that term is used in and contemplated by the policy; and consequently that the trial court erred in granting summary judgment on the basis that the policy’s motor vehicle exclusion is applicable, as a matter of law, to the claims asserted against Partin.

1. The injury.

On appeal from the grant or denial of summary judgment, we conduct a de novo review of the evidence to determine whether there is a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Johnson v. Bartley, 321 Ga. App. 59, 59-60 (741 SE2d 275) (2013).

Viewed in the light most favorable to Partin, the evidence shows that Partin owns an approximately 100-acre farm where he lives and runs his cattle business. In 2005, he bought a used Polaris Ranger all-terrain vehicle for use on the farm to “[f]eed cows, check on cows, ride fences, make sure they weren’t down.” Partin used the vehicle every day, and once a week, he drove it to his brother’s farm either by going through the woods or by driving on a county dirt road. The vehicle was designed to be used off road and the only roads that Partin drove it on were dirt roads.

In June 2009, Partin’s girlfriend was living with him on the farm, and her daughter Chelsea often stayed with them on the weekends. Partin allowed Chelsea to drive the vehicle if she asked him for permission first. On June 11, Chelsea and Hamilton’s granddaughter, who were both 14 years old at the time, asked Partin if they could ride the vehicle, but he told them “no” because he was not going to be at home. He put the keys to the vehicle in a kitchen drawer before leaving for the store. The girls apparently found the keys and took the vehicle out, taking turns driving it. While Hamilton’s granddaughter was driving the vehicle around a curve on a dirt road, she hit a pile of dirt, lost control, and was thrown out. As a result, she suffered severe injuries to both feet.

2. The claim and the denial of that claim.

Hamilton, individually and on behalf of his granddaughter, filed a negligence action against Partin and his girlfriend for allowing Hamilton’s granddaughter to operate the vehicle without Hamilton’s permission, without a license, and without providing adequate training or supervision. General Casualty was a party to the action as Hamilton’s personal auto insurer. Demand was made upon Georgia Farm Bureau to defend the lawsuit against Partin and to pay damages sought by Hamilton and his granddaughter. Georgia Farm Bureau responded with a declaratory judgment action, followed by a motion for summary judgment.

The trial court determined that, under the terms of the farm policy, the vehicle is a “motor vehicle,” but is not “mobile equipment.” The court also determined that the vehicle was not a “farm implement, as that term is used in the policy.” As a result, the court ruled that the policy’s “motor vehicle” exclusion applied to exclude coverage for the accident and granted Georgia Farm Bureau’s motion for summary judgment. Partin, Hamilton and General Casualty appeal collectively.

3. The farm policy, generally.

Partin was the named insured on the farm policy, which was effective on the date of the accident and provided coverage for bodily injury and property damage as follows:

1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.
We will have the right and duty to provide defense of any suit seeking those damages. However, we have no duty to defend suits for bodily injury or property damage not covered by this Coverage Form. . . .
b. This insurance applies to bodily injury or property damage only if: (1) The bodily injury or property damage is caused by an occurrence; and (2) The bodily injury or property damage occurs during the policy period.

The farm policy defines an “occurrence” as “an accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” It is undisputed that the subject injury was caused by an “occurrence” as defined in the policy and that the injury occurred during the policy period.

But Georgia Farm Bureau contends that the injury is not covered because of policy exclusion e.(l), which excludes from coverage: “Bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, motor vehicle, motorized bicycle or tricycle owned or operated by or rented or loaned to any insured.” This exclusion does not apply to a “farm implement while upon public roads.”

“Motor vehicle” is defined, in relevant part, to include a “motorized land vehicle, trailer or semi-trailer: (a) Designed for travel on public roads; or (b) Used on public roads; unless it qualifies as mobile equipment.” “Motor vehicle” and “mobile equipment,” as defined in the policy, are mutually exclusive.

“Mobile equipment” is defined to mean

the following, including any attached machinery or equipment. Bulldozers, forklifts, tractors, and other farm machinery designed for use: (1) Principally off public roads; and (2) As implements for cultivating or harvesting.
a. Vehicles while used on insured location you own or rent, and not used for business purposes;
b. Vehicles, whether self-propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment scrapers or rollers; . . .
d. Vehicles not described in a. or b. above that are maintained primarily for purposes other than the transportation of persons or cargo ....

4. The farm policy, “mobile equipment” and “farm implement” exceptions.

The dispositive questions, therefore, are whether the vehicle qualifies under the terms of the policy as “mobile equipment” (and therefore not as a “motor vehicle”) or as a “farm implement.” Partin contends, and we agree, that the trial court erred by concluding, as a matter of law, that the vehicle was not “mobile equipment” as defined in the farm policy or a “farm implement,” as used (but not defined) in the policy and therefore that the “mobile equipment” and “farm implement” exceptions to the policy’s motor vehicle exclusion are inapplicable.

Those questions are questions of contract construction.

Construction and interpretation of an insurance policy are matters of law for the court. An insurance policy is a contract and subject to the ordinary rules of contract construction, and the parties are bound by its plain and unambiguous terms. However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied.

American Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 485 (759 SE2d 563) (2014) (citations and punctuation omitted).

The rules of construction require the court to consider the policy as a whole, to give effect to each provision, and to interpret each provision to harmonize with each other. American Strategic Ins. Corp. v. Helm, 327 Ga. App. at 487. In addition,

any ambiguities in the contract are strictly construed against the insurer as drafter of the document; any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed; and the insurance contract is to be read in accordance with the reasonable expectations of the insured where possible.

Id. (citations and punctuation omitted).

(a) Mobile equipment.

Partin contends that the vehicle falls within the definition of “mobile equipment” because it is “other farm machinery” designed for use principally off public roads and as an implement for cultivating or harvesting. The policy lists bulldozers, forklifts and tractors as mobile equipment, but does not define “other farm machinery.” Partin testified that the vehicle was designed for off-road use and that he used it to work his farm. It is true that there is also evidence that the vehicle was used on public dirt roads for non-farming purposes, but that does not necessarily exclude it from qualifying as “mobile equipment” because the language of the policy leaves open the possibility that “mobile equipment” will be used on public roads to some extent.

The trial court determined that the vehicle was not “mobile equipment” because it did not have a specialized or primary purpose other than the transportation of persons or cargo, as set forth in subparagraph d. of the “mobile equipment” definition. But the requirement of a specialized or primary purpose other than transportation is at best implicit in the policy language, and ambiguities in an insurance policy must be “strictly construed against the insurer as drafter of the document.” American Strategic Ins. Corp. v. Helm, 327 Ga. App. at 487. In addition, the trial court’s interpretation ignores other language from the same definition, and an insurance policy should not be construed in a manner that would render any of its provisions meaningless. VATACS Group, Inc. v. Homeside Lending, 276 Ga. App. 386, 389 (1) (623 SE2d 534) (2005).

No party cites to any legal authority construing a similar definition of “mobile equipment” in this context, and there does not appear to be any relevant Georgia authority. We conclude that the policy’s definition of “mobile equipment” could be reasonably construed to include the vehicle at issue. Considering the policy as a whole and construing the ambiguity against the insurer, the trial court erred by concluding that the policy could not be so construed. Accordingly, the trial court erred in granting summary judgment to Georgia Farm Bureau on the issue of whether Partin’s vehicle falls within the policy’s definition of “mobile equipment.”

(b) Farm implement.

Partin also contends that the vehicle qualifies under the “farm implement” exception to the motor vehicle exclusion, which states that the motor vehicle exclusion does not apply to a “farm implement while upon public roads.” The term “farm implement” is not defined in the policy.

“Unless otherwise defined in the contract, terms in an insurance policy are given their ordinary and customary meaning.” Stagl v. Assurance Co. of America, 245 Ga. App. 8, 10 (2) (539 SE2d 173) (2000) (citation omitted). According to Merriam-Webster’s online dictionary, “implement” means “a device used in the performance of a task.” Giving that term its usual meaning, it is not clear that the vehicle, a device that Partin purchased and used for working on his farm, cannot be considered a “farm implement” under the policy.

There does not appear to be any relevant Georgia authority defining this term. Georgia Farm Bureau relies on O’Quinn v. Wedlock, 428 S2d 873 (La. Ct. App. 1983), to support its argument that the vehicle does not qualify as a farm implement. The court in O’Quinn considered whether a three-wheeled all terrain vehicle could be considered a farm implement and determined that it could not, reasoning that no self-propelled motor vehicle could be considered an “implement” in the usual sense of the word. Id. at 874. But other courts have determined that self-propelled motor vehicles may be considered farm implements. In Heitkamp v. Milbank Mut. Ins. Co., 383 NW2d 834 (N.D. 1986), the court held that whether a pickup truck that was purchased and owned for use on a family farm and also used for non-farm purposes qualified as a “farm implement” was an issue properly submitted to the jury. Id. at 837; see also Garrett v. Alfa Mut. Ins. Co., 584 S2d 1327 (Ala. 1991) (jury issue presented as to whether Ford Bronco, which was primarily used to perform farm-related tasks, was a farm implement).

We conclude that the policy could be reasonably construed to find that the vehicle is a “farm implement.” Considering the policy as a whole and construing the ambiguity against the insurer, the trial court erred by concluding that the policy could not be so construed. Accordingly, the trial court erred in granting summary judgment to Georgia Farm Bureau on the issue of whether Partin’s vehicle falls within the “farm implement” category.

Given our determination that the trial court erred in granting summary judgment to Georgia Farm Bureau on these issues, we need not address the remaining issues raised by Partin.

Judgment reversed.

Andrews, P. J., and Ray, J., concur in judgment only.

Decided March 27, 2015

Reconsideration denied April 10, 2015.

Goodman McGuffey Lindsey & Johnson, Adam C. Joffe, Sean B. Cox, Kaufold & Everett, Howard C. Kaufold, Jr., Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellants.

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

       Emphasis in the original; defined terms are in boldface.


author: McMillian, Judge.

text:
    A14A2167.
    ALWI v. THE STATE.
    (773 SE2d 387)
   McMillian, Judge.

A jury convicted Abdulrahman Hassan Alwi of rape, armed robbery, kidnapping with bodily injury, aggravated assault, and possession of a firearm during the commission of a crime, and he was sentenced to three consecutive life terms plus twenty-five years. Alwi appeals the denial of his motion for new trial, arguing as his sole enumeration of error that the trial court erred in denying his existing counsel’s motion to withdraw and his proposed new counsel’s motion for a continuance. We affirm for the reasons set forth below.

Alwi was indicted on September 12, 2012, and his trial counsel filed an entry of appearance on September 24, 2012. Alwi’s counsel filed a motion to withdraw as counsel on March 18,2013, the morning his case was scheduled for trial, asserting that she and Alwi had “a conflict of irreconcilable differences as to how to proceed in this case”; that counsel had received information from the State as late as two days earlier, March 16, 2013; and that counsel had not been paid to continue the case. After the case was called, the trial court addressed the issue with counsel and Alwi. Alwi told the court that he was “not comfortable going to trial with my counsel I have right now” because they disagreed about how to defend his case. Alwi said it would take eight weeks to obtain new counsel. Although his counsel could not go into details due to attorney-client privilege, she said the issues between the two first arose during the preceding week and that the two were “diametrically opposed” on some issues. Alwi’s counsel believed that they had reached an impasse that, in her opinion, could not be cured. The trial court denied Alwi’s request for an eight-week continuance, but moved the case to second on the calendar, thus granting Alwi a two-day continuance.

Two days later, the case was again called for trial, at which time Alwi’s counsel informed the court that the two were still at an impasse; however, Alwi had been able to obtain new counsel, who was asking for a two-week continuance. In response, the trial court noted that Alwi’s counsel had announced “ready” for trial one week or so before informing the court of the impasse, that the court was in the last week of its criminal trial calendar, and that the next calendar would be months away. The trial court found that such a delay would be undue and because the conflict was one of trial strategy and not a conflict of interest such as that arising from the representation of co-defendants, the court denied the request for a continuance. Accordingly, the trial court informed Alwi that he had three options: proceed to trial with his old counsel, proceed with his new counsel instanter, or represent himself. Alwi opted to proceed with his old counsel.

On appeal, Alwi argues that the trial court’s rulings were an abuse of discretion and denied him his Sixth Amendment right to counsel. “Motions for continuance seeking additional time to prepare for trial are addressed to the sound discretion of the trial court. We will uphold a trial court’s ruling on a motion for continuance absent a clear abuse of discretion.” (Citations and punctuation omitted.) Eskew v. State, 309 Ga. App. 44, 46 (1) (709 SE2d 893) (2011). See also Harris v. State, 119 Ga. 114, 116 (45 SE 973) (1903); Johnson v. State, 139 Ga. App. 829, 832 (1) (229 SE2d 772) (1976). Additionally, under the circumstances of this case, we review the trial court’s ruling on counsel’s motion to withdraw for an abuse of discretion. See Registe v. State, 287 Ga. 542, 544 (2) (697 SE2d 804) (2010); Hampton v. State, 272 Ga. App. 565, 566 (2) (612 SE2d 854) (2005).

“The Constitution of Georgia, Art. I, Sec. I, Par. [XIV] ... has been interpreted to confer upon every criminal defendant the right to be represented by counsel of his own selection whenever he is able and willing to employ an attorney, and uses reasonable diligence to obtain his services.” (Citation and punctuation omitted.) Reid v. State, 237 Ga. 106, 107 (2) (227 SE2d 24) (1976). And

[a] criminal defendant who is financially able to retain the services of an attorney has a constitutional right under the Sixth Amendment [of the United States Constitution] to secure counsel of his own choice..., [but] this does not mean that a defendant may retain any counsel at any time he wishes; there are limits to a defendant’s right to counsel of choice.

(Citation and punctuation omitted.) Lynd v. State, 262 Ga. 58, 62 (9) (a) (414 SE2d 5) (1992). Thus, “[a] defendant’s right to counsel may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” (Citation and punctuation omitted.) Id. “Indeed, when a defendant attempts to hire new counsel for purposes of delay, a trial court does not abuse its discretion by prohibiting such conduct.” Hampton, 272 Ga. App. at 566 (2).

Decided March 11, 2015

Reconsideration denied April 10, 2015

Garland, Samuel & Loeb, Patrick R. Sullivan, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Warren A. Sellers, Assistant District Attorneys, for appellee.

Therefore, “the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” (Citation omitted.) Lynd, 262 Ga. at 62 (9) (a). Accordingly, a trial court must balance the defendant’s constitutional right to the counsel of his choosing “against the need to maintain the highest standards of professional responsibility, the public’s confidence in the integrity of the judicial process and the orderly administration of justice.” (Citation omitted.) Id. at 62-63 (9) (a).

Here, the trial court engaged in such a balancing test. Weighing the fact that Alwi and his trial counsel, who was prepared for trial, disagreed regarding trial strategy against what the court determined was an undue delay in trying the case, the trial court chose to deny a continuance that would allow new counsel time to prepare.

Undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. The true course lies between these two extremes. The law vests the determination of questions relating to the time of trial in the discretion of the trial judges; and this court will not interfere with their rulings on the subject, unless it is manifest that there has been an abuse of discretion.

Harris, 119 Ga. at 115-116. See also Hampton, 272 Ga. App. at 566-567 (2). Because we cannot say that the trial court’s ruling in this case represented a clear and manifest abuse of discretion, we affirm.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.


author: Branch, Judge.

text:
    A13A0814.
    REID v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (771 SE2d 726)
    Decided April 10, 2015.

      Morgan & Morgan, Todd K. Maziar, for appellant.

      F. Taylor Putney, Jr., Drew, Eckl & Farnham, H. Michael Bagley, John G. Blackmon, Jr., J. Benson Ward, for appellee.
   Branch, Judge.

This case involves an attempt by Michael Reid to recover statutory penalties owed by his employer, the Metropolitan Atlanta Rapid Transit Authority (“MARTA”), as a result of MARTA’s failure to pay Reid his workers’ compensation benefits in a timely fashion. The trial court denied this request, finding that Reid was seeking to recover additional workers’ compensation benefits resulting from a change in condition, and that his claim was therefore barred by the two-year statute of limitation found in OCGA § 34-9-104 (b). In Reid v. Metropolitan Atlanta Rapid Transit Auth., 323 Ga. App. 523 (746 SE2d 779) (2013), this Court reversed the trial court’s ruling, finding that Reid’s claim did not result from a change in condition and that therefore the claim was not time-barred. The Supreme Court of Georgia reversed that decision in Metropolitan Atlanta Rapid Transit Auth. v. Reid, 295 Ga. 863 (763 SE2d 695) (2014).We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and affirm the judgment of the trial court.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.


text:
    A14A2138.
    ALL STAR, INC. et al. v. GEORGIA ATLANTA AMUSEMENTS, LLC.
    (770 SE2d 22)
   Branch, Judge.

All Star, Inc., Elite Amusement, Inc., Ideal Amusements, Inc., Midtown Vending, LLC, and Ultra Group of Companies, Inc. (collectively “appellants”), appeal from an order of the Gwinnett County Superior Court granting summary judgment against them and in favor of Georgia Atlanta Amusements, LLC (“GAA”), on the appellants’ claims for tortious interference with contractual relations. At issue in this case is OCGA § 50-27-70 et seq., which is the most recent statutory scheme regulating the bona fide coin-operated amusement machine business in this State. The trial court found that this law, which became effective on April 10,2013, voided certain written contracts and/or oral agreements that four of the appellants had with their customers for the placement of coin-operated amusement machines. The trial court reached this conclusion even though the contracts at issue predate the law’s enactment. Based on this holding, the trial court granted summary judgment against the appellants on their claims for tortious interference with contractual relations. On appeal from the summary judgment order, the appellants contend that OCGA § 50-27-70 et seq. should not be interpreted so as to void preexisting contracts. For reasons explained more fully below, we agree. We therefore reverse the trial court’s order granting partial summary judgment against the appellants.

The relevant facts are largely undisputed but where any doubt existed, we have construed the record in favor of the appellants, as the nonmovants. See Thompson v. Lovett, 328 Ga. App. 573 (760 SE2d 246) (2014) (on a motion for summary judgment, we “construe the evidence in the light most favorable to the nonmovant”) (citation omitted). The record shows that each of the appellants is a company that owns coin-operated amusement machines and is in the business of leasing those machines to third parties. At issue in this case are “Class B” coin-operated amusement machines (“Class B machines”). Prior to April 2013, all of the appellants other than Ideal Amusements had written rental contracts and/or oral rental agreements with specific business owners (“location owners”) for the placement of one or more Class B machines within that business. Each of the written contracts contained a clause that set forth how the revenue generated by the leased machines would be divided between the company that owned the machines (the “machine owner”) and the location owner. Similarly, under each of the oral agreements in place, the location owner had agreed to pay the machine owner a certain percentage of the revenue generated by the machine as rent for the machine. The specific agreements at issue are as follows:

All Star

On November 1, 2000, All Star entered into a written rental agreement with Fast Freddy’s, a gas station and convenience store located in Lilburn. Under the terms of this agreement, Fast Freddy’s agreed to pay All Star 40 percent “of the total gross revenue” generated by the machines as rent for the machines, with Fast Freddy’s retaining 60 percent of the revenue. The contract was for a term of seven years, and it contained an automatic renewal clause. That clause provided that the contract would automatically renew for additional terms of seven years unless one party notified the other, at least ninety days in advance of the renewal date, that it was electing not to renew. There is no evidence in the record that either party exercised its right of nonrenewal; thus, the contract renewed on November 1, 2007, for an additional seven-year term.

On March 28, 2011, All Star entered a written rental agreement with USA Food Mart, a gas station and convenience store located in Carrollton. Under the terms of this agreement, USA Food Mart agreed to pay All Star 70 percent of the total gross revenue generated by the machines, with USA Food Mart retaining the remaining 30 percent; The contract was for a term of three years.

As of April 2013, All Star had an oral agreement with Tienda Veracruz, a Carrollton grocery, and the agreement had been in place for approximately one year. There is no evidence in the record as to how the parties had agreed to split the revenue from the machine or machines placed at this location.

Elite Amusement

As of April 2013, Elite had in place oral agreements for the placement of its machines at five different locations: Discount Foodmart in Atlanta; the BP gas station in Stockbridge; East Side Tobacco in Conyers; Old National Hookah in Riverdale; and Tobacco More in Atlanta. Elite’s agreement with Discount Foodmart had been in place seven years; its agreement with the Stockbridge BP had been in place six years; its agreement with Old National Hookah had been in place six months; and its agreements with East Side Tobacco and Tobacco More had each been in place for three months. There is no evidence in the record as to how the parties had agreed to split the revenue from the machine or machines placed at these locations.

Midtown Vending

On August 2, 2010, Midtown Vending entered into two separate written rental agreements with Kahlid Amin for the placement of coin-operated amusement machines at two businesses owned by Amin in Fayetteville: Paw Paw’s Shell and Coleman Grocery. Both of the agreements provided that the business in question would pay Midtown Vending 30 percent “of the total gross revenue” generated by the machines as rent for the machines, with the businesses retaining 70 percent of the revenue. Each contract was for a term of 36 months.

On July 18, 2011, Midtown Vending entered a written rental agreement with Badi U. Zaman for the placement of coin-operated amusement machines in the Lakeview Country Store, a business owned by Zaman and located in Fayetteville. The agreement provided that Zaman would pay Midtown Vending 30 percent “of the total gross revenue” generated by the machines as rent for the machines, with Zaman retaining 70 percent of the revenue. This contract was for a term of 24 months.

Ultra Group of Companies

On August 14, 2008, Ultra entered a written rental agreement with Merchant Investment Group for the placement of coin-operated amusement machines in a Citgo Food Mart/Sunoco in Tucker. Under the terms of this agreement, Ultra was to receive 30 percent “of the total gross revenue” generated by the machines as rent for the machines, with Citgo/Sunoco retaining 70 percent of the revenue. The contract was for a term of ten years and therefore was in effect until August 14, 2018.

On May 4, 2011, Ultra entered into a written lease agreement with FNR/ENT, Inc. for the placement of coin-operated amusement machines in a Texaco station in East Point. On November 1, 2011, Ultra entered into a written lease agreement with East/West Convenience, Inc. for the placement of coin-operated amusement machines in a Chevron gas station and convenience store located in Conyers. That same day, Ultra also contracted with King Petro, Inc. for the placement of amusement machines in a Shell station in Stone Mountain. These agreements had identical revenue terms, and each provided that Ultra would receive 30 percent of the “net revenue” generated by the machines and that the location would retain the remaining 70 percent. The term of the rental agreement for the East Point Texaco was two years, while the contracts for both the Conyers Chevron and the Stone Mountain Shell had ten-year terms.

As of April 2013, Ultra had in place oral agreements for the placement of its machines at five different locations: Our Convenience Store in Atlanta; Stop’n’Save in Atlanta; the Shell gas station in Norcross; the Texaco gas station in Decatur; and Atlanta Food Mart in East Point. Ultra’s agreement with Our Convenience Store had been in place nine years; its agreement with Stop’n’Save had been in place eight years and five months; its agreement with the Norcross Shell had been in place seven years and three months; its agreement with the Decatur Texaco had been in place for six years and eleven months; and its agreement with the Atlanta Food Mart had been in place for six years. There is no evidence in the record as to how the parties had agreed to split the revenue from the machine or machines placed at these locations.

The Statutory Scheme Enacted by HB 487

At the time each of the foregoing contracts was made, nothing in the law governing coin-operated amusement machines addressed how the revenue from the machines had to be divided. Rather, the parties were free to divide the revenue any way they chose. In 2013, however, the legislature passed House Bill 487 (“HB 487”), now codified as OCGA § 50-27-70 et seq. One of the legislature’s stated purposes of this bill was to “support the need to educate Georgia’s children through the HOPE scholarship program and pre-kindergarten funding authorized by Article I, Section II, Paragraph VIII of the [Georgia] Constitution.” OCGA § 50-27-70 (a). To accomplish this goal, the legislature required the Georgia Lottery Corporation to acquire, no later than July 1, 2014, a Class B accounting terminal to which all Class B machines could be linked by a communications network. OCGA § 50-27-101 (a). Additionally, the law requires all location owners hosting Class B machines to establish a bank account where all proceeds from these machines must be deposited, separate from any other funds belonging to the location owner. OCGA § 50-27-102 (c). Beginning six months after the Lottery Corporation acquired the Class B accounting terminal and after “successful testing” thereof, location owners are required to transmit all funds deposited in their respective Class B bank accounts to the Lottery Corporation. Id. For the first fiscal year following the “successful implementation and certification of the Class B accounting terminal” the Lottery corporation is to retain five percent of the net receipts received from the location owners of Class B machines and is required to provide 47.5 percent of those net receipts to the location owner and 47.5 percent to the machine owner. OCGA § 50-27-102 (a). In each fiscal year following the first year, the Lottery Corporation’s share of the net receipts “shall increase 1 percent, taken evenly from the location owner... and the [machine owner], to a maximum of 10 percent.” OCGA § 50-27-102 (b). Thus, by approximately January 1, 2020, ten percent of the net proceeds from all Class B machines will go to the Lottery Corporation, with the location owner and the machine owner each receiving 45 percent of the remaining proceeds.

The statute also declared that from the time of HB 487’s enactment until the implementation of the Class B accounting terminal, it would constitute an unfair business practice for either the machine owner or the location owner to retain more than 50 percent of the proceeds generated by any Class B machine. OCGA § 50-27-87.1 (1). The law also makes it an unfair business practice for a location owner to “ask[ ], demand[ ], or accept[ ],” or for a machine owner to provide, “anything of value, including but not limited to a loan or financing arrangement, gift, procurement fee, lease payments, revenue sharing, or payment of license fees or permit fees from a [machine owner], as an incentive, inducement, or any other consideration to locate bona fide coin operated amusement machines in that establishment.” OCGA § 50-27-87.1 (3), (4). Engaging in any of these unfair business practice subjects a location owner or a machine owner to the revocation of his or her state business license “for a period of one to five years per incident” and to a fine of “up to $50,000.00 per incident.” OCGA § 50-27-87.1 (3), (4).

Finally, the new law also requires that all agreements between machine owners and location owners be in writing, OCGA § 50-27-87 (b) (1), and that these agreements be on file in both the machine owner’s and the location owner’s place of business. OCGA § 50-27-87 (b) (2). Additionally, each such agreement “entered into after April 10, 2013, shall be exclusive as between one bona fide coin operated amusement machine [owner] and one location owner or location operator per location.” OCGA § 50-27-87 (b) (3).

Appellants’ Attempts to Comply With HB 487

Following the enactment of HB 487, All Star, Midtown Vending, and Ultra each approached the location owners with whom they had written agreements and explained to the location owners that the law now governed the revenue split and that any violation of the law could result in a substantial penalty. Each of these companies, therefore, asked their clients with whom they had written agreements to execute a new agreement (or an amendment to the existing agreement), which would reflect the statutorily-mandated revenue split. Additionally, All Star, Elite, and Ultra each approached the location owners with whom they had oral agreements and asked those owners to enter a written lease agreement which provided for a 50/50 revenue split. Each of these location owners refused to execute a new or amended agreement, allegedly because they had been offered more lucrative terms by GAA. All Star, Elite, Midtown, and Ultra each refused to match these terms because they believed them to be illegal. Despite the existence of the agreements then in place, the clients of these appellants removed the appellants’ machines from their respective businesses and replaced those machines with ones owned by GAA.

The Current Lawsuit

All Star, Elite, Ideal, Midtown, and Ultra filed the current lawsuit against GAA. Based on the foregoing facts, the appellants asserted claims for tortious interference with contractual relations and tortious interference with business relations. Additionally, Midtown Vending asserted a claim for destruction of personal property, based on the damage done to one or more of its machines. The appellants sought to recover actual and punitive damages as well as attorney fees and expenses.

GAA filed a motion for partial summary judgment on the appellants’ claims for tortious interference with contractual relations, arguing that because each of the written and oral agreements at issue provided for a revenue split other than 50/50, those contracts became illegal on April 10, 2013, the day that HB 487 became effective. Thus, GAA contended that the contracts were void and unenforceable as a matter of law and could not serve as the basis of a tortious interference with contracts claim. The trial court granted that motion, finding that “[a]ny agreements [that] do not provide for a 50/50 [revenue] split are... illegal, void, and unenforceable” and that “[t]he Court cannot reform the contracts to comport with the law.” Thus, the trial court concluded that “any claim for tortious interference with contracts” as to these agreements failed as a matter of law. The appellants now appeal from this order.

As the appellants concede in their reply brief, they have not appealed the trial court’s ruling as to the oral agreements at issue in this case. Thus, the controlling question in this appeal is whether HB 487 rendered the written contracts at issue void. In analyzing this question, we begin with the fact that the contract clauses of both the United States and the Georgia Constitutions forbid the legislature from enacting any “[l]aw impairing the [obligation of [c]ontracts.” U. S. Const. Art. I, Sec. 10, cl. 1. See also Ga. Const. Art. I, Sec. I, Par. X (1983). Although the United States Supreme Court has held that this prohibition applies only to laws which substantially impair contracts, Gen. Motors Corp. v. Romein, 503 U. S. 181, 186-187 (II) (112 SCt 1105, 117 LE2d 328) (1992); Energy Reserves Group v. Kansas Power & Light Co., 459 U. S. 400, 411 (II) (A) (103 SCt 697, 74 LE2d 569) (1983), the total destruction of a contract meets this requirement. Accordingly, if, as the trial court found, the law did destroy these agreements, we would be obligated to remand this case to the trial court for consideration of whether the law, as applied to preexisting contracts with a revenue split of other than 50/50, violates the contracts clauses of the Constitutions of both Georgia and the United States. Alternatively, if HB 487 did not void the contracts, then the summary judgment order must be reversed.

We start our analysis with the well-established legal principle that the State may exercise its police powers “to protect the lives, health, morals, comfort, and general welfare of the public.” Moore v. Ga. Public Svc. Comm., 242 Ga. 182, 183 (1) (249 SE2d 549) (1978) (punctuation omitted). And it is “accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States.” Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 241 (II) (A) (98 SCt 2716, 57 LE2d 727) (1978). Thus the State may, in the exercise of its police powers, enact regulations that place reasonable restraints on individuals’ freedom to contract. See Energy Reserves Group, 459 U. S. at 410 (II) (A) (“[although the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State to safeguard the vital interests of its people”) (citation and punctuation omitted); Moore, 242 Ga. at 183 (1) (the State may exercise its police powers even “though contracts previously entered into between individuals may thereby be affected”) (punctuation omitted).

As the United States Supreme Court has recognized, however, “private contracts are not subject to unlimited modification under the police power.” United States Trust Co. of New York v. New Jersey, 431 U. S. 1, 22 (IV) (97 SCt 1505, 52 LE2d 92) (1977). Accordingly, any laws that affect contractual rights must be in furtherance of a legitimate public purpose, as this “guarantees that the State is exercising its police power, rather than providing a benefit to special interests.” Energy Reserves Group, 459 U. S. at 412 (II) (A) (footnote omitted). Provided that the government has acted in furtherance of a legitimate public interest, parties to private contracts will be required to adjust their contractual “rights and responsibilities” to accommodate the law, so long as the required adjustment is a reasonable means of furthering the public purpose at issue. Id. (citation and punctuation omitted). Moreover, parties who contract with respect to a regulated industry or enterprise enter those contracts subject to further, reasonable regulation; when the subject of the contract is regulated, this fact controls, to some extent, the parties’ reasonable expectations under the contract. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 503-504 (IV) (107 SCt 1232, 94 LE2d 472) (1987); Energy Reserves Group, 459 U. S. at 408-409 (I) (D); Union Dry Goods Co. v. Ga. Public Svc. Corp., 142 Ga. 841 (83 SE 946) (1914), aff’d, Union Dry Goods Co. v. Ga. Public Svc. Corp., 248 U. S. 372 (39 SCt 117, 63 LE 309) (1919). In essence, such parties are presumed to contract with the knowledge that, regardless of the terms they agree to, subsequent reasonable regulation might require them to amend one or more of those terms. Id.

In Union Dry Goods, the Georgia Public Service Corporation (“GPSC”) had contracted to provide Union Dry Goods, a mercantile company, with electricity at a specific rate for a five-year period. 142 Ga. at 842. At the time of the contract, the Railroad Commission of Georgia had the authority to regulate power rates, but “there was neither statute nor rule of the Railroad Commission regulating rates for the service contracted for.” Id. After the contract had been in effect for a year, the GPSC applied to the Railroad Commission for permission to impose a rate increase. The Commission granted that application and “published an order declaring that the schedules of rates therein contained, until the further order of the [C]ommission, shall be the maximum schedules of rates to be charged by the Georgia Public Service Corporation for the classes of service indicated.” Id. The maximum rates allowed under these schedules were in excess of the rates specified in the contract between the parties. Id.

After the Railroad Commission issued its order, GPSC began to bill the mercantile company at the maximum rate allowed under the rate schedule. Union Dry Goods then filed suit, seeking specific performance of the contract. When the trial court denied Union Dry Goods’ request for an injunction prohibiting GPSC from discontinuing its service unless Union Dry Goods paid the higher rate, the company appealed. Union Dry Goods Co., 142 Ga. at 842. The Supreme Court of Georgia noted that the “pivotal question” on appeal was “the effect of the [Commission’s order on the contract between the dry goods company and the public-service company. Did it empower the Georgia Public Service Corporation to disregard the contract rate, and to charge for the service at the maximum rate allowed by the [Commission?” Id. at 843. The court answered this question in the affirmative, noting that the State could exercise its police power to regulate certain industries “and that the power is not destroyed because such regulations may to some extent affect the power to contract, or existing contracts.” Id. at 844. Rather than finding that the contract was voided by the rate increase, however, the court found that the parties were expected to conform their contract to the law. Id. The court reasoned that the rate increase did not interfere with the reasonable expectations of the parties, as they were aware that they were contracting with respect to a regulated industry. Id. at 844-847. Thus, the parties were presumed to know that the State could enact regulations — including rate increases — that would impact the contract. “ ‘One whose rights, such as they are, are subject to [s]tate restriction, can not remove them from the power of the [s]tate by making a contract about them. The contract will carry with it the infirmity of the subject-matter.’ ” Id. at 844, citing Hudson County Water Co. v. McCarter, 209 U. S. 349, 357 (28 SCt 529, 52 LE 828) (1908). In affirming the Supreme Court of Georgia, the United States Supreme Court relied on this same rationale. See Union Dry Goods Co., 248 U. S. at 375-376.

Almost 70 years later, the United States Supreme Court applied similar reasoning in Energy Reserves Group, 459 U. S. 400. That case involved two contracts for the intrastate purchase of gas from a specific gas field. Each contract contained two “price escalator” clauses, one of which provided that if any governmental authority fixed a price for any natural gas that was higher than the price specified in the contract, the contract price would be increased to that level. Id. at 403. After the contracts were executed, the federal government enacted a law that changed the way it regulated the price of natural gas, replacing the federal price controls that had been established under the 1938 Natural Gas Act “with price ceilings that rise monthly based on ‘an inflation adjustment factor’ and other considerations.” Id. at 405-406 (I) (B). In response, the Kansas state legislature passed a law that controlled intrastate natural gas prices and the contracts at issue became subject to the Kansas law. Id. at 407-408 (I) (C).

When the supplier sought to terminate the contracts based on the buyer’s refusal to pay the higher gas rate allowed under federal law, the buyer responded that the Kansas act served to amend the parties price escalator clause, as it limited the supplier to the highest price allowed under Kansas law and prohibited the supplier from charging the higher rate allowed under federal law. Energy Reserves Group, 459 U. S. at 408 (I) (D). The trial court entered summary judgment in favor of the buyer, finding that the Kansas Act did not void the contracts, even though it amended the price that the supplier could charge. Id. at 409 (I) (D). The Kansas Supreme Court affirmed the trial court, and the supplier then appealed to the United States Supreme Court.

In affirming the decision of the Kansas courts, the Supreme Court agreed that the Kansas law was enacted in furtherance of legitimate public purposes: the protection of “consumers from the escalation of natural gas prices caused by deregulation” and to correct “the imbalance between the interstate and intrastate [natural gas] markets.” Energy Reserves Group, 459 U. S. at 417 (II) (C) (footnote omitted). The court then found that the law required the parties to conform their contract to the new regulation. In doing so, the Court noted that “[significant here is the fact that the parties are operating in a heavily regulated industry.” Id. at 413 (II) (B) (footnote omitted). Thus, the parties should have reasonably anticipated that future governmental regulation might occur and that such regulation could impact the parties’ contract. Id. at 416 (II) (B) (as the contract itself reflected, the supplier “knew its contractual rights were subject to alteration by state price regulation. Price regulation existed and was foreseeable as the type of law that would alter contract obligations.”).

Turning to the current case, we note that coin-operated amusement machines “have been permitted to operate in this state only by the grace of the legislature. In fact, amusement machines have been the subject of frequent and intensive regulation in this state.” State of Ga. v. Old South Amusements, 275 Ga. 274, 279 (3) (564 SE2d 710) (2002) (footnote omitted). Thus, when interpreting legislation which affects a change in the regulatory scheme governing these machines, we look to “cases involving regulated industries,” as they “are more on point” than cases involving industries that are not subject to such regulation. Id. We therefore find the rationale of cases such as Union Dry Goods and Energy Reserves Group to be applicable to the instant case. Under that reasoning, where further regulation of an already regulated industry impacts private contracts, the parties to those contracts will be required to adjust their contracts to the new regulation, provided two conditions are met. First, the regulation must be in furtherance of a legitimate public purpose. Second, the regulation must constitute a reasonable method of furthering that public purpose.

Applying the foregoing principles, we find that HB 487 did not void any contracts for the placement of Class B machines that existed prior to the law’s enactment, even if those contracts called for an uneven revenue split. The legislature’s stated purpose for HB 487 (ensuring adequate funding for the State’s HOPE Scholarship and pre-kindergarten programs) is a legitimate one, designed to benefit the general welfare of all Georgia’s citizens. See Pitts v. State, 293 Ga. 511, 516-517 (2) (748 SE2d 426) (2013) (“ensuring that the children residing in Georgia are afforded the opportunity of an education” is a “legitimate governmental interest”). Additionally, the regulatory requirements of HB 487 with respect to Class B machines represent a reasonable method of achieving this purpose, as they “will aid in the enforcement of the tax obligations that arise from the operation of bona fide coin operated amusement machine businesses as well as prevent unauthorized cash payouts.” OCGA § 50-27-70. See Keystone Bituminous Coal Assn., 480 U. S. at 505 (“we have repeatedly held that unless the State is itself a contracting party, courts should properly defer to legislative judgment as to the necessity and reasonableness of a particular measure” that impacts contract rights) (citations and punctuation omitted).

Furthermore, the parties to these contracts entered them with the knowledge that Class B machines were subject to changing state regulation. And interpreting HB 487 as requiring the parties to adjust their contractual rights and responsibilities to the new law does not substantially impair any party’s contract rights. Indeed, the law impacts only one term of the contract — the clause pertaining to the revenue split. All other rights and obligations under the contract remain unchanged. Moreover, the change affected by the law does not favor one party over the other — rather, it requires that both parties to the contract receive equal compensation from the revenue generated by Class B machines. Additionally, although the law might operate to take away a contractual advantage that one of the parties previously had (i.e., more than 50 percent of the revenue generated by the machine or machines being leased), the party suffering that loss could not recoup that loss on the open market if the party were freed from its current contract. Any legitimate, new contract such a party entered could not provide it with more than 50 percent of the machine revenue.

In light of the foregoing, we find that OCGA § 50-27-70 et seq. requires the parties to any written lease agreements for Class B machines that existed prior to the enactment of HB 487, and which provide for a revenue split of other than 50/50, to conform their contracts to the new law. In other words, the preexisting written contracts remain intact, but between April 10, 2013 (the day HB 487 went into effect), and the date on which the Lottery Corporation’s Class B accounting terminal became active, the parties to the contract were required to split the revenue realized from any Class B machine on an equal basis. After that time, the parties were to split the revenue as provided in OCGA § 50-27-102 for the duration of the contract term.

Because HB 487 did not void the written contracts at issue in this case, the order of the trial court granting summary judgment in favor of GAA and against the appellants on the appellants’ claims for tortious interference with contractual relations is reversed. The case is remanded for further proceedings consistent with this opinion.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

Decided March 26, 2015

Reconsideration denied April 13, 2015

Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, Kimberly K. Anderson, Alexander F. Denton, Craig G. Kunkes, for appellants.

Mark V. Spix; Sana M. Ayubi; Fellows LaBriola, Steven M. Kushner, Christina M. Baugh, for appellee.

Wimberly Lawson Steckel Schneider & Stine, Paul Oliver, amicus curiae.

       The statute defines “bona fide coin operated amusement machines” as every machine of any kind or character used by the public to provide amusement or entertainment whose operation requires the payment of or the insertion of a coin, bill, other money, token, ticket, card, or similar object and the result of whose operation depends in whole or in part upon the skill of the player, whether or not it affords an award to a successful player ..., and which can be legally shipped interstate according to federal law.
      OCGA § 50-27-70 (b) (2) (A).

       The law defines a Class B machine as
      a bona fide coin operated amusement machine that allows a successful player to accrue points on the machine and carry over points won on one play to a subsequent play or plays... and [r] ewards a successful player in compliance with the provisions of paragraphs (1) and (2) of subsection (d) of Code Section 16-12-35[.]
      OCGA § 50-27-70 (b) (4) (A). Thus, Class B machines must reward a player
      exclusively with: (Á) Free replays; (B) Merchandise limited to noncash merchandise, prizes, toys, gift certificates, or novelties, each of which has a wholesale value of not more than $5.00 received for a single play of the game or device; (C) Points, tokens, vouchers, tickets, or other evidence of winnings which may be exchanged for [any of the foregoing] rewards [.]
      OCGA § 16-12-35 (d) (1). Additionally, players of Class B machines
      may accumulate winnings for the[ir] successful play... through tokens, vouchers, points, or tickets [and] . . . redeem accumulated tokens, vouchers, or tickets for noncash merchandise, prizes, toys, gift certificates, or novelties so long as the amount of tokens, vouchers, or tickets received does not exceed $5.00 for a single play.
      OCGA § 16-12-35 (d) (2).

       Appellant Ideal Amusements had two contracts for the placement of Class B Machines. Each of these contracts, however, was executed on or after April 10,2013, and neither allegedly violated the statute at issue. Accordingly, these contracts were not subject to the trial court’s summary judgment order and are not at issue on this appeal.

       Each of All Star’s written contracts provides that gross revenue will be calculated after deductions for any amounts expended by the location owner on certain items, including sales tax, other fees required by law to be paid to the State, and refunds.

       Each of Midtown Vending’s written contracts provides that gross revenue will be calculated after deductions for any amounts expended by the location owner on certain items, including sales tax, other fees required by law to be paid to the State, and refunds.

       The contract provides that gross revenue will be calculated after deductions for any amounts expended by the location owner on certain items, including sales tax, other fees required by law to be paid to the State, and refunds.

       Each of these agreements defined net revenue as the “gross revenue” generated hy the machines “minus the dollar amount of the noncash redemptions awarded.”

       Representatives of All Star, Elite, and Midtown each averred that their respective clients informed them that GAA was offering the client 70 percent of the machine revenue and additional incentives to sign lease agreements with GAA. A representative of Ultra averred that Ultra’s clients had informed him that GAA was offering each of the clients more than 50 percent of the machine revenue if the clients would lease their machines from GAA.

       The complaint also originally named GAA’s owner, Nasimadin H. Virani, as a defendant, and it contained a count seeking to pierce the corporate veil and hold Virani personally liable. The appellants also asserted a claim for breach of public duty. The count seeking to pierce the corporate veil was dismissed voluntarily and without prejudice. The count asserting a claim for breach of public duty was dismissed without prejudice via a consent order. In that same consent order, Virani was dismissed as a defendant.

       GAA also sought summary judgment as to the oral agreements on an additional ground. Specifically, GAA argued that because HB 487 required all rental agreements for Class B machines to be in writing, the oral agreements became void on the day HB 487 went into effect.

       GAA argues that the appellants have waived any claim that HB 487 is unconstitutional because they failed to raise that claim in the court below in response to GAA’s motion for partial summary judgment. The appellants, however, are not challenging the constitutionality of HB 487. Rather, they are asserting that the trial court erred in applying the statute to the contracts at issue so as to destroy them, because such an interpretation would render HB 487 unconstitutional as to preexisting contracts providing for a Class B machine revenue split of other than 50/50. In other words, the appellants are arguing that the trial court’s order created a question as to the constitutionality of HB 487.

       The Railroad Commission is now known as the Public Service Commission. See Ga. Public Svc. Comm. v. Atlanta Gas Light Co., 205 Ga. 863, 870-871 (1) (55 SE2d 618) (1949).

       In 1978, the legislature exempted coin-operated amusement machines which awarded a player with up to 15 free replays from the definition of a gambling device. Ga. L. 1978, p. 1779. Thirteen years later, the machines were permitted to reward a player with noncash prizes, toys and novelties, having a wholesale value of less than $5. Ga. L. 1991, p. 1398. In 1996, the cap on free replays was removed and players were permitted to win noncash “merchandise” and “gift certificates” not exceeding a wholesale value of $5. Ga. L. 1996, p. 309. In 1999, the reward system was expanded to authorize combinations of free replays, merchandise, toys, gift certificates, novelties, points, vouchers and tickets. Ga. L. 1999, p. 1224.

        Old South Amusements, 275 Ga. at 279 (3), n. 8. Additionally, in 2001 the legislature adopted the Video Poker Act, which outlawed as “gambling devices” a wide variety of video games which had been used previously in the coin-operated amusement machine business. See OCGA §§ 16-12-20; 16-12-35; 48-17-1 (2001). Thus, there were at least five significant legislative changes in the regulation of coin-operated amusement machines over an approximately 15-year period.


author: BARNES, Presiding Judge.

text:
    A14A2197.
    SELLERS v. THE STATE.
    (770 SE2d 31)
   BARNES, Presiding Judge.

Charles Dewey Sellers allegedly fled from the scene of a traffic stop, leading the police on a high speed car chase in which he struck another vehicle, discarded cocaine from his car window, and attempted to bribe a police officer following his apprehension. After pleading guilty in state court to the traffic offense of following too closely, Sellers was indicted in superior court on charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, bribery, and fleeing or attempting to elude a police officer. Sellers filed a motion in autrefois convict and plea of former jeopardy (the “procedural double jeopardy motion”), contending that all counts of the indictment returned in superior court should be dismissed as a result of his guilty plea in state court. Sellers also filed a motion to suppress the cocaine, contending, among other things, that the traffic stop had been unreasonably prolonged and that the cocaine allegedly discarded from his vehicle was the tainted fruit of his unlawful detention.

The superior court denied Sellers’s procedural double jeopardy motion, with the exception of the charge for fleeing or attempting to elude a police officer, which the court found was barred as a result of Sellers’s prior guilty plea in state court. The superior court also denied Sellers’s motion to suppress. Sellers now appeals these rulings. We affirm the superior court’s partial denial of the procedural double jeopardy motion because Sellers failed to establish that the solicitor-general who handled his guilty plea in state court actually knew of the other crimes arising out of the same conduct as the traffic offense to which he pled guilty. We affirm the superior court’s denial of the motion to suppress because the discarded cocaine was not tainted by any alleged illegality in Sellers’s detention.

Construed in favor of the trial court’s rulings, the record shows that after receiving information from a confidential informant that Sellers possessed a large amount of cocaine, an investigator with the City of Brunswick Police Department and other members of his narcotics enforcement team conducted surveillance of Sellers over the course of several days on Jekyll Island. On June 6, 2013, the investigator received additional information that Sellers might be involved in a large drug transaction and might be leaving town that day. After observing Sellers driving away from Jekyll Island around noon, the investigator radioed the make, model, and tag number of Sellers’s vehicle to a trooper with the Georgia State Patrol who was involved in the surveillance operation.

The state trooper identified and began to follow Sellers’s vehicle as it left Jekyll Island and proceeded down a highway in Glynn County. Believing that the tint on the windows of Sellers’s vehicle was darker than was legally permissible, the trooper initiated a traffic stop. The trooper approached the stopped vehicle, asked to see Sellers’s driver’s license, and tested the tint on the car windows using a tint meter. Although the meter showed that the window tint was within the legal limit, the trooper told Sellers that he would issue him a written warning for purposes of “documentation.” The trooper also asked Sellers if he could search his vehicle, and Sellers consented. The trooper then returned to his patrol car and radioed for assistance from another officer in conducting the search.

Before the other officer arrived at the scene or the search had been conducted, Sellers, who had not yet received his driver’s license back or the written warning, drove off at a high rate of speed into heavy traffic. A police chase ensued in which Sellers “followed really close to two or three ... [other] cars” on the highway as he attempted to evade the police. Sellers sideswiped another car but continued fleeing from the responding officers. Ultimately, Sellers pulled off the road and surrendered to the police.

After Sellers was taken into custody, officers searched his vehicle but did not discover any illegal drugs inside of it. However, officers also searched the side of the road along the route where the chase occurred and found a package containing approximately 2.5 pounds of powder cocaine. The package was damaged, consistent with having been thrown from a vehicle.

Sellers was transported to the Glynn County Police Department and advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Sellers agreed to speak with the police and allegedly offered to compensate one of the officers if the charges against him were dropped.

Sellers was charged in the State Court of Glynn County with the misdemeanor traffic offense of following too closely. On September 17, 2013, Sellers appeared in state court with his public defender and a state solicitor-general and pled guilty to that offense. He was sentenced to three days with credit for time served.

On October 31, 2013, Sellers was indicted in the Superior Court of Glynn County on charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, bribery, and fleeing or attempting to elude a police officer. Sellers filed a procedural double jeopardy motion pursuant to OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1), contending that all counts of the indictment should be dismissed as a result of his guilty plea in state court to the misdemeanor traffic offense. Sellers also filed a motion to suppress the cocaine discarded on the side of the road, contending, among other things, that the state trooper unreasonably prolonged the duration of the traffic stop after learning that the car window tint was within legal limits, and that the cocaine was inadmissible as fruit of the unlawful detention.

The superior court conducted evidentiary hearings on both of Sellers’s motions. Following the hearings, the superior court denied Sellers’s procedural double j eopardy motion, with the exception of the count of fleeing or attempting to elude a police officer, which the court found was barred. The superior court also denied Sellers’s motion to suppress. This appeal followed in which Sellers challenges those rulings.

1. Sellers contends that the superior court erred by denying his procedural double jeopardy motion as to the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. He contends that pursuant to OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1), his plea of guilty to the misdemeanor traffic offense of following too closely in state court barred any subsequent prosecution for the four felony offenses in superior court. We disagree.

The procedural aspect of double jeopardy under Georgia law is set forth in OCGA § 16-1-7 (b), which “requires the State to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court.” Weaver v. State, 224 Ga. App. 243 (480 SE2d 286) (1997). “Asecond prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b).” Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010). All three prongs of OCGA § 16-1-7 (b) must be satisfied for procedural double jeopardy to bar a second prosecution. Id.

Our focus here is on the second prong of OCGA § 16-1-7 (b), the knowledge of the proper prosecuting officer. In determining what is known to the proper prosecuting officer, our Supreme Court has rejected a constructive knowledge standard and instead has adopted an actual knowledge test. See Baker v. State, 257 Ga. 567, 568-569 (361 SE2d 808) (1987). Under the actual knowledge test, the defendant bears the burden of affirmatively showing that the proper prosecuting officer actually knew that there were other crimes arising out of the same conduct as the crime that the officer was prosecuting. See id. See Powe v. State, 257 Ga. 563, 563-565 (361 SE2d 811) (1987); Turner v. State, 238 Ga. App. 438, 438-440 (518 SE2d 923) (1999); Honea v. State, 238 Ga. App. 135, 135-137 (517 SE2d 841) (1999); Hill v. State, 234 Ga. App. 173, 175-177 (1) (507 SE2d 3) (1998).

In this case, the proper prosecuting officer was the solicitor-general who handled Sellers’s guilty plea in state court.

The prosecuting officer in the state court is the person whose knowledge matters..., because [Sellers’s] plea in state court is the proceeding that he claims bars his superior court prosecution. Where a criminal defendant first pleads guilty to a misdemeanor in state court and is later prosecuted in superior court for felony charges allegedly arising out of the same conduct, we look to the knowledge of the state court solicitor to determine if the state court proceedings bar the subsequent superior court proceedings.

Barlowe v. State, 286 Ga. App. 133, 134 (648 SE2d 471) (2007). See Dean v. State, 309 Ga. App. 459, 461 (711 SE2d 42) (2011); Etienne v. State, 298 Ga. App. 149, 150-151 (679 SE2d 375) (2009). Moreover, “[w]hile it may be reasonable to impute the knowledge of one prosecuting officer to others working in the same office, it is not reasonable to do so where two entirely separate prosecuting offices are involved[.]” Powe v. State, 181 Ga. App. 429, 431 (352 SE2d 783) (1986), aff’d, Powe, 257 Ga. 563. Hence, the knowledge of the assistant district attorney handling the prosecution of Sellers in superior court for the felony offenses cannot be imputed to the solicitor-general who handled Sellers’s guilty plea to the traffic offense in state court. See id.

Based on this precedent, Sellers had the burden of affirmatively showing that the state court solicitor-general actually knew of the felony offenses arising out of the same conduct as the traffic offense of driving too closely to which he pled guilty. We conclude that Sellers failed to carry his burden under the circumstances of this case.

Sellers did not call the state court solicitor-general as a witness at the hearing on his procedural double jeopardy motion. Instead, Sellers argued that the solicitor-general must have actually known of the felony offenses based on a document entitled “Inmate Charge/ Disposition Form” that had been completed by a booking officer at the Glynn County Detention Center (the “disposition form”). There was testimony at the hearing that the customary procedure was for a disposition form to accompany an inmate whenever he or she was taken from the detention center to a courtroom in state court, where the form would be reviewed by the solicitor-general assigned to the case and the trial judge. The disposition form included a chart for listing offenses with which an inmate had been charged and a separate chart for listing the disposition of those offenses.

The disposition form in this case listed Sellers’s offenses as “trafficking in cocaine, illegal drugs, marijuana or methamphetamine” and bribery. It did not list the dates upon which those offenses allegedly had occurred or provide any factual description of the circumstances surrounding those offenses. The separate chart on the form for listing the disposition of the offenses was left blank. The disposition form also included a notation that Sellers had been confined at the detention center since June 6, 2013 and that the form had been completed by the booking officer on September 16,2013, the day before the plea hearing in state court.

The disposition form was legally insufficient to show that the solicitor-general handling Sellers’s guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense. We reached the same conclusion in Turner, 238 Ga. App. at 439, where we held that a “booking history” form, which listed the defendant’s pending felony offenses and the date he had been put in jail, was insufficient to show that the solicitor-general actually knew that those offenses arose out of the same conduct as the misdemeanor traffic offenses to which the defendant pled guilty in state court. We concluded that the actual knowledge test had not been satisfied, although the “booking history” form showed that the defendant “was booked into jail on [the] felony charges on the same date he was booked into jail on the traffic offenses.” Id. at 440. We reasoned that the date a defendant is booked in jail “does not necessarily indicate the date an offense was committed,” and that the “prosecutor did not know from the booking history when the listed felony offenses occurred, let alone if they arose out of the same transaction as the traffic offenses.” Id. Based on the reasoning of Turner, we conclude that the disposition form in this case — which simply hsted felony offenses (including a vaguely worded drug charge that did not make clear the specific drug at issue) and the date Sellers was initially detained — failed to demonstrate that the state court solicitor-general actually knew of the felony offenses arising out of the same conduct as the traffic offense.

Sellers also points out that, at the hearing on his procedural double jeopardy motion, he called as a witness an attorney who happened to be present in the courtroom when Sellers pled guilty to the traffic offense. When asked if he had overheard at the plea hearing “any conversation amongst the Court and Mr. Sellers regarding any other situations that he may be facing,” the attorney testified, “Yeah, there was some discussion at the bench that Mr. Sellers had bigger problems upstairs was the topic.” Because the attorney did not elaborate any further regarding what was discussed at the plea hearing or even mention the state court solicitor-general, his testimony plainly was insufficient to show that the solicitor-general actually knew of the other felony offenses arising out of the same conduct as the traffic offense to which Sellers pled guilty. See Powe, 257 Ga. at 564-565 (defendant’s statement in state court that he had another case pending against him in superior court, without further elaboration, was insufficient to show that the state court solicitor-general actually knew that the superior court charges arose out of the same conduct as the traffic offense to which the defendant pled guilty); Banks v. State, 320 Ga. App. 98, 100 (739 SE2d 414) (2013) (actual knowledge test was not satisfied, where plea hearing transcript reflected “only that the prosecuting attorney had knowledge that [the defendant] could face other charges, not that he had knowledge that the events giving rise to these other charges took place on the same day or at the same location as the [charge to which the defendant pled guilty]”).

For the foregoing reasons, we conclude that Sellers failed to provide any evidence that the solicitor-general who handled his guilty plea to the traffic offense of following too closely had actual knowledge that Sellers committed felony offenses arising out of the same conduct as the traffic offense. The State therefore may proceed with its prosecution of Sellers in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery, and the trial court properly denied Sellers’s procedural double jeopardy motion with respect to those charges.

2. Sellers further contends that the trial court erred in denying his motion to suppress the cocaine discarded on the side of the road where the police chase occurred. According to Sellers, the state trooper unreasonably prolonged the duration of the traffic stop after learning that the window tint on Sellers’s vehicle was within legal limits, and the discarded cocaine was the tainted fruit of that unlawful detention.

“It is well settled law that before stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct,” and an officer’s observation of a traffic violation “provides the necessary facts for such reasonable suspicion.” (Punctuation and footnote omitted.) Beville v. State, 322 Ga. App. 673, 676 (3) (a) (i) (745 SE2d 858) (2013). Thus, when an officer observes darkly tinted car windows that he reasonably believes fall outside the legally permissible limit, the officer has reasonable, articulable suspicion to initiate a traffic stop. See id.; Christy v. State, 315 Ga. App. 647, 651 (1) (727 SE2d 269) (2012). However, once the officer’s investigation of the perceived traffic violation is complete, the officer may prolong the detention of the driver only if the officer has “a reasonable, articulable suspicion that the driver was engaged in other illegal activity.” (Citation and punctuation omitted.) Bodiford v. State, 328 Ga. App. 258, 267 (2) (761 SE2d 818) (2014).

We conclude that even if the state trooper unreasonably prolonged the traffic stop by continuing to detain Sellers after learning that there was no window tint violation, the cocaine that allegedly was discarded after that detention was not “fruit of the poisonous tree” that had to be suppressed by the superior court.

When examining whether evidence is inadmissible as fruit of an illegal detention, we ask whether the evidence was obtained by exploitation of the prior illegality or instead by means sufficiently distinguishable to be purged of the primary taint. And, significantly, a defendant’s commission of a new crime in the presence of law enforcement is an intervening act of free will that purges the taint of any prior illegality.

Decided March 26, 2015

Reconsideration dismissed April 13, 2015

Robert L. Crowe, for appellant.

(Citations and punctuation omitted.) Walker v. State, 314 Ga.App. 67, 71 (1) (722 SE2d 887) (2012).

Here, the record, construed in favor of the prosecution, shows that Sellers fled from the traffic stop, engaging the police in a high speed and dangerous car chase in heavy traffic during which he discarded the cocaine from his vehicle.

Regardless of the propriety of an officer’s basis for the execution of a... traffic investigative stop, attempting to flee from such stop is a separate crime altogether, i.e., fleeing or attempting to elude a police officer. Such offense does not require that the investigative stop be proper. The determination of whether there is a legal basis for [an investigative] stop does not belong to the detainee, thereby giving him the right to flee if he determines he is being stopped illegally.

(Citations, punctuation and footnote omitted.) Reynolds v. State, 280 Ga. App. 712, 715-716 (1) (634 SE2d 842) (2006). “To hold otherwise could encourage persons to resist the police and create potentially violent and dangerous confrontations.” (Citation and punctuation omitted.) Faulkner v. State, 277 Ga. App. 702, 705 (1) (627 SE2d 423) (2006). It follows that Sellers’s flight from the traffic stop, even if the duration of the stop was unreasonable, was a new crime, and thus constituted an intervening act that purged the taint flowing from any illegality. See id. See also Walker, 314 Ga. App. at 71 (1); State v. Nesbitt, 305 Ga. App. 28, 34-35 (2) (a) (699 SE2d 368) (2010); Faulkner, 277 Ga. App. at 705 (1); State v. Stilley, 261 Ga. App. 868, 871 (584 SE2d 9) (2003). Accordingly, the cocaine discarded on the side of the road during Sellers’s flight was admissible, and the superior court did not err by denying the motion to suppress. See id.

Judgment affirmed.

Boggs and Branch, JJ., concur.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

       A“timely filed plea of double jeopardy is directly appealable.” Malloy v. State, 293 Ga. 350, 352 (1) (744 SE2d 778) (2013). Given Sellers’s right to directly appeal the denial of his procedural double jeopardy motion, he was entitled to seek appellate review of the denial of his motion to suppress pursuant to OCGA § 5-6-34 (d). See id.

       The State does not appeal or otherwise challenge the superior court’s grant of Sellers’s procedural double jeopardy motion on the charge of fleeing or attempting to elude a police officer. Consequently, the propriety of that ruling is not before us.

       Because Sellers failed to demonstrate that the solicitor-general had the requisite actual knowledge, we do not reach the question whether the other two prongs of OCGA § 16-1-7 (b) were satisfied.