author: McMurray, Presiding Judge.

text:
    A92A1202.
    DANIELL et al. v. CLEIN et al.
    (425 SE2d 344)
   McMurray, Presiding Judge.

Warren Clein and Harold Clein, co-executors of the estate of Harry Clein, brought suit against Carolyn Daniell and Robert Daniell in the Superior Court of DeKalb County. In their complaint, plaintiffs alleged that Ms. Daniell was employed by Harry Clein on a part-time basis to assist him in his jewelry business; that Harry Clein paid Ms. Daniell $2,000 per month for her services; that Harry Clein opened a joint account at the First National Bank of Atlanta in which he designated Ms. Daniell as a joint owner for his convenience; and that Harry Clein owned a safety-deposit box at the bank and listed Ms. Daniell on the access designation card for his convenience. Plaintiffs also alleged that after Harry Clein died, on March 26, 1990, at 85 years of age, Ms. Daniell offered to assist plaintiffs with respect to Harry Clein’s jewelry business; that plaintiffs accepted Ms. Daniell’s offer of assistance and agreed to compensate her for her services; that, between March 27 and April 2, 1990, Ms. Daniell prepared, signed and delivered checks drawn on the joint account at the bank to pay for nursing services rendered to Harry Clein’s 83-year-old widow, Esther Clein; that, on April 2, 1990, Ms. Daniell stated that she would no longer write checks on the joint account; that, thereafter, without notifying plaintiffs, Ms. Daniell withdrew the entire balance — $82,290.28 — from the joint account and claimed she was entitled to the contents of the safety-deposit box. Plaintiffs sought, inter alia, damages in the amount of $82,290.28, punitive damages, attorney fees, and a declaration as to which party was entitled to the contents of the safety-deposit box. Defendants answered the complaint, denying any liability to plaintiffs. In addition, Ms. Daniell counterclaimed, seeking compensation for services rendered to Harry Clein in March 1990 and a declaration that she was entitled to Harry Clein’s jewelry business.

With regard to the jewelry business claim, Ms. Daniell alleged that Harry Clein orally agreed to leave the business to her when he died if she would continue to learn about the jewelry business and work with him; and that, pursuant to that agreement, she continued to work with Harry Clein until he died. Plaintiffs moved for partial summary judgment upon Ms. Daniell’s claim that she was entitled to the jewelry business and, following a hearing, their motion was granted. Thereafter, the case proceeded to trial.

We summarize the evidence adduced at trial as follows: Harry Clein came to the United States as a young man, settled in Atlanta, and started a jewelry business; his wife, Esther Clein, helped him in the business. Clein handled the creative, craftsman side of the business; Esther took care of the books and other business matters.

In their later years, the Cleins lived in a condominium building on Peachtree Street. The business was located in Room 305 of the same building. Clein was very devoted to his wife and, when her health failed, he employed nurses to care for her in the home around the clock. The cost of that care was considerable (between $8,000 and $9,000 per month). One of Harry Clein’s employees characterized his devotion to his wife this way: “He loved Esther. She was number one in his life. She came first above all else.”

Harry Clein did business with Carolyn Daniell’s family from the time that Ms. Daniell was a child. Over the years, Clein came to know Ms. Daniell and her family on a personal level; he attended Ms. Daniell’s wedding and other family functions. In 1985, when Esther Clein’s health began to decline and she could no longer help with the jewelry business, Clein asked Ms. Daniell if she would work for him on a part-time basis. Ms. Daniell agreed to do so. She worked approximately 25 hours a week for a beginning monthly salary of $500. Ms. Daniell soon learned the ins and outs of the jewelry business and, over time, Clein increased her monthly salary to $2,000.

Clein’s relationship with Ms. Daniell and her family was “close.” Clein’s sons, Warren and Harold, had no interest in running their father’s jewelry business and Clein sometimes expressed the hope that Ms. Daniell would continue the business after he was gone.

Ms. Daniell was more than an employee. From time to time, she looked in on Esther Clein; and she and her husband performed many personal favors for the Cleins. Clein came to know Ms. Daniell’s children. He played with them when they came for visits and took them for walks.

On occasion, Clein referred to Ms. Daniell as his “daughter” and her children as his “grandchildren.” Over the years, Clein made gifts of jewelry to Ms. Daniell and her family. Clein was a warm, loving man; he referred to other friends or employees as his children and he gave gifts of jewelry to other people that he was fond of.

On August 11, 1989, Clein, accompanied by Ms. Daniell, went to the Buckhead Branch of the First National Bank of Atlanta (hereinafter referred to as the “bank”) and opened safety-deposit box no. 107. The box was owned by Clein. However, Ms. Daniell’s name was placed on the access designation card as a “person deputized.” According to Ms. Daniell, Clein said that he was opening the box for her and that, from time to time, he would put things in the box for her and her children.

Ms. Daniell did not look in the box until Clein died and she did not know what it contained. An inventory taken after Clein’s death established that the box contained items that belonged to one of Clein’s customers as well as what Clein would have called “findings,” i.e., gold, silver, odds and ends that Clein used to make jewelry. The estimated value of the “findings” was between $5,000 and $10,000.

On November 8, 1989, Clein went to the bank with Ms. Daniell and opened a joint money market checking account. The signature card signed by Clein and Ms. Daniell provided that the depositors agreed to the terms and conditions set forth in the rules and regulations of the bank. In part, the rules and regulations of the bank provided that upon the death of a joint depositor, the sums on deposit belonged to the surviving depositor to the exclusion of the decedent’s estate or heirs.

According to Wanda Jones, the bank officer who opened the account, Clein said he wanted to put Ms. Daniell’s name on the account so she could conduct his banking for him. Jones had previously opened joint accounts for employers and their employees and she did not give Clein the option of using a power of attorney on an individual account. Jones did not discuss the survivorship feature of the account with Clein.

Clein told Jones he did not want Ms. Daniell’s name on the statement or the checks. Because of the way the bank’s computers were set up, Jones was required to place Ms. Daniell’s name on the statement. However, Jones was able to accommodate Clein with regard to the checks — they were to bear the name “Harry Clein Diamonds.”

The joint account was opened with money from the Cleins’ personal funds totaling $104,439.60. The balance in the account fluctuated between $82,000 and $115,000. It was an interest bearing account and bore Clein’s social security number. Clein paid the taxes that accrued on the interest.

Clein deposited funds from the jewelry business into the joint account until it was time to pay the business’s bills. Then Clein transferred money from the joint account to a business account that did not bear interest.

The business account was also at the Buckhead Branch of the First National Bank of Atlanta. That account bore the name “Harry Clein Jeweler.” On November 8, 1989, the same day he opened the joint account, Clein added Ms. Daniell’s name to the business account as a signatory so she could write checks on his behalf.

One day, Flake Jokel, one of Esther Clein’s nurses, noticed the joint account statement and asked Clein why Ms. Daniell’s name appeared on the account. Clein replied: “I did that in case there was an emergency, or in case I have an illness, or if there was, for some reason, I just didn’t feel like writing checks . . . then Carolyn could do it.”

Ms. Daniell testified that Clein told her the money he placed in the joint account was hers and she could use it whenever she wanted to. She also testified, however, that the money in the joint account was a gift, contingent on the death of Clein. Ms. Daniell did not use the money in the joint account during Clein’s life. On the contrary, the money was used by Clein to pay personal and business expenses.

At the time the joint account was opened, the Cleins had net assets of more than $700,000. Ms. Daniell and her husband were worth approximately $500,000.

Clein died on March 26, 1990. In his will, Clein left his entire estate to his wife, Esther. His sons, Warren and Harold, were named co-executors of his estate.

After his father died, Warren asked Ms. Daniell to continue working and to help him straighten out Clein’s personal and business affairs and she agreed to do so. To that end, Ms. Daniell wrote checks on the joint account to pay Esther Clein’s nurses. Moreover, at Warren’s direction, Ms. Daniell wrote herself a check on the business account to pay her salary for the month of March.

Shortly after Clein’s death, Ms. Daniell found a note, in Clein’s apartment, which had been written and signed by Clein. It read, in part: “3-20-90 Juliana - Jessica - Robert Jordan and Carolyn Daniell Room 305 Esther Warren & Harold The above room & findings my wish . . . she is a very fine lady. . . .”

On April 2, 1990, Ms. Daniell told Warren that she was not going to write any more checks on the joint account. The next day, without telling Warren or Harold, Ms. Daniell went to the bank and withdrew all but $1 from the joint account and all but $1 from the business account. (Because she removed the money from the business account, Ms. Daniell did not present the $2,000 March salary check for payment.) She called Warren on April 5 and told him what she had done.

The bank prevailed upon Ms. Daniell to return the money that she removed from the business account; and the plaintiffs promptly closed that account. However, Ms. Daniell refused to return the money that she removed from the joint account, claiming that she was entitled to that money, the jewelry business, and the contents of the safety-deposit box. Thereafter, Warren and Harold Clein, as co-executors of the estate, brought this suit.

At the conclusion of the trial, the jury rendered a verdict finding that the proceeds of the joint bank account and the contents of the safety-deposit box belonged to the plaintiffs, as co-executors of the estate of Harry Clein; that plaintiffs were entitled to recover attorney fees in the amount of $5,000 and punitive damages in the amount of $1,000; and that Ms. Daniell was entitled to her salary ($2,000) for the month of March 1990. The trial court determined that plaintiffs failed to introduce sufficient evidence to support an award of attorney fees and it granted defendants’ motion for directed verdict (the trial court having previously reserved its ruling on the motion) on the attorney fees issue. Otherwise, the trial court entered judgment in accordance with the jury’s verdict. Defendants appeal, enumerating error upon the general grounds the failure of the trial court to grant their motion for a directed verdict with regard to the proceeds of the joint account and the contents of the safety-deposit box, the court’s instructions to the jury, the award of punitive damages, and the grant of plaintiffs’ motion for summary judgment upon Ms. Daniell’s claim that she was entitled to the jewelry business. Held:

1. The Joint Account. “A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” OCGA § 7-1-812 (a). “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). Whether the evidence is sufficient to establish a “different intent” (OCGA § 7-1-812 (a)) or a “different intention” (OCGA § 7-1-813 (a)) with regard to a joint account is, ordinarily, a question to be decided by the trier of fact. See Godwin v. Johnson, 197 Ga. App. 829, 831 (399 SE2d 581).

In our view, the evidence provided clear and convincing support for the jury’s determination that Clein added Ms. Daniell’s name to the joint account “for convenience rather than to effect a gift of the funds to her. Accord James v. Elder, 186 Ga. App. 810 (368 SE2d 570) (1988); Georgia Savings &c. Co. v. Sims, 332 FSupp. 1306 (N.D. Ga. 1971).” Turner v. Mikell, 195 Ga. App. 766, 767 (395 SE2d 20). Considering the evidence in its entirety, the jury was fully authorized to find that Clein did not intend for the sums in the joint account to belong to Ms. Daniell either before or after he died.

Defendants contend they were entitled to a directed verdict with regard to the joint account because the rules and regulations of the bank expressly provided that upon the death of a joint depositor the sums remaining on deposit would belong to the surviving party. They also contend the trial court erred in failing to charge the jury that under the rules and regulations of the bank, the sums remaining in the joint account belonged to Ms. Daniell to the exclusion of Clein’s estate. We disagree.

The rules and regulations of the bank constituted evidence of Clein’s intention with respect to the sums on deposit at the time of his death, nothing more. The rules and regulations cannot be said to have precluded plaintiffs from demonstrating, by clear and convincing evidence, that Clein had no intention of giving Ms. Daniell the money in the joint account. OCGA § 7-1-813 (a). See White v. White, 253 Ga. 267, 268, 269 (319 SE2d 447), in which funds in joint savings account with right of survivorship were deemed subject to equitable division in spite of contract between parties and savings and loan association. See generally Turner v. Mikell, 195 Ga. App. 766, supra, in which certificates of deposit contained printed language specifying that in the event of the death of one of the depositors, the proceeds would be paid to the survivor. We note, in passing, that the trial court properly charged the jury that it could consider the documents signed at the time the account was opened as evidence of Clein’s intention with regard to the money in the joint account.

Defendants assert the trial court erred in charging the jury that the designation of an account by a depositor as a joint account with right of survivorship was not conclusive as to the depositor’s intent and that no transfer of ownership would be deemed to have taken place if the depositor’s actual intent was to provide for his own convenience “rather than to make a present gift.” See James v. Elder, 186 Ga. App. 810, 811 (368 SE2d 570). In this regard, defendants argue that the words “rather than to make a present gift” did not comport with the evidence and led the jury astray because defendants took the position that Clein intended for Ms. Daniell to have the money in the joint account upon his death, not when he opened the account.

Although Ms. Daniell testified that Clein intended for her to have the money in the account after he died, she also testified that he intended for her to have the money in the account from the moment the account was opened. Thus, the court’s charge comports with that version of the evidence. Moreover, the trial court charged the language of OCGA § 7-1-813 (a) which simply refers to the joint depositor’s intent at the time the account was opened. We find no error in the trial court’s charge. Taken as a whole, it did not improperly stress plaintiffs’ version of the facts. See Christian v. Smith, 78 Ga. App. 603, 607-609 (51 SE2d 857). If defendants wished an elaboration of the charge, they should have presented a request in writing. Progressive Life Ins. Co. v. Archer, 73 Ga. App. 639, 645 (6), 647 (37 SE2d 713).

2. The Safety-Deposit Box. “ ‘To constitute a valid inter vivos gift, ... (1) (t)he donor must intend to give the gift; (2) (t)he donee must accept the gift; and (3) (t)he gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.’ OCGA § 44-5-80. The party seeking to prove title by gift must do so by clear and convincing evidence. McGrew v. Cooper, 110 Ga. App. 347, 350 (3) (138 SE2d 453) (1964).” Parker v. Peavey, 198 Ga. App. 694, 696 (2) (403 SE2d 213).

“ ‘A delivery of property subject to be reclaimed by the donor at any time prior to his death, or where full control or power over the property or fund vests in the donee only after the death of the donor, does not constitute a valid gift inter vivos.’ 20 Cyc. 1211, § 2. . . . ‘To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos.’ Mims v. Ross, 42 Ga. 121 (2).” Drake v. Wayne, 52 Ga. App. 654, 659, 660 (184 SE 339).

“Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.” OCGA § 44-5-82. Whether the donor completely relinquished control of the gift is a question of fact to be resolved by the jury. Williams v. McElroy, 35 Ga. App. 420, 421 (133 SE 297).

Given the facts of this case, the jury was authorized to conclude that Clein did not make an inter vivos gift to Ms. Daniell of the contents of the safety-deposit box. Why? Because Clein retained control of the box. The most that can be said for Ms. Daniell is that she shared control of the box. Ms. Daniell never looked in the box and did not know what was in it. Clein could have removed any of the contents in the box at any time. It cannot be said, therefore, that Clein completely relinquished control of the items he placed in the box. See Clark v. Bridges, 163 Ga. 542, 544-546 (136 SE 444); Williams v. McElroy, 35 Ga. App. 420, supra.

3. Punitive Damages. A breach of fiduciary duties is. sufficient to support an award of punitive damages. Caswell v. Jordan, 184 Ga. App. 755, 760 (7) (362 SE2d 769). Whether punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury; the question on appeal is whether there was any evidence to support the jury’s award. Caswell v. Jordan, supra.

In the case sub judice, the evidence was sufficient to support the jury’s $1,000 punitive damages award. There was evidence enabling the jury to find that Ms. Daniell owed a fiduciary duty to the estate of Harry Clein and that she breached that duty when she removed the funds in the joint account and the business account for purposes of her own.

4. Partial Summary Judgment. In their final enumeration of error, defendants contend the trial court erred in granting plaintiffs’ motion for summary judgment with regard to defendants’ claim to the jewelry business. In this regard, defendants argue that a question of fact exists as to whether Clein orally agreed to leave Ms. Daniell the business when he died.

At the outset, we point out that while defendants were permitted to appeal directly from the order granting plaintiffs’ partial summary judgment motion pursuant to OCGA § 9-11-56 (h), they were not required to do so. Defendants were entitled to wait until the entry of final judgment to appeal from the partial summary judgment ruling. See Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 845 (1) (307 SE2d 732). Cf. Jarallah v. Aetna Cas. &c. Co., 199 Ga. App. 592 (405 SE2d 510). It follows that we have jurisdiction to consider defendants’ final enumeration of error.

In opposition to plaintiffs’ partial summary judgment motion, Ms. Daniell submitted an affidavit in which she deposed that several years prior to his death, Clein agreed that if Ms. Daniell continued to work with him and learn the diamond business, he would leave the business to her at his death; and that pursuant to that agreement she continued to work with Clein and learn the business until he died. Relying upon her affidavit, Ms. Daniell argues that the jury should have been permitted to consider whether she was entitled to the jewelry business.

In Cagle v. Justus, 196 Ga. 826 (28 SE2d 255), the Supreme Court reiterated the following legal principle: “Where a party for a valuable consideration enters into a contract whereby he obligates himself to make a will, a failure during his lifetime to make the will according to the contract gives a right of action to enforce the terms of the contract against his estate.” Plaintiffs have no quarrel with this rule of law. They simply take the position that if Clein made such an agreement, it was not enforceable because it did not satisfy the Statute of Frauds. We agree.

Because the alleged agreement was not to be performed within one year of its making, it had to be in writing and signed by Clein. OCGA § 13-5-30 (5); Alkaril Chemicals v. O’Lenick, 202 Ga. App. 230, 231 (414 SE2d 257). Of course, partial performance can take an oral agreement out from under the Statute of Frauds. OCGA § 13-5-31 (3). “The part performance required by [the Code], however, must be essential to the contract, that is, required by its terms, such that a benefit is conferred upon the employer, with a consequent loss to the employee which renders the court’s refusal to enforce the contract tantamount to a fraud upon the employee. [Cits.] Thus, the part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.” Hudson v. Venture In dus., 243 Ga. 116, 118 (252 SE2d 606).

Decided November 5, 1992 —

Reconsideration denied November 20, 1992

James E. Spence, Jr., for appellants.

James T. Perry, Kenneth H. Schatten, for appellees.

In the case sub judice, Ms. Daniell’s performance was not consistent with the presence of the agreement and inconsistent with the lack of the agreement. Ms. Daniell worked for Clein for several years and was paid handsomely for her work. The law is clear that an employee cannot claim part performance simply because she entered upon employment and served. Slater v. Jackson, 163 Ga. App. 342 (2) (294 SE2d 557); Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 637 (218 SE2d 650). The trial court did not err in granting plaintiffs’ motion for partial summary judgment.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

       This is not to say that a bank cannot rely on such rules and regulations in paying the sums on deposit in a joint account to a surviving depositor. OCGA § 7-1-813 (a) governs the relationship between joint depositors; it does not govern the relationship between a bank and its joint depositors. After all, a bank cannot be expected to know its joint depositors’ intentions with regard to the sums on deposit in a joint account. See generally OCGA § 7-1-820.


source: Caselaw Access Project

license: Public Domain

text:
    A92A2215.
    THE STATE v. MARCUS.
    (425 SE2d 351)
   McMurray, Presiding Judge.

Defendant Marcus is charged by indictment with the offenses of trafficking in cocaine and possession of a firearm during the commission of a crime. A motion to suppress contraband found in a vehicle driven by defendant was denied on August 26, 1988, by Judge William Killian. Subsequently, a bench warrant for the arrest of defendant was issued for his failure to appear at a scheduled court appearance, but defendant was not arrested, and the case was placed on the dead docket on March 25, 1991. Following the arrest of defendant, the case was removed from the dead docket and returned to active status. Upon reinstatement of the case, it was apparently assigned to Judge Blenn Taylor. On June 5, 1992, defendant filed a motion for rehearing or reconsideration of his 1988 motion to suppress. Upon consideration of defendant’s motion, Judge Taylor granted defendant’s motion to suppress and the State appeals this ruling. Held:

1. The State contends that the trial court abused its discretion by granting defendant’s motion for rehearing where the previous judge’s order denying defendant’s motion to suppress was authorized by the evidence presented at the original hearing and where defendant presented neither new evidence nor new law in support of the motion for. rehearing. The trial court may, within its sound discretion, consider anew a suppression motion previously denied. Chastain v. State, 158 Ga. App. 654, 655 (281 SE2d 627). See also Martin v. State, 201 Ga. App. 716, 717 (1) (411 SE2d 910) and Martinez-Rodriguez v. State, 195 Ga. App. 491, 493 (4) (393 SE2d 748). While previous Georgia cases have involved primarily the introduction of additional evidence relevant to the issues raised under a motion to suppress evidence, the holding in Chastain should not be narrowly confined to any particular circumstances. It is clear from the federal authority underlying Chastain, that the goal is to secure the ends of justice, and that to this end the trial court will not err in exploring whether intervening matters, whatever they may be, have cast doubt on previous rulings on the issue of suppression.

Nor did the trial court abuse its discretion in entering factual findings from the written record which were inconsistent with those implicit in the previous ruling on the motion to suppress evidence. Indeed, similar circumstances were examined and approved in United States v. Raddatz, 447 U. S. 667 (100 SC 2406, 65 LE2d 424) which is cited and followed in Chastain.

Relying upon our decision in Cook v. State, 141 Ga. App. 241 (233 SE2d 60), the State contends that the trial court erred in rehearing defendant’s motion to suppress evidence without vacating the previous order denying the motion to suppress evidence. However, we fail to see any manner in which the Cook decision is relevant to the case sub judice. We do not agree that this case presents the “reverse situation” of that found in Cook, and conclude that this contention is without merit. Therefore, we conclude that the trial court did not err in reconsidering defendant’s motion to suppress evidence.

2. The State’s remaining enumeration of error contends that the trial court erred in granting defendant’s motion to suppress evidence. While the State argues that defendant lacked standing to contest the search of the car he was driving, we find this assertion to be without merit. The uncontroverted evidence is that the vehicle had been entrusted to defendant by its owner; he was the sole occupant and driver; and defendant had personalty in the vehicle. State v. Combs, 191 Ga. App. 625 (1) (382 SE2d 691); Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219).

The State’s evidence was that defendant was stopped by State Trooper Bennett, who observed the vehicle driven by defendant to be traveling on the yellow line on the left side of the northbound lane of an interstate highway. The trooper testified that defendant then changed to the right lane without giving a signal and then crossed the white line on the right side of the roadway. Defendant produced a Florida driver’s license upon request and also the vehicle registration. The trooper testified that after he had talked to defendant for a while, he asked defendant “if he minded if I took a look in the trunk of his car and he said that he did not. And he opened the trunk for me.” Under the State’s evidence, the defendant went on to consent to the trooper looking in a suitcase in the trunk and eventually in a box in the suitcase where the contraband was found.

Decided November 5, 1992 —

Reconsideration denied November 20, 1992

W. Glenn Thomas, Jr., District Attorney, Stephen G. Scarlett, Kevin R. Gough, Assistant District Attorneys, for appellant.

Lane & Crowe, Grayson P. Lane, for appellee.

In contrast, the defendant testified that he was not weaving and had not crossed the lines at the sides of the roadway. Defendant also testified that he had not given consent for the search of the trunk of the car, nor the suitcase or box, and that he had opened the trunk only after the trooper had asserted that he had a right to it whether defendant wanted him to or not.

Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. Dean v. State, 250 Ga. 77, 80 (295 SE2d 306). Judge Taylor’s order granting defendant’s motion for summary judgment states that: “All of the factual arguments and citations in the brief of Defendant submitted in this Court are adopted as findings of fact and conclusions of this Court.” When we examine defendant’s brief in support of his motion for rehearing of motion to suppress, we find a statement that: “Trooper Bennett never had any legitimate and unmotivated basis to stop Mr. Marcus.” This statement from defendant’s brief is supported by the evidence at the motion to suppress hearing and the trial court has adopted this assertion, among others from defendant’s brief, as its finding of fact. The finding of fact of the trial court, thus derived, is not clearly erroneous and therefore must be accepted by this court on appeal. Dean v. State, 250 Ga. 77, 80, supra; Martinez-Rodriguez v. State, 195 Ga. App. 491, 493 (4), supra. This finding of fact presents a pretextual stop situation and brings this case squarely under the holding in Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63). Therefore, the trial court’s grant of defendant’s motion to suppress evidence must be affirmed.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A92A0953.
    MOODY v. THE STATE.
    (425 SE2d 397)
   Pope, Judge.

Defendant Gary Mitchell Moody was convicted of two counts of aggravated child molestation. He was originally sentenced to two consecutive ten-year terms but his sentence on the second count was subsequently vacated by the trial court. He appeals to this court following the denial of his motion and amended motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion for new trial on the basis that his trial counsel was ineffective. “ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would. have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.’ (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358, 358-359 (390 SE2d 442) (1990) .” Jacobson v. State, 201 Ga. App. 749, 752 (5) (412 SE2d 859) (1991); Spivey v. State, 193 Ga. App. 127, 130 (3) (386 SE2d 868) (1989).

(a) Defendant argues that counsel was confused about certain rules of evidence and about how to make appropriate objections to challenge the admissibility of the State’s evidence. As to this general contention, our review of the record shows that trial counsel made numerous objections to the State’s evidence at trial and that the trial court sustained many of counsel’s objections and disallowed or struck the inadmissible evidence.

Defendant also argues that trial counsel failed to follow the proper procedure to obtain records prepared by employees of the Department of Family & Children Services. However, the record shows that the parties stipulated to certain evidence contained in those records and that other evidence, which defendant contends was contained in the. files and which defendant contends “could have had some bearing” on the. proceedings, was brought out at trial through the testimony of the witnesses. Likewise, although defendant now complains of counsel’s failure to file a Brady motion, the prosecutor stipulated at the hearing on the motion for new trial that all exculpatory materials were provided to defendant. Thus, defendant has not shown how counsel’s alleged deficiencies pertaining to evidentiary matters resulted in harm or prejudice to his defense.

(b) Defendant also points to the fact that defense counsel engaged in an unnecessary Jackson-Denno hearing. However, the prosecutor, not defendant’s trial counsel, requested the hearing, and it was not until the hearing was under way that it became apparent to both the trial court and defense counsel that the hearing was unnecessary.

(c) Defendant posits that trial counsel’s closing argument was ineffective. However, as the trial court noted, the argument of counsel is not evidence to be considered by the jury; thus it is not surprising that defendant does not support this argument by showing a reasonable probability that the outcome of the trial would have been different if counsel had argued differently to the jury.

(d) Defendant also contends that the record shows many instances where counsel’s cross-examination of certain witnesses was ineffective, or where counsel’s preparation or investigation was inadequate and that adequate preparation and investigation would have led counsel to present certain witnesses or evidence which were not offered at trial. However, as to each instance complained of, the record shows either that counsel’s cross-examination was effective, that evidence favorable to the defendant was presented, or that the decisions counsel made were the result of trial tactics. “The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. [Cits.] The appellate courts of this state are reluctant to reverse a case on the ground of ineffective assistance of counsel whenever the specific complaint urged can reasonably be construed as involving defense counsel’s trial strategy. [Cits.]” (Citation and punctuation omitted.) Ruffin v. State, 201 Ga. App. 792, 795 (2) (412 SE2d 850) (1991).

(e) As a final argument in support of this enumeration, defendant posits that “the most glaring error was counsel’s entire approach to the case.” At the hearing on the motion for new trial, counsel testified that his basic defense strategy was that the State would not be able to prove defendant’s guilt beyond a reasonable doubt. According to defendant, hoping the State will fail is not a sound defense strategy. However, as trial counsel further testified, his strategy was based on his belief that the State’s evidence was scant and conflicting and that some actions he could have taken would have bolstered the State’s case. The trial court also noted that the evidence was “slim” in denying defendant’s motion for a directed verdict. Moreover, the record shows that counsel did not just sit idly by and hope that the State did not prove its case; instead, in addition to the presentation of a host of character witnesses who testified on defendant’s behalf, the record is replete with instances where counsel either discredited the State’s witnesses or brought out testimony favorable to the accused, had evidence stricken or disallowed, and made motions and arguments which, though not always granted by the trial court, resulted in favorable comments from the court on the persuasiveness of counsel’s argument. Indeed as the State notes in its brief to this court, several of the arguments and motions which trial counsel asserted at trial are now the grounds of defendant’s enumerations of error to this court. “In determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight but counsel . . . likely to render and rendering reasonably effective assistance. Richardson v. State, 194 Ga. App. 358 (1) (h) (390 SE2d 442) (1990). A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citations and punctuation omitted.) Penaranda v. State, 203 Ga. App. 740, 745 (417 SE2d 683) (1992).

2. We have examined defendant’s second enumeration of error challenging the trial court’s charge to the jury and find it to be without merit. See Ward v. State, 199 Ga. 203, 209 (1) (33 SE2d 689) (1945).

3. Defendant contends that Dr. Moran, a pediatrician called by the State at trial, was improperly allowed to testify about statements made by the victim concerning acts of molestation by the defendant which were not charged in the indictment. However, “ ‘[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.’ [Cit.] [Cits.]” Garrett v. State, 188 Ga. App. 176 (1) (372 SE2d 506) (1988). We also find no merit to defendant’s argument that Dr. Moran was not properly qualified as an expert in this case, or that he gave testimony outside the scope of his expertise.

4. Defendant also argues the trial court erred in not granting a mistrial after the mother of the victim testified defendant had used cocaine in the past. The record shows trial counsel objected to the testimony and moved for a mistrial at the time the testimony was offered and that the trial court instructed the jury to disregard the testimony and to inform the court if they could not disregard the testimony in reaching a verdict in this case. Moreover, evidence that defendant previously pled guilty to possessing cocaine and hashish with intent to distribute was subsequently introduced at trial, thus rendering any error arising from the trial court’s refusal to grant a mistrial based on the mother’s testimony harmless. See, e.g., Huddleston v. State, 259 Ga. 45, 48 (3) (376 SE2d 683) (1989).

5. Defendant next assigns error to the trial court’s denial of his motion for directed verdict. “ ‘ “(A) motion for directed verdict in a criminal (case) should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” (Cit.) “If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” (Cit.)’ [Cit.]” Williams v. State, 195 Ga. App. 476, 480 (4) (394 SE2d 123) (1990). Although the victim in this case did not testify, testimony was presented pursuant to the Child Hearsay Statute that the victim stated that the defendant had placed his mouth on the victim’s penis, as charged in the indictments for aggravated child molestation. Although defendant questions the weight to be given the child’s statements in light of certain inconsistencies brought out at trial, this “argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury.” Levitt v. State, 201 Ga. App. 63 (1) (410 SE2d 170) (1991). After a careful review of the transcript in this case we conclude the evidence, though not overwhelming, was sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Gorski v. State, 201 Ga. App. 122 (1) (410 SE2d 338) (1991). Consequently, the trial court did not err in denying either the motion for directed verdict or the motion for new trial. Levitt, 201 Ga. App. at (1).

6. We find no merit to defendant’s sixth enumeration of error. Although the defendant contends on appeal that the trial court improperly considered his prior conviction in imposing sentence for his convictions in this case, such objection was not raised at the sentencing hearing and thus need not be considered by this court. “ Tf no objection is made at the pre-sentence hearing, a subsequent review by this court of that phase is eliminated.’ [Cits.]” Moss v. State, 159 Ga. App. 317, 319 (283 SE2d 275) (1981). Moreover, in this case the court specifically noted that the State was not offering evidence of defendant’s prior criminal record in aggravation at the hearing, inasmuch as evidence of defendant’s guilty plea to drug charges was introduced into evidence at trial. This court has previously held that the provisions of OCGA § 17-10-2, requiring notice to be given to the defendant prior to the admission of evidence in aggravation at the pre-sentence hearing, do not apply when the evidence has been brought out without objection at trial. Moss, 159 Ga. App. at 319; Mitchell v. State, 136 Ga. App. 390, 392 (4) (221 SE2d 465) (1975).

7. Contrary to defendant’s final enumeration of error, the court did not err in either the application or the use of the Child Hearsay Statute. See, e.g., In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989); Ortiz v. State, 188 Ga. App. 532, 535 (3) (374 SE2d 92) (1988); see also Hunnicutt v. State, 198 Ga. App. 572, 573 (1) (402 SE2d 534) (1991). Likewise, defendant’s constitutional challenges to the statute are without merit, inasmuch as our Supreme Court previously has decided that this statute is not constitutionally deficient. Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987), cert. denied, 484 U. S. 1069 (108 SC 1036, 98 LE2d 999) (1988); Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

Decided November 20, 1992.

Ballard, Slade & Ballard, H. Geoffrey Slade, for appellant.

W. Fletcher Sams, District Attorney, W. Hawley Stevens, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1432.
    A92A1433.
    MATHIS et al. v. MELAVER, INC. MATHIS et al. v. MF PROPERTIES, INC.
    (425 SE2d 401)
   Birdsong, Presiding Judge.

Anthony D. and Susan Mathis were granted interlocutory appeals from the trial court’s orders denying their motions to enforce consent judgments in these actions. The Mathises bought two video stores from John and Virginia Ward and received assignments of the Wards’ leases for the stores with Melaver, Inc., and MF Properties, Inc. (appellees), the lessors.

After operating the video stores for some time, the Mathises abandoned the premises, and appellees sued Mr. and Mrs. Mathis and Mr. and Mrs. Ward for breach of each lease. The complaint alleged that the Mathises and the Wards were jointly and severally liable on both leases, and each complaint sought past due rent, late fees, charges and accrued interest as of the filing of the complaint, unpaid rentals and additional charges accruing after the filing of the complaints, interest, and attorney fees.

Subsequently, appellees reached negotiated consent judgments and orders with the Mathises in both cases. Each consent judgment and order identified only the Mathises as the “defendants” and neither document referred to the Wards. Further, after specifying the full amount of the judgments awarded, each consent judgment and order provided: “Defendants shall satisfy this judgment in full by paying [a certain sum in three equal payments on or before dates specified].” The consent judgment and order in the MF Properties’ complaint, after stating the dates on which payment was to be made, also stated: “respectively, pursuant to the consent judgment and order taken contemporaneously herewith in the [Melaver complaint].” Each consent judgment and order also stated that the appellees “shall not institute any action to foreclose or to collect [either] judgment so long as defendants comply with the foregoing payment schedule. Time being of the essence, if defendants are delinquent in making any of the above scheduled payments, the entire amount of [both] judgment^], i.e. [the full amount awarded] shall at once become due and payable.”

Although there is no dispute that the Mathises made full and timely payments in accordance with both consent judgments and orders, appellees subsequently attempted to collect from the Wards the difference between the compromised amount paid by the Mathises in satisfaction of the consent judgments and orders and the total amount awarded in the consent judgments and orders. When the Wards filed a cross-claim against the Mathises under a hold harmless agreement between them in the contract for purchasing the video stores, the Mathises moved to enforce the consent judgments and orders so that appellees would be required to cease their efforts against the Wards. The trial court, however, denied the motions because it found that the consent judgments and orders were only between the Mathises and appellees, and thus would not prohibit an action by appellees against the Wards. After our grant of an interlocutory appeal, this appeal followed. Held:

The issue here is whether appellees can be awarded, by agreement, the full amount of a judgment against co-defendants, compromise the award with one set of co-defendants, and yet attempt to collect the difference between the compromise amount and the full amount of the judgment from the other co-defendants. We hold they cannot. Appellees are not authorized to receive a double recovery for the same injury from the Mathises and the Wards. See Olden Camera &c. Co. v. White, 179 Ga. App. 728, 729 (347 SE2d 696). Although appellees are allowed to seek a judgment against the co-defendants (OCGA § 9-2-4), they cannot do so when the result would be to allow them to collect twice for the same breach of the lease. Here, appellees agreed to satisfy the full amount of their judgments for the breach of these leases by accepting a compromise amount from the Mathises. Therefore, the issue is not whether the Wards are parties to the agreements, but whether appellees are entitled to recover from the Wards for an award they already compromised with the Mathises. We hold that they are not allowed to seek recovery for the same damages from the Wards. McLendon Bros. v. Finch, 2 Ga. App. 421, 428 (58 SE 690). Therefore, we find that the consent judgment operated to release the Wards from any liability. OCGA § 13-4-80; J & S Properties v. Sterling, 192 Ga. App. 181, 183-184 (384 SE2d 194).

Appellees’ reliance on authorities construing releases in tort cases after our Supreme Court’s decision in Posey v. Medical Center-West, 257 Ga. 55 (354 SE2d 417) is misplaced for the reasons stated in Justice Benham’s special concurrence in J & S Properties v. Sterling, supra at 183-184. Further, neither Payne v. Jones & Kolb, 190 Ga. App. 62 (378 SE2d 467), Georgia R. Bank &c. Co. v. Griffith, 176 Ga. App. 198, 199 (335 SE2d 417), nor the other cases in which the parties specifically stated the consent judgments or releases were not to apply to all the parties in litigation are persuasive. For example, in Payne v. Jones & Kolb, supra at 63, the release provided it could not be used to release the other party of the claims against him. Moreover, Payne v. Jones & Kolb, supra at 63-64 quoting Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) acknowledged the circumstances in which appellees find themselves: “ ‘The second defendant may be able to prove full satisfaction ... by the first defendant, but that is a question of fact that cannot be resolved unless the evidence submitted clearly and unequivocally shows full satisfaction by the first defendant.’ ” Here, the evidence clearly and unequivocally shows full satisfaction by the Mathises because the consent judgment, prepared by appellees, recites that the Mathises “could satisfy the judgment in full” by paying the sum specified in the consent judgment in accordance with its terms, and appellees admit that the Mathises made the payments as required.

Decided November 20, 1992.

Ronald J. Doeve, for appellants.

Buchsbaum & Lowe, Alan S. Lowe, Charles D. Gatch, for appellees.

Accordingly, the trial court’s judgment denying enforcement of the consent decrees must be reversed and these appeals remanded to the trial court with direction that the motions to enforce the consent decrees be granted and the actions against the Wards dismissed.

Judgments reversed with direction.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Although I do not agree that the lessor is attempting to recover twice, but rather only the full amount of the amount generated by breach of the lease, I do agree that the consent judgment against the two original lessees released the two assignment lessees from liability, as a matter of law. OCGA § 13-4-80; J & S Properties v. Sterling, 192 Ga. App. 181 (384 SE2d 194) (1989). By the terms of the judgment, it is not merely a covenant not to sue.


author: Birdsong, Presiding Judge.

text:
    A92A1503.
    BRADY v. CITY OF LAWRENCEVILLE.
    (425 SE2d 404)
   Birdsong, Presiding Judge.

Richard Joseph Brady appeals from his conviction in municipal court for driving under the influence of alcohol, pursuant to OCGA § 40-6-391 (a) (4). He challenges the denial of his motion to suppress the State’s intoximeter results for failure of the police to afford him an opportunity to have an independent chemical test performed. Appellant contends that in light of the police officer’s refusal to afford him an independent test, the State’s evidence showing his blood alcohol content was .13 grams percent should be suppressed; this being the only evidence of intoxication, he contends he was entitled to a directed verdict of acquittal. Held:

After appellant’s arrest, an intoximeter test was performed at the police station. Appellant asked to have an independent test and agreed to have it done at Gwinnett Medical Center. Appellant was concerned that he did not have enough money to pay for the test. The State concedes that at the jail appellant asked to be allowed to call his father to meet him at the hospital, and that the officer refused this request and told appellant “we would take care of that when we got to the hospital.”

Appellant testified it would have taken his father 20 minutes to travel from his home to the hospital. Officer Smith testified it takes 15-20 minutes to get from the jail to the hospital, and en route he stopped at a Hardee’s restaurant, which took about 10 minutes. When appellant and Smith arrived at the hospital, appellant’s father was called. Appellant’s father testified that he first told the officer he could be at the hospital in 30-45 minutes, and when the officer said, “that’s too long,” appellant’s father said, “I will be there in 20 minutes”; but the officer gave him no opportunity to come to the hospital. However, Officer Smith testified the father said it would take him 45 minutes to an hour to get to the hospital, and because of this lengthy delay, the officer declined to wait. On the way back to jail, appellant asked to be taken to another hospital for a test. Smith declined that request as being unreasonable.

Officer Smith testified that “the policy is to let people in custody make phone calls from [the hospital] rather than make them from the county jail,” but that he could have allowed appellant to call from the jail. Smith testified that there was a “normal” police workload that night and that while he was at the hospital with appellant he was not called to assist in any calls.

According to OCGA § 40-6-392 (a) (3), appellant was entitled to have an independent test performed, but “[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.” (Emphasis supplied.) The evidence in this case, construed favorably to the State, shows that appellant asked to be allowed to make timely arrangements to pay for the test at the hospital, but he was not allowed to do so. Under the officer’s testimony, if appellant had called his father from the jail, the officer and appellant would have arrived at the hospital no more than 15-30 minutes before appellant’s father. No justification is given for the refusal to let appellant call from the jail, except that it is “policy”; however, such “policy” necessarily would require the officer to await the arrival of whomever was called from the hospital, unless he intended to deprive the accused of any opportunity to have an independent test. As for the officer’s refusal to wait, no justifiable reason is given; the State’s position seems to be that no reason need be given and that it is in police discretion whether to wait 30 seconds or 30 minutes for the accused’s arrangements to succeed. If this is the case, the officer would be under no duty to allow the accused to arrange an independent test. This position cannot be sustained. “[T]here is a . . . duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise [his] right [to have an independent test performed]. [Cit.] While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.]” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548).

OCGA § 40-6-392 (a) (3) provides that the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence of the test given by police. Id. As to whether such failure is justifiable, the trial court may consider several factors including whether there is “a protracted delay in the giving of the test if the officer complies with the accused’s requests,” and whether the accused has an opportunity and ability “to make arrangements personally for the testing.” Id. at 802. As in Buffington, “there was nothing to show that the officer was pressed for time or had other matters that needed his immediate attention. Looking to the totality of the circumstances, appellee’s request was reasonable and the officer’s response was not.” Id. at 802. Having forced appellant to delay making the call until they reached the hospital, the officer’s refusal then to wait 15-30 minutes is, in the totality of the circumstances, unjustifiable. This is not in compliance with the duty imposed by OCGA § 40-6-392 (a) (3). Buffington, supra; O’Dell v. State, 200 Ga. App. 655, 657 (409 SE2d 54).

The evidence of the State’s test should have been suppressed. There being no admissible evidence that appellant had a blood alcohol content of .10 grams percent in violation of the Code section under which he was prosecuted, the trial court erred in denying his motion for directed verdict of acquittal.

Decided November 20, 1992.

Davis & Sissel, Warren P. Davis, for appellant.

Russell T. Bryant, for appellee.

Judgment reversed.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A92A1528.
    RUSSELL v. KDA, INC.
    (425 SE2d 406)
   Andrews, Judge.

Russell brought this action seeking salary and commissions he claims due under 1988 and 1989 employment contracts he entered with KDA. The action also sought an award of attorney fees and punitive damages. Russell appeals from the order of the trial court granting summary judgment in favor of KDA.

KDA operates a consulting business which provides architectural, design and construction management services. Russell was employed by KDA as a sales representative to sell these services to various clients interested in undertaking construction projects. Generally, the sales process initially involved agreements to conduct feasibility studies, and making recommendations and cost estimates. The goal was to convince a client to enter into a project development agreement, and ultimately to commence construction on a project managed by KDA.

1. Under the 1989 contract, Russell claims KDA breached an agreement to pay him a $50,000 annual salary during the fiscal year running from October 1, 1989 to September 30, 1990. After Russell entered into the 1989 contract, KDA terminated his employment on or about January 22, 1990. KDA claims that Russell’s employment under the 1989 contract was for an undefined period, and was terminable at will by either party. Russell contends the contract employed him for the term of the fiscal year, and KDA owes him the remainder of his annual salary due from the date of his termination through September 30, 1990.

“An employment contract containing no definite term of employment is terminable at the will of either party, and will not support a cause of action against the employer for wrongful termination.” Burton v. Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137) (1991). The 1989 contract does not contain a term of employment. Rather, it specifically provides for base salary compensation on a bi-weekly basis during the current fiscal year. The parties agreed that the biweekly compensation would be based on an annual rate of $50,000. Neither the reference to the fiscal year, nor the agreed upon annual rate of compensation establishes a one-year term of employment. Burton, supra at 11; Fortenberry v. Haverty Furniture Cos., 176 Ga. App. 360, 361 (335 SE2d 460) (1985). Whether this raises the presumption of employment for a two-week term was not raised by appellant and was not an issue before us. Id. at 361. The trial court properly granted summary judgment to KDA on Russell’s claim for salary due under the 1989 contract.

2. Under the 1988 contract, Russell claims he is owed in excess of $195,000 in commissions for project development agreements entered into by various clients, and in excess of $4,000 in commissions for initial agreements and studies. The 1988 agreement provided a plan of compensation for the fiscal year 1988-1989, and included a base biweekly salary, and commissions. As in the case of the 1989 contract, the 1988 contract contained no term of employment.

As to commissions, the contract provided: “Initial agreements and studies will earn the sales representative a commission of fifteen percent (15%) of the fee. The commission will be paid fifty percent (50%) at the time the agreement is accepted by the company, and fifty percent (50%) at the time the agreement is converted to a Project Development Agreement. If the agreement is not converted to a Project Development Agreement, the remaining fifty percent (50%) of the commission is forfeited . . . Project Development Agreements will earn the sales representative a commission of one percent (1%) of the total construction amount of the contract including interior work. Project Development Agreement commissions will be paid to sales representatives and account representatives in increments at the first of the month following the actions described below: a. Fifty percent (50%) of earned commissions will be paid at the start of construction, b. The remaining fifty percent (50%) of earned commissions will be paid monthly over the estimated construction period commencing on the first month after the payment described in (a) above. Termination: No commissions will be due or payable upon termination of employee.”

Russell’s main contention is that he is entitled to commissions he earned under the 1988 contract which have or will become payable subsequent to his termination from employment in January 1990. KDA contends that, even though Russell may have eventually been entitled to such commissions had he remained employed at KDA, he is not now entitled to them because the employment contract provides: “No commissions will be due or payable upon termination of employee.” It is undisputed that, while employed by KDA, Russell procured certain initial agreements, studies, and project development agreements on behalf of KDA. The contract provides in some instances that Russell earned an immediately payable commission. In other cases, he earned the right to receive the commission only if certain other events occurred. Under the contract, if these other events occurred while Russell was employed by KDA, he was entitled to the commission, but if they occurred after be was terminated, no commission was payable. KDA contends this provision was necessary and equitable because its business involves a continuing sales process with each client. When a sales representative leaves KDA, the clients who have not yet committed to a project must be re-assigned to another representative, whose efforts may eventually bring the potential project to the construction stage.

Nevertheless, the contract makes clear that, as a result of his efforts while employed at KDA, Russell earned commissions payable upon the occurrence of certain future events. To hold that Russell is not entitled to commissions earned while he was employed, but becoming payable after his termination, would require that we find the employment contract contains a lawful forfeiture provision. “While forfeitures are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence; but where a contract in unmistakable terms provides for a forfeiture and is otherwise free from legal infirmity, neither a court of law nor a court of equity will relieve against the forfeiture.” Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (8) (44 SE 320) (1903); See A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767-768 (386 SE2d 151) (1989). The trial court concluded that upon Russell’s termination, no commissions were due or payable. We agree that the provision in the contract providing that “[n]o commissions will be due or payable upon termination of employee,” is unambiguous. It provides for a forfeiture of the commissions in clear and unmistakable terms. Compare Burritt v. Media Marketing Svcs., 204 Ga. App. 848-850 (420 SE2d 792) (1992); McKissick v. Roth Communications, 203 Ga. App. 747 (417 SE2d 696) (1992). Accordingly, the trial court did not err to the extent it granted summary judgment to KDA on all commissions becoming payable after Russell was terminated.

3. Construing the record in favor of Russell, as the summary judgment respondent, we find no genuine issue of fact as to any claim by Russell that he was not paid commissions on project development agreements due and payable during his employment with KDA. No such commissions were payable under the contract until construction was started on the projects. KDA’s affidavit in support of summary judgment is uncontradicted in establishing that, during Russell’s term of employment, no construction was started on any project development agreements at issue procured by Russell. Summary judgment in favor of KDA was properly granted on this issue.

4. Russell’s affidavit in opposition to summary judgment creates genuine issues of fact as to whether Russell received full payment of all commissions due and payable on initial agreements and studies while he was employed by KDA. To this extent the trial court erred in granting summary judgment against Russell. KDA’s claim of set-off against these commissions is not a defense, but a claim for affirmative relief, and may be pursued in its pending counterclaim upon remittitur of the appeal. Coxwell Tractor &c. v. Burgess, 192 Ga. App. 663, 664 (385 SE2d 753) (1989).

Decided November 20, 1992.

Barry Staples, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Jill D. Levy, for appellee.

5. The record reflects that claims in Russell’s complaint for unreimbursed expenses and unused vacation time were satisfied. As to Russell’s claims for attorney fees and punitive damages, appellant has not supported these claims in the brief by citation of authority or argument, and they are deemed abandoned. Rule 15 (c) (2). Accordingly, summary judgment was properly granted as to these matters.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Beasley, J., concur.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A1569.
    DARDEN v. THE STATE.
    (425 SE2d 409)
   Andrews, Judge.

Darden appeals his conviction of statutory rape and incest, alleged to have occurred June 30 and September 15, 1990.

Viewed in favor of the verdict, the evidence was that the victim, Sheryl, the natural daughter of defendant, was examined by a doctor in September 1990 and determined to be “post-pubertal and non-virginal.” She was 13 years old at that time. She told the doctor she was there because her father had raped her. Based on his exam, the doctor concluded that she had been penetrated and that her vagina was enlarged, indicating sexual activity.

At the trial the doctor testified, followed by the GBI investigator and a neighbor. All three repeated the statements made to them by the victim pursuant to OCGA § 24-3-16, the Child Hearsay Statute. Then Sheryl testified, followed by the DFACS worker who also testified as to Sheryl’s statements concerning abuse.

1. The first enumeration claims error in the court’s “admitting the victim’s hearsay statements” concerning the rape and incest.

During the trial, the only objections made were as to the testimony of the doctor and the DFACS worker and related to hearsay and the issue of the child’s age. These are all that will be considered here. First, Darden contended that, pursuant to Vargas v. State, 184 Ga. App. 650 (2) (362 SE2d 461) (1987), since Sheryl was over the age of 14 at the time of trial, although under that age at the time of making the statements, OCGA § 24-3-16 would not apply. Vargas, being concurred in fully by only one judge, is not binding precedent. Rule 35 (b). Further, it does not stand for that proposition. The clear wording of the statute indicates that the age of the child at the time the statements were made is determinative of their admissibility under the statute. See Jackson v. State, 202 Ga. App. 711, 712 (1) (415 SE2d 695) (1992).

Secondly, the statements were admissible under the rationale of Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), in any event. Jackson, supra.

2. Prior to trial, the State served its notice pursuant to USCR 31.3 regarding its intent to introduce evidence of like acts. The required hearing was held and the State indicated its intent to prove “acts of fondling the sexual parts and person of . . . Sharon Jackson, and other acts of molestation ... in 1986 and 1987. . . .” Ms. Jackson was the half-sister of the victim in this case, although not the daughter of Darden.

At trial, Ms. Jackson, who was 13 at the time of the acts, testified that Darden had, in fact, had intercourse with her. Darden moved for a mistrial, contending that notice of fondling was not sufficient to include notice of sexual intercourse.

The State did not become aware of the sexual intercourse until immediately before Ms. Jackson testified at the trial, because she had been afraid to tell. Therefore, the notice given was all the State knew and was sufficient. See Perry v. State, 201 Ga. App. 1, 2 (3) (410 SE2d 297) (1991).

Additionally, the phrase “other acts of molestation” surely covers the act of sexual intercourse.

3. The court granted the State’s motion in limine precluding introduction by the defense of evidence of sexual relations between the victim and one Derrick Jones. Darden contends that this evidence was admissible under the rationale of Hall v. State, 196 Ga. App. 523 (396 SE2d 271) (1990).

Hall, however, involved evidence other than the charged child abuse which might explain the child abuse syndrome, part of the State’s evidence. In this case, however, there was no evidence of that syndrome and the chastity or non-chastity of the victim of statutory rape or incest is not relevant. Worth v. State, 183 Ga. App. 68, 72 (4) (358 SE2d 251) (1987).

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Decided November 20, 1992.

Rogers & McCranie, Clauye C. McCranie, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2 and 3. I concur in Division 1 on the basis of Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). As to whether hearsay evidence concerning the statements of a person who is age 14 or over at the time of trial is admissible under OCGA § 24-3-16,1 am not prepared to say. As pointed out by the majority, Vargas v. State, 184 Ga. App. 650 (2) (362 SE2d 461) (1987), is not precedential in this regard. Moreover, the case it cites, as being in accord with a ruling that it is applicable in such circumstances, does not address the issue. Williams v. State, 180 Ga. App. 562 (1) (349 SE2d 797) (1986), merely quotes the statute and points out that it will cover other cases, tried after its effective date. The victims in Williams were 13 at the time they made the statements but their age at the time of trial is not shown.

Whether the Legislature’s purpose of protecting young children from the trauma of trial was intended by it to reach witnesses age 14 or over has not been settled and need not be reached in this case. The question is whether the reference to “the child,” in the context of “if the child is available to testify in the proceedings,” means the child who is still under the age of 14; or any person, regardless of age, who at the time of the statement was under the age of 14 years; or any person who is still legally a child at the time of trial but is 14 years of age or older.


text:
    A92A1747.
    MACK v. THE STATE.
    (425 SE2d 671)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty on five counts for aggravated assault (Counts 1, 3, 5, 7 and 9), three counts for possession of a knife during the commission of a crime (Counts 2, 6 and 8), and two counts for possession of a firearm during the commission of a crime (Counts 4 and 10). This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to instruct the jury that they must cease deliberations if they find him not guilty by reason of insanity and not consider the issue of guilty but mentally ill.

“The Supreme Court in Keener [v. State, 254 Ga. 699, 702 (2) (334 SE2d 175)], . . . held that when the trial court charges the jury on the defense of insanity and on guilty but mentally ill at the time of the crime, ‘the trial court must make clear to the jury in its charge that if they find the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), they must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. That is to say, if the jury finds the defendant not guilty by reason of insanity, their deliberations must cease, and the jury should not thereafter consider whether the defendant was guilty but mentally ill. (Emphasis supplied.)” Price v. State, 179 Ga. App. 598, 601 (1) (347 SE2d 608).

In the case sub judice, the trial court failed to instruct the jury in accordance with the Supreme Court’s holding in Keener v. State, 254 Ga. 699, 702 (2), supra. However, we find no harmful error as the jury’s verdict reveals no compromise. The jury rejected options of not guilty, not guilty by reason of insanity, and guilty but mentally ill on a special verdict form and chose options which reflect their finding that defendant is guilty, beyond a reasonable doubt, on all counts of the indictment. Compare Price v. State, 179 Ga. App. 598, 601 (1), supra.

2. Defendant contends the trial court erred in failing to instruct the jury on the issue of guilty but mentally retarded, arguing that OCGA § 17-7-131 (c) requires such an instruction when a defense of mentally incompetent is asserted.

“In all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or otherwise mentally incompetent under the law at the time the act or acts charged against him were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of ‘guilty’ and ‘not guilty,’ the additional verdicts of ‘not guilty by reason of insanity at the time of the crime,’ ‘guilty but mentally ill at the time of the crime,’ and ‘guilty but mentally retarded.’ ” OCGA § 17-7-131 (c).

In the case sub judice, defendant’s primary defense was that he was mentally incompetent at the time of the crime. Further, there was expert testimony indicating that defendant is mentally retarded. Nonetheless, the trial court failed to instruct the jury that they may consider, in addition to verdicts of guilty, not guilty, not guilty by reason of insanity, and guilty but mentally ill, the additional verdict of guilty but mentally retarded. In fact, the option of guilty but mentally retarded was not included on the special verdict form provided to the jury. The special verdict form provided only the options of guilty beyond a reasonable doubt, not guilty, not guilty by reason of insanity, and guilty beyond a reasonable doubt but mentally ill. Under these circumstances, we must reverse for a new trial. See Spraggins v. State, 258 Ga. 32 (364 SE2d 861), where the Supreme Court reversed for a new trial, holding that evidence of mental retardation entitles a defendant to jury instructions on the possible verdict of guilty but mentally ill. Compare Fleming v. Zant, 259 Ga. 687 (386 SE2d 339), and Zant v. Foster, 261 Ga. 450 (406 SE2d 74).

Decided November 20, 1992.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Elise B. Gray, Assistant District Attorney, for appellee.

3. Defendant asserts ineffective assistance of counsel in his second enumeration. It is unnecessary to address this contention in light of the holding in Division 2 of this opinion.

4. Defendant contends the trial court’s instruction on guilty but mentally ill impermissibly shifted the burden of proof, requiring him to prove, by a preponderance of the evidence, that he was mentally ill at the time of the crimes charged. This contention is without merit for the reasons stated in Mitchell v. State, 187 Ga. App. 40, 45 (7) (369 SE2d 487).

5. Defendant’s final enumeration does not assert error which is likely to occur upon retrial.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A2437.
    LAWRENCE v. THE STATE.
    (425 SE2d 411)
   McMurray, Presiding Judge.

Defendant was convicted of possession of cocaine with intent to distribute and sentenced to life in prison. Following the denial of his motion for a new trial, defendant appealed. Held:

1. The trial court instructed the jury that “there is no requirement under the law that the State either allege or prove that the defendant had an intent to distribute cocaine.” In Jackson v. State, 205 Ga. App. 513 (422 SE2d 673) (1992), this Court considered the very same charge and held: “This statement of the law was incorrect, for the State must prove the essential element of specific intent to distribute in order to establish a charge of possession of a controlled substance with intent to distribute. Talley v. State, 200 Ga. App. 442, 446 (408 SE2d 463) (1991). Although the court did give the jury a general instruction as to how criminal intent may be shown, we find the charge as a whole did not clearly remove the confusion created by the challenged charge so as to indicate to the jury that the State was required to prove the essential element of intent, and accordingly the court’s failure to instruct correctly on this essential element was reversible error.” In light of our ruling in Jackson v. State, 205 Ga. App. 513, supra, we reverse defendant’s conviction.

Decided November 20, 1992.

Toni M. Rodgers, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

2. The trial court did not err in refusing to require the State to reveal the identity of the confidential informant inasmuch as he was not a participant in, or a witness to, the possession of cocaine with intent to distribute charge that was brought against defendant at the time of his arrest. Johnson v. State, 164 Ga. App. 501, 504 (4) (297 SE2d 38).

3. We need not address the remaining enumerations of error because they are unlikely to occur upon retrial.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0796.
    CIRCLE APPLIANCE LEASING, INC. v. APPLIANCE WAREHOUSE, INC.
    (425 SE2d 339)
   Pope, Judge.

Defendant Appliance Warehouse, Inc. (“AWI”) operates an appliance leasing business in Atlanta. On April 1, 1989, AWI entered into a written contract entitled “Consulting Agreement” with plaintiff Circle Appliance Leasing, Inc. (“Circle”). Circle is a Texas corporation which operates an appliance leasing business in Dallas. Pursuant to the terms of the consulting agreement, Circle agreed to provide certain consulting services to AWI, including training of employees, a computer software system designed specifically for the appliance leasing business and a $50,000 guaranty of indebtedness to suppliers. In consideration for these services, AWI agreed to pay Circle $25,000 upon the execution of the agreement and certain percentages of gross sales over the life of the agreement. A separate paragraph of the agreement also provided that in consideration of the consultation services to be furnished by Circle, AWI agreed not to compete with Circle in the appliance leasing business anywhere within the continental United States. In consideration for AWI’s promise not to compete, Circle agreed not to compete with AWI in the Atlanta metropolitan area.

At some point, AWI ceased making payments to Circle pursuant to the terms of the agreement and Circle filed a complaint against AWI for breach of contract. AWI’s answer to the complaint included, inter alia, the defense that the complaint is barred by illegality. The trial court granted AWI’s motion for summary judgment on the complaint, finding the non-competition provisions of the agreement are not severable from the remaining portions of the agreement and that the agreement is unenforceable. Circle appeals, admitting the non-competition provisions of the agreement are unenforceable but arguing that they are severable from the remaining provisions and that AWI’s promise to pay Circle for consulting services is enforceable. We agree.

1. Pursuant to OCGA § 13-3-45, “If the consideration is illegal in whole or in part, the whole promise fails.” Relying upon this Code section, AWI argues that the entire contract between the parties is unenforceable because the non-compete promise is illegal. This argument confuses the unenforceability of a “whole promise” with the unenforceability of an entire contract and ignores the statutory policy of this state to sever, when possible, the unenforceable provisions of a contract from those provisions which are enforceable.

Pursuant to OCGA § 13-8-1, “A contract to do an immoral or illegal thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal.” Whether a contract is severable “is determined by the intention of the parties.” OCGA § 13-1-8 (b). The written agreement at issue in this case contains a severability clause specifically providing that if any clause or provision of the agreement is adjudged to be invalid or unenforceable, that clause shall be severable and shall not invalidate the remainder of the agreement. Such language is a clear and enforceable expression of the intent of the parties to render the contract severable. See O. H. Carter Co. v. Buckner, 160 Ga. App. 627 (287 SE2d 636) (1981). We reject AWI’s argument that the nonseverability of the promise not to compete is proved by deposition testimony in which Circle’s officers admitted that the consideration for their promise to render consulting services consisted not only of monetary payments but AWI’s promise not to compete. This testimony is perfectly consistent with the non-compete clause of the written agreement, which clearly states that the promise not to compete is consideration, along with the payments, for the consulting services. Neither the non-compete clause nor the testimony alters, however, the effect of the severability clause of the agreement. Thus, the trial court erred in concluding the non-compete clause is not severable from the remainder of the agreement.

2. It follows that the remaining provisions of the agreement, including AWI’s promise to pay Circle certain percentages of gross sales, is enforceable. “If the consideration supporting a promise is illegal in whole or in part, the whole promise fails. See OCGA § 13-3-45; Hanley v. Savannah Bank &c. Co., 208 Ga. 585 (68 SE2d 581) (1952). It does not follow from this, however, that the invalidity of a single illegal promise necessarily results in the unenforceability of an entire contract. ... [A] contract may include a promise to do more than one thing. Thus, the illegality of a single promise is not necessarily synonymous with the illegality of the entire contract. Accordingly, the resulting rule is that, if a contract is otherwise based on sufficient legal consideration and also contains multiple promises which ‘are divisible in containing a lawful agreement. . . coupled with a separable (unlawful) promise . . . , any unenforceability of the latter will not affect the validity of the former agreement. (Cits.)’ Roberts v. H. C. Whitmer Co., 46 Ga. App. 839 (1) (169 SE 385) (1933).” Starr v. Robinson, 181 Ga. App. 9, 10 (351 SE2d 238) (1986). See also National Consultants v. Burt, 186 Ga. App. 27 (3) (366 SE2d 344) (1988); Jones v. Clark, 147 Ga. App. 657 (249 SE2d 619) (1978); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 649 (152 SE2d 579) (1966).

Decided November 4, 1992 —

Reconsideration denied November 23, 1992

Ford & Harrison, F. Carlton King, Jr., for appellant.

Kidd & Vaughan, Charles M. Kidd, Gwenn D. Holland, David N. Schaeffer, for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A1025.
    DUNCAN v. THE STATE.
    (425 SE2d 307)
   Cooper, Judge.

This is the third appearance of this case before this court. Appellant was arrested for driving under the influence and improper lane usage in May 1986, and was tried, convicted and sentenced in the Recorder’s Court of Gwinnett County in March 1987. On appeal this court reversed appellant’s conviction, holding that the Recorder’s Court of Gwinnett County was without jurisdiction because the alleged offenses involved violations of state laws rather than local ordinances. Duncan v. State, 185 Ga. App. 854 (1) (366 SE2d 154) (1988) ('“Duncan 7”). In September 1988, appellant was charged by accusation in the State Court of Gwinnett County with driving under the influence, improper lane usage and simple battery, all of which were based on the same May 1986 occurrence. After the state court denied appellant’s plea in bar she again appealed, this time contending that the state court accusation was filed more than two years after the alleged offenses in violation of the two-year statute of limitation for misdemeanors contained in OCGA § 17-3-1 (d). Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989) (“Duncan 77”). This court reversed as to the simple battery charge only, holding that OCGA § 17-3-1 barred prosecution under the state court accusation but that the traffic offenses could be prosecuted under the uniform traffic citation appellant received at the time of her arrest. After Duncan II, appellant challenged her prosecution on the remaining DUI and improper lane usage counts with another plea in bar, contending that re-prosecution on these charges would constitute double jeopardy and violate her right to a speedy trial. It is from the denial of this plea at bar that appellant now appeals.

1. Appellant argues that since she has already been tried and convicted on the DUI and improper lane usage offenses, she cannot be tried for these same offenses again. An accused cannot be re-prosecuted for the same crime based upon the same material facts. OCGA § 16-1-8. Where the first conviction was before a court which lacked jurisdiction, however, the prohibition on reprosecution does not apply. OCGA § 16-1-8 (d) (1). Although this court subsequently concluded we exceeded our jurisdiction in deciding Duncan I, see Kolker v. State, 193 Ga. App. 306 (387 SE2d 597) (1989), and the Supreme Court subsequently held the Recorder’s Court of Gwinnett County does have jurisdiction over state misdemeanor traffic offenses, see Wojcik v. State, 260 Ga. 260 (392 SE2d 525) (1990), our decision in Duncan I, that the Recorder’s Court which originally tried appellant on these charges lacked jurisdiction to do so, remains the law of the case. Duncan II, supra at 793. Moreover, reprosecution is not prohibited where, as here, the first conviction was reversed in subsequent proceedings on grounds other than the insufficiency of the evidence and without adjudging the accused not guilty. See OCGA § 16-1-8 (d) (2). Accordingly, the general rule against reprosecution does not apply in this case and reprosecution of appellant will not constitute double jeopardy.

2. Although appellant mentions her right to a speedy trial in her enumeration of error, her brief addresses only the double jeopardy issue. “Any enumerated error which is not supported in the brief by citation of authority or argument shall be deemed to have been abandoned.” Court of Appeals Rule 15 (c) (2). We therefore deem any speedy trial argument appellant may have had abandoned.

Judgment affirmed.

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

Decided October 27, 1992 —

Reconsideration denied November 23, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.


text:
    A92A1183.
    GIDDENS v. THE STATE.
    (425 SE2d 299)
   Cooper, Judge.

Appellant was convicted by a jury of voluntary manslaughter and possession of a knife during the commission of a felony.

On the evening of the killing, appellant and the victim were drinking and talking together outside an apartment complex. Witnesses from the complex testified that the talk between appellant and the victim turned argumentative, and the victim shoved appellant to the ground and straddled appellant’s chest with a pocketknife at his throat. The victim then put his knife away and let appellant up, and appellant went upstairs. After a period of time, the length of which was disputed, the victim followed him upstairs. The testimony regarding whether the victim had his knife drawn and what happened in the stairwell was conflicting. It is clear, however, that when the victim reached the top of the stairs he was stabbed. At trial appellant did not dispute that he stabbed the victim and that the victim died from those wounds, but he took the position that the stabbing was in self-defense. Thus, the crucial issue for jury determination was appellant’s state of mind at the time of the killing. Appellant was indicted for murder, but the jury found him guilty of voluntary manslaughter.

In his two enumerations of error, appellant contends the trial court erred in allowing the State to present evidence that a urine sample taken from the appellant following the killing tested positive for marijuana. Because he was not charged with any violation of the Georgia Controlled Substances Act, he argues that this evidence was irrelevant and improperly placed his character in issue contrary to OCGA § 24-2-2. “Evidence as to whether appellant was under the influence of alcohol or drugs on the night in question was part of the res gestae of the crimes and was admissible as such.” Hart v. State, 185 Ga. App. 141, 143 (4) (363 SE2d 599) (1987). The logic of this general rule is particularly clear in a case such as this one, where the state of mind of the accused is pivotal. Although the State’s expert could not state how long before appellant’s crime appellant had smoked marijuana or that he was necessarily under the influence of marijuana at the time of the killing, the evidence that components of marijuana were in appellant’s system just after the killing was relevant because it made the inference that appellant was under the influence of drugs on the night in question more probable than it would have been in the absence of this evidence. “ ‘The (S)tate is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence. (Cit.)’ [Cits.]” Id. at 142-143.

Decided October 22, 1992 —

Reconsideration denied November 23, 1992.

Helms & Helms, Jack J. Helms, Jr., for appellant.

Robert B. Ellis, Jr., District Attorney, Robert D. Cullifer, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A1324.
    LEND LEASE TRUCKS, INC. v. TRW, INC. et al.
    (425 SE2d 293)
   Pope, Judge.

Appellant/plaintiff Lend Lease Trucks, Inc. (“Lend Lease”) is in the business of renting and leasing trucks. Appellee/defendant Freightliner Corporation (“Freightliner”) is a truck manufacturer. Appellee/defendant TRW, Inc. (“TRW”) is a distributor and manufacturer of truck parts, including steering gears, for use in commercial trucks. In 1988, Lend Lease ordered 72 trucks to be built to specification by Freightliner and 90 trucks to be built to specification by Volvo. Lend Lease specified that TRW’s TAS-65 steering gear be installed in all 162 trucks.

TRW first introduced the TAS-65 steering gear in March 1988. In May 1988, TRW became aware of operational failures of the TAS-65 steering gear. By August 1988, TRW identified a population of 27,000 TAS-65 steering gears which possibly contained the defect causing operational failure. The trucks in which those TAS-65 steering gears had been placed were frozen in place until new gears could be installed.

TRW entered into certain agreements with truck manufacturers and owners to compensate them for loss of use of the trucks while the steering gears were replaced. Certain trucks containing TAS-65 steering gears were in Lend Lease’s possession at the time of the recall. Lend Lease was compensated for loss of use of those trucks by TRW. The TAS-65 steering gears placed in the 162 trucks ordered by Lend Lease were replaced while the trucks were still at the manufacturing plants. The truck manufacturers were unable to deliver the ordered trucks to Lend Lease on the projected date due to the replacement of the TAS-65 steering gears. Therefore, Lend Lease also sought compensation for the 162 trucks that were in the possession of Freight-liner and Volvo at the time of the recall. TRW refused to compensate Lend Lease for the loss of use of these vehicles and Lend Lease filed this action. Both TRW and Freightliner filed motions for summary judgment and the trial court granted those motions. Lend Lease appeals from those judgments.

1. In the sole enumeration of error concerning the trial court’s grant of summary judgment to Freightliner, Lend Lease argues that the trial court erred in considering an affidavit submitted in support of Freightliner’s motion for summary judgment that was not made available to Lend Lease until the day before the hearing on Freight-liner’s motion for summary judgment. The affidavit in question was the affidavit of Charles Bergeron, Senior Vice-President of Finance for Freightliner, who averred that on behalf of Freightliner, he negotiated with Robert Hoeffner, an employee of Lend Lease, a contract titled “Lend Lease Truck, Inc. — Terms and Conditions of Sale,” which governed the sale of all 1988 and 1989 model year vehicles to Lend Lease. Bergeron further averred that Hoeffner signed the agreement on behalf of Lend Lease and returned it to him. The contract discussed in the Bergeron affidavit was filed at the same time as Freightliner’s motion for summary judgment as an attachment to the affidavit of Jeannie Hall. In the Hall affidavit, however, she did not authenticate or identify the contract in any manner. After Lend Lease attacked the validity of the Hall affidavit, Freightliner filed the affidavit of Bergeron and all exhibits thereto, including the contract, the day before the hearing on Freightliner’s motion for summary judgment.

The trial court improperly considered the Bergeron affidavit. “OCGA § 9-11-56 (c) [,] which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d)[,] which requires that ‘(w)hen a motion is supported by affidavit, the affidavit shall be served with the motion,’ have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. [Cits.]” Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 381 (411 SE2d 115) (1991). Accord Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (278 SE2d 377) (1981). Although the strict requirements of the statutes may be “waived by the opposing party’s acquiescence in the use of the untimely materials, or if the movant seeks and obtains an order from the trial court under OCGA § 9-11-6 (b) extending the time for filing^] ” Gunter, 201 Ga. App. at 381, neither of these factors are present in this case. Accordingly, the trial court improperly relied upon the Bergeron affidavit in granting Freightliner’s motion for summary judgment. In so holding, we do not express an opinion as to the merit of Freightliner’s motion for summary judgment.

2. With regard to TRW, Lend Lease contends the trial court erred in granting TRW’s motion for summary judgment as to Lend Lease’s negligence claim against TRW because there remains a genuine issue of material fact concerning whether the TAS-65 steering gears installed in the 162 trucks ordered by Lend Lease caused “damage to property other than to the allegedly defective product.” Our Supreme Court has held “an action in negligence does not lie absent personal injury or damage to property other than to the allegedly defective product.” Vulcan Materials Co. v. Driltech, 251 Ga. 383, 388 (306 SE2d 253) (1983). In support of this contention, Lend Lease relies upon our decision in Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (235 SE2d 664) (1977). In Mike Bajalia, there was evidence that the components supplied by the defendant had harmed other components of a building; therefore, we held the plaintiff could pursue its negligence claim against defendant. Id. at 226. Lend Lease analogizes this case to Mike Bajalia contending when the allegedly defective gears were installed in the trucks the gears rendered the trucks defective because the trucks were unusable. However, there is no evidence that when the allegedly defective steering gears were placed in a truck, the gears harmed any component of the truck or the truck itself. Being unable to use a vehicle until a component can be replaced is not damage to other property as contemplated by our decision in Long v. Jim Letts Oldsmobile, 135 Ga. App. 293 (217 SE2d 602) (1975) and its progeny. Thus, Lend Lease’s reliance on Mike Bajalia is misplaced. The trial court properly granted TRW’s motion for summary judgment as to Lend Lease’s negligence claim.

3. Lend Lease also posits there remains a genuine issue of material fact concerning whether Lend Lease was an intended third party beneficiary of the settlement agreements between TRW and certain truck manufacturers, including Freightliner and Volvo. Lend Lease argues that under those agreements, TRW has a duty to compensate Lend Lease because Lend Lease was a “person or entity holding legal title to a truck which was placed in service prior to August 16, 1988 and which was included in the recall.” It is undisputed that steering gears were replaced in the 162 trucks at issue within 75 days from the projected delivery date and both Volvo and Freightliner do not allow cancellations within that time frame. Therefore, Lend Lease argues because it could not cancel the trucks, it was the legal owner of the trucks and entitled to compensation. We refuse to construe the term “legal title” in those agreements in the manner suggested by Lend Lease. The common definition for “legal title” is “[o]ne cognizable or enforceable in a court of law, or one which is complete and perfect as far as regards the apparent right of ownership and possession. . . .” Black’s Law Dictionary 897 (6th ed. 1990). Until the trucks were completed and Lend Lease received title to the trucks, Lend Lease did not have “legal title” to the trucks.

Decided September 24, 1992 —

Reconsideration denied November 23, 1992

Lamar, Archer & Cofrin, Robert C. Lamar, Brian J. O’Shea, for appellant.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., T. Kevin Mooney, Robin L. Peek, Neely & Player, Edgar A. Neely III, Lorre J. Gaudiosi, Richard B. North, Jr., for appellees.

Furthermore, Lend Lease’s contention that it is an intended third party beneficiary under the contracts between Volvo and Freightliner is without merit. In order to enforce the terms of a contract as a third party beneficiary, “it must clearly appear from the contract that it was intended for his benefit.” Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976). The agreements between Volvo and Freightliner with TRW do not discuss compensation to persons or entities that had ordered trucks which were in a noncancellable stage at the time the steering gears were replaced. As Lend Lease acknowledges in its brief, Dale Bough, the TRW representative who decided not to compensate Lend Lease for the 162 trucks, stated in his deposition that Lend Lease’s situation was never discussed in the negotiations which led up to TRW’s agreements with Volvo and Freightliner concerning compensation for the replacement of defective steering gears. Accordingly, the trial court did not err in granting TRW’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Johnson, J., concur.