text:
    A00A1190, A00A1332.
    In the Interest of J. W. H., a child (two cases).
    (538 SE2d 112)
   Miller, Judge.

The issue on appeal in Case No. A00A1190 is whether the court erred in extending the State’s custody of a child where competent evidence showed that the child was deprived, the parents were not meeting their reunification plan goals, and the parents had recently surrendered their parental rights to the foster parents on condition that the foster parents be allowed to adopt the child. We hold the court did not err and affirm.

The issue on appeal in Case No. A00A1332 is whether subsequent evidence sufficed to sustain the later termination of the parents’ rights to the child. We hold it did and affirm.

Within weeks of J. W. H.’s birth, the Department of Family & Children Services took him into custody. His parents later consented to a deprivation order on May 18, 1999, that found the infant was failing to thrive, i.e., the infant was not being adequately fed and was in a life-threatening condition. They did not appeal this order. The purposes of the order were to place the deprived child in a nonthreatening environment for his safety and well-being and to allow the parents six months to work intensively with DFACS to achieve reunification.

Three months later in August the court reviewed the child’s progress and determined that DFACS’s custody should continue. Citing the parents’ failure to abide by the goals of the reunification plan, DFACS in September petitioned the court to extend DFACS’s custody of the child for an additional year. Following a hearing on November 16, the court extended DFACS’s custody by one year, which order the father appeals in Case No. A00A1190. Based on a petition to terminate filed November 10, the court held a hearing in December and terminated the parents’ rights to the child, which order the father appeals in Case No. A00A1332.

Meanwhile, six days after the citizens review panel recommended in October termination of parental rights, the child’s natural parents surrendered to the foster parents their parental rights to J. W. H. on condition that the foster parents be allowed to adopt J. W. H. The foster parents immediately petitioned to adopt the child, which petition is pending. DFACS subsequently placed the child with a second foster family residing in a different county, where he is thriving.

Case No. A00A1190

1. In his appeal of the custody extension order, the father first enumerates as error that the juvenile court failed to make a finding under OCGA § 15-11-41 (o) (3) that the extension was necessary to accomplish the purposes of the deprivation order. This enumeration is without merit.

The purposes of the deprivation order were to place the deprived child in a safe, secure environment for his well-being and to give the natural parents six months in which to work intensively with DFACS to meet certain goals to effect reunification. The court found that if placed back with the parents the child would still be deprived, that the parents could not provide a safe, secure environment, and that the parents had failed to achieve the reunification goals. Construed in favor of the decision, clear and convincing evidence supported the findings.

(a) Not Achieving Reunification Plan Goals. With regard to the six goals of the reunification plan, a rational trier of fact could have found clear and convincing evidence that the father was not meeting those goals. First, the father had not attended any parenting classes as required by the plan, despite being offered those classes free of charge. Second, the father was not current on child support payments required by the plan. Third, the reunification plan required the parents to maintain a stable residence for six months, but during the first three months they had five different residences. Fourth, neither parent had visited J. W. H. for over a month prior to the hearing, even though they had been invited to do so if they cleared up some lice or nit infestation problems in their hair. Fifth, the father did not comply with the plan goal of cooperating with DFACS. Sixth, he did not receive recommended family counseling. This evidence sustains the court’s finding that the father was not achieving the six reunification plan goals.

(b) Child Was Deprived and Natural Parents Could Not Provide Safe, Secure Environment. Regarding the purpose of the deprivation order to provide the deprived child with a safe, secure environment for his well-being, the evidence at the hearing also showed that the father had a propensity for violence, having (i) threatened to bring a gun to a parenting class, (ii) threatened the foster parents as well as their daughter, (iii) threatened others associated with the child, and (iv) threatened to simply take J. W. H. and leave. He told the foster parents that he was a member of a violent gang and even wore a blue bandanna into the courtroom reflecting such membership. He had not worked in two years and was incapable of identifying his disability. Just a month béfore the hearing the father and mother considered separation and divorce. The father conceded that he had not given a full effort to care for J. W. H. and that J. W. H. was thriving in foster care. The first foster mother who had dealt with the natural father as well as the DFACS representatives concluded that J. W. H. should not be returned to his natural parents’ custody.

In his appellate brief, the father focuses on his and the mother’s surrender of parental rights to the first foster parents as evidence that if the custody order were not extended, custody would then not revert to him but to the foster parents, who all parties agreed had provided good care to J. W. H. He argues that since the extension of the order was unnecessary to provide J. W. H. with a safe, secure environment (the purpose of the custody order), OCGA § 15-11-41 (o) (3) disallowed the extension of the custody order.

The father’s argument fails for two reasons. First, the juvenile court specifically found that the surrender of rights to the foster parents for adoptive purposes was a collusive attempt to bypass the scheduled hearing on the termination of parental rights. Evidence supported this finding, as the father had continuously complained of the care provided by the foster parents until the citizens review panel recommended termination of parental rights. Six days after this recommendation the father and mother suddenly surrendered their parental rights to the first foster parents. If the court finds “that the proposed adoption was merely a subterfuge to thwart the apprehended court-ordered termination of parental rights, nothing would preclude the court from proceeding with the termination-of-parental-rights hearing. . . .” Similarly, a court may continue considering the extension of the order granting custody to DFACS.

Second, the surrenders were conditional on the first foster parents adopting J. W. H. If the adoption were unsuccessful, the surrenders required that J. W. H. be returned to the natural parents. As the court found that this adoption was unlikely, it could hardly assume that allowing the DFACS custody order to expire would not result in the child eventually being sent back to the natural parents.

Clear and convincing evidence supported the trial court’s findings underlying the order to extend.

2. Citing Edgar v. Shave, the father complains that the juvenile court had no authority to make a finding that it would not be in the child’s best interest to be adopted by any family in that county, including the first foster parents. But this finding was material to predicting the success of the pending adoption petition, which was the condition on which the surrenders to the foster parents depended. Moreover, the foster parents sought to intervene in the legal proceeding. The juvenile court did not exceed its jurisdiction by discussing the likely success of the foster parents’ adoption petition.

3. The third enumeration of error assumes that the extension order approves DFACS’s plan to end reunification services. The order does not purport to do so, nor does DFACS argue that it was so intended. Thus, this enumeration is without merit.

4. The fourth enumeration of error contends that clear and convincing evidence does not support various findings of the juvenile court. As a rational trier of fact could have found that clear and convincing evidence supported the key findings referenced in Division 1 above, we need not address each of the other secondary findings contested by the father.

Case No. A00A1332

When the same court a month later held a hearing on DFACS’s petition to terminate the parents’ rights, much of the evidence was repeated regarding the lack of a stable residence, the threatened divorce, the father’s failure to cooperate with DFACS, and the parents’ failure to visit the child. Additional evidence showed that since the November 16 hearing (i) the parents had made no progress in meeting the plan goals, (ii) they had made no attempts to verify that they were free of head lice or nits so they could visit the child, (iii) the father still failed to attend parenting classes, and (iv) the parents had paid no child support. The parents were constantly arguing and in conflict, the father did not have the patience to deal with a child and refused to accept responsibility for any wrongdoing or to acknowledge any parenting deficiencies, and the father conceded he could not control his volatile emotions. The father was completely uncooperative with DFACS and not only refused to give DFACS his phone number but threatened to “key” the car of a social worker who came to help. He also warned that DFACS “would get theirs. . . .”

Three professionals, including the father’s own witness (a mental health case coordinator he had called), all had serious concerns about the father’s capability to care properly for the child. Testimony showed that deprivation due to the father’s lack of parenting skills would likely continue or not be remedied.

The father called his mental health case coordinator to the stand to explain why the father was not meeting the plan goals or exhibiting appropriate behavior and to indicate his potential for better compliance in the future. The case coordinator was an experienced mental health professional who since 1997 had regularly treated the father for mental illness on an outpatient basis. He recounted in detail the father’s psychological problems, including depression or mood disorder, lack of impulse control, irritability, impatience, and lack of insight. These problems, which made it difficult for the father to parent a young infant, helped explain his inability to comply with the plan goals. The mental problems possibly arose from a schizoaffective disorder, schizophrenia, or an unspecified psychotic disorder. Although the case coordinator was hopeful the father’s condition could improve with continued treatment and medication, he admitted that the father periodically chose not to comply with the treatment plan and more than once had refused to take the prescribed medication, resulting in a worsening of his symptoms.

Judicially noticing the prior filings and orders in the case, the court found clear and convincing evidence to terminate the parents’ rights under the standards set forth in OCGA § 15-11-81. The father appeals on three grounds: (i) the evidence did not suffice as to some factors, (ii) the court erred in considering his failure to comply with the case plan, as such had not been in existence for a year or longer, and (iii) the court had no authority to conclude that the father had a medically verifiable deficiency that made it likely his lack of parental control would continue. We discern no error and affirm.

5. The first question is whether a rational trier of fact could have found clear and convincing evidence (a) of parental misconduct or inability and (b) that the termination of parental rights was in the best interest of the child. The State may show parental misconduct or inability by evidence that (i) the child is deprived, (ii) the lack of parental care caused the deprivation, (iii) this cause is likely to continue or not be remedied, and (iv) the continued deprivation is likely to cause serious harm to the child.

The father does not contest that the child was deprived or that his lack of proper parental care or control caused the deprivation. Rather, he argues that insufficient evidence showed (i) the cause of the deprivation was likely to continue, (ii) the continued deprivation was likely to cause serious harm to the child, and (iii) he had a medically verifiable deficiency. These arguments are without merit.

(a) Cause of Deprivation Likely to Continue. Regarding the likelihood of the deprivation’s cause continuing, the court considered the past conduct of the father (which is relevant in determining whether the conditions of deprivation are likely to continue) and the father’s mental deficiencies as described by his own witness. The father’s repeated failure (i) to support his child, (ii) to visit the child, (iii) to cooperate with any efforts to assist him in acquiring even minimal parenting skills, and (iv) to take his required medications reflected that little change could be expected in the future. The DFACS caseworker who worked closely with the parents opined that the cause of the deprivation was likely to continue in the future. Moreover, the father’s mental health case coordinator concluded that the father’s debilitating mental disorder was likely to continue in the future. Clear and convincing evidence supported the juvenile court’s finding that the cause of the deprivation was likely to continue.

(b) Continued Deprivation Likely to Harm Child. Combined with the evidence of deprivation, these circumstances also authorized the court to find that the continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to the child. This evidence of parental misconduct or inability combined with evidence that the child was thriving in foster care further supported a finding that termination of parental rights would be in the child’s best interest.

(c) Medically Verifiable Deficiency. Citing In the Interest of C. G., the father next claims that insufficient evidence supported a finding that he had a medically verifiable deficiency that rendered him unable to care for the child. Ironically, the testimony regarding the father’s mental illness came from the mental health professional called by the father to establish that this mental illness caused the father’s past inability to parent the child but was treatable. This witness, who had 15 years of experience in the mental health field and had long treated the father, recounted the debilitating medical diagnoses without objection, which evidence sufficed to establish the medically verifiable deficiency.

6. Because the case plan was only seven months old, the father enumerates as error the court’s considering his failure to comply with that plan. Indeed, In the Interest of A. M. B. noted that “it was inappropriate for the trial court to consider this failure [to comply with the plan] due to the fact that the reunification order had not been in effect for one year. . . .” But as A. M. B. also concluded, the error may not be of such magnitude as to require reversal.

OCGA § 15-11-81 (b) (4) (C) (iii) directs that the juvenile court shall consider the failure to comply with a reunification plan if the failure has occurred for a year or longer. “By the clear language of the statute, the trial court is not limited to looking solely at subparagraph (b) (4) (C)’s factors. . . .” Thus, the trial court may consider events occurring after a reunification plan was formulated. Here, the court considered the father’s failure to support the child, to visit the child, to gain parenting skills, to take his medication, to cooperate with DFACS, to become less violent, to stabilize his housing situation, and to reduce conflict with his spouse. Although these factors also coincided with goals in the reunification plan, that fact does not diminish their probative negative effect on the father’s ability to parent the child. Thus, as in A. M. B., the court did not err in considering them in its evaluation of the factors listed in OCGA § 15-11-81 (b) (4) (A).

7. The father cites as error the juvenile court’s finding that he had a medically verifiable deficiency of mental illness that rendered him unable to parent the child. Pointing out that the State included no such allegations in its termination petition nor argued such at trial, the father claims he was denied due process by the court sua sponte making this finding.

The father misapprehends the role of this finding in the trial court’s decision. In its detailed order, the court set forth the evidence demonstrating that the child was deprived and that the cause of the deprivation was the parents’ misconduct and inability. Only as a part of its next finding that the cause of the deprivation would likely continue did the court find that the father’s medically verifiable mental condition rendered him unable to care for the child. Thus, this finding was not the central focus of the court’s decision, but arose out of the father putting on the mental health professional in his effort to show that the mental illness rendered him unable to comply with the case goals but was likely to be remedied. To demonstrate the inefficacy of the father’s argument that the condition would likely be remedied, the court made the finding that his mental health condition was medically verifiable and, as per his own witness, rendered him unable to properly parent the child. The court discounted the likelihood of a remedy in light of the father’s past conduct in refusing to take his medication.

Decided August 4, 2000

McCamy, Phillips, Tuggle & Fordham, David L. Host, Charles L. Daniel III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Karen L. Webb, Jerry W. Moncus, for appellee.

This finding was entirely consistent with the allegations of the termination petition, which set forth the actions of the parents reflecting their demonstrated inability to parent the child. The State alleged no mental deficiency and presented no evidence of such in its case-in-chief. Rather, the evidence came in during the father’s case as he sought to explain that his misconduct resulted from a treatable mental condition. The court was authorized in these circumstances to make findings as to the root cause for the father’s actions, even if such happened to also involve an unalleged factor contained in OCGA § 15-11-81 (b) (4) (B) (i).

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

       See In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998) (appellate court construes evidence in favor of juvenile court’s findings to determine if clear and convincing evidence supports continuation of custody in DFACS); see generally OCGA § 15-11-33 (b) (1).

       Cf. OCGA § 19-8-4 et seq.

        Skipper v. Smith, 239 Ga. 854, 857 (2) (238 SE2d 917) (1977); accord In the Interest of A. N. M., 238 Ga. App. 21, 25 (2) (b) (517 SE2d 548) (1999).

       For example, there was evidence that the father was able to harass the foster parents because they were located in the same county as the father. Despite suggestions from DFACS, the foster parents did not wish to move out of the county. Moreover, the foster parents had often been unable to handle other children assigned to them.

       205 Ga. App. 337, 338 (1) (422 SE2d 234) (1992).

       OCGA § 15-11-81 (a); In the Interest of K. D. S., 237 Ga. App. 865 (1) (517 SE2d 102) (1999).

       OCGA § 15-11-81 (b) (4); K. D. S., supra, 237 Ga. App. at 865 (1).

       Cf. In the Interest of C. J. V., 236 Ga. App. 770, 774 (513 SE2d 513) (1999) (an unappealed deprivation determination is binding on appeal).

        In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998).

       See Moss v. Moss, 135 Ga. App. 401, 404 (5) (218 SE2d 93) (1975) (opinions and recommendations of agency caseworker-investigator experienced in sociology and psychology are’entitled to great weight).

        K. D. S., supra, 237 Ga. App. at 867 (1) (d); In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).

        K. D. S., supra, 237 Ga. App. at 867 (2); In the Interest of M. E. C., 228 Ga. App. 9, 14-15 (2) (491 SE2d 107) (1997).

       235 Ga. App. 23, 24-25 (508 SE2d 246) (1998).

       See In the Interest of A. M. R., 230 Ga. App. 133, 135 (1) (a) (495 SE2d 615) (1998); compare C. G., supra, 235 Ga. App. at 25 (no medical or psychological testimony or reports offered on deficiency).

       219 Ga. App. 133, 136 (464 SE2d 253) (1995).

       Id.

       (Emphasis supplied.) Id.

       Id.

       Supra, 219 Ga. App. at 136-137.

       Citing In the Interest of S. J. C., 234 Ga. App. 491, 494 (2) (507 SE2d 226) (1998), and In the Interest of C. W. S., 231 Ga. App. 444, 447-448 (3) (498 SE2d 813) (1998), the State argues that the one-year requirement of OCGA § 15-11-81 (b) (4) (C) has been eliminated. These cases stand only for the proposition that there is no statutory requirement under OCGA § 15-11-41 (b) that DFACS make reasonable efforts to reunite the family for at least a year (after a reunification plan is formulated) before seeking to terminate parental rights. The issue in S. J. C. and C. W. S. thus concerned when the State can file to terminate parental rights, not what factors the court can consider in terminating those rights.

       See OCGA §§ 15-11-25; 15-11-82 (c); Watkins v. Watkins, 266 Ga. 269, 270-271 (1) (466 SE2d 860) (1996) (State required to set forth in ordinary and concise language the facts demonstrating the deprivation); see generally In the Interest of D. R. C., 191 Ga. App. 278 (1) (381 SE2d 426) (1989).

       We need not consider the State’s argument that under OCGA § 9-11-15 (b) of the Civil Practice Act unobjected-to evidence retroactively amends the pleadings. Setting aside the fact that this evidence pertained to an existing allegation of the petition (i.e., whether the misconduct or inability would likely be remedied), we note that generally the Civil Practice Act does not apply to juvenile courts. Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977); see English v. Milby, 233 Ga. 7, 9 (1) (209 SE2d 603) (1974).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A1675.
    TURNER v. THE STATE.
    (538 SE2d 125)
   Mikell, Judge.

Michael Kelvine Turner was indicted, tried, and convicted of aggravated child molestation, aggravated sexual battery, child molestation, statutory rape, and two counts of sodomy. The trial court denied Turner’s motion for new trial, and he appeals, arguing that the trial court erred in allowing the jury to read a transcript of a tape recording played during the trial and in admitting similar transaction evidence. We disagree and affirm.

The evidence demonstrates that Turner sexually molested the victim over the course of several years, beginning when she was 13 years old. Turner was romantically involved with the victim’s mother, and he often spent the night at their apartment.

The first incident of sexual abuse occurred when Turner and the victim stole a television from a neighbor’s apartment. The victim testified that Turner initially demanded her underwear to ensure her silence and, out of fear, she obeyed. According to the victim, Turner then directed her to lie on her back, and he “placed his lips on her vagina.”

The victim further testified that she had sexual intercourse with Turner for the first time when she was 14 years old and a sophomore in high school; that Turner told her that she would “get in trouble” for stealing the television if she did not have sex with him; that she did not want to have intercourse with Turner but that she was afraid to refuse; and that Turner continued to have sexual intercourse with her during the summer between her sophomore and junior years of high school. The victim also testified that she began to lock her bedroom door when Turner was in the apartment she shared with her mother after he began making sexual advances toward her; however, Turner broke into her room with a butter knife and insisted that she owed him sex because he was paying her tuition for summer school.

Next, the victim testified that during her senior year of high school, Turner had anal sex with her on one occasion and that she felt unable to resist his advances because she was physically intimidated by him. During that year, the victim’s mother became pregnant by Turner.

In May 1996, the victim recorded a telephone conversation with Turner, in which he discussed having sex with her and, specifically, that their physical relationship would end when the statute of limitation on the theft of the television had run.

1. In his first enumeration of error, Turner contends that the trial court erred in allowing the jury to review the transcript of the tape recording as it was played in court. The transcript, which was prepared by the state, identified the male voice on the tape as Turner. He contends that the court allowed the state to invade the province of the jury by presenting extraevidentiary material and that the jury should have drawn its own conclusion as to the identity of the speakers, based on the evidence.

It was not error to allow the jurors to use the transcript as a tool to assist them in listening to the audiotape. In Washington v. State, the Supreme Court of Georgia held that the trial court did not err in permitting a jury to read a transcript as they listened to a tape. The court stated two reasons for its decision: first, the state had laid a proper foundation for the admission of the tape, and, second, the court had given a cautionary instruction that the transcript itself was not evidence.

Turner concedes that the audiotape was properly admitted into evidence; therefore, there is no issue as to whether the state established a proper foundation for its admission. The victim testified to the circumstances under which the tape was made and that it had remained in her custody at all times since its recording. The transcript itself was not admitted as evidence, because it was merely provided as a tool to facilitate listening to the tape. In a similar case in which a transcript that identified the speakers on an audiotape was actually admitted as evidence, we held that the witness laid a proper foundation for the transcript by identifying the speakers and giving a basis for the witness’ ability to identify the voices. In this case, after the tape was played for the jury, the victim identified Turner as the male voice on the recording. She testified that she had known Turner since she was 13 years old and could recognize his voice and that when she made the recording, Turner’s phone number appeared on her caller identification box when she used the “*69” feature of her phone.

Accordingly, we conclude that the victim’s testimony provided a proper foundation for use of the transcript in this case.

Next, in accordance with Washington, the trial court gave a cautionary instruction to the jury regarding the limited use of the transcript. Prior to playing the audiotape, the court instructed the jury as follows:

Ladies and gentlemen, we’re going to play a tape at this point in time. It is for you to make the factual determination of whose voices are on that tape. Okay. You will determine what that is. Also, you will be provided with a transcript of the tape. Let me explain that to you. It is what somebody else thinks they heard on the tape. The judgment of what is said on that tape is your judgment. . . . And it’s the tape that is the evidence.

“With such a foundation being laid and such safeguards utilized, there was no error in permitting use of the transcripts.”

2. Second, Turner argues that the trial court erred in admitting similar transaction evidence. This enumeration of error has no merit.

After conducting a hearing pursuant to Uniform Superior Court Rule 31.3 (B), the trial court permitted the state to introduce evidence that Turner had entered a guilty plea to child molestation in a case involving the nine-year-old daughter of a woman he had been dating. The victim of that crime testified that Turner had sexual intercourse with her in September 1985 and that he told her they would both go to jail if she told anyone. While evidence of prior crimes committed by a defendant is generally inadmissible, such evidence may be admitted for limited purposes, such as showing identity, plan, scheme, state of mind, and course of conduct. In order for the court to admit evidence of a prior crime, the state must make the following three affirmative showings: (1) that the state intends to introduce evidence of the independent offense for an appropriate purpose; (2) that there is sufficient evidence to establish that the defendant committed the independent offense; and (3) that there is a sufficient similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

We conclude that the state made the required affirmative showings and that the court properly admitted the evidence of Turner’s prior offense. First, the prosecutor stated at trial that the purpose of the introduction of this similar transaction evidence was to show Turner’s course of conduct and modus operandi. We have identified the establishment of a course of conduct as one of the limited purposes for which evidence of other crimes may be introduced.

Second, there was sufficient evidence that Turner committed the prior offense, because the state introduced a certified copy of his conviction, and the victim testified that Turner molested her. Additionally, during the Rule 31.3 (B) hearing, defense counsel stipulated that Turner entered a guilty plea to the prior charge.

Decided August 4, 2000.

Lawrence M. Korn, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Bruce D. Hornbuckle, Assistant District Attorneys, for appellee.

Finally, sufficient similarity existed between the prior offense and the crime charged. Contrary to Turner’s argument, it is a well-established rule that when a defendant is charged with any form of sexual abuse of a child, evidence of prior sex crimes against children is admissible, because such conduct requires a unique bent of mind. “[I]n child sexual abuse cases, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.” Accordingly, admission of the similar transaction evidence was not error.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       268 Ga. 598, 600 (3) (492 SE2d 197) (1997).

       Id.

        Gaston v. State, 180 Ga. App. 470 (2) (349 SE2d 526) (1986).

       Id.

       Supra at 600.

        Guess v. State, 264 Ga. 335, 336 (2) (443 SE2d 477) (1994).

        Bailey v. State, 207 Ga. App. 283, 284 (427 SE2d 612) (1993).

        Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991).

        Bailey, supra at 284.

       See id.

        Adams v. State, 208 Ga. App. 29, 32 (2) (430 SE2d 35) (1993).

        Lee v. State, 241 Ga. App. 182, 183 (2) (525 SE2d 426) (1999).


author: Eldridge, Judge.

text:
    A00A1720.
    BRINSON v. THE STATE.
    (538 SE2d 122)
   Eldridge, Judge.

Barron Brinson directly appeals from the trial court’s order denying his plea in bar on double jeopardy grounds. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Finding no error, we affirm.

Brinson was indicted for the offenses of possession of cocaine, possession of marijuana, driving under the influence, and weaving. Brinson pled not guilty to the offenses, and on August 31, 1999, the case was called for trial. The State proceeded to trial on the offenses of possession of cocaine, driving under the influence, and weaving only, because no formal testing was completed on the suspected marijuana.

After a jury was impaneled and sworn on the case, a hearing was held on Brinson’s motion to exclude involuntary admissions. At such hearing, Officer Jody Caldwell of the Dawson County Sheriff’s Department testified to the following chain of events. On December 10, 1997, Officer Caldwell was on patrol when he noticed that Brinson’s vehicle was weaving and pulled him over. Initially, Officer Caldwell asked to see Brinson’s driver’s license and proof of insurance. Officer Caldwell testified that he noticed a strong odor of alcohol coming from Brinson’s vehicle. When asked by Officer Caldwell if he had been drinking, Brinson replied in the affirmative and produced a 22-ounce beer bottle. Officer Caldwell testified that during this conversation he noticed a vial which appeared to contain some white powder lying on the rear driver’s side floor of Brinson’s vehicle. When Officer Caldwell questioned Brinson about the vial, Brinson did not reply; instead he reached back, picked up the vial, and hid it from Officer Caldwell’s view. At this point, Caldwell asked Brinson to submit to an alco-sensor test, on which Brinson registered negative.

Officer Caldwell then asked Brinson what he had hidden from him earlier. Brinson replied, “Nothing.” Caldwell then asked Brinson if he had drugs in his vehicle. Brinson replied that he had a marijuana pipe and some marijuana in a camera film container and showed them to Officer Caldwell. Brinson also stated in response to further questioning by Officer Caldwell that the last time he had smoked marijuana was the previous evening. Brinson consented to Officer Caldwell’s request to search his vehicle. Under the “brake lever,” Officer Caldwell found the vial which contained a white powdery substance. He then placed Brinson under arrest and read him his Miranda rights.

The trial court initially denied Brinson’s motion to exclude involuntary evidence and held that all the statements made by Brinson were voluntary and, therefore, admissible. After a lunch recess, however, the trial court revisited the issue and conducted a further hearing on the voluntariness of Brinson’s statements. The court ruled as follows: “[A]ny statement given in response to a question after the marijuana was found will be excluded. Now, voluntary statements, statements not made in response to a question would not be covered.”

The jury was brought into the courtroom, and opening statements began. During his opening, the prosecutor made the following statement:

The officer’s going to tell you that in this case the reading was so low that he categorized it as a negative response so he asked him had he been using any drugs because the officer will tell you he’s thinking the alcosensor is not what he’s concerned about now, it’s something else, or a combination he’s thinking about and so the defendant responded to him, “Yes, I have smoked marijuana last night,” and this is about 10:45.

At this point, Brinson’s attorney began her objection but was stopped by the trial court, who told the prosecutor to “go ahead and finish your final [sic] and well take the matter up.” At the close of the prosecutor’s opening statement, the jury was excused. After the trial court heard from both parties, Brinson’s counsel moved for a mistrial on the basis that Brinson’s statement that he had smoked marijuana the previous evening was made in response to questioning by Officer Caldwell after Brinson surrendered the marijuana pipe and the camera film container which contained the alleged marijuana to the officer. The trial court found that the prosecutor’s remark about Brinson’s admission of earlier marijuana use was not “done intentionally and in contravention of the court’s ruling.” However, the trial court found that such error could not be corrected by curative instructions and granted Brinson’s motion for a mistrial.

When the case was subsequently called for trial, Brinson filed a “Plea in Bar/Plea of Double Jeopardy.” After a hearing, Brinson’s motion was denied. The judge hearing the motion found that:

At the hearing on [Brinson’s] motion, the prosecutor testified, and the transcript supports, that he had been unclear as to whether the statement concerning [Brinson’s] marijuana use had been given before or after [Brinson] turned the marijuana pipe over to the officer. Despite the fact Judge Girardeau ruled on this statement specifically, it is clear to this [c]ourt that the prosecutor simply made a mistake in his opening statement. There is no evidence to support [Brinson’s] assertion that the prosecutor intended to goad [Brinson] into requesting a mistrial because he was dissatisfied with the jury panel as sworn.

“In general when a defendant makes a motion for a mistrial he waives any claim of double jeopardy.” Spradley v. State, 242 Ga. App. 340, 341 (529 SE2d 647) (2000); Williams v. State, 258 Ga. 305, 311 (369 SE2d 232) (1988). Where the prosecutor, however, has

“goaded the defense into making a motion for a mistrial in order for the prosecution to avoid reversal of the conviction because of prosecutorial or judicial error or to otherwise obtain a more favorable chance for a guilty verdict on retrial, the Double Jeopardy Clause will stand as a bar to retrial. The Supreme Court of Georgia has adopted the test set out in Oregon [v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982)]. The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial. What is critical is the objective of the prosecutor’s conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve.”

Decided August 4, 2000.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, Scott A. Drake, for appellee.

(Citations omitted.) Spradley v. State, supra at 341. See also Oregon v. Kennedy, supra at 676; Williams v. State, supra.

In this case, on direct examination during the motion to exclude involuntary admissions, Officer Caldwell testified to events out of the sequential order in which they occurred during the stop of Brinson’s vehicle. Further, the prosecutor stated that during his opening statement he believed the statement concerning Brinson’s previous marijuana use had not been excluded by the trial court’s ruling; that his notes were in error and only after speaking again to Officer Caldwell did he realize that the statement was made after Brinson surrendered the marijuana and the pipe, not before; and that he had not deliberately disobeyed the court’s order. Additionally, the fact that the prosecutor argued against a mistrial and requested that the trial court give curative instructions and allow the trial to go forward provides further evidence that the prosecutor was prepared to try the case immediately and did not intend to cause a mistrial to gain delay. Since the evidence of record supports the trial court’s finding that the prosecutor’s conduct was neither intentional nor done to goad the defendant into requesting a mistrial, we find that there was no error in the trial court’s denial of Brinson’s plea in bar. See Spradley v. State, supra at 343; Haralson v. State, 227 Ga. App. 118, 121 (488 SE2d 497) (1997).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

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


text:
    A00A1855.
    WESTMORELAND v. THE STATE.
    (538 SE2d 119)
   Eldridge, Judge.

A jury found Amos Westmoreland guilty of robbery. He appeals from the conviction entered on the verdict. In his sole enumeration of error, Westmoreland contends the trial court erred by failing to charge the jury on his sole defense of “claim of right.” See OCGA § 16-8-10 (2). Under the facts of this case, we find no error and affirm.

The evidence given at trial shows the following. On November 18, 1998, the victim was involved in an automobile collision and received medical treatment in the emergency room of Southern Regional Medical Center for pulled ligaments and a broken finger. When the victim left the emergency room with his wife around 10:15 p.m., he was on crutches and had a splint and bandages on one arm which extended onto his hand and a splint and bandages on one leg which extended onto his foot. The victim and his wife drove across the street to a CVS pharmacy to have a prescription filled. The victim’s wife went into the pharmacy, and the victim remained in the car. The victim’s crutches were visible since they were sticking out of the open back window.

The victim testified that there were four or five men, including Westmoreland, standing on the curb outside the pharmacy, and he asked them what time it was. Westmoreland walked over to the car and asked if the item in his lap was a gun. The victim replied, “[N]o, it’s a phone.” Westmoreland then reached into the car and grabbed the cellular telephone from the victim’s lap and took off running. The victim further testified that he was unable to prevent Westmoreland from taking his phone because of his injuries. The victim and his wife summoned the police, and Westmoreland was apprehended at 10:42 p.m. about 500 yards from the pharmacy with the victim’s cellular telephone in his possession.

At the time of his arrest, Westmoreland did not state to officers that he bought the telephone from the victim. However, at trial, Westmoreland testified that the victim asked the group of men he was standing with if he could buy some “rock,” i.e., crack cocaine. Westmoreland further testified that when he stated they did not have any crack cocaine, the victim asked if “y’all want to buy that phone then?” Westmoreland went on to testify that he purchased the cellular telephone from the victim for $50 and walked away from the pharmacy to a quieter area to talk on the phone.

Quenton Turner, Harold Wise, and Fernando Morgan, who were with Westmoreland outside the pharmacy, testified for the defense. Turner and Wise testified that the victim asked to buy crack cocaine and that Westmoreland bought the telephone from the victim. Morgan testified that the victim had vaguely expressed an interest in buying drugs; that he saw the victim hand Westmoreland his cellular telephone; and that he saw Westmoreland reach into his pocket where he normally kept money. Held:

1. OCGA § 16-8-10 (2) provides an affirmative defense “for violation [s] of Code Sections 16-8-2 through 16-8-7” if a person “[a]cted under an honest claim of right to the property . . . involved or under a right to acquire or dispose of it as he did.” Code Sections 16-8-2 through 16-8-7 are respectively theft by taking, theft by deception, theft by conversion, theft of services, and theft by receiving stolen property. Westmoreland, however, was not charged with one of these offenses but was charged with the offense of robbery in that “with the intent to commit theft,” he took from the person of the victim a Motorola cellular phone “by use of sudden snatching.” See OCGA § 16-8-40 (3).

[F]orce is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession. In order to prove a case of robbery by suddenly taking or carrying away the property of another without his consent, it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it; and consequently the only difference now between robbery of this class and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed.

(Citations and punctuation omitted.) Lawson v. State, 224 Ga. App. 645-646 (481 SE2d 856) (1997). See Bryant v. State, 213 Ga. App. 301, 302 (444 SE2d 391) (1994).

“It is well settled that a request to charge the jury must be legal, apt, precisely adjusted to some principle involved in the case and be authorized by the evidence.” (Citation and punctuation omitted.) Kelley v. State, 235 Ga. App. 177, 179 (509 SE2d 110) (1998). “Even raising the hue and cry of ‘sole defense’ does not mandate that a charge be given without some evidence to support it. [Cits.]” Wideman v. State, 222 Ga. App. 733 (476 SE2d 49) (1996).

Under the facts of this case, the victim established he was aware that his cellular telephone was being taken from his lap and that he was unable to prevent it. There was no evidence of a theft other than by sudden snatching. Therefore, “the offense, if any, was robbery by sudden snatching.” (Citations and punctuation omitted.) Bryant v. State, supra at 303. Since there was no evidence of the lesser included offense of theft by taking, Westmoreland was not entitled to a charge on the affirmative defense of “claim of right.” To allow a “claim of right” defense to an offense, such as robbery by sudden snatching, within which the use of force is implicit would sanction the use of force to claim the property. Presumably, this is why robbery by sudden snatching was not included by the legislature as an offense to which “claim of right” could be used as a defense. See Crowder v. State, 241 Ga. App. 818, 820 (527 SE2d 901) (2000) (claim of right is not a defense to armed robbery when evidence shows a completed armed robbery); Wideman v. State, supra (claim of right is not a defense to burglary because entry into the house was unauthorized).

Decided August 4, 2000.

Donald L. Mobley, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

2. Even if there had been evidence of the offense of theft by taking and Westmoreland had been entitled to a charge on the affirmative defense of claim of right, there was no error in the trial court’s charge.

If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is fairly presented to the jury.

(Citation omitted.) Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981).

In addition to charging the jury on presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, the definitions of intent and robbery, and circumstantial evidence, the trial court charged as follows:

if recently thereafter the [defendant should be found in possession of the stolen property, that would be a circumstance, along with all the other evidence, from which you may infer guilt as to the charge of robbery as set forth in this indictment, if you see fit to do so, unless there should be from the evidence a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.

(Emphasis supplied.) The charge as a whole fairly presented the issues, including Westmoreland’s defense of “claim of right,” to the jury.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A00A1900.
    SILVERS v. THE STATE.
    (538 SE2d 135)
   Eldridge, Judge.

A Bartow County jury found Brandi Kay Silvers guilty of aggravated battery arising from an incident wherein 18-year-old Silvers became angry with the 16-year-old victim and punched her repeatedly in the face. Silvers appeals by challenging the sufficiency of the evidence to support the conviction and by alleging error in the trial court’s charge. Having reviewed the enumerated errors, we affirm.

1. Silvers contends that evidence of the victim’s “disfigurement” was insufficient to support a conviction for aggravated battery. We disagree.

“To constitute the crime of aggravated battery, there is no requirement that, in addition to being ‘serious,’ the disfigurement of a victim be permanent.” Whether an injury constitutes “serious disfigurement” is a jury question. Here, the evidence showed that Silvers shattered the victim’s nasal bone and caused permanent injury to the victim’s sinuses. In addition, the State introduced photographs of the victim’s black eyes, bruised face, and severely swollen nose, which injuries were sustained from the beating she received at Silvers’ hands. Accordingly, “[t]he evidence in this case demonstrates, at the very least, serious temporary disfigurement to the victim,” and Silvers’ challenge to the evidence fails as a consequence.

2. Acting on a jury request for a layman’s definition of “malicious” as it applies to aggravated battery, the trial court properly recharged the jury that such malice is to “unlawfully act without justification, or excuse or mitigation.” Thereafter, the court briefly explained each of the terms “justification,” “excuse,” and “mitigation.” Silvers now claims error in the trial court’s explanations and contends that “the Court devoted inordinate time and emphasis to the term ‘justification’ as compared to the other two terms.” She claims that such emphasis prejudiced her defense which was based upon “mitigation,” not “justification.” We find this contention meritless.

(a) In her Requests to Charge, Silvers asked for a jury instruction on “justification,” with no corresponding request to charge on “mitigation.” In its original charge to the jury, the trial court fully charged on “justification” pursuant to Silvers’ request, without any reference to “mitigation.” Thus, the emphasis placed on “justification” in the trial court’s original charge — a charge Silvers requested and to which she does not object — precludes any serious consideration that an equal emphasis during the trial court’s recharge somehow prejudiced Silvers’ defense.

Decided August 7, 2000.

Donald C. Evans, Jr., for appellant.

T. Joseph Campbell, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

(b) In her trial testimony, Silvers admitted that she had no justification or mitigation for her acts:

[Silvers:] She [victim] was sitting in the car, but she had opened the door and we had talked, and then I hit her.
[DA:] Punched her in the face.
[Silvers:] Yes, ma’am.
[DA:] With your fist.
[Silvers:] Yes, ma’am.
[DA:] Because you were mad.
[Silvers:] I was [emotionally] hurt.
[DA:] And mad at J.
[Silvers:] Not really mad. I do believe it was just because of hurt.
[DA:] And you felt like you were justified to go punch out J.
[Silvers:] Really it wasn’t my place to hit her, but I did.

Accordingly, given the evidence against Silvers and the lack of evidence in “mitigation,” including Silvers’ admission on the stand that she hit the victim while they were just talking when “it wasn’t my place to hit her,” it is highly probable that the recharge about which Silvers complains did not contribute to the verdict.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The jury also returned a guilty verdict on a count of simple battery, which was merged into the aggravated battery count at sentencing.

        In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991).

        Keef v. State, 220 Ga. App. 134, 137 (469 SE2d 318) (1996).

       (Citations and punctuation omitted; emphasis in original.) In the Interest of H. S., supra at 481.

       A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.
      (Emphasis supplied.) OCGA § 16-5-24 (a).

       See Stephens v. State, 232 Ga. App. 738, 740 (503 SE2d 643) (1998).


author: Barnes, Judge.

text:
    A00A1291.
    SLEDGE v. THE STATE.
    (537 SE2d 753)
   Barnes, Judge.

Carlos Angelo Sledge, pro se, appeals from the trial court’s refusal to consider his motion to modify his sentence based upon the trial court’s determination that it had no jurisdiction over the motion. For reasons that follow, we affirm.

The record shows that Sledge pled guilty in June 1995 to three counts of entering an automobile. The trial court probated nearly all of the sentence, sentencing Sledge to fifteen years on probation, five years on each of the three counts to run consecutively, provided that Sledge serve sixty to 120 days in detention. While on probation, Sledge committed a robbery and entered a guilty plea to that crime. On November 6, 1997, after giving Sledge credit for time served, the trial court revoked the remainder of the probated sentence.

Approximately two years later, Sledge filed a pro se motion to modify the sentence, asserting that his original sentence was unlawful because his three convictions for entering an automobile merged under the authority of Breland v. State, 135 Ga. App. 478, 479 (1) (b) (218 SE2d 153) (1975). The trial court denied the motion, finding that because the original sentence had been entered on June 19, 1995, the court no longer had jurisdiction.

On appeal, Sledge asserts the trial court retained jurisdiction to modify his original sentence because it was invalid and void. In a criminal case, the inherent power of a trial court to modify, suspend, or vacate a judgment ceases at the end of the term in which it is rendered. Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388 SE2d 425) (1989). But if the original sentence is void, then a trial court may impose a new and valid sentence at any time. Gonzales v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991). A sentence is void if it imposes punishment not permitted by law. Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991); Penney v. State, 236 Ga. App. 442 (511 SE2d 275) (1999). In Kinney v. State, 234 Ga. App. 5, 7 (2) (505 SE2d 553) (1998), we stated that “a trial court is without subject matter jurisdiction to sentence on an offense that has merged into another offense as a matter of law and/or fact. Such a sentence would be a mere nullity because the conviction on a merged offense is against the law.” Thus, if Sledge is correct that his convictions merged, the trial court would have had jurisdiction to modify his sentence.

In Breland, supra, we held that the theft of two trucks, “taken from the same place at the same time from the same owner under the same circumstances, can only constitute one offense.” 135 Ga. App. at 479. In this case, Sledge was not charged with theft, but instead with entering an automobile. Because theft by taking is defined differently from entering an automobile, Breland does not control the outcome of this case.

Decided July 24, 2000

Reconsideration denied August 8, 2000

Carlos Sledge, pro se.

Charles H. Weston, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which said property is taken or appropriated.

(Emphasis supplied.) OCGA § 16-8-2. Since “property of another” is statutorily defined as “property in which any person other than the accused has an interest,” OCGA § 16-8-1 (3), theft of more than one item from a single owner in a single transaction is but one offense. Breland, 135 Ga. App. at 479.

Because the definition of entering an automobile is not defined by reference to property of another, entering more than one automobile owned by the same person can support multiple convictions. As a result, Sledge’s convictions for entering three automobiles owned by the same person did not merge, his sentence was not void, and the trial court, therefore, correctly concluded that it lacked jurisdiction to modify Sledge’s sentence.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       See also Ga. Code Ann. § 26-1802 (a), which is the version of this statute in effect at the time Breland was decided.

       See also Ga. Code Ann. § 26-1801 (c), which is the version of this statute in effect at the time Breland was decided.

       “If any person shall enter any automobile or other motor vehicle with the intent to commit a theft or a felony, he shall be guilty of a felony. . . .” OCGA § 16-8-18.


text:
    A00A0971.
    BERNOUDY v. THE STATE.
    (538 SE2d 150)
   Barnes, Judge.

John Bernoudy appeals from his convictions for armed robbery and possessing a gun by a convicted felon, asserting that (1) insufficient evidence supports his convictions, (2) the trial court improperly charged the jury on reasonable doubt, and (3) the State failed to prove venue beyond a reasonable doubt. For reasons that follow, we affirm.

1. We must review Bernoudy’s “challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], construing the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.” Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997). Viewed in this light, the record shows that Souleyman Jallow was robbed while working in the evening as a security guard. Jallow saw emergency lights flashing on his own parked car and, after investigating, found an intoxicated man getting out of his car. When Jallow told the man he was going to call the police and walked away from him, the man told Jallow to give him his wallet. Jallow turned around, saw that the man was holding a small silver gun, and gave him his wallet. Jallow also obeyed the man’s order to give him his car keys. The man then walked back to Jallow’s car, and Jallow took the opportunity to run into a windowless break room, lock the door, and call the police.

When the police arrived approximately five minutes later, Jallow described the man and his clothing. The police left and returned with Bernoudy approximately 45 minutes after the robbery took place. Jallow identified Bernoudy as the man who had robbed him. When the police searched Bernoudy, they found Jallow’s keys and money that matched the amount and denominations taken from Jallow. They also found a gun that Jallow identified as the one used in the robbery.

We find this evidence sufficient to support Bernoudy’s convictions under the standard set forth in Jackson v. Virginia, supra.

2. In his second enumeration of error, Bernoudy claims the trial court erred by including the following emphasized language in its reasonable doubt charge:

A reasonable doubt is not an imaginary doubt. Neither does it mean a mere possibility that the defendant may be innocent. But, as I said to you just now, it means a doubt that is founded upon reason. If you have such a doubt after consideration of the evidence in this case, then the law requires that such doubt be resolved in favor of the defendant and then it would be your duty to acquit the defendant.

(Emphasis supplied.) In Coleman v. State, 271 Ga. 800, 805 (8) (523 SE2d 852) (1999), the Supreme Court disapproved of the use of this language in a reasonable doubt charge and stated, “Although its use here does not require reversal, continued use of the disapproved charge in disregard of this opinion may result in the reversal of future convictions.”

Decided August 8, 2000.

Lynn M. Friedewald, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, James M. McDaniel, Assistant District Attorneys, for appellee.

Since the Supreme Court’s decision in Coleman, we have addressed this charge in only one other case: Cowan v. State, 243 Ga. App. 388, 395 (7) (531 SE2d 785) (2000). In Cowan, we concluded, after considering the charge as a whole, that there was “no reasonable likelihood that the jury applied a standard of proof less stringent than that required by the state and federal due process clauses or other applicable law.” Id. As in Cowan, we have considered the charge as a whole and find no reversible error.

3. We find no merit in Bernoudy’s claim that the State failed to prove venue beyond a reasonable doubt. Officer Catlin testified that the incident address was located in DeKalb County, and this testimony establishes venue in DeKalb County beyond a reasonable doubt.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       In both Cowan and this case, the defendant was tried before the Supreme Court’s decision in Coleman, supra.

       Both parties to this appeal failed to cite this critical testimony, found on page 111 of the transcript, in their briefs. We take this opportunity to remind counsel that our rules require appellants and appellees to provide citations to material parts of the record or transcript. Court of Appeals Rule 27.


text:
    A00A1326.
    DELTA BAIL BONDS v. STATE OF GEORGIA.
    (538 SE2d 146)
   Barnes, Judge.

Delta Bail Bonds (“Delta”) appeals the trial court’s judgment of forfeiture on an appearance bond in the amount of $38,550. Delta posted the bond on behalf of a defendant named Andre Ray Davis, who was arrested for trafficking illegal drugs, and then discovered that the name “Davis” was an alias. The defendant’s real name was Raymond Alexander Hibbert, who was a Federal Bureau of Investigation fugitive wanted for murder. The trial court granted the State’s motion for bond forfeiture made after Hibbert failed to appear for arraignment. For the reasons that follow, we affirm.

OCGA § 17-6-31 (d) (2) provides that

[T]he surety may be released from liability at the discretion of the court if: (A) The principal used a false name when he or she was bound over and committed to jail or a correctional institution and was subsequently released from such facility unless the surety knew or should have known that the principal used a false name; and (B) The surety shows to the satisfaction of the court that he or she acted with due diligence and used all practical means to secure the attendance of the principal before the court.

Delta presented evidence at the bond forfeiture hearing regarding the information it obtained when it wrote the bond and the steps it took to find Hibbert after it was told “Davis” was an alias. In its judgment of forfeiture, the trial court held that “the principal and the surety failed to appear and show cause why their obligation should not be forfeited.” Delta argues on appeal that the court erred as a matter of law “when it found that no issue of due diligence was presented for consideration upon which to make a determination.”

We disagree that the trial court did not consider whether Delta had acted with due diligence. At the hearing, the surety owner testified that she knew little about Hibbert when she wrote his bond and that she relied on the word of an attorney she knew well and Hibbert’s purported aunt, who had called her. The only home address she had for the defendant was in Marion, South Carolina, which later investigation proved was an empty field. The trial court confirmed at the hearing that the surety knew in November 1998, two weeks after it issued the bond, that Hibbert had used an alias. While the surety owner testified that she “stirred, up a lot of families” looking for Hibbert, including contacting his parents who had not seen him in years, she did not hire a private investigator until July 1, 1999, after Hibbert had failed to appear for arraignment, the trial court had issued a bench warrant, and the State had moved for bond forfeiture. The trial court read OCGA § 17-6-31 (d) (2) aloud and discussed the diligence issue with counsel.

While the court did not use the phrase “due diligence” in its order, it is clear from the hearing transcript that it considered the issue. After reviewing the record, we cannot say that the trial court abused its discretion and erred in issuing a judgment of forfeiture against Delta.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

Decided August 8, 2000.

Martin M. del Mazo, for appellant.

Daniel J. Porter, District Attorney, Jennifer Kolman, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.


author: Miller, Judge.

text:
    A00A1470.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. WRIGHT.
    (538 SE2d 147)
   Miller, Judge.

State Farm appeals from the trial court’s denial of its motion to enter judgment on a cross-claim, based on its statutory subrogation right as an uninsured motorist carrier. Defendant Miller’s car was struck from behind by a “John Doe” driver, causing his vehicle to collide with plaintiff Wright’s vehicle. When Wright sued Miller to recover for injuries sustained in the accident, she also served her uninsured motorist (UM) carrier, appellant State Farm. State Farm answered in its own name and cross-claimed against Miller pursuant to OCGA § 33-7-11 (d). Thus State Farm participated as an underinsured motorist carrier, covering damages above Miller’s liability insurance coverage of $25,000, and as an uninsured motorist carrier because of “John Doe’s” involvement. The jury awarded Wright a total of $48,856. The next day, Miller objected to the inclusion of a statement regarding the cross-claim on the judgment. Counsel met in chambers at which time State Farm requested the trial court enter judgment on the cross-claim. Following the judge’s reservation of ruling, State Farm filed a motion to set aside the judgment, and oral argument was granted. The trial court ultimately denied State Farm’s motion to set aside the judgment and the motion to enter judgment on the cross-claim, concluding that State Farm waived its cross-claim for subrogation by not pursuing it during trial. State Farm satisfied its portion of the judgment in the amount of $24,359.44. On appeal, State Farm contends: (1) the trial judge erred in ruling that State Farm waived its right to the cross-claim because it did not (re)assert the cross-claim prior to the rendering of judgment, (2) the cross-claim is valid because it was asserted in State Farm’s answer and preserved in the pre-trial order, and (3) the cross-claim could not be asserted during the course of the trial because it would lead to impermissible evidence and the claim did not ripen until damages were determined by the jury. We reverse and remand with direction to enter judgment on the cross-claim.

1.

[T]he plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact, that there was no factual dispute, or that there was no discretion, so that the issue for review was whether the trial court made a plain legal error.

State Farm argues that it never waived its right to the cross-claim.

When an unknown driver is sued because of an automobile accident, OCGA § 33-7-11 (d) directs that the insurance company issuing an automobile liability policy to the injured plaintiff be served “as though the insurance company were actually named as a party defendant.” The insurer may then file pleadings in either its name or in the name of the defendant “John Doe.” An insurer who pays a claim as an uninsured motorist carrier “shall be subrogated to the rights of the insured” against the tortfeasor “to the extent that payment was made.”

The Code section conferring this statutory right of subrogation on the UM carrier expressly authorizes joinder of that claim “in an action against ‘John Doe’ or the owner or operator of the motor vehicle causing injury. . . .” Filing a cross-claim pursuant to OCGA § 33-7-11 (f) is “simply a means of perfecting its subrogation right... in the event a judgment is obtained against the uninsured motorist.” By definition “perfect” means “to take all legal steps needed to complete, secure, or record (a claim, right, or interest); to put in final conformity with the law.”

In Krasaeath v. Parker, this Court held that “[a] claim for contribution may be brought as a separate independent suit after a judgment is entered in the underlying tort action. . . .” Had State Farm not filed a cross-claim in its answer, it would still be entitled to bring a separate suit against Miller after judgment is entered for Wright. Since a cross-claim is an independent suit combined with another action for judicial economy, it follows that State Farm can pursue post-judgment subrogation. Accordingly, the mere fact that State Farm did not pursue the cross-claim until a verdict was returned in the main tort action does not conclusively waive State Farm’s statutory right to subrogation.

2. State Farm next argues that even though the cross-claim was not mentioned in the succinct outline of the case portion of the Consolidated Pre-Trial Order, but rather in the “special authorities” section, it should nevertheless be preserved. State Farm’s portion of the proposed pre-trial order states: “State Farm is entitled to a judgment against the Defendant for any amount it is determined to owe.” We pretermit this issue, because the judge never signed the proposed pre-trial order. “Until an order is signed by the judge it is ineffective for any purpose.” State Farm’s cross-claim is certainly preserved in absence of an effective pre-trial order because it was asserted in responsive pleadings.

3. State Farm correctly argues that its cross-claim did not ripen until damages were determined by the jury and paid by the insurer. Until the insured receives full satisfaction of his judgment, there is no right of subrogation. “ ‘[W]here an uninsured motorist is involved, the full amount of economic and noneconomic losses must be paid to the injured insured by his insurer and/or by the tortfeasor before the insurer is subrogated to the rights of its insured.’” The subrogation claim under OCGA § 33-7-11 (f) does not ripen until the judgment is satisfied. Once the judgment is satisfied by payment, the material facts are established, leaving no issue for jury resolution.

Since State Farm’s statutory right to subrogation for the sum certain it paid Wright in its capacity as an uninsured motorist carrier presents no jury question, we need not address whether pursuing the claim before the jury would inject impermissible evidence into the proceeding. The trial court erred in concluding State Farm waived its cross-claim.

Decided August 8, 2000

Sharon W. Ware & Associates, Margaret C. Elliot, Kay D. Thompson, for appellant.

Austin & Sparks, Matthew J. Jewell, for appellee.

Therefore, we reverse and remand with direction to enter judgment on the cross-claim for the amount established by payment.

Judgment reversed and case remanded with direction.

Pope, P. J., and Mikell, J., concur.

       OCGA § 33-7-11 (f).

       Final judgment was entered against Miller individually in the amount of $25,000 and against State Farm and Miller jointly and severally in the amount of $23,856.

       State Farm’s motion to enter judgment on the cross-claim was filed two days after the verdict was returned.

       This amount includes court costs and interest.

       (Citations omitted.) Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

       OCGA § 33-7-11 (d).

       Id.

       OCGA § 33-7-11 (f).

       Joinder is “[t]he uniting of parties or claims in a single lawsuit.” Black’s Law Dictionary 841 (7th ed. 1999).

        Johnson v. Amerson, 179 Ga. App. 75, 76 (345 SE2d 94) (1986). This procedure was approved by the Supreme Court of Georgia in State Farm &c. Ins. Co. v. Cox, 271 Ga. 77, 79 (515 SE2d 832) (1999).

       Black’s Law Dictionary 1157 (7th ed. 1999).

       212 Ga. App. 525, 526 (441 SE2d 868) (1994).

       See Airgrowers, Inc. v. Tomlinson, 230 Ga. App. 415 (496 SE2d 528) (1998) (a cross-claim should be considered even if the main claim is dismissed).

        Majors v. Lewis, 135 Ga. App. 420 (218 SE2d 130) (1975).

       Id.

        Swanson v. State Farm &c. Ins. Co., 242 Ga. App. 616, 617 (1) (530 SE2d 516) (2000).

        Cherokee Ins. Co. v. Lewis, 187 Ga. App. 628, 630 (371 SE2d 103) (1988), rev’d on other grounds, Lewis v. Cherokee Ins. Co., 258 Ga. 839 (375 SE2d 850) (1989).

       Id.

        Landrum v. State Farm &c. Ins. Co., 241 Ga. App. 787 (527 SE2d 637) (2000). The trial court in Landrum heard argument on State Farm’s cross-claim after the initial judgment was entered and the jury excused. This further shows that a cross-claim may be pursued post-judgment.


text:
    A00A1656, A00A1657.
    RYLAND GROUP v. DALEY et al.; and vice versa.
    (537 SE2d 732)
   Eldridge, Judge.

This is an appeal and cross-appeal on a claim and counterclaim wherein a Fulton County jury found for plaintiff homeowners Donna Jones Daley and Raymond Daley (“Daleys”) against defendant seller/ builder Ryland Group, Inc. (“Ryland”) on their complaint for breach of a building contract, negligent construction, and breach of warranty; the jury found for Ryland on its counterclaim alleging breach of an agreement entered into at closing regarding the installation of granite countertops in the kitchen of the Daleys’ house. For the reasons that follow, we affirm the trial court’s partial judgment notwithstanding the verdict (“j.n.o.v”) and denial of a motion for new trial.

Viewed in a light to uphold the jury’s verdict, Ryland built the Daleys’ “Master’s Collection” house pursuant to a contractual agreement entered into in June 1994. The contract was amended in order to include the purchase and installation of Baltic Brown granite countertops in the kitchen of the house. The countertops were installed at the completion of construction so that they would not be damaged by the subcontractors working on other parts of the house. The Daleys saw the countertops for the first time the day before closing. Ryland had installed three-centimeter-thick Dakota Mahogany countertops with granite overhangs on the edges of the counters. The color was unsatisfactory to the Daleys and not as specified. Ryland agreed that the countertop installation was incorrect because of the color; however, rather than delay closing, Ryland and the Daleys agreed to hold in escrow $8,000 out of the purchase price, pending installation of Baltic Brown granite countertops.

The parties closed on the house in September 1994. The agreement regarding reinstallation of the proper color countertops was reflected in a document generated at closing, and $8,000 was placed in escrow pending release by satisfactory installation. Ryland reinstalled the countertops in November 1994. The color of the granite was correct, but the granite was two centimeters thick, and there were no granite overhangs on the edges of the counters. The Daleys were dissatisfied with the second installation. In January 1995, Ryland refused to reinstall the countertops a third time and informed the Daleys that any changes between the first and second granite installation were consistent with the blueprint specifications and, thus, not in violation of contract. The Daleys would not agree to the release of the escrowed funds until the kitchen countertops were reinstalled using three-centimeter-thick Baltic Brown granite with granite overhangs on the edges consistent with the first installation.

Meanwhile, during the early months of 1995, the Daleys compiled a punch list of repairs, replacements, and defects in the construction of the house, the correction of which was Ryland’s responsibility pursuant to contract. This included serious defects in the installation of the hardwood floors on the first floor. Ryland took no significant action on any repairs to the Daleys’ house.

In July 1995, the Daleys asked a friend who is an attorney to aid them in obtaining repairs to the house pursuant to contract. Negotiations occurred between Ryland and the Daleys’ first attorney throughout 1995 and into 1996. During this time, Ryland made small repairs to the residence, but finally in late 1996, Ryland informed the Daleys that “there would be no movement with regard to the other defects and repairs that [the Daleys] noted until [they] resolved the counter top issue.”

In February 1997, the Daleys hired a litigation attorney. In early spring 1997, a structural engineer was engaged and, over two separate visits, did a complete inspection and found numerous structural defects, as well as other defects both related and unrelated to the structural problems with the house. An “Engineer’s Estimate” was generated, which included the estimated cost to repair the construction defects. The total cost to repair was $40,765. The Daleys filed suit October 1, 1997, alleging breach of contract, negligence, breach of warranty, and requesting attorney fees. Ryland counterclaimed for the $8,000 in escrow, alleging breach of the agreement reached at closing regarding the kitchen countertops.

The jury found for the Daleys on all grounds of their complaint and awarded the Daleys $70,800 in damages and $22,500 in attorney fees. The jury found for Ryland on its counterclaim and awarded Ryland $8,000. Pursuant to election, the trial court entered judgment on the jury’s verdict as to the breach of contract claim and the award of $70,800 in damages and $22,500 in attorney fees. The trial court also entered judgment on the jury’s verdict as to Ryland’s counterclaim and the award of $8,000. Later, on Ryland’s motion for j.n.o.v., the trial court affirmed the jury’s award of attorney fees to the Daleys but reduced the damage award to $41,000 based on the actual cost to repair estimate as testified to by the Daleys’ structural engineer during trial.

In Case No. A00A1656, Ryland appeals the trial court’s judgment entered on the jury’s verdict for the Daleys on their breach of contract claim and the award of attorney fees. In Case No. A00A1657, the Daleys appeal from the trial court’s order on motion for j.n.o.v. reducing the damage award.

Case No. A00A1656

1. (a) Ryland contends that the Daleys failed to offer proof of the proper measure of damages. Ryland argues that “difference in value” is the only proper measure of damages for defective workmanship in a breach of contract action, while the Daleys relied upon cost to repair/correct defects in order to measure damages for breach of contract, negligent construction, and breach of warranty. However, in its brief, Ryland also concedes that “difference in value may be shown by evidence of the reasonable cost of correcting defects.” Of course, where the action is for breach of contract only, the difference between the value of the house as finished and the value of the house as it should have been finished, i.e., the benefit of the bargain, is a proper measure of damages, but it is by no means the exclusive measure. Indeed, “[generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect” when claiming negligent construction, as well as when claiming breach of contract. Accordingly, there was no error in the method of measuring damages in this case.

(b) We also find no merit to Ryland’s contention that the cost to repair the defects in the Daleys’ residence should have been measured at the time of the delivery of the new residence in September 1994, i.e., at closing. The record shows that the cost to the Daleys to repair defects in the home — defects for which Ryland was responsible under the contract — did not become a relevant issue until Ryland flatly refused to repair them. Ryland’s refusal occurred long after the 1994 closing on the house; any increase in the cost to repair the defects because of such delay is attributable to Ryland, arises naturally from Ryland’s breach of contract, and was in the contemplation of the parties to the contract.

Further, to require the cost to repair method of evaluating damages to be estimated only at the time of “delivery” on a new home would preclude recovery/repair under a contract for defective workmanship that only becomes apparent with time. We will not so reward a careless builder/seller nor so penalize a nonclairvoyant new home buyer, absent express contract language so limiting the damages.

(c) Ryland’s contention that the trial court erred in failing to charge the jury that repair costs must be estimated when they are discovered is rendered meritless by our decision in Division 1 (b). There was no error in the trial court’s charge on the cost to repair method of evaluating damages.

2. Entry of judgment on the jury’s verdict in favor of Ryland on its counterclaim renders moot any claim of error regarding the trial court’s failure to direct a verdict thereon.

3. Ryland claims that the evidence was insufficient to support the award of attorney fees in this case because the jury’s return of a verdict in Ryland’s favor on its counterclaim demonstrates a bona fide issue in controversy. We disagree.

If there is bad faith in the making or performance under the contract, “attorney fees are authorized regardless of whether a bona fide controversy otherwise existed between the parties. [Cit.]”

Further, whether or not the defendant/appellant acted in bad faith in its contractual relations is an issue for the jury to determine. Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.

The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award.

Construed to support the verdict, the evidence at trial showed that Ryland was obligated under the contract to fix the numerous defects discovered in the construction of the Daleys’ house, regardless of the kitchen countertops controversy. Evidence showed that Ryland repaired the same and similar construction defects in other “Master’s Collection” houses it sold and built. But Ryland refused to make such repairs to the Daleys’ house, despite its contractual obligation to do so, which obligation survived the closing. Ryland attempted to force resolution of the kitchen countertops issue in its favor as a condition precedent to performing repairs to the other defects in the Daleys’ house, even though the existence of a controversy over the kitchen countertops in no way relieved Ryland of its contractual obligation to repair such other defects after closing. Because the Daleys would not agree to the release of the escrowed funds, Ryland forced them to resort to litigation in order to secure the repairs that were due under the contract and that Ryland knew were due under the contract. This evidence provides a sufficient basis from which the jury could determine that Ryland acted in bad faith in its dealings with the Daleys under the contract and in its performance under the terms of the contract. Accordingly, there was no error in submitting the issue of attorney fees to the jury or in its subsequent award thereon.

4. Next, Ryland challenges the sufficiency of the evidence in support of the amount of the award of attorney fees. Here, the Daleys’ attorney testified at trial as to the expenses involved in litigation and the reasonableness of his fees in light of his experience and the litigation history of the case. “It is well established that a party’s attorney himself is competent to testify as to his opinion on reasonable fees.” Using a computer printout of “every minute spent on the case[,]” the attorney “explained how [he] computed the amounts attributable to this . . . litigation, and was cross-examined by opposing counsel.” During cross-examination, opposing counsel utilized the same detailed billing record to inquire into the specifics of hours billed, rates, and the associates who worked on the case. The Daleys’ attorney testified as to his personal knowledge of work done on this case by associates with the attorney’s firm. Further, the jury found for the Daleys on all grounds of their complaint, and consequently, there is no issue regarding the segregation of hours that are recoverable from those hours not recoverable as to the issues raised by the Daleys, issues which also encompassed the substance of Ryland’s counterclaim. Under such circumstances, we find the evidence sufficient to support the award made by the jury.

5. The trial court held Ryland in contempt for wilfully violating its prior order compelling discovery as to all other Ryland “Master’s Collection” homes with reported defects. In so doing, Ryland does not challenge the sufficiency of the evidence in support of the contempt order, but instead contends that a finding of contempt was improper without a hearing. We do not agree. Under OCGA § 9-11-37 (b) (2) (D), a hearing is not required before contempt may be found for the wilful violation of an order compelling discovery: “The trial court is not required to hold a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court, as here, can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” Accordingly, this enumeration of error is meritless.

6. Ryland’s counsel commented to the jury during closing that the defects in the Daleys’ hardwood floors could have been fixed with no cost to any party. Pursuant to objection, the trial court recharged the jury that counsel’s comment was inappropriate and to disregard it. Ryland claims error in this recharge. “A trial court is vested with broad and sound discretion in the correction of improper or inflammatory argument; the trial court’s election to give the jury a curative instruction will not be disturbed on appeal absent an abuse of discretion.” In that regard, the issue of replacing the Daleys’ defective hardwood floors was the subject of a motion in limine prior to trial. The trial court granted the motion because the instant proceeding was for money damages, and thus replacement of the floor — free or otherwise — was an irrelevant, equitable consideration. Ryland’s comment during close about replacement of the floor violated the trial court’s appropriate ruling on the motion in limine and could have caused confusion regarding the proper measure of damages in this case. Accordingly, we find no abuse of discretion in the trial court’s recharge to the jury.

Case No. A00A1657

7. The Daleys contend that the trial court erred in reducing the amount of the jury’s $70,800 award of damages to $41,000, i.e., the actual cost to repair the defects in the house as testified to at trial by the Daleys’ structural engineer.

The general rule for the measure of damages involving real property is the diminution of the fair market value of the property and/or the cost of repair or restoration, but limited by the fair market value at the time of the breach or tort.

The measure of damages in these cases of alleged breach by the contractor is the difference in the value of the house as completed by the contractor and the value of the house as it ought to have been finished under the terms of the contract ...[,] but proof of such value difference is a different matter. This difference in value may be illustrated by the reasonable cost of repair of defects.

When defects cannot be reasonably repaired, proof is not limited to the cost of repair, but properly can be shown by the diminution in market value resulting from the defects that cannot be repaired. For either method of damages, the fair market value of the improved realty at the time of breach must be proven, because the plaintiff is entitled only to the benefit of the bargain or to be made whole and not to recover a windfall.

Here, however, the jury awarded the Daleys both (a) the cost to repair their home so as to bring it up to the value as it ought to have been finished and after the defects are repaired, i.e., after the Daleys have received the benefit of the bargain, and (b) an additional ten percent diminution in value of the contract price of the house, i.e., excess of the fair market value to the Daleys. The trial court properly reduced the award because it was not a proper measure of damages for a contract breach, i.e., in the contemplation of the parties.

First, no evidence ever established the fair market value of the house which is, of course, a threshold showing for a diminution in value. The contract price of a house, while probative, does not factually establish its fair market value. The contract price may give rise to the inference that such is the value of the house at the time of contract, but by the time of the breach, the value of the house may have gone up or down from its contract price depending on the vagaries of the market at the time. Therefore, there should have been proof of the fair market value at the time of the breach.

Second, the jury’s award exceeded the difference in the value of the house as completed by the contractor and the value of the house as it ought to have been finished, i.e., the benefit of the bargain, as was properly demonstrated by the cost to repair. As such, it is a windfall to the Daleys. The Daleys point to their expert’s testimony at trial and argue in their brief that, even after repairs are made, a property with a history of substantial construction defects “will suffer a ten to fifteen percent reduction in market value due to the stigma future buyers will associate with the property.” (Emphasis supplied.) However, proof of the fair market value immediately after the breach of contract would have reflected any such damage. Cost to repair and diminution in value are allowed as the measure of damages only in tangible property cases and not in improved realty cases, except where there exists defects that cannot be repaired. Here, there was no evidence that, after proper and reasonable repairs, permanent defects would continue to exist.

Further, “[s]tigma to realty, in and of itself, is too remote and speculative to be a damage.” In that regard, the Daleys’ expert testified that a disclosure form where structural damage has been indicated “would tend to make a buyer fearful of continuing problems ... to what degree, I couldn’t. I couldn’t tell you what the number is but it would certainly have an impact in a negative way.” When pressed, the expert offered a negative impact “in a range of ten to 15 percent, I would say. That would be an educated guess.” The witness also testified that the disclosure form which could instill such a fearful reaction would not be needed if the Daleys sold their house “by owner,” which is possible considering Mrs. Daley is a lawyer and a licensed real estate agent.

The most obvious problem, then, with the Daleys’ calculation is that it is predicated upon a future loss that may or may not be sustained depending on the sensibilities of some future buyer and whether, in fact, the repaired defects are disclosed to such future buyer and, in fact, generate the anticipated “stigma.” None of these conditions precedent to the argued future loss can be factually established.

Finally, the argued loss in this case is based on a diminution of a speculative future value of the Daleys’ fully repaired home at the time of resale, a future event. Clearly, future loss is not a proper measure of damages for improved realty, because the plaintiff would be placed in a superior position since “fair market value” of improved realty depends upon time and so many other variables. In this case, if the Daleys believed that there had truly been a diminution in the fair market value of their house, then such could have been shown by the contract price and proof of the fair market value at the time of breach, which should reflect the cost to repair and any diminution in value below the contract price.

The burden is on the plaintiff to show both the breach and the damage, and this must be done by evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of damages. It cannot be left to speculation, conjecture and guesswork.

Here, the trial court properly reduced the jury’s award to the legal measure of damages suffered by the Daleys.

8. The Daleys’ contention that the damage award should include the estimated cost to replace the granite countertops is meritless as the jury found for Ryland on its counterclaim regarding the kitchen countertops as part of its general award.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided July 21, 2000

Reconsideration denied August 9, 2000

King & Croft, F. Carlton King, Jr., for appellant.

Weinstock & Scavo, Richard J. Capriola, Jet Harris, for appellees.

        Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 686-687 (2) (a) (382 SE2d 721) (1989).

        Jim Walter Homes v. Strickland, 185 Ga. App. 306, 310 (363 SE2d 834) (1987); Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777 (285 SE2d 236) (1981); Holder v. J. F. Kearley, Inc., 153 Ga. App. 843, 846 (267 SE2d 266) (1980); cf. Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 367 (2) (460 SE2d 880) (1999) (suit to correct contract construction defects).

        Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983); Kuhlke Constr. Co. v. Mobley, Inc., supra at 780; Clements v. Barnes, 197 Ga. App. 120, 121 (3) (397 SE2d 560) (1990); Savannah Indus. Constr. &c. v. Sumner, 189 Ga. App. 319, 320 (375 SE2d 486) (1988); see also Armstrong Transfer &c. Co. v. Mann Constr., 217 Ga. App. 538, 543 (7) (458 SE2d 481) (1995).

        Adamson Co. v. Owens-Illinois Dev. Corp., supra at 656-657.

       Ryland’s reliance on termite infestation cases is misplaced in this case involving defective workmanship.

         Hardy v. Tanner Med. Center, 231 Ga. App. 254, 258 (10) (499 SE2d 121) (1998). We also note, however, that sufficient evidence existed so that denial of the motion for directed verdict was not error. OCGA § 9-11-50 (a).

        Parks v. Breedlove, 241 Ga. App. 72, 73 (1) (526 SE2d 137) (1999).

       (Citations and punctuation omitted; emphasis supplied.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 856-857 (1) (c) (501 SE2d 30) (1998).

       See C & S Trust Co. v. Hicks, 216 Ga. App. 338, 340 (2) (454 SE2d 207) (1995).

        Young v. Turner Heritage Homes, 241 Ga. App. 400, 402 (3) (526 SE2d 82) (1999).

       We will not consider the affidavit of the jury foreman submitted by the Daleys during the motion for j.n.o.v. The affidavit attempts to impeach the jury’s verdict in favor of Ryland on its counterclaim by explaining that the jury did not intend to find for Ryland on the merits of its counterclaim, but only to award it the $8,000 held in escrow, since the jury awarded the Daleys $8,000 to replace the kitchen countertops in its total award on the Daleys’ breach of contract claim. “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 9-10-9.

       (Citation and punctuation omitted.) Campbell v. Bausch, 195 Ga. App. 791, 792 (2) (b) (395 SE2d 267) (1990).

       (Punctuation omitted.) Southern Co. v. Hamburg, 233 Ga. App. 135, 137-138 (503 SE2d 383) (1998) (Eldridge, J., concurring specially).

       Id. at 139. The Daleys’ attorney testified at trial that all issues involved in the litigation arose from the same set of facts and circumstances and thus could not be separated out; the Daleys’ breach of contract claim factually encompassed Ryland’s counterclaim for the escrowed $8,000.

       See OCGA § 5-6-34 (d).

       (Citation and punctuation omitted.) Toles v. G & K Svcs., 230 Ga. App. 452, 453-454 (2) (496 SE2d 550) (1998).

        Bogan v. State, 206 Ga. App. 696, 700-701 (6) (426 SE2d 392) (1992).

       See generally Eldridge, Ga. Personal Injury & Property Damage — Damages, §§ 8-2 and 8-3; Ray v. Strawsma, 183 Ga. App. 622, 623 (1) (359 SE2d 376) (1987).

       (Citations and punctuation omitted; emphasis in original.) Id.

       Id. at 624.

        Hortman v. Cantrell, 173 Ga. App. 429, 430 (326 SE2d 779) (1985).

        Ray v. Strawsma, supra at 624.

        Hammond v. City of Warner Robins, 224 Ga. App. 684, 690 (482 SE2d 422) (1997).

       See id.

       (Citation and punctuation omitted.) Wipo v. Cook, 187 Ga. App. 7, 8-9 (1) (369 SE2d 306) (1988); David Enterprises v. Kingston Atlanta Partners, 211 Ga. App. 108, 111 (438 SE2d 90) (1993).

       See footnote 10, supra.


author: Ellington, Judge.

text:
    A00A1271.
    THE STATE v. GOODWIN.
    (538 SE2d 159)
    Decided August 9, 2000

      J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellant.

      Frank K. Martin, John T. Martin, for appellee.
   Ellington, Judge.

The trial court granted Glenda Goodwin’s special plea in bar to arson charges, and the State appeals. The State concedes “there is no question that the statute [of limitation] had in fact ran [sic] at the time of indictment.” However, the State argues that the statute was tolled pursuant to OCGA § 17-3-2 (1) because Goodwin left Georgia for a period of years and was not amenable to prosecution.

We have reviewed the entire record and find that the trial court’s decision to grant the plea in bar was not clearly erroneous. The evidence adduced by the State failed to show that Goodwin absconded from Georgia or otherwise concealed herself so that she could not be arrested. See Danuel v. State, 262 Ga. 349, 351-353 (2)-(4) (418 SE2d 45) (1992), interpreting OCGA § 17-3-2 (1). Because the trial court’s “Order on Defendant’s Plea in Bar” thoroughly sets forth the relevant facts and applicable law, we adopt it as our opinion in this case.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.