text:
    A91A0800.
    McLEOD v. McLATCHER et al.
    (410 SE2d 144)
   Andrews, Judge.

Charles McLeod entered into a contract to purchase real estate from the McLatchers. In the written sales contract, which had been signed by both parties by March 6, 1990, the parties set April 30, 1990 as the closing date. The contract contained a provision which required the seller to provide a termite infestation report to the purchaser at closing. The contract also contained a clause which allowed McLeod to request the McLatchers to repair problems with the house’s systems at any time prior to closing. An additional clause regarding structural inspections provided: “Purchaser shall have the right to make a thorough, structural inspection of the property at his expense, within seven days of the signing of this contract and shall, within this seven day period, notify Seller or his authorized agent, in writing, of any structural defects revealed by such inspection. Upon receipt of such notice, Seller shall (a) immediately cause such defects to be corrected or (b) immediately sign a letter of agreement that such defects will be corrected prior to closing or (c) declare this contract null and void. This provision, however, shall not effect the terms of Special Stipulation #3, herein, related to systems and appliances. Purchaser warrants that he shall make no further claims or assertions based upon the condition of the property. This provision shall survive the closing and the delivery of the warranty deed. If the Purchaser does not make such inspection and does not give any written notice of any such defects then he expressly accepts property in ‘AS IS’ condition.”

Prior to the expiration of the seven-day inspection period, the real estate agent sent McLeod a letter in which she stated that two days remained within which to inspect the property. Although McLeod conducted two separate inspections of the property during the seven-day period, he admitted at his deposition that he did not conduct a thorough inspection within the stated time period.

On April 16, 1990, 41 days after the contract was entered into, McLeod sent the McLatchers a letter in which he outlined 15 problems, most of which were structural, with the house. In the letter McLeod stated: “Until I get a comfortable feeling, I must at this time decline the purchase of this home. . . .”

The McLatchers scheduled a meeting on April 22 to address the problems McLeod had raised, but McLeod failed to attend the meeting. On April 25, McLeod sent a second letter in which he reiterated his intention to rescind the sales contract. Because McLeod had announced his unwillingness to consummate the sale, the scheduled closing on April 30 did not occur.

The McLatchers filed a Complaint against McLeod for breach of contract and moved for summary judgment. The trial court granted the motion on the issue of liability; it is from this partial grant of summary judgment that McLeod appeals.

McLeod argues that his April 16 letter regarding the inspection was a proper rescission of the contract. McLeod’s argument fails in that there was no nonperformance of covenants by the McLatchers which would constitute grounds for rescission. See generally CCE Fed. Credit Union v. Chesser, 150 Ga. App. 328 (1) (258 SE2d 2) (1979). The right to rescind or terminate a contract on the ground of failure of performance by an opposite party belongs only to a party who is free from substantial default himself. See Martin v. Rollins, Inc., 138 Ga. App. 649 (226 SE2d 771) (1976), aff’d 238 Ga. 119 (231 SE2d 751) (1977). Here, McLeod failed to comply with the seven-day structural inspection provision of the contract and then failed to address the structural problems his tardy inspection revealed in the manner mandated by the contract. Further, McLeod did not afford the McLatchers an opportunity to address his concerns and demonstrated no willingness to negotiate. See J. M. Clayton Co. v. Martin, 177 Ga. App. 228 (2) (339 SE2d 280) (1985). Because he did not substantially comply with the contract, McLeod’s attempted rescission was ineffective and his repudiation of the contract constituted an anticipatory breach thereof. See J. M. Clayton Co., supra.

Decided September 3, 1991.

0. Wayne Ellerbee, for appellant.

Dodd & Turner, Roger J. Dodd, L. Warren Turner, Jr., for appellees.

In his second argument, McLeod claims that he did not breach the contract since the McLatchers did not fulfill their reciprocal obligations under the contract’s termite inspection clause in that they did not provide a termite letter. This argument is also without merit.

The contract provision concerning the termite letter plainly stated that at the time of closing the Seller would provide the Purchaser with a report certifying that the structure was free of wood infestation. Further, the contract stated that the “inspection referred to in such report shall have been made within thirty days prior to closing.” Because the termite report was not due until the scheduled closing date, which was after McLeod’s repudiation of the contract, the McLatchers were under no obligation to produce a termite letter. See generally McGuire v. Norris, 180 Ga. App. 383 (1) (349 SE2d 261) (1986).

“The anticipatory repudiation of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract.” (Citations and internal quotation marks omitted.) J. M. Clayton Co., supra at 230; Coffee Butler Svc. v. Sacha, 258 Ga. 192 (366 SE2d 672) (1988). “When appellant repudiated his contractual obligation to perform prior to the time performance was required, an anticipatory repudiation of the contract occurred, forming the basis of appellees’ breach of contract action.” [Cit.] Clark v. Cox, 179 Ga. App. 437, 438 (347 SE2d 4) (1986). Here, McLeod’s anticipatory repudiation absolved the McLatchers from providing the termite letter and he cannot rely upon their failure to produce this document as justification for his actions.

Accordingly, the grant of summary judgment to the McLatchers was proper.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A0807.
    EVANS v. THE STATE.
    (410 SE2d 146)
   Beasley, Judge.

Following the denial of his motion for new trial, Evans appeals his convictions of 19 counts; five counts of rape, OCGA § 16-6-1 (a), five counts of aggravated sodomy, OCGA § 16-6-2 (a), six counts of armed robbery, OCGA § 16-8-41 (a), one count of theft by taking a vehicle, OCGA § 16-8-2, and two counts of burglary, OCGA § 16-7-1 (a). The crimes for which he was tried and convicted occurred serially over a period of approximately 39 days and involved eight victims.

The evidence construed in favor of the verdicts showed the following pattern of criminal activity.

February 29, 1988

As A. W. was readying to go to work, she noticed that the door to the basement of her apartment building was ajar. As she attempted to close the door, a man hiding inside put a foot-long “boning” knife to her throat and told her to be quiet. The man forced A. W. to go back upstairs to her apartment; he told A. W. he had been watching her and he asked if she lived alone and if anyone was in the apartment. The man threw A. W. face down on her bed and “hogtied” her hands and legs together with ropes he had brought with him in a gym bag. A. W.’s head was sideways and she could see the man walking around. He threatened to cut A. W.’s head off, told her he had a gun, and lifted his sweater and showed her what appeared to be a holster with a gun butt sticking out.

Dissatisfied with the lack of property and money in A. W.’s apartment, the man began to untie, rearrange A. W., and remove her clothes so that he could sexually assault her. A. W. tried to talk him out of the attack by lying that she had a sexually transmitted disease. The man forced A. W. to perform oral sex on him, then donned a condom and raped her; he asked A. W. if she ever had a black man before and told her that she was really going to enjoy it.

Following the attack, the man unhooked a VCR and rummaged through a jewelry box. He again raped A. W. and forced her to perform oral sex on him. The man then re-hogtied A. W., gathered up some valuables including a ring off A. W.’s finger, and began to take them downstairs. He also took A. W.’s bank card and car keys. Believing the man had gone, A. W. worked the gag out of her mouth. The man returned indicating he could not drive A. W.’s car because it was a manual transmission. Noticing that A. W.’s gag had been removed, the man got angry and resecured the gag with one of A. W.’s belts. He then ate some food that A. W. had wrapped for lunch and left.

A. W. was able to describe her assailant and helped with a composite sketch of him the day after the attack. Even though A. W. was unable to pick out appellant at a lineup three months after the attack, at trial she positively identified appellant as her assailant from her memory of the attack.

March 4, 1988 (Similar Transaction)

Just after K. D. hung up the telephone in her university dorm room, she was grabbed from behind by a tall black man wielding a long curved knife. The man put the knife to K. D.’s neck and made her lie down on the floor. He put a burlap gag in her mouth secured with a belt, tied her hands behind her back, tied a necktie around her neck and blindfolded her; the man had brought all of the bindings with him. He undressed K. D. and asked her for her bank card. K. D. could hear the man moving around the room and a duffel bag of some sort that he had brought with him unzip. The man then performed oral sex on K. D. and raped her. He then continued to rummage through the room looking for jewelry and other valuables. K. D. told the man that her roommate was going to be back soon and he responded, “Well, good, then I’ll have two of you . . . I’ve done this three times already. ...” The man then left saying that he would come back.

Although K. D. never saw her assailant, another student observed K. D. returning to the dormitory just prior to the attack and saw a black man enter the dormitory in a suspicious manner. The student called police to report it. The student later described the man to a police artist who drew a likeness close to what the student had seen.

March 8, 1988

M. W. G. and D. S. were housemates; D. S. was a college student receiving room and board in exchange for caring for M. W. G.’s child. D. S. had just returned home from class when a man rang the door bell and asked for a house number. The man was carrying a large brown duffel bag. D. S. told the man she did not know the house number and as she began to close the door, he pushed the door open and grabbed her around the neck from behind while wielding a long knife. He forced her into a back bedroom, made her lie on the bed, and asked for money. He tied up D. S. with a telephone cord and blindfolded her. The man then unsuccessfully searched the house for valuables. He told D. S. that since he could find nothing, he was going to have to “take” her. Putting a knife to her neck, he forced D. S. to perform oral sex on him and then raped her.

M. W. G. stopped by her house following a mid-afternoon appointment. As she was at the top of the stairs, she noticed a reflection in the glass of a hanging picture and called out to D. S. The man came from behind the door wielding a knife. M. W. G. ran down the stairs but tripped and fell. The man forced her upstairs into the bedroom where D. S. was lying across the bed, tied up and nude from the waist down. The man forced M. W. G. to lie down next to D. S.; he then tied her hands behind her back with a telephone cord and blindfolded her. The man asked for jewelry and money and threatened to “cut” or kill M. W. G. and kill her child if she called police.

The man rolled D. S. over and raped her. He then began to undress M. W. G. but upon discovering that she was menstruating, abandoned his attack on her and again raped D. S.

Both women were tied in a “bowed” position. The man again searched the house looking for jewelry and other valuables. He took the rings off M. W. G.’s fingers. The man stated that he “hated doing this to sisters, because he thought that it was a home where white people lived.” He came back into the bedroom several times and then drove away in M. W. G.’s car.

The day of the attacks, a neighbor had seen a black man carrying a duffle bag follow D. S. off the bus as she was returning from class. The man resembled one of the composite drawings.

Also the day of the attacks, a man who gave his name as Randle Evans and who presented a Texas driver’s license as identification, pawned jewelry belonging to A. W., K. D.’s roommate, M. W. G., and D. S. The pawn shop clerk identified appellant at trial as the man who pawned the jewelry. Appellant’s fingerprint was found on a pawn ticket from another shop by a Randle Evans.

Two months after the attacks, M. W. G. picked appellant out of a lineup. She also identified him at trial as the assailant.

March 31, 1988

A. R. rode the bus to her apartment in the afternoon and had been home about 15 minutes when a man knocked at the door asking for a person at a particular apartment number. A. R. told the man that she did not know the person or the number and closed and locked her door. About two minutes later, the man knocked again and asked to use the telephone. A. R. said she would make the call for the man and closed the door but did not lock it; she tried the number several times but got no response. The man cracked open the door and asked her to try one more time. A. R. tried the number unsuccessfully one more time and told the man that someone was playing a joke on him. He came into the apartment, pulled a knife and told A. R. the joke was on her.

A. R. started screaming and the man put the knife to her neck and told her to shut up or he would cut her neck. He pulled A. R. to her room, asked for money, tied her with a telephone cord face down on the bed and gagged her. He went through her purse and asked for a bank card and its secret code. The man asked A. R. if anyone else lived there and A. R. responded that her roommate would be coming home. After about five minutes, A. R.’s roommate M. D. came home.

The man met M. D. in the hallway, put a knife to her throat, and threatened to cut her if she made noise or looked at him. He forced her into the room where A. R. was, tied her hands and ankles, asked for money, and took her ring off. He undressed both women. The man forced A. R. into the other bedroom, hogtied her, and threatened to cut her throat or kill her. He returned to M. D., untied her hands and feet, and performed oral sex on her and raped her. He then retied her.

The man went back to A. R. He performed oral sex on her and raped her. He retied her and then returned to rape her again. He took A. R. back into the room with M. D. He stated he had a gun and showed the handle to what looked like a gun in his pants. As he prepared to leave, he retied the women, telling them that he would not tie them in the back since he tied only the white women that way.

When the assailant had entered the house, he had brought with him the briefcase of M. W. G., who had been raped three weeks earlier.

A. R. picked appellant’s picture out of a photographic lineup. M. D., who had been instructed by the assailant not to look at him, narrowed her choice to two photographs, one of which was appellant’s. A. R. also helped create a composite sketch of the attacker and identified appellant at trial as the assailant.

April 6, 1988

C. B. ran out of her apartment to try to give the friend who had just left the coat she had forgotten. As she walked back to her apartment, a man came up behind her, put a knife to her face, and told her that if she screamed, he would cut her head off. He forced her back into her apartment and made her put her face down on the bed and not look at him. He asked for money and a bank card. After getting only a very small amount of money, he cut the telephone cord and tied C. B.’s hands behind her. He asked for jewelry and took a diamond ring off C. B.’s finger. He put a towel over C. B.’s face and took her skirt off. He untied her hands and told her that if she screamed, he would shoot her head off; he had a gun on his belt. The man told C. B. that she knew what he had to do because she did not have any money. He then performed oral sex on C. B. and raped her.

The man allowed C. B. to get up and go in the bathroom. He began to chat with her and told her he was from Houston, Texas.

C. B. identified appellant as her attacker from a lineup, at the preliminary hearing, and at trial. Appellant’s fingerprints were taken from C. B.’s apartment the night of the attack.

April 7, 1988

In the evening, when C. B.’s neighbors, Beavers and Bryant, returned to the apartment complex, Beavers realized that her apartment had been broken into. They called the police. While an officer was in Beavers’ apartment with her, Bryant was on the porch and Bryant saw someone two doors down lean out, look in her direction, and then lean back. After the officer left, the women called the apartment manager to come and fix Beavers’ front door, which had been kicked in. While they waited for the manager, Bryant noticed someone walk up to Beavers’ door. Thinking it was the maintenance man, Bryant opened the door and an unknown man was standing there. The man jumped back, turned, and started to run. He stopped, came back on the stairs, and commented that someone had broken in and that the same thing happened to him, two doors down. Wanting to get him away from the door, Bryant told the man that the police were around the corner and could take a look at his place. When he left, Bryant called the police.

Bryant described the man to the officer and indicated the direction he had gone. Shortly, the officer returned with a suspect and Bryant identified him as the man who had come to the door. The man carried a Texas driver’s license bearing the name Randle Mitchell Evans. Shoeprints found on Beavers’ door matched the soles of shoes appellant was wearing when he was apprehended.

The arresting officer had been the officer who responded to C. B.’s call the night before. The officer observed that appellant fit the description of the attacker given by C. B., including that the assailant had indicated he was from Texas. The officer took appellant and the property he was carrying to the sex crimes office.

The property found on appellant included that belonging to M. W. G., knives, which fit the descriptions of those used in the sexual attacks, a screwdriver, approximately $33 in change, and a Walkman-type stereo with earphones belonging to another resident of the apartment complex, Gourdine.

Gourdine’s apartment was two doors down from that of Beavers and had been burglarized the night of C. B.’s attack. Gourdine’s door had been pried open with a tool consistent with the markings of a screwdriver. Items missing from Gourdine’s apartment included a coin box full of change and the Walkman-type radio.

1. Enumeration 1. Appellant contends that the trial court erred in consolidating for trial the five rape charges as well as joining the two burglary charges. Appellant had moved to sever the indictments on the bases that the charged conduct was not part of a single plan and that joint trial would result in prejudicial complexity of the evidence.

“ ‘In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), (the Supreme C)ourt adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature.’ Cooper v. State, 253 Ga. 736 (3) (325 SE2d 137) (1985). However, ‘(o)nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses (Cits.)’ Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984). Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Cooper v. State, supra at 737. ‘ “Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. (Cits.)” ’ Jordan v. State, supra at 497. ‘(S)ever[a]nce in this particular kind of circumstance lies within the sound discretion of the trial judge. . . .’ Dingler, supra, 233 Ga. at 463.” Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988).

The rape charges against Evans were not joined solely because they constituted the same sexual offense but because the manners in which the crimes were committed were so similar as to reveal a common modus operandi pointing to the defendant/appellant as the perpetrator. The State not inaccurately describes the crimes as “signature rapes.” The interests of justice were not disserved by joinder of the rape charges as opposed to their severance. As in Cooper v. State, supra at 737, “[the] facts and circumstances authorized the trial judge to conclude that [Evans’] bent of mind was such that the offenses ‘constituted parts of a single scheme or plan.’ ” Denial of severance and permitting joinder of these charges was not an abuse of discretion.

Nor was there abuse in joining the burglaries for trial. These crimes were part and parcel of appellant’s crime spree in the apartment complex where he raped and sodomized C. B. They were also part of his continuing pattern of theft of personal property.

2. Enumeration 8. Appellant contends that the trial court erred in permitting the chief investigator to remain in the courtroom during thé trial, over objection and despite a request for sequestration.

The trial court did not abuse the discretion it has to make exception to the sequestration rule to permit an investigating officer to remain in the courtroom throughout trial in order to aid in the presentation of the State’s case. See Norman v. State, 255 Ga. 313, 316 (3) (338 SE2d 249) (1985); Edwards v. State, 171 Ga. App. 264, 265 (1) (319 SE2d 101) (1984).

3. Enumeration 5. Appellant contends that the trial court erred in denying his motion to exclude evidence of pre-trial lineup identification by two of the victims. He maintains that the evidence was inadmissible because he was denied his Sixth Amendment right to counsel at the lineups even though he had requested that an attorney be present. Appellant does not pursue an independent state ground, constitutional or otherwise, so only the federal right is at issue.

The lineups occurred before the indictments were returned. “ ‘ “ ‘There is no [federal] constitutional right to counsel at a pre-indictment lineup. (Cits.)’ ” (Cits.)’ Fudge v. State, 164 Ga. App. 392, 393 (3) (297 SE2d 329) (1982).” Johnson v. State, 198 Ga. App. 316 (2) (401 SE2d 331) (1991). Exclusion of the evidence was not required.

4. Enumeration 6. Appellant contends that the trial court erred by permitting an officer, in violation of OCGA § 24-3-2, to give damaging hearsay testimony linking stolen property to victims A. W. and D. S.

The essence of the testimony was that after appellant was arrested, appellant’s uncle, with whom appellant lived, called a burglary detective to come to his house because the uncle was concerned that certain property which appellant had brought to the house was stolen. The detective discovered that the items were in fact stolen. Both A. W. and D. S. identified some items as theirs and both testified that their assailant had taken them.

The testimony by the detective describing the suspicion of appellant’s uncle explained the detective’s conduct in initially going to the defendant’s uncle’s house and in further investigating to determine whether or not the goods were indeed stolen. “Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. Ivester v. State, 252 Ga. 333, 335 (313 SE2d 674) (1984).” Matthews v. State, 194 Ga. App. 386, 387 (2) (a) (390 SE2d 873) (1990). The detective’s testimony was admissible as original evidence under OCGA § 24-3-2, on the issue of defendant’s connection to the stolen items.

5. Enumeration 7. Appellant contends the trial court erred by denying him the right to introduce defense testimony that very similar sex crimes had occurred and were investigated in connection with the indicted cases and that the victims of such crimes had been unable to identify appellant as the perpetrator. Appellant relies on Beadles v. State, 259 Ga. 519, 522-524 (2) (385 SE2d 76) (1989).

Beadles noted that “facts could be hypothesized under which evidence of similar crimes committed by a third party is arguable relevant to a defense that the accused did not commit the crime charged, [cits.] . . .” Appellant failed to make any showing that the other crimes were similar in their manner of commission to those for which he was on trial. Nor did he show that someone other than himself committed the crimes charged. Beadles is thus distinguishable.

Appellant completely fails to point out where in the massive trial record the attempted proffer and the court’s ruling is to be found. See Court of Appeals Rule 15 (c) (3).

The trial court did not err in excluding the proposed evidence.

6. Enumeration 9. Appellant contends that the trial court erred in permitting the State to recall a defense witness for cross-examination after granting the State a five-minute recess to confer with the witness.

The State is permitted to confer privately with its witness during a recess in the witness’ testimony. See Carter v. State, 195 Ga. App. 489, 490 (1) (393 SE2d 746) (1990). Likewise, there is no prohibition against the State doing so with a defense witness. In addition, “ ‘[i]t is always within the sole discretion of the trial court to permit either the State or the defense in criminal cases to reopen the case after the close of the evidence. (Cits.)’ [Cit.]” Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988). It follows that it is within the trial court’s discretion to reopen cross-examination at the behest of the State.

Appellant further complains that he was severely harmed by prejudicial hypothetical questions asked of the witness by the State during the reopening of cross-examination. These complaints are not properly before the Court. First, “ [enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987). Second, appellant now objects to the hypotheticals on a different basis than urged at trial. See Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).

7. Enumeration 2. Appellant contends it was reversible error for the trial court to allow the evidence of the attack on K. D. as a similar transaction because there was no evidence that he was the perpetrator of the independent crime.

“It is well recognized that ‘(t)o render evidence of extrinsic offenses admissible for any of (the above) purposes, the State must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter.’ (Emphasis supplied.) [Cits.]” Crews v. State, 185 Ga. App. 494, 495 (2) (364 SE2d 625) (1988).

Contrary to appellant’s contention, there was evidence upon which the jury could base a finding that he was the perpetrator of the independent crime. K. D. was attacked in the same manner as the other victims. She described her attacker as a “tall black man,” and the jury was authorized to assess the student witness’ description of the man entering the dormitory and the identification of a composite drawing of K. D.’s attacker as the man who followed D. S. from the bus prior to that attack. Jewelry stolen from the room was identified as that which defendant had pawned. All of this evidence circumstantially pointed to appellant as K. D.’s assailant even though she was unable to positively identify him. Compare Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991).

8. Enumeration 3 in appellant’s brief. Appellant contends that the trial court erred in failing to give limiting instructions regarding the similar transaction.

Appellant made no such request to charge, so “he was not entitled to a limiting instruction either at the time the evidence of the similar [act] was admitted into evidence or in the general charge. [Cit.]” Holloway v. State, 187 Ga. App. 716, 718 (3) (371 SE2d 259) (1988).

Nevertheless, the trial court, sua sponte, gave extensive limiting instructions as part of its general charge: “specifically with regard to the testimony concerning the incident at [school] involving the victim [K. D.], I charge you that certain evidence has been presented in this case concerning alleged similar transactions by the defendant. With regard to all testimony about these alleged similar transactions by the defendant, I charge you that this defendant is on trial for the particular offenses charged in these bills of indictment that you will have out with you for your consideration and on no other charge or charges.

“He is not on trial on account of any other alleged offense or offenses and any evidence in this case with reference to any other alleged offense or offenses is admitted for the purpose of your consideration solely and only under the provisions of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, course of conduct, identity or other matters dependent on a person’s state of mind are involved as material elements in the offense for which he is on trial.

“Evidence of the defendant’s conduct with reference to similar transactions is admitted solely for you to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved if you think it does so illustrate it and for that purpose alone. You are not to consider it for any other purpose.

“The court does not intimate or express to you any opinion whatsoever as to whether the defendant has had any other transactions at any time similar to the charges for which he is being tried in these bills of indictment or of his guilt or innocence on the charges contained in these bills of indictment.

Decided September 3, 1991.

Nancy M. Markle, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

“Whether the accused has or has not committed other similar offenses is a matter solely for your determination. However, if you believe that the accused has had similar transactions, you will bear in mind that in connection with any such evidence you are considering it solely with reference to the mental state, identity, or intent of the defendant insofar as the same is applicable to or refers to or illustrates the charges contained in these bills of indictment and for no other purpose.”

These instructions adequately informed the jury about the limits in considering the evidence of the similar transaction, and did not, as appellant further maintains, imply that he was guilty of the similar transaction.

9. Enumeration 4 in appellant’s brief. Appellant contends that the trial court erred by “coercing the jury to reach a verdict.”

The complaint is about the court’s closing comments to the jury: “Ladies and gentlemen, your verdict, as I told you before, must be unanimous. It must be agreed to by all twelve of you. It cannot be a majority vote. It has to be twelve to zero. It must be dated. Today is the 23rd day of January, 1990. Hopefully it will still be that when you reach your verdict. It must be in writing. And it must be signed by your foreperson. When you have reached your verdict, please write it down, knock on the door of the jury room or flip the switch in there, . . . we’ll send the sheriff out to open the door and let you out and we’ll publish the verdict in open court.” What is underscored is particularly targeted by appellant.

The court’s comment was not an “Allen instruction” or “dynamite charge.” Even if it could be construed as a premature attempt at such, “ ‘[t]he issue in reviewing such charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.’ [Cits.]” Sanders v. State, 257 Ga. 239, 243 (7) (357 SE2d 66) (1987).

Shortly after this comment, the court also instructed the jury that, “no juror is required to surrender an honest opinion merely for the sake of reaching a unanimous verdict if in their conscience, and pursuant in their oath as a juror, they honestly believe their opinion should not be changed.”

The court’s instruction taken as a whole was in no manner coercive.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    A91A0810.
    TENNECO OIL COMPANY et al. v. TEMPLIN et al.
    (410 SE2d 154)
   Pope, Judge.

The issues presented in this appeal appear to be issues of first impression in this state. The first is whether a claim by a defendant in a tort action against a plaintiff for contribution for damages awarded in favor of a co-plaintiff is a compulsory counterclaim so that the defendant is barred by the doctrine of res judicata from pursuing the claim for contribution in a separate action after judgment has been rendered. The other is whether a claim by one defendant in a tort action against a co-defendant for contribution is barred by the doctrine of res judicata if it was not brought as a cross-claim in the original action.

In the previous action on which the claim in this appeal was brought (hereinafter the “tort action”), appellee Douglas Lynn Bull-man and the woman who later became his wife, who were injured in a multi-car collision, sued appellant Tenneco Oil Company, the Tenneco employee who was driving Tenneco’s vehicle and four others, including appellee Barbara Gay Templin. Two of the defendants in the tort action were dismissed and the trial proceeded against Tenneco and its employee and Templin. Templin filed a counterclaim against Mr. Bullman, who was the driver of the plaintiffs’ automobile, alleging he was liable to Templin for contribution if she was found liable for his wife’s injuries. The jury returned a verdict in favor of plaintiffs against both Tenneco and Templin and awarded damages to the wife in the amount of $400,000 but awarded no damages to Mr. Bullman. Finding that Mr. Bullman’s negligence contributed to his wife’s injuries, the jury returned a verdict in favor of Templin on her counterclaim for contribution. The verdict was reduced as a result of the settlement with the other defendants and judgment was entered in favor of the wife in the amount of $393,000. Both Tenneco and Templin satisfied one-half of this judgment and Templin was awarded a judgment of $98,250 against Mr. Bullman on her claim for contribution. In effect, Tenneco satisfied one-half of the judgment and Templin and Mr. Bullman each satisfied one-fourth of the judgment.

Shortly after judgment was entered in the tort action, Tenneco filed the case now before us on appeal — a claim against Templin and Bullman for contribution (hereinafter, the “contribution action”). In the contribution action Tenneco argues that because all three parties were found to be joint tortfeasors then all three parties should bear a pro rata share of the total judgment in the tort action. The trial court granted summary judgment to Templin and Bullman and denied Tenneco’s motion for summary judgment. Tenneco appeals.

1. We first address the claim against appellee Bullman, which Bullman argues is barred because it was a compulsory counterclaim in the tort action. “A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” OCGA § 9-11-13 (a). Essentially, a compulsory counterclaim is one which: 1) arises out of the same transaction or occurrence as the main claim; and 2) has matured at the time the answer is filed. Tenneco argues its claim for contribution against Mr. Bullman meets neither of these requirements and was, therefore, not a compulsory counterclaim in the original tort action.

We reject Tenneco’s argument that its claim against Mr. Bullman for contribution to the judgment entered on the claim of his co-plaintiff wife did not arise out of the same transaction as Mr. Bullman’s claim against Tenneco. While Mr. Bullman’s claim and his wife’s claim may have stated two separate causes of action, both claims undeniably arose out of the same transaction or occurrence. “ ‘The key phrase is that the claim “arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim.” ’ Cause of action has no express bearing on the issue.” Harbin Lbr. Co. v. Fowler, 137 Ga. App. 90, 92 (2) (222 SE2d 878) (1975). See also Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491 (229 SE2d 8) (1976).

Whether the claim for contribution existed at the time Tenneco’s answer in the tort action was served is the more complicated issue. Because a claim for contribution to a judgment award is contingent upon a judgment being entered against the party claiming a right to contribution, it can be argued that such a claim has not matured and therefore cannot be brought as a compulsory counterclaim.

Section 13 (a) of the Georgia Civil Practice Act is, in all relevant respects, identical to Rule 13 (a) of the Federal Rules of Civil Procedure, so it is instructive to look to the interpretation of the federal rule. The two leading commentaries on the Federal Rules of Civil Procedure agree that a claim for contribution cannot be a compulsory counterclaim because it has not yet matured. According to Moore’s Federal Practice, because a claim for contribution does not mature until a judgment is entered in the case and is satisfied, a claim for contribution cannot be brought as a counterclaim. 3 Moore & Freer, Moore’s Fed. Prac. ¶ 14.14, at 14-85 (2d ed. 1991). The authors of Federal Practice and Procedure agree that Rule 13 (a) of the Federal Rules of Civil Procedure may not be employed to bring a claim for contribution because it is not a matured claim. Wright, Miller & Kane, Federal Prac. & Proc. § 1446 at 375 (1990). But see id. § 1411, at 83-84, in which the authors state “a counterclaim will not be denied treatment as a compulsory counterclaim solely because recovery on it depends on the outcome of the main action.”

The federal courts which have considered whether a contingent claim may be brought as a counterclaim are split on the issue. “While it is true that courts have held that, the right to contribution does not mature unless and until one has been compelled to pay damages in excess of his proportionate share under a comparative negligence theory, Stahl v. Ohio River Co., 424 F.2d 52 (3d Cir. 1970); Goldlawr, Inc. v. Shubert, 268 F.Supp. 965 (E.D. Pa. 1967); Slavics v. Wood, 36 F.R.D. 47 (E.D. Pa. 1964); the recent trend, and the more pragmatic approach, has been to permit counterclaims for contribution; Lynch v. Sperry Rand Corp., 62 F.R.D. 78 (S.D.N.Y. 1973); Gilbert v. General Electric Company, 59 F.R.D. 267 (E.D. Va. 1973); Atlantic Aviation Corporation v. Estate of Costas, 332 F.Supp. 1002 (E.D.N.Y. 1971).” In re Oil Spill by “Amoco Cadiz,” 491 FSupp. 161, 165 (N.D. Ill. 1979). In a Georgia case, the Eleventh Circuit Court of Appeals ruled that a claim for contribution against a joint tortfeasor does not accrue at the time of the commission of the tort but at the time a judgment is entered on the injured party’s claim against one of the joint tortfeasors and, therefore, such a claim may not be brought as a counterclaim because it has not matured. Greyhound Lines v. Cobb County, Georgia, 681 F2d 1327 (11th Cir. 1982). See also Steinberg v. St. Paul Mercury Ins., 108 F.R.D. 355 (S.D. Ga. 1985); but see Blanton v. Southern Bell Tel. &c. Co., 49 F.R.D. 162 (N.D. Ga. 1970). We note, however, that appellees have cited no cases, and we have found none, in which a separate suit for contribution was barred for failure to bring the claim as a compulsory counterclaim in the underlying tort action.

In at least two cases, this court has ruled that a claim for contribution may be brought as a counterclaim. In Howard Concrete Pipe Co., supra, we held: “The claim for contribution [against the plaintiff driver of the automobile for any judgment which might be entered in favor of the co-plaintiff passenger of the automobile] in the event of a judgment finding plaintiff and defendant guilty of concurring negligence is a claim arising out of the occurrence which is the subject matter of the complaint, and as such is maintainable.” Id. at 491-492.

In Howard Concrete, we examined only the issue of whether the counterclaim for contribution met the requirement of arising out of the same transaction as the plaintiff’s claim; we did not address the issue raised in the appeal now before us: whether a claim for contribution also meets the “maturity” requirement of OCGA § 9-11-13 (a).

In Byington v. Lee, 150 Ga. App. 393 (258 SE2d 6) (1979), this court reversed the trial court’s grant of summary judgment to the plaintiff husband on defendant’s counterclaim for contribution should defendant be found liable for co-plaintiff wife’s injuries, on the ground that the claim for contribution was not barred by interspousal immunity since, as in the case now before us, the plaintiffs married after the date of the automobile collision out of which the action arose. Although this court held that for purposes of interspousal immunity, the right to seek contribution from one of the spouses for the injuries alleged by the other spouse relates back to the relationship between the parties at the time of the occurrence and “vested when the collision occurred,” id. at 394, the case still did not expressly address whether such a claim for contribution had matured so as to make it a compulsory counterclaim.

In fact, this court has ruled that the right to contribution to a judgment by a joint tortfeasor does not accrue until after judgment is entered or a compromise settlement is made, although a third-party action pursuant to OCGA § 9-11-14 may be brought prior to obtaining a judgment. Evans v. Lukas, 140 Ga. App. 182, 184 (230 SE2d 136) (1976). Likewise, the statute of limitation on a claim for contribution does not begin to run until a judgment is rendered, although, again, a third party action may be brought as part of the main claim before a judgment is obtained. Independent Mfg. Co. v. Automotive Products, 141 Ga. App. 518, 520-521 (1) (233 SE2d 874) (1977). The statute permitting third-party claims expressly permits a defendant to serve a third-party complaint upon a person “who is or may be liable to him for all or part of the plaintiff’s claim against him.” OCGA § 9-11-14 (a). By contrast, the statute permitting counterclaims describes a compulsory counterclaim as a claim which the pleader has against an opposing party “at the time of serving the pleading” in answer to the opposing party. OCGA § 9-11-13 (a). Thus, even though a third-party complaint may be served before the claim has accrued and, as illustrated by earlier Georgia cases, such claims have been brought as permissive counterclaims, a claim which has not yet accrued cannot be treated as a compulsory counterclaim.

One rather cumbersome solution to the problem which would permit a claim for contribution to be tried in the same action as the main tort action is to sever the claims of the two plaintiffs, thereby permitting the plaintiff against whom the claim for contribution is made to be named as a third party to the claim of the other plaintiff, and then to consolidate the two actions for trial. See, e.g., United States v. Nicholas, 28 F.R.D. 8 (D.Minn. 1961). Perhaps the better practice for allowing a claim for contribution to be tried together with the main claim is to allow such a claim to be brought as a permissive counterclaim, with or without the formality of severance and re-consolidation after the addition of a third-party defendant. See Blanton v. Southern Bell Tel. &c. Co., supra. A party may choose to pursue a claim for contribution in the underlying tort action but may not be limited to bringing it in that manner because “ ‘the permission to have contribution ... is absolutely unrestricted.’ ” Horton v. Continental Cas. Co., 72 Ga. App. 594, 597 (34 SE2d 605) (1945). We cannot say that a party who chooses not to assert his or her claim for contribution as a counterclaim is barred from bringing a separate suit for contribution after a judgment has been entered in the original tort action.

2. Next, we address the claim against appellee Templin, which Templin argues is barred because it was a matter which could have been raised in the tort action as a cross-claim. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered . . . .” OCGA § 9-11-40. In the tort action appellant Tenneco and appellee Templin were co-defendants and Tenneco could have brought its claim for contribution as a cross-claim against a co-party. The statute authorizing cross-claims expressly authorizes the bringing of a cross-claim for contribution. “The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” OCGA § 9-11-13 (g). The language of the statute, however, is permissive and in no way makes a cross-claim arising out of the same transaction or occurrence as the main claim compulsory.

In Marchman & Sons, Inc. v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983), as in the case now before us, a claim for contribution was prosecuted in a separate suit instead of as a cross-claim in the underlying tort action. The Georgia Supreme Court ruled that the dismissal with prejudice of the underlying tort action upon settlement of the claim by some but not all of the defendants was not a bar to a separate action for contribution because “the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” Id. at 477-478. Whether the contribution action was barred by the doctrine of res judicata because the claim was one which could have been adjudicated in the underlying tort action as a cross-claim was not addressed in the Marchman & Sons case. Pursuant to the reasoning in that opinion, however, a right to contribution is separate from the rights in the underlying tort action and may be brought as a separate action. See also Independent Mfg. Co. v. Automotive Prods., supra; Evans v. Lukas, supra.

Decided September 3, 1991.

Freeman & Hawkins, Howell Hollis III, Michael E. Hutchins, for appellants.

. Swift, Currie, McGhee & Hiers, L. Bruce Hedrick, Jr., Haas, Bridges & Kane, Alvin L. Bridges, Jr., for appellees.

Templin also argues Tenneco’s right to contribution from her has already been satisfied because the judgment was entered against the two of them jointly and Templin paid her half of the judgment. The verdict against Bullman on Templin’s counterclaim for contribution, however, shows the jury found all three parties, Templin, Bullman and Tenneco, were joint tortfeasors in regard to Mrs. Bullman’s claim. As it now stands, Tenneco has borne a greater share of the burden of the total judgment in the tort action than its two joint tortfeasors. Georgia law provides a joint tortfeasor the right of contribution from other tortfeasors. OCGA § 51-12-32 (a). “Contribution among joint tortfeasors is enforceable where one has paid ‘more than his share of the common burden which all are equally bound to bear.’ ” Waddey v. Davis, 149 Ga. App. 308, 312 (254 SE2d 465) (1979).

The trial court erred in ruling Tenneco’s contribution action against appellees was barred.

Judgment reversed.

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

       We note that because the cause of action in the tort action arose prior to the effective date of OCGA § 51-12-33, then the provisions of that statute for apportioning damages among joint tortfeasors according to their degree of fault does not apply. See OCGA § 51-12-33 (c).


author: Carley, Judge.

text:
    A91A0826.
    GOODIN v. SOUTH ATLANTIC PRODUCTION CREDIT ASSOCIATION.
    (410 SE2d 159)
   Carley, Judge.

Insofar as they are relevant to this appeal, the facts are as follows: In 1982, appellee-plaintiff perfected a security interest by filing a financing statement which identified the collateral as “[a]ll farm machinery and equipment, tractors, tilling and harvesting tools of every kind and description owned by Debtors.” In 1985, OCGA § 11-9-310 (2), relating to the priority as between a mechanic’s lien and a perfected security interest in the same farm machinery and equipment became effective. In 1987, pursuant to OCGA § 11-9-403 (3), appellee filed a timely continuation statement. In 1990, appellant-defendant acquired a mechanic’s lien as to the following pieces of the Debtors’ equipment: a bush hog; a combine; two tractors; a peanut picker; and a mower. Thereafter, the Debtors defaulted on their debt to appellee. Appellee sought a writ of possession as to all of the Debtors’ farm equipment, including those pieces on which appellant had a mechanic’s lien. Relying upon OCGA § 11-9-310 (2), appellant urged that his mechanic’s lien had priority over appellee’s perfected security interest. Appellee urged that OCGA § 11-9-310 (2) did not apply retroactively and that, even if it did, appellant’s mechanic’s lien did not have priority. The trial court found that OCGA § 11-9-310 (2) did apply, but it also ruled that the appellee’s perfected security interest had priority. Accordingly, the trial court granted a writ of possession as to the disputed pieces of the Debtors’ equipment. It is from that order that appellant appeals.

1. OCGA § 11-9-310 (2) provides: “A mechanics’ lien on farm machinery or equipment arising on or after July 1, 1985, shall have priority over any perfected security interest in such farm machinery or equipment unless a financing statement has been filed as provided in Code Section 11-9-401 and unless the financing statement describes the particular piece of farm machinery or equipment to which the perfected security interest applies. Such description may include the make, model, and serial number of the piece of farm machinery or equipment. However, such description shall be sufficient whether or not it is specific if it reasonably identifies what is described and a mistake in such description shall not invalidate the description if it provides a key to identifying the farm machinery or equipment.” (Emphasis supplied.)

Appellee’s financing statement did not merely describe the collateral in such general terms as “farm machinery and equipment.” It described it as “all farm machinery and equipment.” (Emphasis supplied.) Moreover, it further specified the collateral as including particular pieces of farm machinery and equipment, such as “tractors, tilling and harvesting tools of every kind and description owned by Debtors.” The financing statement did not include the make, model, or serial numbers of the “tractors, tilling and harvesting tools. . . .” However, OCGA § 11-9-310 (2) does not require such specifics. All that OCGA § 11-9-310 (2) requires is a reasonable identification and even a mistaken description will suffice so long as a key to identification is provided.

“[I]t is not wholly necessary that the physical description appearing of record be sufficient in itself to identify the property, it must [only] raise a warning flag, as it were, providing a key to the identity of the property. [Cit.]” Peoples Bank v. Northwest Ga. Bank, 139 Ga. App. 264, 268 (2) (228 SE2d 181) (1976) (construing OCGA § 11-9-110). The description in appellee’s financing statement was clearly sufficient to raise a “warning flag” as to the “tractors, tilling and harvesting tools of every kind and description owned by the Debtors.” See generally First Nat. Bank & Trust Co. v. Olivetti Corp. of America, 130 Ga. App. 896, 897 (2) (204 SE2d 781) (1974). A “person of ordinary business prudence” would certainly have been put on notice that his mechanic’s lien would not have any priority as against appellee’s security interest in the Debtors’ “tractors, tilling and harvesting tools of every kind and description. . . .” See Peoples Bank v. Northwest Ga. Bank, supra at 269 (2). The Debtors’ bush hog, combine, tractors, peanut picker and mower clearly come within the description of “tractors, tilling and harvesting tools of every kind and description. . . .” It follows, therefore, that the trial court correctly held that appellee’s security interest in those items had priority over appellant’s mechanic’s lien thereon.

Decided September 3, 1991.

Benjamin F. Easterlin IV, for appellant.

Crisp, Oxford, McKelvey & Jones, Henry L. Crisp, Howard S. McKelvey, Jr., for appellee.

2. Since the financing statement satisfies the requirements of OCGA § 11-9-310 (2), we need not address appellee’s “right for any reason” argument that that statute does not apply to financing statements filed before July 1, 1985.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0832.
    In the Interest of S. T., a child.
    (410 SE2d 312)
   Sognier, Chief Judge.

The mother of S. T. appeals from the order terminating her parental rights in her daughter.

1. Appellant contends the trial court erred by allowing Brenda Nicholson to testify as an expert that appellant suffers from major depression with psychotic aspects of a schizophrenic nature. Nicholson testified that she is employed by the Department of Human Resources, Mental Health, and is the coordinator of services in five counties and a clinical staff person at the mental health center; that she has a bachelor’s degree in social work and a master’s degree in education and counseling; and that she has worked at the mental health center under the supervision of psychiatrists for 17 years and has worked with appellant since 1982. The record reveals that the State then offered Nicholson as an expert. On voir dire, Nicholson testified that she is qualified by the State as a mental health professional under the rules and regulations of the Department of Human Resources, Mental Health; that she is enabled to evaluate clients, make diagnoses, and establish treatment plans; and that all of her work is done under the supervision of a psychiatrist. See OCGA § 43-10A-7 (a), (b) (4). She acknowledged that she is not a clinical psychologist or a psychiatrist.

Appellant argues that because Nicholson was not a psychologist or a medical doctor, the trial court erred by allowing her to give her opinion as to appellant’s mental condition. “Had [Nicholson] been licensed under the laws of this State to practice medicine, it is clear that [she] would have been competent to testify as an expert witness, upon the fact being made to appear that [she] was a licensed physician. [Cit.] Not being a licensed practitioner, it was necessary to lay the proper foundation showing [her] to be an expert as to the subjects on which [she] proposed to express [her] opinion. . . . ‘The opinions of experts on any question of science, skill, trade, or like questions, are always admissible.’ [Cit.] ‘An expert is one possessing, in regard to a particular subject or department of human activity, knowledge not acquired by ordinary persons.’ [Cit.] ‘This knowledge may be derived from experience or from study and direct mental application.’ [Cit.] ‘Strictly speaking, an “expert” in any science, art, or trade, is one who by practice or observation has become experienced therein.’ [Cit.] But generally nothing more is required, to entitle one to give testimony as an expert, than that [she] has been educated in the particular trade or profession. [Cits.] Knowledge gained by consistent and close study of medical works renders one competent to testify as an expert concerning the matters of which [she] has thus learned. [Cits.] It is not essential that [she] should be actively engaged in the practice of medicine. [Cits.] Nor is it essential that one who really has a scientific education on the subject should be a graduate of ‘any medical college, or have a license to practice from any medical board.’ [Cit.] What [she] knows is what really qualifies [her] to express an opinion as an expert, and a diploma or license is important only as furnishing satisfactory evidence of [her] competency as a witness. Accordingly, a ‘person who is neither a physician nor surgeon can express an opinion on a medical question, when the matter inquired about lies within the domain of the profession or calling which the witness pursues.’ [Cit.]” Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 778-779 (5) (51 SE 569) (1905). See also Robertson v. Aetna Life Ins. Co., 37 Ga. App. 703 (2) (141 SE 504) (1927) (x-ray specialist may give opinion whether x-rayed bones have been injured, though not a graduate of a medical school or licensed to practice medicine); Moss v. Moss, 135 Ga. App. 401, 404-405 (5) (218 SE2d 93) (1975) (DFCS caseworker-investigator qualified as expert in psychology and opinions entitled to great weight).

The State showed that Nicholson pursued a calling which required a special study of mental health problems, and her testimony indicates that she had a practical as well as a theoretical knowledge concerning the subjects as to which she undertook to impart information and to express the opinion of an expert. Accordingly, we find no error either in the trial court’s determination that Nicholson was an expert or in the admission of her testimony. Macon Ry. & Light Co., supra at 779 (5).

2. Even assuming, arguendo, that testimony by S. T.’s foster parent that S. T. has nightmares was hearsay, the admission of that testimony presents no grounds for reversal because the transcript reveals it was merely cumulative of identical testimony by S. T.’s caseworker, admitted without objection. See generally Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (2) (a) (199 SE2d 881) (1973). We note that where hearsay is admitted without objection, the mere fact that such evidence was admitted does not vitiate the verdict. Stow v. Hargrove, 203 Ga. 735, 736 (6) (48 SE2d 454) (1948). That is true here where, even giving no weight or force to this hearsay, see generally Green v. Sun Trust Banks, 197 Ga. App. 804, 809 (4) (a) (399 SE2d 712) (1990), there was other evidence of a clear and convincing nature on which the trial court could base its finding of detriment to the child.

3. We find no error in the admission of testimony by Tom White, Ph.D., a licensed clinical psychologist, regarding schizophrenia. Although Dr. White testified that because schizophrenia is primarily treated with medication it falls more within the realm of psychiatry than psychology, he also testified that he has treated and evaluated schizophrenics from a behavioral and social standpoint in conjunction with medical management of the illness. The record thus does not support appellant’s argument that Dr. White was not qualified as an expert to give his opinion on schizophrenia.

4. Appellant contends the State failed to show by clear and convincing evidence that her parental rights should be terminated, specifically, that the evidence was insufficient to show parental misconduct or inability under the standard in OCGA § 15-11-81 (a). We find no merit in appellant’s argument to the extent that it is based on her contentions, rejected above, regarding the qualifications of Nicholson and Dr. White to testify regarding the schizophrenic nature of appellant’s mental illness and the negative impact that illness has on her ability to provide adequately for the physical, mental, emotional, and moral condition and needs of S. T. The record re vals that appellant’s mental illness is of long duration and that she has been repeatedly hospitalized. S. T. has spent a significant portion of her lifetime in and out of foster care, which was sometimes initiated when appellant contacted authorities because she recognized her own inability to care for S. T. Various caseworkers testified that the occasions during which it appeared appellant could care for S. T. would be followed by periods in which appellant would be subject to delusional, obsessive, and suicidal behavior; would live in filthy conditions; and would fail to take medicine required to control the epileptic seizures from which she also suffers. Attempts to reunite appellant and S. T. proved unsuccessful due to this cyclical nature of appellant’s mental illness. Caseworkers assigned to appellant also testified regarding the extent to which appellant is dependent on various agencies and friends to provide her and her child with food, money, and transportation; to manage her finances; and to make decisions, which consequently often devolved upon S. T., ten years old at the time of the hearing. The record also contained evidence regarding S. T.’s relationship with her foster family, the emotional strain caused by her visits to appellant, especially as to her fears of having to handle her mother’s depression and epileptic seizures, her requests to be adopted by her foster parents, and her fears that she will be taken away from them. Expert testimony was also adduced regarding the undesirable effects of long term foster care on S. T., the child’s need for a stable home environment, and the unlikelihood that appellant, with her fluctuating and deteriorating mental health, could ever provide S. T. with the type of emotional relationship the child requires.

Decided September 3, 1991.

Raymond L. Crowell, for appellant.

Michael J. Bowers, Attorney General, Margot M. Cairnes, McClure, Ramsay & Dickerson, Martha B. Sikes, for appellee.

“The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test... , is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence (parental . . . inability as provided by OCGA § 15-11-81 (b)).” (Citations and punctuation omitted.) In the Interest of J. L. O., 197 Ga. App. 596, 597 (398 SE2d 853) (1990).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A91A0858.
    LEPARD v. ROBB et al.
    (410 SE2d 160)
   Andrews, Judge.

Lepard appeals the trial court’s grant of summary judgment on his complaint for libel and slander against his employer, Pan Am and one of his supervisors, A. F. Robb.

Viewing the evidence in the light most favorable to Lepard, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the facts established that Lepard was terminated from his employment as foreman of a motor transportation pool with Pan Am at Fort Gordon on September 2, 1988. His termination resulted from an internal investigation in late August of that year, which began after Pan Am officials received information that on August 23 Lepard and another Pan Am employee had stolen a government-owned automobile battery. The investigation began on August 26, on which date the vehicle and equipment manager, Robb, told Lepard that he should not return to the Pan Am premises until the investigation was complete. On September 2, 1988, Robb sent Lepard a termination letter which stated that although the investigation for theft was inconclusive, it had exposed other violations for which Lepard was being terminated.

Approximately a month after his employment ended, Lepard returned to Fort Gordon to visit Pan Am employees, whereupon Robb told him that as an ex-employee, he was not allowed on the premises. According to Lepard, Robb’s statement was made in front of other employees.

Based on this series of events, Lepard filed a complaint against Robb and Pan Am for slander and libel. In his complaint, Lepard alleged that he had been slandered and libeled on August 26 and September 2. At his deposition, Lepard claimed that his defamation claim stemmed from the September 2 letter, from Robb’s instructions to him not to return to the Pan Am facilities, and from statements made to a subsequent employer by Pan Am employees that Lepard was fired for theft.

Robb and Pan Am filed a motion for summary judgment accompanied by the affidavits of Dale Tyler, the Pan Am general manager responsible for all company hiring and firing decisions, and of Robb. Tyler’s affidavit stated that Lepard had been terminated for various company rule violations and not for theft. Tyler also swore that no Pan Am employee had been authorized or directed to communicate any information concerning Lepard, his job performance, or the circumstances surrounding his termination to any individual or organization. Both Robb and Tyler swore that the only people who were provided information concerning Lepard’s termination were those Pan Am employees who because of their positions were required to be aware of such facts.

In response to the motion, Lepard submitted three affidavits of Fort Gordon personnel in which each affiant swore that he had been told by a Pan Am employee, other than Tyler or Robb, that Lepard was terminated from Pan Am for theft.

The trial court granted summary judgment to Pan Am and Robb, and from that order Lepard appeals.

1. Lepard enumerates as error the trial court’s finding that his libel and slander claim failed for lack of publication. Before addressing this enumeration, it is necessary to examine the incidents upon which Lepard’s claim for libel and slander was based. The conceivably defamatory incidents were Robb’s instructions to Lepard not to return to the Pan Am facilities, the statements made to Lepard’s subsequent employer by an unknown Pan Am employee that Lepard was fired for stealing a battery and the September 2 letter.

The first two incidents do not constitute defamation in that they both lack essential elements and it was proper for the trial court to grant the motion for summary judgment on this portion of Lepard’s claim. From the transcript before us, it appears that Robb requested that Lepard not return to the Pan Am property on two occasions, on August 26 at the start of the investigation and in October when he returned to Fort Gordon as an ex-employee. Neither request was slanderous, since there is no evidence that his words contained hurtful innuendo regarding Lepard’s character or behavior. See Chance v. Munford, 178 Ga. App. 252, 253 (342 SE2d 746) (1986); OCGA § 51-5-4. Similarly, the statements from Pan Am employees that Lepard had been fired for stealing a battery do not set forth a claim for slander since there is no evidence that such statements were made at the direction of either defendant. The doctrine of respondeat superior does not apply in slander cases, and a corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff. Chambers v. Gap Stores, 180 Ga. App. 233 (348 SE2d 592) (1986); Anderson v. Housing Auth. of Atlanta, 171 Ga. App. 841 (2) (321 SE2d 378) (1984). Since these two portions of Lepard’s claim lack elements essential for a slander claim, we need not address the issue of their publication.

We now address the issue of publication with respect to the September 2 letter. “The publication of the libelous matter is essential to recovery.” OCGA § 51-5-1 (b). Assuming, without concluding, that the September 2 letter constituted “libelous matter,” we find that there was no evidence to authorize a finding that the letter was published and therefore the trial court’s grant of summary judgment on this basis was proper.

“It is well settled that a communication made by one corporate agent to another is not publication in the legal sense. See Kurtz v. Williams, 188 Ga. App. 14, 15 (371 SE2d 878) (1988). Publication of allegedly defamatory information in the course of an employers’ investigation of an employee’s job performance, when made to persons in authority, is not ‘publication’ within the meaning of the law. [Cits.]” Williams v. Cook, 192 Ga. App. 811 (1), 812 (386 SE2d 665) (1989); see Monahan v. Sims, 163 Ga. App. 354 (1) (294 SE2d 548) (1982). Here, the record is devoid of any evidence that the letter was shown to anyone who did not, by virtue of his job, need to be informed of all the factors involved in the decision to terminate Lepard. In fact, Lepard himself testified that “nobody” would see the letter. In the absence of any evidence of publication of the letter, summary judgment was proper on Lepard’s entire claim. See also Kenney v. Gilmore, 195 Ga. App. 407 (393 SE2d 472) (1990).

Decided September 3, 1991.

Watkins & Watkins, John D. Watkins, for appellant.

Hull, Towill, Norman & Barrett, Neal W. Dickert, for appellees.

2. In another enumeration, Lepard contends that the trial court erred by concluding that Lepard was not discharged for theft of government property. Because Lepard’s claim fails for the reasons stated above, we need not address this enumeration.

3. Finally, Lepard claims that the trial court erred by failing to consider the depositions of George Gay and Robb and the affidavit of James 0. Summers. We have reviewed these materials and found that they do not alter the propriety of the grant of summary judgment in this case.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A91A0860.
    CONWOOD CORPORATION et al. v. GUINN.
    (410 SE2d 315)
   Cooper, Judge.

This is the third appearance of this workers’ compensation case before this court. In the first appearance, Guinn v. Conwood Corp., 185 Ga. App. 41 (363 SE2d 271) (1987), we reversed the superior court, which had denied Georgia-based coverage, and directed that the case be remanded to the State Board of Workers’ Compensation to determine the principal locality of the employment relationship. After the case was remanded, the board, without hearing evidence, entered an order finding that the locality of claimant’s employment was in Georgia and that the board had jurisdiction of the appeal. The superior court affirmed the board’s order, and in the second appearance of the case in this court, we dismissed the appeal and held that since the board’s ruling on the issue of jurisdiction did not constitute a final order or judgment within the meaning of OCGA § 34-9-105 (b), the superior court was without jurisdiction to entertain the appeal. Conwood Corp. v. Guinn, 190 Ga. App. 595 (379 SE2d 621) (1989). The superior court then remanded the case to the board, which remanded the case to the administrative law judge to receive evidence and determine all issues. After hearing evidence, the ALJ entered an order awarding benefits to the claimant and specifically finding that the principal location of the employment relationship was in Georgia. The full board affirmed the ALJ’s award and upon appeal to the superior court, the award was affirmed by operation of law. We granted appellant’s discretionary appeal to determine whether there was any evidence to support the superior court’s ruling that the principal location of the employment relationship was in Georgia.

The claimant/appellee was employed as a factory representative distributing products to retail and wholesale dealers in an area consisting of nine Tennessee counties and four Georgia counties. The claimant resided in Georgia and sustained a work-related injury while in Tennessee. The ALJ found that although appellant’s corporate office was in Tennessee, the claimant maintained an office in his personal home in Georgia because appellant required him to have a place to keep “merchandise, samples and damaged goods”; that in addition to storing samples and damaged goods in his home office, claimant conducted company business from his home office, including keeping records and preparing daily reports; that claimant deducted the cost of his home office and all expenses associated therewith on his federal income tax return; that appellant shipped goods to claimant’s home office; that claimant began and ended each work day from his home office; that claimant generally covered his entire 13 county area in a six-week period, spending approximately 14 to 15-% days in Tennessee stores and 13 to 14-V2 days in Georgia stores; and that although claimant’s assigned territory was geographically larger and consisted of more stores in Tennessee than in Georgia, the greater weight of the evidence showed that claimant’s principal locality of employment was in Georgia. The ALJ’s findings of fact and conclusions of law were adopted by the full board. “A finding of fact made by the full Board when supported by any evidence, is conclusive and binding upon the superior court as well as this court. Neither we nor the superior court have any authority to set aside an award based on supported findings of fact merely because we might disagree with the conclusions reached therein. [Cits.]” Subsequent Injury Trust Fund v. Harbin Homes, 182 Ga. App. 316, 318 (355 SE2d 702) (1987). There was ample evidence presented by claimant through his own testimony to support the ALJ’s decision. Appellant contends that claimant’s testimony was not credible. “Where the evidence is conflicting, ‘ “ ‘the resolution of discrepancies and the determination of witnesses’ credibility is ordinarily for the ALJ or the Board as finders of fact. (Cits.)’ ” ’ [Cit.]”. Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469 (1), 470 (385 SE2d 137) (1989). Considering claimant’s testimony as to the amount of time he spent in both states, the maintenance of his home office and the paperwork which he conducted from his home, we cannot conclude that the ALJ’s determination that Georgia was the principal locality of the employment relationship was erroneous. See Fidelity & Cas. Co. v. Swain, 90 Ga. App. 615 (83 SE2d 345) (1954).

Decided September 3, 1991.

Van Gerpen & Rice, G. Scott Hoffman, for appellants.

Harriss, Hartman, Aaron & Townley, Robert A. Warton, Jr., for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A0881.
    ROSEQUIST v. PRATT.
    (410 SE2d 316)
   McMurray, Presiding Judge.

Frances Rosequist brought an action against Cecil Leonard Pratt alleging that he negligently drove a motor vehicle into the rear of a “moped” operated by plaintiff’s 13-year-old child, Minda B. Rosequist, and wrongfully caused the child’s death. Defendant admitted that he was involved in a collision with Minda B. Rosequist, but alleged that the child caused the collision when she “suddenly drove a 1986 Honda Spree directly into the path of the [vehicle defendant was operating].” The case was tried before a jury and the jury returned a verdict for defendant. This appeal followed the denial of plaintiff’s motion for new trial. Held:

1. Plaintiff contends the trial court erred in granting defendant’s motion in limine, excluding testimony that defendant offered to pay for Minda B. Rosequist’s medical and funeral expenses.

Defendant filed a motion in limine and asserted that “[p]laintiff should be prohibited from offering evidence or referring in the presence of the jury to an allegation that defendant . . . offered to take care of medical or funeral expenses of the decedent.” The trial court granted the motion at a pretrial hearing and stated that he “would deem [such a remark] to be in the nature of a settlement offer.” Plaintiff’s attorney responded as follows: “I would not deem it to be in the nature of a settlement offer. That’s not the way it was offered. I deem it to be an admission against interest that took place with my client. ... It was not saying anything like, ‘We’re going to settle it.’ It was more in the nature of, ‘Make sure you get her the best’ type of thing; you know, ‘and we’ll take care of it.’ ”

Evidence of “activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should be encouraged and should not be considered as an admission of liability. 31A CJS 742, § 291; 2 Wigmore (3d Ed.) p. 159, § 283a.” Gray v. Delta Air Lines, 127 Ga. App. 45, 52 (3), 53 (192 SE2d 521). In the case sub judice, defendant’s offer to pay Minda B. Rosequist’s hospital and funeral expenses does not appear to have been made in a spirit of compromise or as an admission of legal liability for the child’s death. On the contrary, the record shows that the statement was directed to the child’s bereaved relatives a day after the collision. Under these circumstances, we find no error in excluding evidence that defendant offered to pay for Minda B. Rosequist’s medical and funeral expenses. Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601). See Steverson v. Eason, 194 Ga. App. 273 (3) (390 SE2d 424).

2. Plaintiff contends the trial court erred in excluding her accident reconstruction expert’s testimony regarding the cause of the collision. This enumeration is without merit.

The record shows that plaintiff never offered proof of the expected opinion from her accident reconstruction expert. Consequently, there remains nothing for review. Anderson v. Jarriel, 224 Ga. 495, 496 (3) (162 SE2d 322).

3. Error is enumerated in the trial court’s refusal to admit evidence of Minda B. Rosequist’s album of photographs and awards, arguing that this evidence was relevant as to prove the full value of the child’s life.

Decided September 3, 1991.

Jan W. McKinney, for appellant.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Dudley B. Magruder, Jr., Jefferson L. Davis, Jr., for appellee.

“ ‘It is an old and sound rule that error to be reversible must be harmful.’ (Citations and punctuation omitted.) Kolman, Inc. v. Burns, 191 Ga. App. 758, 759 (382 SE2d 702) (1989).” Ingram v. Peterson, 196 Ga. App. 888, 890 (6), 891 (397 SE2d 141). In the case sub judice, the jury found for defendant on the issue of liability. Consequently, any error in excluding evidence as to the value of Minda B. Rosequist’s life is harmless.

4. Plaintiff contends the jury’s verdict was contrary to the evidence and strongly against the weight of evidence.

“It is well settled that such matters as negligence, ordinary care, comparative negligence, and assumption of risk are to be resolved by the jury. McKinney & Co. v. Lawson, 180 Ga. App. 550, 551 (349 SE2d 763) (1986); Eyster v. Borg-Warner, 131 Ga. App. 702 (206 SE2d 668) (1974). It is also the jury which assesses the credibility of witnesses and the weight to be assigned to the evidence. Young v. State, 232 Ga. 176 (205 SE2d 307) (1974); Armour v. State, 154 Ga. App. 740 (270 SE2d 22) (1980); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980).” Cullen v. Timm, 184 Ga. App. 80, 81 (1) (360 SE2d 745). “ ‘The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.’ Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (256 SE2d 916, 921) (1979).” Gorin v. FPA 2, P.C., 184 Ga. App. 239, 240 (361 SE2d 193).

In the case sub judice, defendant testified that he was attempting to pass a small Honda motorcycle on a rural highway when the driver (Minda B. Rosequist) of the motorcycle “made a left turn right in front of . . .” defendant’s vehicle. Defendant testified that he did not have time to take evasive action and that he collided into the motorcycle. Defendant explained that “ [a] 111 could do [was] put my brakes on as hard as I could.” This testimony authorized the jury’s finding that defendant’s actions were not the proximate cause of Minda B. Rosequist’s death. See Palmer v. Farmer, 184 Ga. App. 753 (1) (362 SE2d 453).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       The advantage of a motion in limine is an advance ruling on the admissibility of evidence so as to insulate the jury from exposure to harmful inadmissible evidence. McCormick on Evidence (3rd ed.) § 52, pp. 126, 128. However, the moving party may be hard-pressed in establishing a basis for the exclusion of evidence since it is impossible to know exactly what evidence will be offered at trial. A good practice would therefore be to require an offer of proof from the proponent of the evidence so as to clarify any pre-trial ruling on admissibility and preserve the record for appeal. This practice would also enhance the trial judge’s perspective before deciding whether to consider pre-trial objections to prospective evidence, i.e., the trial judge can more easily determine whether an informed decision on admissibility can be made before evidence is offered at trial. See 1 Wigmore, Evidence, § 18, pp. 790, 801-807.

       The trial transcript reveals no offer of proof regarding the specific testimony defendant sought to exclude. However, the substance of the excluded testimony is apparent from the context of plaintiff’s attorney’s response to the trial court’s assessment of the expected objectional evidence. Consequently, we address this enumeration based on plaintiff’s attorney’s perception of the objectional evidence and upon evidence derived from the witnesses expected to give the objectional testimony.


text:
    A91A0884.
    GULF ATLANTIC MEDIA OF GEORGIA, INC. v. ROTH.
    (410 SE2d 163)
   Pope, Judge.

Defendant/appellant Gulf Atlantic Media of Georgia, Inc. (“Gulf”) appeals from the trial court’s grant of partial summary judgment in favor of plaintiff-appellee Jerry Roth a/k/a Jerry Rogers. Roth was employed by Gulf as its president and chief executive officer from July 29, 1988 until December 29, 1989. Roth filed this action alleging that Gulf breached an employment agreement entered into by Gulf and Roth on July 29, 1988. Roth later moved for partial summary judgment for all monies he alleged were owed to him under the employment agreement. The trial court granted Roth’s motion for partial summary judgment. Gulf appeals from that decision.

After a careful review of the record, including the disputed employment contract, this court finds that there remain disputed issues of material fact which require the partial reversal of the trial court’s grant of partial summary judgment in this case. Although it is the trial court’s duty to construe unambiguous contracts, “the trial court may not construe an inherently ambiguous contract.” Travelers Indem. Co. v. A. M. Pullen & Co., 161 Ga. App. 784, 789 (289 SE2d 792) (1982). When certain provisions in a contract are ambiguous, a jury must resolve the true intention of the parties by considering parol evidence. Id. The record discloses the portion of the employment contract concerning bonuses is ambiguous about what constituted Gulf’s 1988 fiscal year for purposes of calculating any bonus to which Roth may have been entitled. We further find that an issue of material fact remains concerning whether Roth has received his full salary for the year 1989.

The trial court properly granted Roth summary judgment on the disputed automobile expense claim since the pertinent contract provision provided “[Roth] shall be entitled to receive an expense allowance to lease an automobile in the amount of Three Hundred Dollars ($300) per month, or the Company shall make other mutually agreeable arrangements to provide [Roth] with an automobile for use in fulfilling his duties hereunder.” (Emphasis supplied.) The evidence is uncontroverted that Roth never agreed to the use of an automobile in lieu of the $300 automobile allowance. Gulf does not dispute those portions of the trial court’s grant of partial summary judgment concerning Roth’s entitlement to a bonus for 1989 in the amount of $20,000 or for reimbursement of disability insurance premiums for one year in the amount of $2,200.40. Accordingly, this court affirms the trial court’s grant of partial summary judgment concerning those issues.

Judgment affirmed in part and reversed in part.

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

Decided September 3, 1991.

Oliver, Maner & Gray, James P. Gerard, for appellant.

McCallar & Associates, C. James McCallar, Jr., for appellee.


text:
    A91A0886.
    In the Interest of H. A. M., a child.
    (410 SE2d 319)
   Beasley, Judge.

An action was brought against defendant father seeking to terminate his parental rights to his minor child, H. A. M., whose mother defendant had killed. The original order terminating defendant’s parental rights was entered on December 28, 1989. No notice of appeal was filed but defendant did file an amended petition for modification or vacation of the original order on January 26, 1990, without obtaining an extension of time under OCGA § 5-6-39. That motion was denied and overruled by an order filed on December 5, nearly 11 months later. Cf. OCGA § 15-6-21 (a) & (b). Defendant filed a notice of appeal on December 28, from the original order and from the order denying the motion to modify or vacate. Defendant’s two enumerations of error actually address only the merits of the original order of 1989.

OCGA § 15-11-42, made applicable to termination proceedings by OCGA § 15-11-91, provides in subparagraphs (a) and (b) for the modification or vacation of a juvenile court order if: “1) It appears that it was obtained by fraud or mistake sufficient therefor in a civil action; 2) The court lacked jurisdiction over a necessary party or of the subject matter; ... 3) newly discovered evidence so requires”; 4) changed circumstances so require in the best interests of the child (with certain exceptions).

A motion under OCGA § 15-11-42, which appellant’s motion asserts to be in that it is bottomed on OCGA § 15-11-42 (a) (1) and (b), is not one of the three types of motions which will automatically extend the time for filing a notice of appeal on the underlying judgment. OCGA § 5-6-38 (a). It is instead similar to a motion to set aside under OCGA § 9-11-60 (d). The denial of a motion to set aside is appealable [now under the discretionary provisions of OCGA § 5-6-35 (a) (8)], but does not sustain an appeal from the underlying judgment. Smith v. Wood, 174 Ga. App. 799, 800 (2) (331 SE2d 636) (1985); Clements v. Trust Co. Bank of Ga., 171 Ga. App. 600, 601 (4) (320 SE2d 576) (1984); Dutton v. Dykes, 159 Ga. App. 48, 49 (2) (283 SE2d 28) (1981).

Decided September 3, 1991.

William D. Edwards, for appellant.

Michael J. Bowers, Attorney General,- Margot M. Cairnes, Assistant Attorney General, Daniel M. Mitchell, Jr., Charles S. Wynn, Short & Fowler, James M. Bivins, for appellee.

Assuming that appellant’s motion is directly appealable rather than that it is embraced in OCGA § 5-6-35 (a) (8) so as to require an application, we may only consider the correctness of the order denying the motion to modify and vacate the underlying judgment, but not the merits of that judgment. Defendant does not enumerate the order as error. Nevertheless, there is nothing to indicate that the trial court erred in denying the motion. We have nothing further to review.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0902.
    BURKE v. THE STATE.
    (410 SE2d 164)
   Sognier, Chief Judge.

Lesley L. Burke, a/k/a Lesley L. Burtch, entered a plea of guilty to the charge of theft by taking an automobile. Following the trial court’s acceptance of his plea a restitution hearing on the issue of damage to the automobile was held before sentencing. This appeal challenges the restitution portion of the sentence imposed.

1. Appellant contends the trial court erred by ordering restitution when it was not authorized by law. Appellant argues that although he pled guilty to theft by taking the automobile, he did not admit damaging it, and no evidence was adduced at the hearing showing that he did so. Thus, he contends, restitution for damaging the car was neither “based on the same act or acts for which [he] was sentenced” within the meaning of OCGA § 17-14-2 (2) nor authorized by the evidence.

We do not agree. OCGA § 17-14-2 (2) defines the damages recoverable as restitution as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” (Emphasis supplied.) Id. The statute does not require that the damage be the direct result of the crime committed, but only that it be “based on the same act or acts.” In the case sub judice, the owner testified that the car was in good condition when it was stolen and that it was found abandoned in a ditch, in damaged condition, the day after it was stolen. Appellant admitted stealing the car. This evidence, although concededly circumstantial, supports the conclusion that the damage to the car was proximately caused by the unlawful act for which appellant was sentenced, i.e., appellant’s theft of the car. Hendrix v. State, 186 Ga. App. 665, 666 (2) (368 SE2d 181) (1988). Appellant’s argument to the contrary, see id. at 667 (1) (Ben-ham, J. concurring in part and dissenting in part), was rejected by this court in Hendrix, supra at 666 (2). It follows that the trial court was authorized to order appellant to pay restitution for the damage. Id.

2. The record does not support appellant’s contention that witness Keith Lester’s testimony regarding the cost of repairing the car’s body damage consisted entirely of hearsay quotations of prices taken from other sources. Rather, Lester testified that because the stolen vehicle was a Chevrolet Camaro, he used parts manuals published by General Motors to establish the price he would have to pay for the GM body parts necessary to repair it. Although he testified he also used these manuals as a guide to the amount of labor required for repairs, he also testified he had over 30 years’ experience repairing cars and had “been in it long enough I know pretty well what time it takes to do a certain operation.”

3. Appellant maintains the evidence was insufficient as a matter of law to support restitution in the amount of $5,000 because no evidence was adduced concerning the value of the car at the time it was stolen or after it was returned in damaged condition. We find merit in this enumeration.

“The amount of restitution ordered may be equal to or less than but not more than, the victim’s damages.” OCGA § 17-14-9. “[T]he victim’s damages” for restitution purposes are defined in OCGA § 17-14-2 (2) as those the victim could recover in a civil action against the defendant, with certain specified exceptions inapplicable here. “The measure of damages in [a civil] action to recover for injuries to a motor vehicle caused by a collision or other negligence of a defendant is the difference between the value of the vehicle before and after the collision or other negligence, but where the owner has had the vehicle repaired, that loss can be established by showing the reasonable value of labor and material used for the repairs, and the value of any depreciation (permanent impairment) after the vehicle was repaired, provided the aggregate of these amounts does not exceed the value of the vehicle before the injury.” Perma Ad Ideas v. Mayville, 158 Ga. App. 707-708 (282 SE2d 128) (1981).

In the case sub judice, the only evidence adduced at the restitution hearing concerned the cost of the repair labor and materials, the age of the car, and its condition prior to the theft. The cost of the necessary body work alone was just over $4,000, and evidence was adduced showing that mechanical repairs were also done for an unspecified amount. Although this evidence may well support the trial court’s conclusion that “the evidence does establish that at least [$5,000] is necessary to make the victim whole,” no evidence was adduced showing the value of the car immediately prior to the theft. Consequently, we cannot determine whether the restitution awarded, which was based on the cost of repairs alone, exceeded this amount and thereby violated the mandate of OCGA § 17-14-9.

We note finally that we do not agree with the State that appellant waived his right to raise this contention on appeal by failing to object below to the amount of restitution set by the trial court. Where a hearing is held to adjudicate the amount of restitution, the defendant’s first opportunity to question the sufficiency of the evidence presented to support the amount of restitution ordered comes only after the trial court’s pronouncement of its ultimate determination of the amount of restitution following the close of the evidence. In those circumstances, a contention that the evidence was insufficient to support the amount of restitution may be raised in a motion for a new trial, but may also be raised on appeal, regardless of whether it was raised in a motion for new trial. See OCGA § 5-5-40 (g).

The State misinterprets our statement in Westmoreland v. State, 192 Ga. App. 173, 177 (384 SE2d 249) (1989) that “a defendant who does not agree to the amount of restitution ordered by the trial court is normally required to contest the issue at the time the condition is imposed.” (Citations and punctuation omitted.) Stated in the negative, OCGA § 42-8-35 (7) requires that “[u]nless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss caused by [the probationer’s] offense shall be made if the amount is in dispute unless the same has been adjudicated.” Id. Pursuant to that statute, this court has held that “[u]nder OCGA § 42-8-35 ‘(a) defendant is only entitled to adjudication of the restitutionary amount when that amount is in dispute.’ [Cit.] Thus, as a prerequisite to such an adjudication, the defendant must dispute the amount of restitution ordered by the trial court. [Cit.]” (Emphasis supplied.) Williams v. State, 180 Ga. App. 854, 855-856 (3) (a) (350 SE2d 837) (1986). Our statement in Westmoreland, supra, quoting Williams, is not applicable to the facts sub judice because in Westmoreland the appellant had himself suggested the inclusion of restitution for other crimes in the restitution amount to be set at the hearing, and had affirmatively agreed to the amount set below, both of which were later enumerated as error on appeal. In this case, the record discloses that at the hearing held to adjudicate the disputed restitution amount appellant, through counsel, vigorously cross-examined the State’s witnesses, raised objections to- the speculative nature of certain of the State’s evidence, and urged the trial court that although it “could consider the actual cost of repairs,” it could do so only “so long as it didn’t exceed the value of the vehicle itself.” (Emphasis supplied.)

Decided September 3, 1991.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Accordingly, we remand this case to the trial court for the taking of evidence regarding the value of the car in its condition prior to the theft. Should that value prove to be less than $5,000, the excess should be written off the amount of restitution. See generally Lovell v. State, 189 Ga. App. 311, 313-314 (3) (375 SE2d 658) (1988).

Sentence vacated and case remanded with direction.

McMurray, P. J., and Andrews, J., concur.