author: Blackburn, Judge.

text:
    A98A2025.
    TURNER v. THE STATE.
    (508 SE2d 786)
   Blackburn, Judge.

Samuel A. Turner appeals his convictions for a stop sign violation and for driving under the influence of alcohol, following jury trial, contending that the trial court committed a reversible error by failing to give the jury limiting instructions contemporaneously with the introduction of similar transaction evidence. For the reasons set forth below, we affirm.

The issues of the giving of a limiting instruction in connection with similar transaction evidence, the necessity of the defendant requesting such charge in writing, and the timing of the giving of a limiting charge where required, have been before the appellate courts in numerous cases recently.

Our Supreme Court’s recent decisions in State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998) (Belt II) and State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998) (Hinson II), addressed issues related to limiting instructions and similar transactions. In Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997) (Belt I), no limiting instruction was requested by the defendant or given by the trial court. The Court of Appeals reversed, stating that a limiting instruction must be given by the trial court even absent a written request by the defendant, and further provided that the better practice would be for the trial court to give such charge at the time the evidence is introduced.

In Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997) (Hinson I), the Court of Appeals reversed, holding that even though the trial court gave a limiting instruction during its general charge, “the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” (Emphasis supplied.) Hinson I purported to be controlled by Belt I, but, in fact, made compulsory, that which was recommended in Belt I.

Our Supreme Court granted certiorari in both these cases. In Belt II, the Supreme Court held that it is not reversible error for a trial court not to instruct a jury at any time that similar transaction evidence admitted for a limited purpose must be considered only for that limited purpose, absent a proper written request by a defendant for such charge. The Supreme Court further noted however, “that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so.” Belt II, supra at 765.

In Hinson II, our Supreme Court held that “the Court of Appeals erred in requiring that a trial court give a contemporaneous limiting instruction without request. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge.” (Emphasis supplied.) Hinson II, supra at 862.

Neither Belt II nor Hinson II specifically answer the question of whether the trial court is required to give a limiting instruction at the time the similar transaction evidence is introduced where timely and properly requested, rather than as a part of the closing charge.

Decided November 6, 1998

Reconsideration denied November 18, 1998.

Robert A. Meier IV, Thomas L. Burton, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Here, Turner requested a limiting instruction just after the admission of the similar transaction evidence. Turner stated: “Judge, we would at this time and, as a matter of fact, insist upon curative instructions as to the last two witnesses so the jury clearly understands the purpose of the witnesses, what they testified to, and what they can do and what they can’t do with that [evidence].” Turner did not, however, explicitly request that the instruction be given immediately, and he did not object when the judge advised him that he would wait to give the instruction as part of the closing charge to the jury. While Turner requested a limiting instruction, his failure to explicitly request that it be given upon the introduction of the subject evidence, or to renew such request upon the trial judge’s statement of his intention to give the requested charge as a part of the general charge, waived any right to have the charge given at the time of the introduction of the evidence. We do not therefore address whether or not he would have been entitled to have such limiting instruction given at the time the evidence was introduced absent his waiver of any such right, as such issue is not before us. Based on Belt II and Hinson II, it was not reversible error for the trial court to wait and give its instruction on the limited use of similar transaction evidence in its closing charge to the jury where Turner failed to explicitly request that the limiting instruction be given contemporaneously and otherwise waived any such right.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A2368, A98A2428.
    ZAMPATTI v. TRADEBANK INTERNATIONAL FRANCHISING CORPORATION et al.; and vice versa.
    (508 SE2d 750)
   Eldridge, Judge.

Tradebank International, Inc. (“Til”) owns a system of reciprocal brokerage of goods and services, i.e., barter and trade, among its clients and acts as the keeper of records for the transactions between its clients for which it receives compensation. Tradebank International Franchising Corporation (“TIFC”) is the wholly owned subsidiary of TII. TIFC acts to franchise Til’s regional operations and has granted several franchises with exclusive territories.

On June 23, 1995, Ricardo J. Zampatti (“Zampatti”) entered into a franchise agreement with TIFC; the franchise was known as Tradebank Atlanta North. Previously, he had been under a regional management agreement with TII and was reluctant to enter into the franchise agreement with TIFC but did so. The original exclusive franchise territory was: Bartow, Cherokee, Dawson, Forsyth, and Pickens Counties and those portions of Fulton County within Zip Codes 30075, 30076, 30136, and 30201. Zampatti was to facilitate the reciprocal brokerage of goods and services, i.e., barter, among Til’s clients.

On March 1, 1996, Zampatti was terminated by written notice as a franchisee; however, Zampatti told Til’s clients that both TII and TIFC were going out of business and that he was starting a successor company to take over Til’s and TIFC’s business to serve them.

TIFC and TII sued Zampatti in a five count complaint: Count 1 for breach of a noncompete and nonsolicitation agreement with TIFC; Count 2 for tortious interference with contract with TIFC’s and Til’s clients; Count 3 for open account with TII; Count 4 in the alternative for quantum meruit with TII; and Count 5 for OCGA § 13-6-11 attorney fees for bad faith, stubborn litigiousness, and unnecessary trouble and expense for TIFC and TII. Zampatti answered and counterclaimed: Count 1 breach of contract in six parts: 1. for failure to pay commissions; 2. for failure to provide franchisee support; 3. for violation of unspecified State and Federal laws and regulations; 4. for breach of contract to clients; 5. for failure to file with the IRS and the Georgia Department of Revenue; 6. for improper accounting; Count 2 breach of fiduciary duty; Count 3 fraud; and Count 4 deceit.

On September 30, 1997, TII and TIFC moved for summary judgment and request for oral argument. On December 11, 1997, oral argument was held although defense counsel did not appear, but written notice was mailed on October 28, 1997. At the time of oral argument, defense counsel was called, but he denied having received notice. Oral argument proceeded and defense counsel obtained a copy of the transcript and the trial court permitted him to submit a supplemental brief in lieu of oral argument. The supplemental defense brief was filed December 26, 1997. Without an order granting permission to file affidavits after the hearing, Zampatti filed on December 24,1997, supplemental affidavits of Jennifer Walker and Thomas Walker, and his personal affidavit on January 23, 1998. Upon motion by TII and TIFC, the trial court struck such affidavits as untimely filed.

On January 29, 1998, after TII and TIFC filed motions for summary judgment and prior to the trial court’s oral argument on the motion for summary judgment, Zampatti filed a cross-motion for summary judgment, raising many of the same issues as addressed in the pending ruling; however, he never had his motion set down for hearing or had the two motions set to be argued on the same date. In fact, Zampatti did not request in writing oral argument.

On May 19, 1998, the trial court granted partial summary judgment to TII and TIFC as to its claims and as to its motion as to Zampatti’s counterclaim and denied summary judgment as to Zampatti’s motion for summary judgment. Zampatti filed his notice of appeal.

1. Zampatti’s first enumeration of error is that the trial court erred in finding that Zampatti breached the franchise agreement. We do not agree.

Zampatti’s brief in argument, citation to the record, and authorities do not address this enumeration at all. Under Court of Appeals Rule 27 (c) (2), (3) such enumeration is deemed abandoned. However, the Court will address the issue nonetheless, because it is dispositive of other enumerations.

Under the franchise agreement, Zampatti was not to compete with TII or TIFC within his territories or solicit business from the clients for one year following his termination, for any reason. In March 1996, Zampatti formed The Barter Company, Inc. (“BCI”), which performed the same activities that he engaged in while a franchisee. From March 1996 through March 1997, at his former franchise address, Zampatti engaged in the barter business within his former territory and solicited clients of TII and TIFC. During the 12 months in the territory, Zampatti took 27 of Til’s former clients and solicited business from another 24 TII clients. Such solicitation of Til’s clients by Zampatti caused it financial losses. Thus, there was undisputed evidence that Zampatti breached the franchise agreement.

2. Zampatti’s second and third enumerations are that the trial court erred in not considering the timely filed affidavits and in striking the supplemental affidavit testimony of Thomas and Jennifer Walker. We do not agree.

(a) On March 26, 1996, Thomas and Jennifer Walker signed affidavits to be used in opposition to any injunction; on October 29,1997, the affidavits were filed. Thomas Walker testified that he had worked from January 1995 until September 1995 as president of TIFC, when he resigned. Jennifer Walker testified that she was Chief Financial Officer of TII from approximately June until August 1995, when she resigned. Both testified that they learned that TII had been: a. “failing or refusing to produce financial statements”; b. “manipulating corporate checking accounts, including floating, ‘kiting’ and otherwise issuing bad checks; c. “failing to carry proper insurance, including insurance for workers’ compensation, liability, and unemployment benefits”; d. “failing to pay or otherwise comply with state and federal tax laws”; and e. “withdrawing funds from the corporation for personal use without documentation or actual expenses, and often in the name of a third party.”

OCGA § 9-11-56 (e) mandates that affidavits “shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Such general bare allegations in the affidavits were not stated with specificity as to times, places, party or parties, transactions, occasions, or events so as to constitute statements of facts. Where the affidavits failed to set forth any factual basis for the conclusions and contentions, then they were insufficient to oppose a motion for summary judgment. See Parlato v. MARTA, 165 Ga. App. 758 (302 SE2d 613) (1983). These allegations were made in support of the conclusion that TII or TIFC “were conducting business in a manner contrary to the terms and intent of these franchise agreements” and “[t]his conduct outlined above seriously imperiled the viability, marketability and continued existence of TII, TIFC and the Tradebank system, including each franchisee and member within that system, including Tradebank Atlanta North owned by Ricardo J. Zampatti.” As mere conclusions, they cannot oppose a motion for summary judgment. Sullivan v. Fabe, 198 Ga. App. 824 (403 SE2d 208) (1991); Collins v. West Am. Ins. Co., 186 Ga. App. 851 (368 SE2d 772) (1988); Belcher v. Logan, 150 Ga. App. 249 (257 SE2d 299) (1979).

Such conclusions are not admissible as the opinion of a layperson, because insufficient facts were stated to lay a proper foundation for a lay opinion. OCGA § 24-9-65; Johnson v. Knebel, 267 Ga. 853 (485 SE2d 451) (1997). Nor are such conclusions admissible as the opinion of an expert, because neither Jennifer Walker nor Thomas Walker were qualified in the affidavits as expert witnesses through training, skill, or experience to render an expert opinion. OCGA § 24-9-67; Martin v. Baldwin, 215 Ga. 293 (110 SE2d 344) (1959).

Mere conclusions are insufficient to overcome evidence of necessary certitude; opposing affidavits “must set forth specific facts.” Neither affidavit contains material facts and were properly not considered by the trial court. See Love v. Love, 259 Ga. 423 (383 SE2d 329) (1989); Keene v. Herstam, 225 Ga. App. 115 (483 SE2d 335) (1997); Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315 (461 SE2d 282) (1995); Concert Promotions v. Haas & Dodd, Inc., 167 Ga. App. 883 (307 SE2d 763) (1983); Norris v. Kunes, 166 Ga. App. 686 (305 SE2d 426) (1983); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8 (262 SE2d 168) (1979); Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 748 (3) (165 SE2d 441) (1968).

Further, Jennifer Walker worked from “approximately June to August of 1995” as Chief Financial Officer, so that she could have only personal knowledge for such limited period of time; however, she does not specify for what time period her allegations a. through e. cover. Anything before June 1995 and during or after August 1995 would be outside her personal knowledge; during and after August 1995, she would have no access to know what she purports to have testified to; thus, application of the affidavit to time prior to and after her employment must be disregarded for her lack of personal knowledge. The same is true for Thomas Walker for the periods prior to January or after September 1995. See Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809 (374 SE2d 544) (1988); Summer v. Allison, 127 Ga. App. 217 (193 SE2d 177) (1972). Thus, they were incompetent to testify of their own personal knowledge as to times when they were not employed. Watkins Prods. v. England, 123 Ga. App. 179 (180 SE2d 265) (1971); Ireland v. Matthews, 120 Ga. App. 510 (171 SE2d 387) (1969). Where lack of personal knowledge as to some evidence can be shown from the affidavit despite a claim of personal knowledge, such portion of the affidavit shall be disregarded by the trial court. Sullivan v. Fabe, supra at 824; see also Morris-Bancroft Paper Co. v. Coleman, supra at 809.

However, prior to June 1995, as Chief Financial Officer, she would have access to accounts, books, records, files, checks, or statements upon which to base an opinion or hearsay exception; but, . under OCGA § 9-11-56 (e) such documents would have to be attached to the affidavits for such opinion to be admissible or as a business record exception to the hearsay rule. See OCGA § 24-3-14; Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443 (393 SE2d 728) (1990); Landers v. Ga. Baptist Med. Ctr., 175 Ga. App. 500 (333 SE2d 884) (1985); Gunnin v. Swat, Inc., 195 Ga. App. 344 (393 SE2d 700) (1990); Thomasson v. Trust Co. Bank, 149 Ga. App. 556 (254 SE2d 881) (1979). Likewise, Thomas Walker would have access to such records prior to January 1995; however, this would not provide personal knowledge. No such documents were attached to the affidavits; therefore, their allegations were excluded either as hearsay, opinions without foundation, or bare allegations, not facts. Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 (388 SE2d 69) (1989). Thus, the allegations are based on matters not in the record and not admissible in evidence. Nettles v. Laws, 172 Ga. App. 241 (322 SE2d 546) (1984); Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628 (206 SE2d 598) (1974); Chandler v. Gately, 119 Ga. App. 513 (167 SE2d 697) (1969). As hearsay, such testimony must be excluded. Bonds v. John Wieland Homes, 177 Ga. App. 254 (339 SE2d 318) (1985). The trial court did not err in disregarding such inadmissible evidence.

(b) OCGA § 9-11-56 (c) and Uniform Superior Court Rules 6.2 and 6.3 mandate the time within which the respondent may file evidence in opposition to summary judgment; either within 30 days of service of the motion or on the day prior to the scheduled hearing. Since the movant made a request for oral argument under Rule 6.3, then under OCGA § 9-11-56 (c) Zampatti had until December 10, 1997, to file any evidence in opposition to the motion. On December II, 1997, Zampatti knew that the hearing on the motion had taken place; nonetheless, Zampatti, without requesting leave of the court for permission to file late affidavits, filed his own affidavit and supplemental affidavits for the Walkers on December 24, 1997, fourteen days late and three days after his supplemental responsive brief was due.

A motion to strike is the proper procedure to attack untimely filed affidavits. See Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981); Ford v. Ga. Power Co., 151 Ga. App. 748, 749 (2) (261 SE2d 474) (1979). "It is well settled that the trial court has the discretion to decide whether it will consider affidavits not served within the time limits contemplated by the statutes.” Washington v. Ga. Baptist Med. Center, 223 Ga. App. 762, 764 (1) (478 SE2d 892) (1996); see also Hayes v. Murray, 252 Ga. 529, 530 (314 SE2d 885) (1984); Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111, 112 (1) (281 SE2d 583) (1981); Coastal Plains Trucking Co. v. Thomas County Fed. Sav. &c. Assn., 224 Ga. App. 885, 886-887 (482 SE2d 493) (1997); Talley v. City Tank Corp., 158 Ga. App. 130, 133 (2) (279 SE2d 264) (1981). Thus, the trial court did not abuse its discretion in not considering the untimely filed affidavits.

3. Zampatti’s fourth enumeration of error is that the trial court erred in finding that the noncompete provisions of the agreement were enforceable. We do not agree.

Zampatti does not attack the restrictive covenants with TIFC and TII as being unreasonable or unenforceable; instead, he contends that the underlying franchise agreement was breached by TIFC and TII so that the restrictive covenants therefore fail as terms of the agreement. He concedes that the restrictive covenant was reasonable as to duration, territory, and activity. See Electronic Data Systems Corp. v. Heinemann, 217 Ga. App. 816 (459 SE2d 457) (1995); Dominy v. National Emergency Svcs., 215 Ga. App. 537 (451 SE2d 472) (1994). Even as to the covenant not to solicit customers, Zampatti does not attack it as unreasonable, because it was narrowly drafted as to time, territory, and scope of activity. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 466-467 (422 SE2d 529) (1992).

Zampatti’s ■ entire attack is that TII and TIFC breached the franchise agreement so that the special covenants also fall. The franchise agreement provided for severability or survivability of the covenants from the franchise agreement; the covenants were to survive “for one (1) year after the termination of [the franchise] Agreement for any reason whatsoever.” Therefore, “the covenants in the contract are independent,” so that they must be enforced despite the possible breach of the underlying agreement by TII or TIFC. See Orkin Exterminating Co. v. Harris, 224 Ga. 759, 760-761 (1) (164 SE2d 727) (1968); Orkin Exterminating Co. v. Gill, 222 Ga. 760 (152 SE2d 411) (1966); Mansfield v. B. & W. Gas, 222 Ga. 259, 260 (2) (149 SE2d 482) (1966); Circle Appliance Leasing v. Appliance Warehouse, 206 Ga. App. 405, 406 (1) (425 SE2d 339) (1992); O. H. Carter Co. v. Buckner, 160 Ga. App. 627, 629 (287 SE2d 636) (1981). Since this was not an employment agreement but a franchise agreement, then these covenants survive as independent covenants. Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 297-298 (1) (491 SE2d 394) (1997).

4. Zampatti’s fifth enumeration of error is that the trial court erred in finding that Zampatti tortiously interfered with Til’s contractual relationship with its client base. We do not agree.

“To prove tortious interference with [contractual] relations, [TII] would have to prove that [Zampatti] acted improperly and without privilege, acted purposely with malice and intent to injure, induced a third party or parties not to enter into or continue a business relationship with [TII], and thereby caused some financial injury.” Rodgers v. First Union Nat. Bank, 220 Ga. App. 821, 823 (1) (c) (470 SE2d 246) (1996); Green v. Johnston Realty, 212 Ga. App. 656, 659-660 (4) (442 SE2d 843) (1994). “The term malicious or maliciously means any unauthorized interference or any interference without justification or excuse.” St. Mary’s Hosp. v. Radiology Professional Corp., 205 Ga. App. 121, 124 (2) (421 SE2d 731) (1992); see also Green v. Johnston Realty, supra at 660.

The evidence is undisputed that Zampatti solicited business from 51 clients of TII after the agreement was terminated and induced 27 clients of TII to join BCI to the economic detriment of TII. At the time that Zampatti solicited such clients, he knew that they were Til’s clients, because Zampatti had serviced them as a franchisee of TIFC. Such luring away of these clients deprived TII of revenue. Thus, the trial court properly granted summary judgment.

5. Zampatti’s sixth enumeration of error is that the trial court erred in finding that TII should recover on its claim for quantum meruit. We do not agree.

Zampatti’s contention is that the value of the goods and services ascribed for barter purposes differs from a cash or fair market value for such goods and services. He argues that the Tradebank dollar value is substantially less than that of actual currency. Such is a damages issue, because under quantum meruit damages are based upon the value of goods and services, i.e., benefit, to Zampatti and not to TIL Therefore, what Zampatti contends has not been proven and is a disputed issue of fact, i.e., the benefit conferred upon him, is exactly the issue that the trial court correctly left for jury determination.

A party could render substantial services or transfer goods to another that were of little benefit to the defendant; therefore, benefit is measured from the standpoint of the person upon whom such benefits were conferred. A jury must determine what reasonable benefit was, in fact, conferred to determine the recovery, i.e., damages. OCGA § 9-2-7 states: “[o]rdinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” “The theory of unjust enrichment applies when as a matter of fact there is no legal contract . . . , but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for.” Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782 (2) (300 SE2d 180) (1983); see also Georgia Tile Distributors v. Zumpano Enterprises, 205 Ga. App. 487, 488-489 (1) (422 SE2d 906) (1992).

The measure of damages under quantum meruit or unjust enrichment is based upon the benefit conferred upon the defendant and not upon the cost to render the service or cost of the goods. See Watson v. Sierra Contracting Corp., 226 Ga. App. 21 (485 SE2d 563) (1997) (physical precedent only); Remediation Svcs. v. Ga.-Pacific Corp., 209 Ga. App. 427 (433 SE2d 631) (1993); Smith Dev. v. Flood, 198 Ga. App. 817 (403 SE2d 249) (1991); Stowers v. Hall, 159 Ga. App. 501 (283 SE2d 714) (1981); Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287 (241 SE2d 256) (1977); City of Gainesville v. Edwards, 112 Ga. App. 672 (145 SE2d 715) (1965).

Since the trial court found all the other elements of quantum meruit from the undisputed evidence and Zampatti does not contest them, then it was not error to leave for the jury the determination of benefit conferred by the goods and services to Zampatti, which was a disputed issue of material fact.

6. Zampatti’s seventh enumeration of error is that the trial court erred in finding that his counterclaim for breach of contract fails as a matter of law. We deem this enumeration abandoned.

This enumeration fails to cite to the record and suffers from the same defect of the counterclaim in the trial court below, i.e., it neither identifies the contract that was breached, the contract provision breached, nor the party, TII or TIFC, that he alleges breached the contract. Thus, under Court of Appeals Rule 27 (c) (3), this enumeration is deemed abandoned.

7. Zampatti’s eighth enumeration of error is that the trial court erred as a matter of law in granting summary judgment as to his counterclaim for fraud and deceit. We do not agree.

The alleged misrepresentations of material fact that Zampatti contends that he relied upon “tax liens, check kiting, mismanagement, misrepresentations of officers, and no financial reports” were attributed to TII; however, Zampatti in his deposition could not identify any false statement, either orally, contained in any document, or the franchise agreement, that he relied upon to his detriment or identify who made such false statement. Thus, there was a total failure on summary judgment to come forward with some evidence to raise an issue of material fact as to each element of the cause of action after TII and TIFC pierced the pleadings of the counterclaim with their evidence. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The elements of fraud are “(1) that the defendant made the representations; (2) that at the time he knew they were false (or what the law regards as the equivalent of knowledge) [scienter]; (3) that he made them with the intention and purpose of deceiving the plaintiff [causing plaintiff to act or refrain from acting in reliance thereon]; (4) that the plaintiff [justifiably] relied on such representations; (5) that the plaintiff sustained the alleged loss or damage as the proximate result of their having been made.” Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 730 (3) (16 SE2d 176) (1941); see also Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127, 129 (267 SE2d 635) (1980). Zampatti has failed to come forward with evidence that would raise a material issue of fact that either TII or TIFC, or their agents, made specific misrepresentations or concealed material facts with the intent to mislead Zampatti to his detriment. Zampatti deposed that he did not know, i.e., of any misrepresentations or who made them, if made; he stated let an expert answer. Likewise, Zampatti fails to raise an issue of fact that he was misled to his detriment. Therefore, the trial court did not err in granting summary judgment.

8. Zampatti’s ninth enumeration of error is that the trial court erred in not considering his motion for summary judgment and its related supporting materials. We do not agree.

Divisions 1 through 7 control as to the correctness of the trial court’s grant of summary judgment to TII and TIFC on their claims and against Zampatti’s counterclaim, which is preclusive of Zampatti’s motion for summary judgment on the same or derivative issues that TII and TIFC breached the contract. The trial court ruled on the motions for summary judgment that were first filed, Til’s and TIFC’s, prior to Zampatti’s later filed motion. Zampatti never asked for oral argument or for the motions to be heard or considered together.

The trial court ruled on Zampatti’s motion after granting summary judgment to TII and TIFC, finding Zampatti’s motion now moot. To find Zampatti’s motion moot, the trial court determined that there existed no material issues of fact or law that survived the granting of partial summary judgment on the claims of TII and TIFC and the granting of their motions for summary judgment against Zampatti’s counterclaims and that were encompassed in Zampatti’s motion for summary judgment. The trial court ruled that the granted summary judgment disposed of all the issues raised in Zampatti’s motion and precluded such issues now being raised again, because such issues had been decided adversely to Zampatti. Finney v. Pan-American Fire &c. Co., 123 Ga. App. 250 (180 SE2d 253) (1971). We agree with the trial court.

9. Zampatti’s final enumeration of error is that the trial court erred in not providing Zampatti proper notice of the oral argument on plaintiffs’ motion for summary judgment. We do not agree.

Zampatti filed affidavits in opposition and a brief in opposition within 30 days of Til’s and TIFC’s motion for summary judgment. Even if the trial court provided no notice of the oral argument on Til’s and TIFC’s motions for summary judgment, Zampatti failed to show harm, because the trial court had him orally notified on the day of the hearing on December 11, 1997 and allowed him ten days in which to file his supplemental brief in lieu of oral argument; he obtained a transcript of the oral argument. Compare Southeast Reducing Co. v. Wasserman, 213 Ga. App. 763, 764 (445 SE2d 859) (1994); Dixon v. McClain, 204 Ga. App. 531 (420 SE2d 66) (1994). Zampatti was afforded with substantially the equivalent of oral argument; in fact by filing the supplemental brief, he had a hearing and the last word in argument through his brief. See Orrel v. Amerada Hess Corp., 224 Ga. App. 625 (481 SE2d 624) (1997); Segrest v. Intown True Value Hardware, 190 Ga. App. 588, 589-591 (2) (379 SE2d 615) (1989).

Ferguson v. Miller, 160 Ga. App. 436, 437 (287 SE2d 363) (1981) is not controlling for two reasons. First, Uniform Superior Court Rule 6.3 (effective July 1, 1985) was promulgated after the decision and controls. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 735-738 (1) (350 SE2d 265) (1986) aff’d 256 Ga. 739 (354 SE2d 160) (1987); see also Kelley v. First Franklin Fin. Corp., 256 Ga. 622 (351 SE2d 443) (1987). Second, under the facts of Ferguson v. Miller, supra, no notice was given at all or even attempted; in this case, the record shows that the trial court’s clerk mailed written notice to defense counsel pursuant to OCGA §§ 9-11-5 (b); 9-11-6 (d). On the day of the hearing, defense counsel received oral notice of the hearing, so that he was able to respond prior to the entry of judgment on May 18, 1998. See generally Medders v. Commodore Fin. Svcs. Corp., 190 Ga. App. 618 (1) (379 SE2d 561) (1989); Goodwin v. Richmond, 182 Ga. App. 745, 746-747 (2) (356 SE2d 888) (1987).

Although Zampatti’s counsel arrived at the trial court too late to argue, because opposing counsel had been excused, the trial court allowed him to file a supplemental brief in lieu of oral argument. Defense counsel did not immediately make a written objection to such procedure nor was an objection made in the supplemental brief. The first time that defense counsel raised a written objection on the record was after the entry of the summary judgment on May 18,1998 in their motion to reconsider and their personal affidavits filed on June 18, 1998. Zampatti’s acts or omissions, including his failure to file a written objection on the record at the earliest opportunity to the trial court’s procedure, and the acceptance of such procedure in writing, constituted waiver of any defect in the notice and the trial court’s alternative procedure. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 308-309 (355 SE2d 686) (1987); Dixon v. Midland Ins. Co., 168 Ga. App. 319 (309 SE2d 147) (1983); Connell v. Connell, 119 Ga. App. 485, 488 (4) (167 SE2d 686) (1969).

The trial court under the facts and circumstances of this case did not err in hearing oral argument on December 11, 1997, without opposing counsel and in ruling on the motion on May 18, 1998, after Zampatti’s counsel had ample opportunity to further respond in opposition to the motion.

Cross-Appeal

10. Til’s sole enumeration of error is that the trial court erred in denying its motion for summary judgment on the action on open account. We do not agree.

“ ‘[A]n open account is one in which some item of contract is not settled by the parties.’ ” Allied Store Utilities Co. v. Bennett, 64 Ga. App. 524, 528 (13 SE2d 906) (1941). “Black defines an open account as one ‘which has not been finally settled or closed, but is still running or open to future adjustment or liquidation.’ Black’s Law Dictionary. Georgia law agrees with this definition. [Cit.]” Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 706 (1) (266 SE2d 345) (1980). Absent a contractual relationship an action on open account is not the proper theory of recovery and procedure to use. Lawson v. O’Kelley, 81 Ga. App. 883 (60 SE2d 380) (1950). “[A] suit on an open account may be maintained for the price of goods sold under a contract where the price has been agreed upon by the seller and purchaser and where the seller has performed his part of the agreement and nothing remains to be done except for the purchaser to make payment.” Wolfe v. Brown-Wright Hotel Supply Corp., 87 Ga. App. 12 (73 SE2d 82) (1952). A suit on an open account may be based on either an express or implied promise to pay. Gordy Tire Co. v. Bulman, 96 Ga. App. 739 (101 SE2d 220) (1958). However, there cannot be other elements in dispute other than payment.

Decided November 3, 1998

Reconsideration denied November 18, 1998

Flint & Connolly, Douglas H. Flint, John F. Connolly, for appellant.

When the value of the goods and services was not agreed upon prior to performance and is in dispute at trial so that the measure of damages is the reasonable value of such services or goods delivered, then the action should be in quantum meruit. Because an action on open account is a simplified procedure where the price or value of the goods and services is not in dispute but is agreed upon and the only issue remaining is payment. Watson v. Sierra Contracting Corp., supra; Brown v. Home Security Corp., 106 Ga. App. 147 (126 SE2d 439) (1962); see also Wolfe v. Brown-Wright, supra. If there is a dispute as to the cost to be charged for services rendered or the price of the goods, then an action on open account is not the proper procedure to collect the debt. See Lawson v. O’Kelley, supra at 885 (1); Craig v. Augusta Roofing &c. Works, 78 Ga. App. 514, 515 (1) (51 SE2d 565) (1949); see also Watson v. Sierra Contracting Corp., supra at 27.

Under the facts of this case, the debt incurred was in the barter-trade system, where payment was not in currency but in services or goods credited under the agreement at a certain barter system rate. Therefore, when the client agreement was terminated, Zampatti could no longer satisfy his obligation within the barter system on any amount owed on open account in the barter system. Since the true currency value of the barter or trade debt was not a true one to one ratio, despite any contractual terms to the contrary which may not have survived the termination of the agreement, then the reasonable value of the goods and services representing the open account debt in the barter system was a question of fact as to reasonable value, which should be decided as quantum meruit by a jury. See Watson v. Sierra Contracting Corp., supra at 28 (c); Brown v. Home Security Corp., supra at 150. Therefore, the trial court did not err in denying summary judgment on such theory of action on open account.

Judgment affirmed.

McMurray, R J., and Blackburn, J., concur.

Gerry, Friend & Sapronov, William D. Friend, Mari Myer, for appellees.


author: Andrews, Chief Judge.

text:
    A98A1197.
    SYKES v. CITY OF ATLANTA et al.
    (509 SE2d 395)
   Andrews, Chief Judge.

Alethia Sykes, former Pretrial Services Officer for the City of Atlanta Municipal Court, appeals from the trial court’s grant of the City’s motion for summary judgment and denial of her motion for summary judgment in her wrongful termination suit. She alleged a number of claims, including due process and equal protection violations.

1. The first two enumerations are that the court erred in granting the City’s first and second motions for summary judgment, which addressed all of Sykes’ claims. The only claims argued in the brief, however, are those stemming from Sykes’ claims of property and liberty interests in her job which entitled her to due process, denial of which is the premise for her 42 USC § 1983 claims. Therefore, these are the only issues which we address. Court of Appeals Rule 27 (c) (2).

2. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that Sykes was hired by Pretrial Services on October 5, 1990, as a clerk. She was later promoted to a Pretrial Services Officer I and her job was to see which arrestees could be released on their own recognizance, including running record checks on NCIC and GCIC, and to assist the municipal court judges in their courtrooms. When she was originally hired, Sykes signed a Personnel Transaction and Certification form used for employee matters. That document showed that the job for which she was hired was “unclassified.”

Pretrial Services was run by a manager who reported directly to the judges of the municipal court. The manager could hire and fire employees and was not required to obtain the judges’ permission to terminate any employee, although any of the judges could overrule the decision to fire someone.

In 1992, all pretrial services employees received a copy of a Pretrial Services Employee Handbook accompanied by a memo from then Director Green stating that it was “prepared to serve as a guide to good job performance.” Sykes signed for the manual on January 29, 1992. The manual contained a section on progressive discipline and an appeal procedure upon which Sykes bases her due process claim.

On May 31, 1995, Sykes was given notice that, due to deficiencies in her job performance, she was being given the option to resign or be terminated and she chose the latter. Her official date of termination was June 13, 1995. Sykes was later provided with a packet of documentation regarding the reasons for her dismissal and received a letter from Chief Judge Harris of the municipal court denying her “appeal.”

3. Under Georgia law, a public employee has a property right interest in a job if the employee may be dismissed only for cause. Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 707 (1) (487 SE2d 478) (1997); Robins Federal Credit Union v. Brand, 234 Ga. App. 519 (507 SE2d 185) (1998).

The City of Atlanta’s Charter provides that legislative powers of the city are vested in the council, which shall pass such ordinances, regulations, and rules as needed to carry out its duties. Atlanta Charter Section 1-103 (a) & (b); Ga. Laws 1996, p. 4482. It further provides that “[t]he council shall establish by ordinance a system of civil service of the city, which shall be divided into a classified and unclassified service.” Atlanta Charter Section 3-501 (a); Ga. Laws 1996, p. 4507.

By ordinance, the council provided that, “(a) The civil service system shall be divided into the classified service and unclassified service, (b) The unclassified service shall consist of the following:. . . (9) Employees and staff of the municipal court, (c) The classified service shall include all other public officers and employees in the employment service. All appointments, employments, removals, promotions, transfers, layoffs, reinstatements, suspensions and changes in grade or title in the classified service shall be made and permitted only as prescribed by law or under this article and not otherwise.” Atlanta, Ga. Code of Ordinances Chapter 114, Art. IV, § 114-84.

Even though a member of the unclassified service, Sykes contends that the manual evidenced the “mutual explicit understanding” referenced in Bd. of Regents &c. v. Roth, 408 U. S. 564 (92 SC 2701, 33 LE2d 548) (1972) and Perry v. Sindermann, 408 U. S. 593 (92 SC 2694, 33 LE2d 570) (1972) by which parties to an employment contract may create a constitutionally protected property interest. City of Buchanan v. Pope, 222 Ga. App. 716, 719 (1) (c) (476 SE2d 53) (1996).

Such an understanding cannot, however, create a property interest contrary to state law. Id. As reflected by the Atlanta Charter and ordinances set out above, the employees of the municipal court are unclassified and, therefore, do not have civil service protection afforded to classified employees. Former Director Green had no authority to promulgate any rules and regulations regarding city employment. “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. It is incumbent upon those dealing with public officers to ascertain the extent of their authority. Walston & Assoc. v. City of Atlanta, 224 Ga. App. 482 (1) (480 SE2d 917) (1997). Therefore, even assuming that the manual purported to establish some procedural protections for employees, its promulgation was beyond the authority of Green and could not bind the City. City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551) (1995); Walston & Assoc., supra; Cole v. City of Atlanta, 195 Ga. App. 67, 68 (2) (392 SE2d 283) (1990).

Additionally, the City’s evidence in support of its motion for summary judgment reflected that the chain of command of Pretrial Services, i.e., the Chief Judge, the Manager of Pretrial Services, the Acting Deputy Manager of Pretrial Services, and Pretrial Officer III McGhee, Sykes’ immediate supervisor, understood that their jobs were unclassified; that no cause was needed to dismiss an employee; and that, at most, the manual was advisory. The manual had never been approved by the judges of the court, submitted to the city attorney, or adopted by the city council.

The most that Sykes has been able to show in support of her “mutual understanding” argument is a unilateral expectation on her part, which is insufficient. See Shaw v. Oconee County, Ga., 863 FSupp. 1578, 1581 (3), (4) (M. D. Ga. 1994); Payung v. Williamson, 747 FSupp. 705, 709 (3) (M. D. Ga. 1990).

Therefore, the trial court correctly granted summary judgment to the City on the claim to a property right in her employment.

4. Sykes also contends the trial court erred in granting summary judgment to the City on her claim of deprivation of a liberty interest without due process. We find no error.

“ ‘Under federal law, a plaintiff can recover for a deprivation of reputational liberty upon proof of the following elements: “(1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing.” Buxton v. City of Plant City, Fla., 871 F2d 1037, 1042-43 (11th Cir. 1989).’ [Cit.]” Maxwell, supra at 710 (3).

Sykes contends that the City’s accusation that she had improperly used GCIC to search for criminal histories of two co-employees was sufficient to meet this standard. Even assuming, however, that the accusation was false, the record is devoid of any evidence of actions by the City to make such accusations public so as to deprive her of other employment opportunities, as required to survive summary judgment. Compare Maxwell, supra, with Lovell v. Floyd County, 710 FSupp. 1364, 1374 (8) (N. D. Ga. 1989).

5. Sykes also alleged that she was deprived of equal protection by the establishment of two categories of employees, classified and unclassified, and that she was treated differently than other similarly situated employees.

(a) With regard to the latter claim, there is no admissible evidence in the record which reflects that any other similarly situated employee was treated differently. The only evidence pointed to by Sykes is that certain other unnamed employees were progressively disciplined and given the opportunity to be heard before dismissal.

On summary judgment, evidentiary rules apply. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990). Hearsay evidence is without probative value and cannot be considered unless it is part of the res gestae. Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995). At best, Sykes’ proffered “evidence” is hearsay and not part of the res gestae, creating no factual issues. Harrison v. Golden, 219 Ga. App. 772, 774 (2) (b) (466 SE2d 890) (1995). From the information given, the source of the evidence of unequal treatment cannot be identified, located, summoned or cross-examined. Id.; Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988) (an unidentified employee’s overheard statement was insufficient to preclude summary judgment).

(b) Because this case does not involve a suspect classification or fundamental right, the rational basis standard of review is used in considering Sykes’ charge that the City’s classification of its employees as “classified” or “unclassified” violates equal protection. Horton v. State Employees Retirement System, 262 Ga. 458, 459 (2) (421 SE2d 703) (1992).

As reflected in those portions of the City Charter set out above in Division 3, the mandate for the dual classification was enacted by the legislature when the Charter was passed. “[A] law enacted by the General Assembly is presumed to be constitutional; the burden is on a challenger to prove its invalidity. [Cits.]” Belk v. Westbrooks, 266 Ga. 628, 629 (469 SE2d 149) (1996).

This Sykes has failed to do. Although we have not listed all categories of employees included in the unclassified service, a review of the other nine categories in addition to municipal court employees reveals that they are elected and appointed officials and their employees, which is a rational basis, and there was no error in granting summary judgment on this ground. Horton, supra.

6. We need not consider the remaining enumerations in light of the above.

Decided November 18, 1998.

Duncan & Duncan, Bruce D. Duncan, Angela D. Duncan, for appellant.

Clifford E. Hardwick TV, Karen W. Woodward, for appellees.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Also named as defendants were Mayor Bill Campbell and then City Council President Marvin Arrington.


author: Smith, Judge.

text:
    A98A1209.
    KITCHENS v. THE STATE. SPARKS v. THE STATE.
    A98A1210.
    (509 SE2d 391)
   Smith, Judge.

Jody Kitchens and Danda Sparks were convicted by a jury of the offenses of trafficking in cocaine, possession of marijuana with intent to distribute, possession of methamphetamine with intent to distribute, and various counts of possession of a firearm during the commission of a crime. Kitchens also was convicted of carrying a concealed weapon. Their motions for new trial as amended were denied, and they appeal. Finding no reversible error, we affirm.

Construed in favor of the verdicts, evidence was presented that Chris Robertson, a narcotics investigator, set up a controlled drug buy in December 1995 with the assistance of confidential informant Jason Riley. As a result of several telephone conversations, some of which were taped, involving Riley, an individual named Jason Smith, and sometimes Kitchens, Riley arranged to meet a man named “Jody” at a gas station in Auburn, Georgia. At approximately 8:30 p.m. on December 20, Robertson, acting in an undercover capacity, and Riley arrived at the gas station shortly before Kitchens and Sparks arrived in a car driven by Kitchens. Sparks was sitting in the middle of the front seat. Robertson searched Riley for illegal drugs and found none. Riley then exited the car Robertson was driving, entered that of Kitchens, and Kitchens drove away.

Kitchens, Sparks, and Riley returned about five minutes later, and Riley brought a bag to Robertson. After observing that the bag appeared to contain a large quantity of marijuana and some cocaine, Robertson signalled surveillance officers to make an arrest. Georgia State Patrol Trooper Jamey Brown then drove into the gas station parking lot, blocked Kitchens’s car, exited his car, and jumped onto the hood of Kitchens’s car. Kitchens reached toward the floor of the car, and Brown saw “clearly that there was a large handgun at his feet, and there was some type of long gun in the front seat between Ms. Sparks and Mr. Kitchens.” Brown testified that after seeing the weapons, he held Kitchens at gunpoint. Kitchens and Sparks were removed from the car, which Brown then searched. He discovered a syringe containing a white powdery substance and a black bag containing several of Kitchens’s personal items. The bag also contained an electronic index with several names in it and a set of plastic scales containing “a good bit of white powder residue.” Evidence also was presented that some of Sparks’s personal papers were inside this bag. Brown also discovered a loaded 9mm Ruger handgun that had been at Kitchens’s feet, a loaded sawed-off 12 gauge shotgun in the front seat between where Kitchens and Sparks had been sitting, and a marijuana cigarette in the front seat. A substance positively identified as methamphetamine also was discovered inside the car. Brown searched the bag taken by Riley from the car and found inside it several bags of substances identified at trial as marijuana and powder cocaine.

Riley testified, describing his involvement in the incident. He had agreed to assist Robertson in performing “narcotics busts.” He stated that his friend, Jason Smith, arranged his contact with Kitchens. Riley testified that after he entered Kitchens’s car, they drove around, he received the drugs, and they returned to the Texaco station. After he entered the car, he saw Kitchens place his hand on the gun between Kitchens and Sparks “just to let me know that I knew it was there so nothing funny would happen.” He also stated that during the short drive, conversation occurred about whether the drugs were “good.” Kitchens told him that the bag contained “two and a half pounds and an ounce of that red rock, and it was . . . real good.” Riley removed the drugs from a black bag into a bag he had brought into the car when he entered it. When they returned to the Texaco station, Riley exited Kitchens’s car on the pretense of getting money to pay for the drugs, officers appeared at the scene, and Kitchens and Sparks were arrested.

1. Both appellants complain evidence of other crimes was erroneously admitted and that bad character evidence was impermissibly injected into the trial. They base most of these arguments on statements made during taped conversations among Riley, Smith, and Kitchens in which they made plans concerning the drug sale. During the course of those conversations, which included conversation about the amount of time Kitchens was taking to deliver the drugs, the following statements about Kitchens’s and Sparks’s past behavior were made: Kitchens spoke of the time “it usually takes” to put a deal together; Riley once asked if Kitchens “always takes this . . . long,” and Smith responded that “[i]t always takes him a while”; reference was made to Kitchens having “been doing it for twenty years” and being “big time”; Smith also acknowledged that Kitchens, whom he referred to as “dude,” was a “high roller”; and he stated that Kitchens had given Sparks “10 pounds of pot at a time.” Riley also acknowledged at trial that Kitchens told him that “next time it [obtaining drugs] would be easier.”

Appellants complain that statements concerning other crimes constituted similar transactions and were erroneously admitted because the State failed to serve notice of intent to present such evidence under Uniform Superior Court Rule (USCR) 31.3. They also argue that the statements impermissibly injected evidence of bad character into the trial and that the trial court erroneously failed to give limiting instructions concerning the purpose for which similar transaction evidence could be considered. We conclude that reversal is not required for several reasons. First, the statements concerning appellants’ past drug activity were not admitted as similar transactions. Rather, they were admissible under the well-settled rule that “[declarations and circumstances forming a part of the continuation of the main transaction are admissible as res gestae. [Cit.]” Black v. State, 154 Ga. App. 441-442 (1) (268 SE2d 724) (1980). “It does not matter that the act or transaction is another criminal offense and does not tend to establish the main offense.” (Citations and punctuation omitted.) Jackson v. State, 187 Ga. App. 449, 450 (370 SE2d 633) (1988). Here, the statements made in the taped conversations were clearly made in connection with the transaction for which Kitchens and Sparks were arrested, were not premeditated, see Perkins v. State, 226 Ga. App. 613, 614 (1) (487 SE2d 365) (1997), and therefore were admissible as part of the res gestae.

Second, the statements, at least as far as Kitchens was concerned, were admissible under the rule that after a conspiracy is proved, a conspirator’s declarations made during the course of or in the furtherance of the conspiracy are admissible against co-conspirators. OCGA § 24-3-5; Ottis v. State, 269 Ga. 151, 154 (3) (496 SE2d 264) (1998); Fetty v. State, 268 Ga. 365, 371 (489 SE2d 813) (1997). And the objected-to statements were made in furtherance of the conspiracy; for the most part they were made in connection with inquiries as to why Kitchens was taking so long to deliver the drugs and discussion regarding Kitchens’s ability to deliver the drugs. As declarations made during the pendency of and in furtherance of the conspiracy to sell illegal drugs, the statements were not admitted as similar transactions, nor were they admitted for the sole purpose of showing bad character. See Johnson v. State, 258 Ga. 506, 508 (3) (371 SE2d 396) (1988). The statements instead were relevant and material to the issues in the case and were not inadmissible merely because they incidentally placed character in issue. See Richie v. State, 258 Ga. 361, 362 (3) (369 SE2d 740) (1988).

Neither Baker v. State, 193 Ga. App. 498 (388 SE2d 402) (1989) nor Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989) requires reversal. In Baker, this Court held that evidence concerning four separate encounters involving defendant and an undercover agent was inadmissible because of the State’s failure to give notice under USCR 31.3. Id. at 500 (2). But the facts of that case do not show that a conspiracy occurred. And in Robinson, we held that defendant’s statement, which contained admissions of past independent sales and use of cocaine, was erroneously admitted into evidence because the reference to these actions “did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made” to the police officer. Id. at 33. Here, the statements were admissible under the co-conspirator exception to the hearsay rule, discussed above. They were not independent earlier crimes but were directly relevant to the drug sale for which appellants were arrested. Neither a hearing nor a sua sponte limiting instruction was necessary under these facts.

Even assuming, however, that the declarations erroneously placed appellants’ characters in issue and should have been redacted as argued by appellants, reversal is not warranted. When error is found, the inquiry becomes whether harm occurred. Bray v. State, 221 Ga. App. 218, 219 (471 SE2d 17) (1996). And “[t]he test for determining harmless error is whether it is highly probable that the error did not contribute to the judgment.” (Citations and punctuation omitted.) Id. at 219-220. Direct testimony concerning Kitchens’s involvement in the sale of marijuana, cocaine, and methamphetamine was presented, and large quantities of these substances, as well as loaded weapons and scales, were found by police officers upon search of the car driven by Kitchens.

As for Sparks’s involvement in the transaction, she did testify, denying involvement in the sale. But the evidence also shows that once during the transaction, she participated in the conversation concerning the drugs, asking Kitchens whether the drugs “were good stuff.” Furthermore, at least two witnesses saw a large gun between her and Kitchens in the front seat, and evidence was presented that scales were found inside a bag containing some of Sparks’s personal papers. This evidence against Sparks, as well as that against Kitchens, was overwhelming, and we consequently cannot say that any error occurring in the admission of the objected-to statements contributed to the verdict. Reversal is therefore not required.

Decided November 18, 1998.

Kathleen J. Anderson, for appellant (case no. A98A1209).

2. Sparks argues that her trial counsel was ineffective in failing to properly object to admission of the statements made during the taped telephone calls. To show that trial counsel was ineffective, Sparks must show both that counsel’s performance was deficient and that the deficiency so prejudiced her defense that a reasonable probability exists that the outcome of trial would have been different but for the deficiency. Hassan v. State, 231 Ga. App. 783, 784 (500 SE2d 644) (1998).

Sparks has not shown that counsel’s performance was deficient; as discussed above, the statements were admissible as part of the res gestae. Moreover, even assuming the statements should not have been admitted, Sparks has not shown that the outcome of the trial would have been different but for the deficiency; also as discussed above, other evidence properly admitted against her was overwhelming.

3. Both appellants enumerate as error the trial court’s failure to charge the jury on impeachment by proof of a felony conviction. Over the State’s objection, the court admitted for impeachment purposes a certified copy of Jason Smith’s conviction for the murder of Sparks’s son. The court did not, however, instruct the jury on the law of impeachment by proof of felony conviction.

We do not agree with the State that Jason Smith could not be impeached because he did not testify in court; the mere fact that a declarant is not a witness does not render that declarant’s hearsay statement unimpeachable. See generally Brantley v. State, 177 Ga. App. 13, 16-17 (338 SE2d 694) (1985) (res gestae declarant). Because Smith was indeed impeached by evidence of a crime of moral turpitude, the trial court should have given appellants’ request to charge on this issue. See generally McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995). But as discussed above and also in McIntyre, “harm as well as error must be shown for reversal. [Cit.]” Id. at 10. In light of the overwhelming evidence against defendants, we cannot say that the outcome of their trial would have been different but for the court’s failure to give this charge.

Judgment affirmed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

Donna L. Avans, for appellant (case no. A98A1210).

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       Neither appellant contends that a conspiracy was not proven. To prove a conspiracy, “[t]he state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. [Cit.]” Duffy v. State, 262 6a. 249, 250 (1) (416 SE2d 734) (1992). The state showed that at least two persons came to an understanding to pursue such an objective by presenting evidence of Kitchens’s and Smith’s plans concerning the sale of drugs to Riley.

       We note that, even assuming that the statements constituted similar transactions, a limiting instruction absent a request was not required. See State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).


author: Judge Harold R. Banke.

text:
    A98A1412.
    In the Interest of K. R. C., a child.
    (510 SE2d 547)
   Judge Harold R. Banke.

C. C., the natural mother of K. R. C., appeals the juvenile court’s decision to terminate her parental rights. K. R. C.’s natural father is deceased and she has not been adopted by C. C.’s current husband. C. C. enumerates four errors on appeal.

After two days of hearings at which the court-appointed special advocate (CASA), C. C., and the Department of Family & Children Services (DFCS) were all represented by counsel and K. R. C. was represented by her guardian ad litem, the juvenile court granted C. C.’s motion for a directed verdict, which was joined in by DFCS. Later, however, the trial court granted CASA’s motion for a new trial, and the case proceeded to a judgment on the merits terminating C. C.’s parental rights to K. R. C.

K. R. C. had a traumatic infancy and early childhood. She suffered blood clots on her brain and hemorrhages in her eyes when one of C. C.’s boyfriends abused her. K. R. C. had six hospital admissions (three of which concerned blows to her head). In addition to the regular pediatric care, K. R. C. also visited emergency rooms on several different occasions because she swallowed Pine Sol cleaner, fingernail polish remover, and a coin which required surgery to remove, fractured her arm, fell out of a chair and hit her head, cut her thumb in a sliding door, and cut her hand severely. K. R. C. also had surgeries connected to the blood clots on her brain.

In May 1994, M. C., K. R. C.’s stepfather, while in her pediatrician’s office, picked up K. R. C. and threw her several feet into a chair knocking her unconscious. In 1995, M. C. pleaded guilty to simple battery for these acts. The record also shows that in 1991 M. C. pleaded guilty in another state to abusing his ten-month-old son and as a result his parental rights to his three children were terminated.

In August 1994, the juvenile court adjudicated K. R. C. to be deprived and removed her from her mother’s home finding her to be at risk from her stepfather because of his actions in May 1994. Additionally, the court found that C. C. disregarded this act of cruelty and possessed limited will or ability to protect K. R. C. as evidenced by C. C.’s earlier failure to protect K. R. C. from abuse by members of her household.

The evidence further showed that the family home was in such filthy condition that a younger child was removed. Additionally, the evidence showed that C. C.’s family was in serious economic difficulty; their electricity and telephone had been cut off and they had been behind on their rent. They also failed to pay the child support required by the reunification plans.

Based on this evidence, the juvenile court concluded that C. C.’s lack of parental care and control were the cause of K. R. C.’s deprivation and that C. C. suffered from a mental or emotional deficiency that rendered her incapable of caring for K. R. C. Further, C. C. did not prevent others from injuring the child and continued to deny responsibility for doing so. The court also found that the large number of surgeries, accidents, and emergency room visits were evidence of physical neglect. Based on the evidence of the extended period of deprivation and the apparent inability or unwillingness of C. C. to make progress, the court concluded that K. R. C.’s deprivation was likely to continue or not be remedied. Accordingly the court found it was in the best interest of the child to terminate C. C.’s parental rights. Held:

The standard of review is whether, after viewing the evidence in a 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 should have been lost. In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). On appeal, this Court defers to the trial court’s fact findings and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). “An appellate court determines sufficiency of the evidence; it does not weigh evidence or determine witness credibility.” In the Interest of R. N., 216 Ga. App. 799-800 (1) (456 SE2d 107) (1995).

1. As the evidence plainly shows that for much of her young life K. R. C. has been the victim of an extraordinary number of accidents and intentional physical abuse, we are satisfied that the evidence supports the juvenile court’s finding that termination of C. C.’s parental rights was in K. R. C.’s best interest. Our law does not demand that K. R. C. remain in this family until she suffers the seemingly inevitable serious injury or death. See In the Interest of E.P.N., 193 Ga. App. 742, 748-749 (388 SE2d 903) (1989).

The unappealed deprivation order of the juvenile court was sufficient to establish that K. R. C. was deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). The juvenile court properly considered C. C.’s past conduct in determining whether K. R. C.’s deprivation was likely to continue. In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987). The evidence that authorized the juvenile court to determine that K. R. C. was deprived and that her deprivation was likely to continue is also sufficient to provide clear and convincing evidentiary support that her continued deprivation will cause or is likely to cause her serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (iv); In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996). This evidence together with the testimony from K. R. C.’s therapist that K. R. C.’s continued uncertainty about her status was harmful to her was sufficient to warrant termination of C. C.’s parental rights. In the Interest of E. P. N., 193 Ga. App. at 747-748 (2) (b) and (c).

C. C.’s argument raises issues not included within the enumeration of error. Enumerations of error, however, cannot be enlarged to include other issues not alleged. Ailion v. Wade, 190 Ga. App. 151, 154-155 (3) (378 SE2d 507) (1989). Accordingly, these other arguments cannot be considered. Sanders v. Hughes, 183 Ga. App. 601, 604 (4) (359 SE2d 396) (1987).

2. C. C. contends the trial court erred by appointing counsel to represent the CASA in this case. This argument is unpersuasive. The CASA was authorized to bring this action because any person with knowledge of the facts may file a deprivation petition. In the Interest of J. J., 225 Ga. App. 682 (1) (484 SE2d 681) (1997). Consequently, counsel could be appointed for the CASA under OCGA § 15-11-28 (d), which authorizes the juvenile court, on its own motion, to appoint counsel for such purposes if the district attorney is unable to assist. See also OCGA §§ 15-11-30 (b); 15-11-85.

3. C. C.’s allegation that the juvenile court erred by denying her objection to K. R. C.’s therapist’s testimony about her treatment of K. R. C. is also without merit. Because K. R. C. was in the legal custody of DFCS, C. C. lacked standing to invoke the psychologist/ patient privilege. See Pendergrass v. State, 168 Ga. App. 190, 191 (2) (308 SE2d 585) (1983).

4. C. C.’s allegation that the juvenile court erred by granting the CASA’s motion for a new trial is without merit. Pretermitting whether the juvenile court properly granted a new trial, it is obvious that the court merely reconsidered its earlier order and allowed the CASA to present additional evidence. See In the Interest of J. O., 191 Ga. App. 521, 522 (1) (382 SE2d 214) (1989), overruled on other grounds, In the Interest of T. A. W., 265 Ga. 106, 107 (454 SE2d 134) (1995). Given that the nature of these proceedings is the protection of the children whose well-being is threatened, the juvenile court has inherent authority under OCGA § 15-11-42 to vacate or modify its earlier order. Thus, we find no error in allowing the CASA to continue these proceedings.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Decided November 18, 1998.

Turner & Willis, Brett D. Turner, Christopher W. Willis, for appellant.

Nicki N. Vaughan, Charles W. Smith, Jr., James D. Parks, for appellee.


author: McMurray, Presiding Judge.

text:
    A99A0546.
    JENNINGS v. MOSS.
    (509 SE2d 655)
    Decided November 18, 1998.
    Elzbieta Jennings, pro se.

      Smith, Howard & Ajax, Matthew G. Moffett, for appellee.
   McMurray, Presiding Judge.

In this tort action, plaintiff Elzbieta Jennings sought to recover for personal injuries sustained when, while plaintiff was a pedestrian “within a designated and light controlled pedestrian cross walk . . .,” she was struck by an automobile driven by defendant David Ray Moss. Defendant admitted “that his vehicle struck the Plaintiff on December 18, 1996 as he was turning left onto Manchester Expressway from Hamilton Road,. . .” but denied the material allegations of negligence. The case was tried before a jury, which found for plaintiff in the amount of $1,500. From the judgment entered on the jury’s verdict, plaintiff brings this direct appeal. Held:

“Appeals in all actions for damages in which the judgment is $10,000.00 or less . . . shall be by application in the nature of a petition . . . [for discretionary appeal].” OCGA § 5-6-35 (a) (6) and (b). “In the case sub judice, ‘this final judgment awards [tort] damages in an amount less than $10,000.00 and so . . . require(s) an application for discretionary appeal. . . .’ English v. Delbridge, 216 Ga. App. 366, 367 (454 SE2d 175). ‘The [plaintiff] failed to follow that procedure in this case, and this direct appeal must be dismissed. See Walker v. City of Macon, 166 Ga. App. 228 (303 SE2d 776) (1983).’ Simpkins v. Minks, 175 Ga. App. 729 (334 SE2d 340).” Hill v. Rose Elec. Co., 220 Ga. App. 603, 604 (469 SE2d 844).

Appeal dismissed.

Andrews, C. J., and Ruffin, J., concur.


text:
    A98A1780.
    SHIVER v. THE STATE.
    (509 SE2d 658)
   Judge Harold R. Banke.

Joel Shiver was convicted of simple assault. In two enumerations, he challenges the admission of the two similar transactions offered against him.

This case arose after the victim, a food inspector with the Georgia Department of Agriculture, arrived at J.R.’s Grocery to perform his quarterly sanitation review. After the victim noticed a labeling violation on two items and asked the clerk about them, Shiver stepped from behind the counter, “bulldozed” himself up against the victim, and demanded to know what right he had to question the labeling. The victim responded that he was the food inspector. Shiver demanded to see the victim’s identification, but the victim refused after learning that Shiver was not a grocery employee. At that point, Shiver braced up against the victim and stated, “You g — mned son-of-a-b — h. I will stomp your g — mned ass. I will beat your g — mned ass all over this place. I will throw you out of this g — mned store and stomp your ass all over the d-mned parking lot.” During this tirade, Shiver was so close the victim could feel his breath. The victim reported the incident to local law enforcement officers and Shiver was arrested.

Both the similar transactions admitted at trial occurred at the grocery. The first involved a person the parties have described as a vagrant or transient who was not available to testify. The evidence showed that a year earlier Shiver struck the transient and ejected him from grocery property. A deputy had questioned the transient just before the incident and telephoned the grocer to let him know of the transient’s proximity. Moments later, the grocer called the police complaining of an unwanted person in his store. The deputy responded by going to the store and explaining that the transient just wanted to buy some food. The deputy then left, but parked his patrol car a few hundred feet from the store. Shortly thereafter, the deputy saw someone run from the store and went to investigate. At that point, Shiver and the transient were sitting on a bench in front of the grocery. After the deputy walked in, the transient followed him with blood dripping from his mouth. The vagrant pointed to Shiver and stated, “he hit me for no reason.”

The second similar transaction involved another of the grocery’s customers, who testified that after he disagreed with the grocer about the price of some soft drinks, he went to his car. As he circled the lot to head home, Shiver stepped out of the store and yelled, “I want to talk to you.” Shiver set his beer down, approached the customer’s car and stated, “Have you ever had that Mustang driven up your ass. . . . That old man’s been good to all of us.” Then Shiver backhanded the customer through the car window. Held:

Decided November 19, 1998.

Williams, Sammons & Sammons, George L. Williams, Jr., for appellant.

Shiver maintains the admission of the similar transaction evidence was reversible error. We disagree.

The State made each of the affirmative showings necessary for the admission of the similar transaction evidence. Hall v. State, 230 Ga. App. 741, 742 (497 SE2d 603) (1998). At the USCR 31.3 (B) hearing, the State offered the similar transaction evidence to show bent of mind and course of conduct, both proper grounds for admission. See Spencer v. State, 268 Ga. 85, 86 (2) (485 SE2d 477) (1997). The relevance of this evidence, which showed Shiver’s propensity to resort to threats and violence to resolve conflict, outweighed its prejudicial impact, particularly in light of the limiting instruction given the jury. Jimenez v. State, 228 Ga. App. 668, 669 (492 SE2d 530) (1997).

The State also established that Shiver committed the similar transactions. Hall, 230 Ga. App. at 742. The testimony of the deputy and the customer was sufficient to establish that Shiver perpetrated the violent acts. While we agree that the deputy’s testimony was not properly admitted to explain his own conduct, the testimony was nevertheless admissible as res gestae. Brinson v. State, 268 Ga. 227, 229 (3) (486 SE2d 830) (1997) (hearsay is properly admitted to explain an officer’s conduct only when such conduct is relevant); see DeCastro v. State, 221 Ga. App. 83, 86 (1) (470 SE2d 748) (1996) (physical precedent only); see Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997) (a trial court’s ruling will be affirmed if it is right for any reason). In any event, the overwhelming evidence against Shiver precludes the requisite showing of harm. Bridges v. State, 268 Ga. 700, 708 (6) (492 SE2d 877) (1997).

Finally, the record shows a sufficient connection between the similar transactions and the offense charged. Each shows that Shiver was willing to resort to violence to quell any perceived challenge to his authority at the grocery. McCord v. State, 268 Ga. 499, 500 (2) (491 SE2d 360) (1997). As the trial court observed, this evidence tends to show that Shiver “has a hot temper and is quick to assault.” The similar transaction evidence was thus relevant to show far more than a general propensity to commit crime. Compare King v. State, 230 Ga. App. 301, 303-304 (1) (496 SE2d 312) (1998).

The fact that both similar transactions constituted simple battery undermines Shiver’s contention that his due process rights were violated because the similar transactions were not shown to be crimes. OCGA § 16-5-23.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.


text:
    A98A1121.
    ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P.C. v. KLEINBERGER.
    (509 SE2d 660)
   Judge Harold R. Banke.

Ellis, Funk, Goldberg, Labovitz & Dokson, P.C. (“EFGL&D”) asserted an attorneys’ lien against Itamar Kleinberger, its former client. Enumerating two errors, EFGL&D appeals the order declaring that lien forfeited and cancelled.

EFGL&D represented Kleinberger in the sale of his interest in KES Irrigation System, Inc. (“ICES”), a closely held corporation. EFGL&D also represented Kleinberger in a dispute with KES over post-sale complications arising between Kleinberger, KES, and his former business partner. Ultimately, the dispute with KES was resolved through an arbitration award which the superior court confirmed. The arbitrators modified the original terms of the purchase and sale agreement, shortening the term for payment and reducing the remaining amount of money due Kleinberger. Among other provisions, the award provided for KES to pay $250,000 in 30 monthly installments to Kleinberger. Kleinberger paid a total of approximately $96,400 to EFGL&D for legal work.

In May 1997, Kleinberger communicated to EFGL&D his dissatisfaction with the services rendered and the charges relating thereto. EFGL&D then filed an attorneys’ lien claiming entitlement to an additional $62,000 plus interest. EFGL&D served notice of its lien to KES and demanded that KES pay the monthly installments to EFGL&D instead of to Kleinberger until the lien was satisfied. Due to that lien, KES began making its monthly checks jointly payable to Kleinberger and EFGL&D and delivering them to EFGL&D. Kleinberger contested the lien by filing a “Traverse, Objection, and Challenge.” By late October, EFGL&D was holding five monthly checks totaling $52,522.82. Kleinberger made a written demand to EFGL&D for these five checks and cancellation of the lien. Despite retaining possession of these checks, EFGL&D never sought to judicially foreclose on its lien.

After a hearing which was not transcribed, the trial court resolved the matter adversely to EFGL&D. In its factual findings, the court expressly found that EFGL&D failed to offer any competent evidence proving the existence of the purported debt or its amount. The court rejected EFGL&D’s argument that because EFGL&D had asserted its attorneys’ lien under OCGA § 15-19-14 (b), it did not need to foreclose its lien under OCGA § 15-19-15. Finding that EFGL&D failed to comply with the express terms of OCGA § 15-19-15 to enforce its lien as required by OCGA § 44-14-550, the court declared the attorneys’ lien cancelled and forfeited. Held:

1. EFGL&D contends that the trial court erred by finding that it was required to institute foreclosure proceedings pursuant to OCGA § 44-14-550. We disagree.

Being in derogation of the common law, lien laws, including the attorneys’ lien statute, must be strictly construed. Ramsey v. Sumner, 211 Ga. App. 202, 204 (438 SE2d 676) (1993). See Dixie Concrete Svc. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985) (lien laws and procedures must be strictly construed against the lien claimant and in favor of the debtor).

The legislature enacted a bright line rule that “[l]iens of attorneys at law in possession of personal property under a lien for fees shall be satisfied according to Code Section 44-14-550.” (Emphasis supplied.) OCGA § 15-19-15. OCGA § 44-14-550 affords a putative debtor notice and an opportunity to be heard. Part of this foreclosure statute requires, inter alia, that upon receipt of a written demand from the debtor, the lienholder must institute foreclosure proceedings within ten days where possession has been retained or “the lien is forfeited.” OCGA § 44-14-550 (1).

Here, it is undisputed that as a result of EFGL&D’s assertion of an attorneys’ fee lien, EFGL&D came into possession of several checks made jointly payable to Kleinberger and EFGL&D. The first check in the amount of $10,640.94 bears the date of June 27, 1997. Notwithstanding Kleinberger’s written demand for that check and the others, EFGL&D retained possession of that check and subsequent ones. In so doing, EFGL&D did not institute foreclosure proceedings within ten days of holding personal property belonging to Kleinberger, thereby failing to comply with the explicit terms of OCGA § 15-19-15. Compare D. Robert Autrey, Jr., P.C. v. Baker, 228 Ga. App. 396 (492 SE2d 261) (1997) (ten-day limit on foreclosure not triggered where client failed to establish that her attorney had possession of funds at the time of her demand that he withdraw his lien).

Notwithstanding EFGL&D’s claim to the contrary, Hester v. Chalker, 222 Ga. App. 783 (476 SE2d 79) (1996), neither authorizes nor demands a different result. In Hester, unlike here, the attorneys’ lien was against real property not personal property. Id. at 784. Nor did the attorney in that case have possession of the client’s personal property. Accord Lipton v. Warner, Mayoue & Bates, P.C., 228 Ga. App. 516, 518 (2) (492 SE2d 281) (1997).

It is well-settled that on appellate review, a trial court’s determination of facts when acting as the factfinder must be affirmed unless clearly erroneous. OCGA § 9-11-52 (a). Dougherty County Bd. of Equalization v. Casto Dev. Co., 228 Ga. App. 293, 295 (491 SE2d 483) (1997). Here, the trial court found that EFGL&D failed to offer any competent evidence to support the purported debt underlying the lien. EFGL&D has not directed our attention to any evidence showing otherwise. Absent a transcript of the hearing, we must assume the trial court’s factual finding was correct. See Hageman v. State, 205 Ga. App. 644 (423 SE2d 56) (1992).

Decided November 19, 1998.

Ellis, Funk, Goldberg, Labovitz & Dokson, Donald J. Ellis, Robert N. Dokson, David G. Hester, for appellant.

Albert A. Chapar, Jr., for appellee.

2. In light of our disposition of Division 1, we need not reach the remaining enumeration.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.


text:
    A98A2399.
    DAVIS v. THE STATE.
    (509 SE2d 655)
   Judge Harold R. Banke.

After Charlie Henry Davis was convicted of aggravated sodomy, he received a life sentence. On appeal, he enumerates four errors.

This case arose while Davis, his brother, another male codefendant, and an unidentified woman and her two young children were driving around. Davis offered the victim, who was standing at an intersection, a ride. Because the victim knew Davis, she joined the group. After dropping the woman and her children off, the three men began whispering. Davis’ brother then drove down a back country road and stopped, ostensibly for the men to relieve themselves. When the men returned, they cut the car off, locked the doors, and Davis began beating the victim’s face. He insisted she submit to intercourse, began tearing her clothes off, and continued to strike her. The victim testified that the men raped and forced her to orally sodomize them, eventually continuing outside the car when it got too hot. After several hours, the victim escaped, running naked through woods and briars until she came to a house where she received assistance.

At trial, after a hearing pursuant to USCR 31.1, the State offered evidence of two similar transactions. In the first incident, a pending case involving rape and kidnapping charges, the victim testified that she agreed to go for a ride with Davis, whom she had known for five years. After they ran out of gas, the victim tried to seek help, but Davis struck her numerous times in the face, threw her against a tree, dragged her away from the road, and raped her. In the second incident, Davis picked up the victim on the street, drove her to an isolated location, and beat her when she refused to have sex with him. Then he ripped her clothes off and raped her twice. Both similar transactions were offered to show Davis’ plan or scheme, bent of mind, or motive. Held:

1. Davis maintains the trial court’s exclusion of evidence of prior sexual activity between him and the victim requires reversal. We disagree.

The Rape Shield Statute bars the admission of evidence relating to the victim’s past sexual behavior unless it directly involves the accused’s participation and supports an inference that the accused could have reasonably believed that the victim consented to the conduct at issue. Griffin v. State, 224 Ga. App. 225, 227-228 (2) (480 SE2d 608) (1997); OCGA § 24-2-3 (b). The evidence may also be admitted on a finding that it “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2); Brown v. State, 214 Ga. App. 676, 677 (2) (448 SE2d 723) (1994). We review the trial court’s exclusion of the evidence for abuse of discretion. Hicks v. State, 222 Ga. App. 828, 829 (1) (476 SE2d 101) (1996).

During the pre-trial hearing on this matter, Davis testified that the victim volunteered to have sex with the male occupants of the car for $10. He claimed she had waved him down before and had sex with him for money or drugs on a “heap [of] occasions.” The trial court concluded that Davis had no reason to believe the victim had consented to sex, even if she had done so' previously as Davis alleged, inasmuch as she was beaten and had to run naked through the woods for help.

In light of the victim’s testimony, the trail of clothing left near the crime scene, and the evidence of her injuries, we cannot say that Davis’ claim to prior consensual sex with her substantially supports the conclusion that he reasonably believed she consented on the night of the offense. See Logan v. State, 212 Ga. App. 734, 737 (1) (c) (442 SE2d 883) (1994). Nor does justice mandate the admission of such testimony. Accordingly, we decline to find that the trial court abused its discretion.

2. Davis maintains that evidence of the two similar transactions was improperly admitted because their prejudice outweighed their probative value. Davis does not argue that the affirmative showings required under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), were not satisfied, contending instead that the State was required to show it had no other means to prove his plan, motive, or the victim’s lack of consent.

Decided November 19, 1998.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

We have found no authority supporting this contention. Furthermore, Davis’ intent and bent of mind and the victim’s consent were hotly contested issues which the similar transaction evidence illuminated. Smith v. State, 232 Ga. App. 290, 292-293 (1) (501 SE2d 523) (1998). No less inflammatory evidence was available to establish these facts. Id. at 293.

3. Davis maintains that the trial court’s jury instructions on the similar transactions did not properly limit the purposes for which the evidence could be considered. Specifically, he asserts that by charging that the similar transaction evidence could be used to show the perpetrator’s identity, a fact not in issue, the trial court confused the jury.

The record shows that Davis never filed a written request for such instructions and never objected to those given. These facts undermine this enumeration. Dunbar v. State, 228 Ga. App. 104, 110 (3) (491 SE2d 166) (1997).

Furthermore, the trial court’s contemporaneous limiting instruction substantially tracked the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 24 (2nd ed.). It charged that the evidence could be considered only to show the identity of the perpetrator, his state of mind, and his knowledge or intent. In the final charge, the court omitted knowledge and intent. Taken as a whole, the charge substantially presented the issues in a way unlikely to confuse the jury and was amply authorized by the evidence. Callaway v. State, 230 Ga. App. 369, 370 (2) (496 SE2d 349) (1998). Thus, we may not disturb the verdict on this ground. Id.; see Parson v. State, 229 Ga. App. 117, 118-119 (2) (493 SE2d 256) (1997).

4. Davis maintains that his sentence must be vacated because in imposing it the trial court considered the similar transactions. Because the law clearly permits sentencing courts to consider any evidence properly admitted during the guilt-innocence phase, we find no error. McClain v. State, 220 Ga. App. 474, 476 (3) (469 SE2d 756) (1996).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.