text:
    A90A1291.
    COVINGTON v. THE STATE.
    (396 SE2d 298)
   McMurray, Presiding Judge.

Defendant Covington was charged with the offense of armed robbery. Thereafter, represented by counsel, defendant appeared in court and entered a negotiated guilty plea. At that time, in accordance with the agreement reached between the prosecutor and defense counsel, the prosecutor recommended defendant be sentenced to a term of 20 years, of which 10 years was to be served in confinement. In so doing, the prosecutor added: “Mr. Covington has asked whether or not your Honor is going to run that consecutive or concurrent with his Federal sentence. I told Mr. Covington and Mr. Snead [defense counsel] you would decide.” Defense counsel did not take issue with the prosecutor’s statement.

When the judge announced that he would sentence defendant to 20 years, 10 to serve, and that that sentence would be consecutive to the federal sentence defendant was serving, defense counsel orally moved to withdraw defendant’s plea, stating: “Judge, our plea bargain was entered, correct me if I’m wrong, that this sentence would not necessarily follow the four years which he’s already been sentenced to. . . .” The prosecutor responded: “Judge, my recommendation was 20 serve 10, with the issue of concurrent or consecutive left up to the Court. I think that’s the recommendation I announced.” Thereupon, the judge denied defendant’s motion to withdraw his plea: “I don’t have to offer him an offer to withdraw his plea then because I’ve taken your recommendation.”

Subsequently, defendant filed a written motion to withdraw his plea alleging an “obvious misunderstanding between Defendant’s Attorney and the District Attorney in regard to whether the sentence was to run consecutive or concurrent.” Following a hearing, the judge denied defendant’s motion to withdraw his plea. This appeal followed. Held:

Once sentence is orally pronounced by the judge, a defendant’s statutory right to withdraw a guilty plea disappears. Coleman v. State, 256 Ga. 77, 78 (1) (343 SE2d 695) (1986); State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). At that point, a guilty plea may be withdrawn only upon the exercise of the judge’s discretion. As it is said: “After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion. Crump v. State, 154 Ga. App. 359, 360 (268 SE2d 411) (1980).” Betancourt v. State, 177 Ga. App. 738, 740 (341 SE2d 239) (1986).

Decided July 12, 1990

Rehearing denied July 23, 1990 — Cert, applied for.

Alden W. Snead, J. M. Raffauf, for appellant.

Frank C. Winn, District Attorney, William H. McClain, David J. McDade, Assistant District Attorneys, for appellee.

We find no abuse of discretion in this case. It is clear that sentence was imposed in accordance with the agreement reached between the prosecutor and defendant. When the prosecutor set forth the agreement, neither defendant nor his counsel inserted a requirement that the sentence be concurrent. Defense counsel himself recognized that the concurrent/consecutive aspect of the sentence would be left up to the court when he acknowledged that under the agreement the sentence would not “necessarily” follow the federal sentence defendant was serving.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author:
Deen, Presiding Judge.
      Beasley, Judge,

license: Public Domain

text:
    A90A0446.
    THORPE v. THORPE et al.
    (396 SE2d 247)
   Deen, Presiding Judge.

Georganna Thorpe, by her next friend, her mother Beulah Collins, appeals from the order of the trial court granting defendants’ motion for summary judgment and denying her partial motion for summary judgment. Georganna brought an action in 1988 to enforce a judgment entered in 1981.

The original suit was brought by Collins and Georganna, by her guardian ad litem, against Georganna’s father, George W. Thorpe, to enforce his promises. Collins and Thorpe had entered into a relationship in 1975 which resulted in the birth of Georganna. Collins asserted that Thorpe promised he would marry her, legitimate their child, buy a home in the child’s name, set up a trust, and include the child in his will equally with his three legitimate children. Among the contentions were that Thorpe had made a will in 1968 leaving one-half of his estate to his wife and equal shares in the remainder to all his children. Georganna, born afterwards, sought to be included in the children’s shares.

Thorpe’s motion for summary judgment was denied, and in an interlocutory appeal, the Supreme Court held that since Thorpe was already married the promise to marry Collins was unenforceable. It also held that Georganna, as third party beneficiary to the promise to include her in a trust and in his will equally with his other children, could maintain an action to enforce the promise. Thorpe v. Collins, 245 Ga. 77 (263 SE2d 115) (1980).

At trial, after return of the case to the lower court, the evidence included the 1968 will and a note from Thorpe to his attorney after Georganna’s birth indicating that the will was to be redrawn to include her equally with the other children. No new will was executed. The jury returned a verdict in Georganna’s favor stating that Thorpe was her father and that he agreed to make a will treating her equally with his other children. The jury found that Thorpe did not agree to create a trust for Georganna treating her equally with his other children. The trial court’s conforming order provided: “George W. Thorpe be and he is hereby directed to make a will within thirty days from the date of this order, awarding to Georganna Thorpe upon his death, the same amount of property, real and personal, that he awards to each of his children. Said George W. Thorpe is hereby directed to file said will in this court not later than thirty days from the date of this order, at which time said will shall be attached to this order and shall be filed as a part of the record in this case.”

George Thorpe moved for j.n.o.v. on two grounds: 1) there was no evidence to support the finding that he agreed to include Georganna in his will and the requirement that he make a will leaving Georganna an amount equal to the amounts left to each of his other children; 2) the evidence was insufficient to support the jury’s verdict. This was overruled, but while it was pending Thorpe executed a will leaving his entire estate to his wife and excluding all his children including Georganna.

After the verdict, plaintiffs had proposed to the trial court two alternatives for the judgment on the verdict. One version would have specifically required Thorpe to provide for Georganna in his will with an equal undivided share in the one-half of his estate which he left to his other children, referring to the 1968 will. The other would have required him to name Georganna as a beneficiary with a share equal to each of his other three children on terms established in the 1968 will. The trial court rejected both alternatives and entered the above-quoted order.

Thorpe died in 1986. The validity of his 1981 will was upheld by the probate court and affirmed by the superior court. The issue remained as to whether the will complied with the 1981 decree. Jones v. Jones, 231 Ga. 145 (200 SE2d 725) (1973).

In her two enumerations of error, Georganna contends that the denial of Thorpe’s motion for j.n.o.v. in the original case is res judicata as to the issues in this case so as to give her one-eighth of his estate, and that the will did not comply with the 1981 verdict and judgment.

1. Treating the enumerations of error in reverse order, we hold that the will did not comply with the decree. In Thorpe v. Collins, supra at 80, the court noted a parent’s legal obligation to support his minor child. When this case was tried, the jury found Thorpe to be Georganna’s father and ordered him to pay $1,500 per month in child support until she reached her majority. George Thorpe was also found to have made a contract with the child’s mother to treat her equally with his other children in his will. He was ordered to make such a will within thirty days and file it with the court. He was also ordered to pay $37,334 in attorney fees to Georganna and her mother for being “stubbornly litigious and acting in bad faith,” to pay nominal vindictive damages, and to reimburse Ms. Collins $1,292.38 for blood tests. The 1968 will, which wás introduced into evidence in that case, showed an intent to divide his estate between his wife and their children. Evidence of an undated handwritten note by Thorpe to his attorney was also introduced. It directed the attorney to draft a new will and that he desired to leave one-half of his estate to his wife and the other half to be divided between his three adult children and Georganna (whose age was given as “0”). When the jury found that he had contracted with Ms. Collins to treat Georganna equally with his other children, it obviously based this finding upon an expressed intent by Thorpe to include all his children in his will. After the March 4, 1981, judgment, but prior to a ruling upon his motion for a j.n.o.v. (in which Thorpe argued that the evidence was insufficient to support a finding that a contract existed), he executed a new will leaving everything to his wife and their three adult children as co-executors. He did not attach the will to a copy of the judgment and file it with the court within 30 days, but rather waited until October 31, 1983, to file it, and then he did not serve a copy upon appellants.

By making such a will, Thorpe obviously intended to defeat the intent and spirit of both his contract with Ms. Collins and the judgment of the court. His action in drafting this will ensures that his three children by Sarah Brosnan Thorpe will eventually share in his considerable estate through their mother, while Georganna will receive nothing. In effect, he sought to defeat this state’s public policy that requires parents of minor children to support them. It would be an outrageous miscarriage of justice to allow Thorpe, who was obviously a wealthy and influential man, to circumvent indirectly a court order which directed him to treat his less fortunate daughter equally with his other children,

2. The ruling in Division 1 above makes it unnecessary to address appellant’s remaining enumeration of error.

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Carley, C. J., Sognier and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

1. The trial court should be affirmed because the will detailing how Thorpe wished his estate to be disposed of did not contravene the court decree.

“As a general rule, judgments are to be construed like other written instruments.” 46 AmJur2d 363, Judgments, § 73. In case of doubt or ambiguity, a judgment or decree must be construed in connection with the pleadings, even though in so construing it, the generality of the judgment may be modified. Clark v. Bd. of Dental Examiners, 240 Ga. 289, 294 (5) (240 SE2d 250) (1977); Landrum v. McGehee, 116 Ga. App. 507 (157 SE2d 830) (1967); 49 CJS 870, Judgments, § 438. If the judgment is “not ambiguous and leaves nothing for interpretation, there is no need to refer to the pleadings or other parts of the record.” 46 AmJur2d 365, Judgments, § 76. Where the language is “plain and unambiguous, there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” 49 CJS 863, Judgments, § 436.

The decree was clear and unequivocal. It did not require Thorpe to make a will granting Georganna a share in his estate, but only that she be devised and bequeathed the same share as Thorpe’s other children. If it had meant to require some actual share, it would have indicated what the minimum would be. The court’s decision cannot be construed to have deliberately invited another lawsuit as to what bequest would be adequate or reasonable or meet some other unnamed criterion.

Georganna was entitled to equal treatment, not to a bequest, and she was given it. Thorpe was under no mandate to leave something to each of his children, which would require an equal share for Georganna. Failing to include Georganna as a beneficiary did not violate the terms of the judgment.

2. Georganna contends that even if the decree itself did not order Thorpe to make a will leaving her a share in his estate, his motion for j.n.o.v. raised the question of whether there was any evidence showing that Thorpe agreed to include Georganna in his will, leaving her an amount equal to the amounts left his other children, and that he be required to make such a will, including Georganna. in his will. Georganna argues that the denial of the motion established that there was evidence requiring Thorpe to make a will which included Georganna as a beneficiary entitled to an equal share in the estate as that given to his other children in the former will, i.e., one-eighth of the entire estate; that under principles of res judicata she must be included as such a beneficiary.

This ingenious argument fails. The sole purpose of a j.n.o.v. is to permit the trial court to review and reconsider its ruling on the antecedent motion for directed verdict. Peacock v. Sheffield, 115 Ga. App. 116, 119 (1) (153 SE2d 619) (1967). The denial of a motion for j.n.o.v. is proper unless the evidence demanded a verdict contrary to that returned by the jury. Davis v. Glaze, 182 Ga. App. 18, 19 (1) (354 SE2d 845) (1987). Where authorized, the verdict stands. Pethel v. Waters, 220 Ga. 543 (140 SE2d 252) (1965).

Decided June 12, 1990

Rehearings denied July 9, 1990 and July 24, 1990 — Cert. APPLIED FOR.

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, Rebecca A. Copeland, for appellant.

McGee & Oxford, Stanley P. Meyerson, for appellees.

Regardless of Thorpe’s position on his motion, its denial left the judgment as it was. As pointed out in the first division of this dissent, “as it was” meant with no requirement that Georganna be affirmatively included in the will unless the other children were. The heirs of George Thorpe were not bound by res judicata to include Georganna in the division of his estate.

I am authorized to state that Chief Judge Carley and Judge Sognier join in this dissent.


author: Carley, Chief Judge.

text:
    A90A0100, A90A0101.
    A90A0102.
    ATLANTIC WOOD INDUSTRIES, INC. v. LUMBERMEN’S UNDERWRITING ALLIANCE et al. RANGER INSURANCE COMPANY v. ATLANTIC WOOD INDUSTRIES, INC.
    (396 SE2d 541)
   Carley, Chief Judge.

These appeals result from the following set of relevant facts: Appellant-plaintiff Atlantic Wood Industries, Inc. (AWI) was informed by the Environmental Protection Agency (EPA) that its Virginia wood-treatment facility had been determined to be a hazardous waste site under the Comprehensive Environmental Response Compensation Liability Act (CERCLA). Appellee-defendants Lumbermen’s Underwriting Alliance (LUA), Insurance Company of North America (INA), Continental Casualty Company (CCC) and Ranger Insurance Company (RIC) were notified of EPA’s determination, but they denied that coverage for the cost of any pollution cleanup measures existed under the respective primary and excess liability policies that they had issued. Thereafter, LUA initiated a declaratory judgment action in Virginia, seeking a declaration that it afforded no coverage to AWI. AWI then initiated the instant action in Georgia, seeking a declaration that it was afforded coverage by LUA, INA, CCC and RIC, and also asserting breach of contract claims for the failure to provide it with a defense to the EPA administrative action. Cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of LUA, INA and CCC, holding that, under the language of the policies that they had issued, there was no coverage. However, the trial court denied summary judgment in favor of RIC, holding that, under the language of its policy, there was coverage. In Case Nos. A90A0100 and A90A0101, AWI appeals from the grant of summary judgment in favor of LUA, INA and CCC. In Case No. A90A0102, RIC cross-appeals from the denial of its motion for summary judgment.

Case Nos. A90A0100, A90A0101

1. LUA has moved that these appeals be dismissed as against it, on the ground that its Virginia declaratory judgment action, which was pending at the time AWI initiated the instant Georgia action, has since resulted in a final declaratory judgment that no coverage exists. However, the initial pendency of the Virginia declaratory judgment action did not serve to abate the instant Georgia action. OCGA § 9-2-45. Likewise, the subsequent finality of the Virginia declaratory judgment action is not a ground for dismissing the instant appeals. OCGA § 5-6-48 (b). Accordingly, LUA’s motion to dismiss is denied.

2. The LUA, INA and CCC policies afford liability coverage for “damages,” and it is their contention that AWI will incur no liability for “damages” by undertaking any remedial pollution measures that may be mandated by EPA. The issue of whether EPA-mandated pollution cleanup costs constitute “damages” within the coverage of the affected landowner’s liability policy has been addressed in other jurisdictions, but not in Georgia. But see Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (380 SE2d 686) (1989) (holding that the EPA-mandated costs incurred by the owner of polluted property are within the coverage of a comprehensive general liability policy absent a clear and unambiguous pollution exclusion clause). Although AWI will incur the costs of undertaking the remedial pollution measures in Virginia rather than Georgia, the policies were delivered in Georgia rather than Virginia. Accordingly, the policies are to be construed as Georgia contracts. See General Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 350 (2b) (309 SE2d 152) (1983). The instant cases thus require resolution of an issue of first impression in this state: Whether, as a matter of Georgia law, the insured under a liability policy providing coverage for “damages” is afforded coverage for the costs that he incurs in undertaking such remedial pollution measures as are mandated by the EPA.

Several of those jurisdictions which have addressed the issue have held that there is no coverage. See, e.g., Patrons Oxford Mut. Ins. Co. v. Marois, 573 A2d 16 (Me. 1990); Continental Ins. Co. v. Northeastern Pharmaceutical &c. Co., 842 F2d 977 (8th Cir. 1988) (applying Missouri law); Maryland Cas. Co. v. Armco, Inc., 822 F2d 1348 (4th Cir. 1987) (applying Maryland Law). However, the majority of jurisdictions has held that there is coverage. See, e.g., Hazen Paper Co. v. USF&G Co., 555 NE2d 576 (Mass. 1990); Minnesota Mining &c. Co. v. Travelers Ins. Co., 457 NW2d 175 (Minn. 1990); C. D. Spangler Constr. Co. v. Industrial Crankshaft &c. Co., 388 SE2d 557 (N.C. 1990). After giving consideration to the holdings in the above-cited cases and others too numerous to cite, we are in agreement with our sister state of North Carolina that “the better reasoned decisions find that the term ‘damages’ as used in the coverage provisions of liability policies includes the type of expenditures under consideration.” C. D. Spangler Constr. Co. v. Industrial Crankshaft &c. Co., supra at 566 (II C). “We rest our decision ... on the basis that the term ‘damages’ is not being used in its legal and technical sense in these policies. . . . [I]t is a term easily susceptible to more than one definition. Clearly, there is a specific, technical definition for the word [‘damages’]: ‘payments to third persons when those persons have a legal claim for damages.’ [Cit.] If the insurer intended that ‘damages’ have only this meaning, it should have so indicated in the policy. The insured would then have understood that cleanup costs incurred pursuant to government mandate were not covered, and would have been able to enter into other insuring arrangements. Because such a limiting definition was not included in the policy, we must conclude that the parties did not intend ‘damages’ to have a specific technical meaning in the insurance policy. Rather, they intended to use its ordinary meaning.” C. D. Spangler Constr. Co. v. Industrial Crankshaft &c. Co., supra at 568 (II C).

Such a construction of the instant policies is consistent with general principles of Georgia insurance law. “ ‘In construing an insurance policy, “(t)he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.” (Cit.) “Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured. (Cit.)” (Cits.)’ [Cit.]” United States Fire Ins. Co. v. Hilde, 172 Ga. App. 161, 163 (2) (322 SE2d 285) (1984). Moreover, such a construction of the instant policies is also consistent with the holding in Claussen v. Aetna Cas. &c. Co., supra, that, in the absence of a clear and unambiguous pollution exclusion clause, the EPA-mandated costs incurred by the owner of polluted property are within the coverage of a comprehensive general liability policy. “Under Georgia law, the risk of any lack of clarity or ambiguity in an insurance contract must be borne by the insurer. [Cit.]” Claussen v. Aetna Cas. &c. Co., supra at 337 (3).

It follows that the trial court erred in its construction of the instant policies. A layman, having insured himself against liability for “damages,” without further definition or limitation, would reasonably conclude that he is protected from financial loss without regard to the legal basis upon which his liability for his loss might technically be premised. There is nothing in the instant policies to indicate an intent to exclude from liability coverage such financial loss as would be incurred by AWI in complying with EPA-mandated pollution measures.

3. Because the trial court’s order granted summary judgment on the basis of the non-existence of coverage, it did not otherwise address the issue of the parties’ entitlement to summary judgment as to AWI’s remaining breach of contract claims for failure to provide a defense. AWI does not enumerate as error the denial of its motion for summary judgment as to those claims, and LUA, INA and CCC have filed no cross-appeal urging that, should coverage be found to exist, they would nevertheless be entitled to summary judgment as to AWI’s claims for breach of contract to defend. LUA, INA and CCC have merely maintained their status as appellees, urging only that the trial court correctly granted them summary judgment as to the nonexistence of coverage. Accordingly, our holding in these appeals must necessarily be limited to a reversal of the trial court’s grant of summary judgment in favor of LUA, INA and CCC as to the coverage issue and to the trial court’s denial of summary judgment in favor of AWI as to that issue. Compare United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77 (355 SE2d 428) (1987). The issue of the parties’ entitlement to summary judgment as to AWI’s claims for breach of contract to defend can only be considered if, subsequent to this appeal, that issue is raised in the trial court and the trial court’s ruling in that regard is enumerated as error in a future appeal.

Case No. A90A0102

4. Although RIC’s motion for summary judgment was denied, and the interlocutory provisions of OCGA § 5-6-34 (b) were not followed, RIC is nevertheless entitled to file this direct cross-appeal and enumerate the denial of its motion for summary judgment as error. See Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317 (380 SE2d 704) (1989).

5. Insofar as the denial of its motion for summary judgment as to the existence of coverage under its excess liability policy is concerned, RIC urges, in effect, an adoption of the same construction of the term “damages” that has been advanced by LUA, INA and CCC. That construction having been rejected in Division 2 of this opinion, it necessarily follows that RIC’s excess liability policy does provide coverage insofar as the EPA-mandated pollution cleanup costs incurred by AWI exceed the threshold of the $50,000 limits of AWI’s primary liability policy. Accordingly, RIC would be entitled to summary judgment as to the coverage issue only if the undisputed evidence of record showed that AWI’s liability for those costs would be less than $50,000. No such showing was made and the trial court, therefore, correctly denied RIC’s motion for summary judgment as to the existence of coverage.

6. Because the events for which coverage was afforded had occurred prior to any assignment of RIC policy to AWI, the trial court did not err in failing to grant summary judgment in favor of RIC on the ground that RIC had not consented to such an assignment. See Pacific Ins. Co. v. R. L. Kimsey Cotton Co., 114 Ga. App. 411, 414 (3) (151 SE2d 541) (1966); Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 522 (4) (352 SE2d 835) (1987).

7. Unlike LUA, INA and CCC, RIC has filed a cross-appeal and does enumerate as error the denial of its motion for summary judgment as to AWI’s breach of contract claims for failure to defend. Accordingly, the issue of RIC’s entitlement to summary judgment as to these claims for breach of contract to defend must be addressed in the context of this appeal. See United States Fire Ins. Co. v. Capital Ford Truck Sales, supra.

Under the terms of the excess liability policy that it issued, RIC had no contractual duty to provide AWI with an initial defense in the EPA administrative action. The exhaustion of the $50,000 limits of AWI’s primary liability policy was clearly made a condition precedent to RIC’s duty as an excess carrier to undertake a defense of AWI. AWI urges that RIC was nevertheless contractually obligated to undertake the initial defense when the primary liability carrier denied coverage and that RIC’s only recourse for having to assume this contractual obligation of the primary carrier would be to bring suit against the primary liability carrier alleging that carrier’s wrongful denial of primary liability coverage to AWI. Although AWI’s primary liability carrier had denied coverage, that carrier was named as an original party-defendant in this action and the record shows that, as against that carrier, AWI has settled its claims for declaratory judgment and breach of contract to defend. Accordingly, AWI is estopped to urge that RIC had the contractual duty to undertake the initial defense and that it would be relegated to asserting a claim over against the primary liability carrier for the wrongful denial of primary coverage to AWI. Having undertaken to enforce its own claims for coverage and breach of contract to defend against its primary liability carrier, AWI would have a viable claim against RIC for breach of contract to defend if, but only if, the $50,000 limits of AWI’s primary liability policy had been exceeded. See generally United States Fire Ins. Co. v. Capital Ford Truck Sales, supra.

Decided July 12, 1990

Rehearings denied July 25, 1990 — Cert, applied for.

Hunter, Maclean, Exley & Dunn, Arnold C. Young, for Atlantic.

Harman, Owen, Saunders & Sweeney, C. Dale Harman, Perry A. Phillips, for Lumbermen’s.

In support of its motion for summary judgment, RIC introduced evidence showing that it has not received any notice from AWI that the $50,000 limits of AWI’s primary liability policy have been exceeded. In opposition to RIC’s motion, AWI neither introduced any evidence to show that such notice had ever been given to RIC nor did it disclose the terms upon which AWI had settled with its primary liability carrier, apparently because the terms of that settlement are deemed by AWI to be confidential. Since the undisclosed terms of the settlement agreement are accessible to AWI but not to RIC, a presumption would arise that those terms “would, if adduced, be unfavorable to [AWI]. [Cits.] ‘When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. . . .’ [Cit.]” Jahncke Svc. v. Dept. of Transp., 172 Ga. App. 215, 219 (2) (322 SE2d 505) (1984). Accordingly, the evidence of record not only demonstrates that RIC has never been notified of the satisfaction of the condition precedent to its contractual duty as the excess carrier to provide a defense to AWI, but said evidence also shows an unrebutted presumption that such condition precedent has not been satisfied because, under the undisclosed terms of the settlement agreement, AWI has presumably settled with its primary liability carrier for less than the $50,000 limits. It follows that the trial court erred in denying RIC’s motion for summary judgment as to AWI’s claim for breach of contract to defend.

8. The denial of RIC’s motion for summary judgment as to the non-existence of coverage under the excess liability policy that it issued is affirmed. The denial of RIC’s motion for summary judgment as to AWI’s claims for breach of contract to defend is reversed.

Judgments reversed in Case Nos. A90A0100 and A90A0101. Judgment affirmed in part and reversed in part in Case No. A90A0102.

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

Drew, Eckl & Farnham, W. Wray Eckl, Richard T. Gieryn, Jr., Jeffrey R. Hill, Benny C. Priest, Painter, Ratterree, Connolly & Bart, Paul W. Painter, Jr., for Ranger.

Simpson & Tatum, John M. Tatum, for Insurance Company of North America.

Beckmann & Pinson, Joseph B. Barrow, for Continental.


author: Cooper, Judge.

text:
    A90A0206.
    BEMCO MATTRESS COMPANY et al. v. SOUTHEAST BEDDING COMPANY.
    (396 SE2d 238)
   Cooper, Judge.

Appellants are Stuart Industries, Inc. (“Stuart”), its subsidiary, Bemco Mattress Company (“Bemco”), and an officer of Bemco. Appellee is Southeast Bedding Company (“Southeast”). Stuart and Southeast were awarded franchises from Bemco Associates, Inc., giving them the right to manufacture and sell bedding products bearing the Bemco trademark. Southeast manufactures and sells exclusively under the Bemco label, but Stuart, which has its own registered trademark, manufactures and sells under both the Bemco and Stuart labels.

Southeast purchased the assets of Bemco and entered into an agreement with Stuart which contained a covenant not to compete. The covenant not to compete provided in relevant part: “Seller agrees to transfer its interest in and its rights in the territory identified on Exhibit “A” attached hereto and made a part hereof to Purchaser. Purchaser is authorized to use the Stuart label in this territory for a period of three (3) years from Closing. Seller agrees that the Stuart label will not be merchandised in this territory by Seller or any individual or company affiliated with Seller for a period of ten (10) years from the Closing Date and in the event any Stuart label units are sold and/or delivered within the territory during such ten (10) year period, Seller shall pay to Purchaser a fee of Twenty-Five Dollars (25.00) per unit which shall come due immediately as liquidated damages. ...” Southeast, alleging that Stuart breached the covenant not to compete by selling units of bedding under the “Stuart label” within the territory specified in the agreement, brought an action against Stuart and Bemco seeking damages. Subsequently, Southeast amended its complaint, adding counts of fraud and bad faith, and also adding an officer of Bemco as a defendant.

The dispute arose from the parties’ disagreement about the meaning of the terms “Stuart label,” “unit” and “sold and/or delivered.” Stuart contends that “Stuart label” means only the Stuart “retail label” and does not include the “law label,” which is a label required by OCGA § 31-25-6 to be placed on all items of bedding showing the contents of the bedding and the manufacturer. Stuart also contends that “unit” means a mattress and box spring as a set as opposed to an individual mattress or box spring. With respect to the phrase “sold and/or delivered,” we find that the stipulation entered into between the parties setting forth the total number of mattresses and box springs sold and delivered within the territory is controlling. Finally, Stuart contends that the territorial limitation is too broad, thus voiding the entire contract. The trial court, construing the contract in favor of Southeast, granted its motion for partial summary judgment on the issue of the breach of the covenant not to compete.

1. “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). The parties urge different meanings for the terms “Stuart label” and “unit.” For purposes of determining whether an ambiguity exists these terms must not be looked at in isolation, but in the context of the entire agreement. Nationwide Mut. Fire Ins. Co. v. Tomlin, 181 Ga. App. 413 (1) (352 SE2d 612) (1986). When viewing the agreement as a whole, we conclude as the trial court did that an ambiguity does exist. Stuart argues that the agreement should be construed in its favor because it was drafted by Southeast. While it is generally true that ambiguous terms of a contract are to be construed against the party drafting them (OCGA § 13-2-2 (5)), “[t]he fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties.” Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975). “ ‘The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.’ [Cits.]” Walton v. Datry, 185 Ga. App. 88 (5a) (363 SE2d 295) (1987).

(a) With respect to the term “Stuart label,” the interpretation argued by Stuart would not, as a practical matter, prevent Stuart from competing with Southeast. Stuart would still be able to sell bedding units in the restricted area as long as they did not have the retail or product label attached to them. The terms of the agreement should be given a construction which will advance its beneficial purpose. Consolidated Freightways Corp. v. Williams, 139 Ga. App. 302 (1) (228 SE2d 230) (1976). An officer of Bemco, who was involved in transactions relating to the sale of Bemco, acknowledged that the interpretation of “Stuart label” given by Southeast is consistent with his understanding of the agreement prior to seeing the contract. The officer further admitted that after seeing the agreement, he never clarified the meaning of “Stuart label” because the way it was drafted worked in favor of Stuart. “ ‘ “(T)he intention of the parties may differ among themselves; in such cases the meaning placed on the contract by one party and known to be thus understood by the other party shall be held as the true meaning.” ’ [Cit.]” Bulloch Academy v. Cornett, 184 Ga. App. 42, 44 (360 SE2d 615) (1987). We are satisfied that the trial court’s construction of “Stuart label” properly effectuates the intent of the parties, and does not impose such a construction as would defeat the underlying purpose of the agreement.

Decided May 23, 1990

Rehearing denied July 25, 1990 — Cert, applied for.

(b) In support of its contention that the term “unit” means individual mattress and box spring, Southeast submitted evidence by way of an affidavit of the corporate officer of an international trade association of mattress manufacturers, that the term “unit” refers to an individual mattress or box spring and is not used to refer to a mattress and box spring set as one unit. “ ‘Ambiguities in terms used in written contracts, and their meanings as understood in the trade and by the contracting parties, may be explained by parol proof of this trade usage and custom.’ [Cit.]” Pace Constr. Corp. v. Houdaille &c. Indus., 247 Ga. 367, 368 (276 SE2d 568) (1981). We find no error with the trial court’s construction of the term “unit.”

(c) Stuart’s argument that the time and territory restrictions in the covenant not to compete are unreasonable is without merit. “A different standard is applied in determining the validity of covenants contained in employment contracts and those which are a part of a contract to sell a business.” Watson v. Waffle House, 253 Ga. 671 (2) (324 SE2d 175) (1985). Greater latitude is allowed in covenants related to the sale of a business, than in those ancillary to an employment contract. See Farmer v. Airco, Inc., 231 Ga. 847, 849 (204 SE2d 580) (1974). Considering the nature of the bedding industry together with the character and location of the business purchased, we find the time and territory restrictions in the covenant to be reasonable. Contrary to Stuart’s assertions, the territory is restricted to that in which Bemco conducted business at the time it was sold and that territory into which Stuart knew Southeast planned to expand. Jenkins v. Jenkins Irrigation, 244 Ga. 95 (2) (259 SE2d 47). (1979).

2. For the foregoing reasons, we find no error in the trial court’s grant of partial summary judgment to Southeast.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

Clark & Clark, Fred S. Clark, for appellants.

William E. Dillard III, for appellee.


text:
    A90A0530.
    MADDEN v. SOLOMON et al.
    (396 SE2d 245)
   Cooper, Judge.

Appellees (“Mr. and Mrs. Solomon”) brought an action to recover for damages incurred as a result of a collision between an automobile driven by Mrs. Solomon and an automobile driven by appellant. Appellant having admitted liability, a trial was had on the issue of damages, and the jury returned a verdict in favor of appellees.

Mrs. Solomon testified at trial that on January 1, 1988 she was involved in an automobile accident with appellant. Approximately two hours after she returned home, she began to experience pain in her neck and went to the emergency room, where she was given medication. Over the next couple of days,- she had pain in her neck, arms and shoulders and tingling in her hands and feet. Mrs. Solomon went to her family doctor who gave her medication and a collar for her neck. After being treated by her family doctor twice she went to physical therapy for two weeks. Over the next several months, Mrs. Solomon saw at least four doctors because of her injuries. She was referred to Dr. Norman Smith and upon his recommendation, Mrs. Solomon was hospitalized in July 1988, for a myelogram. In August 1988, Dr. Smith hospitalized Mrs. Solomon for neck surgery, and three weeks later, when she began having more problems, another doctor hospitalized her. Pursuant to OCGA § 24-7-9, Mrs. Solomon identified numerous bills for medical expenses and testified that they were all related to the injury she sustained in the collision with appellant. She also testified that prior to the collision she had not had any problems with her neck or back.

1. Appellant first enumerates as error the trial court’s denial of his motion for directed verdict. He argues that there was no medical testimony showing that Mrs. Solomon’s hospitalizations of July 1988, August 1988 and September 1988 were caused by the accident on January 1, 1988. Appellant relies on Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987). In Eberhart, the school agreed to be responsible for all medical expenses related to injuries received by Eberhart while playing football for the school. Several years after he ceased being a student, Eberhart sued the school for medical expenses incurred in 1985, contending they were related to injuries he received while playing football between 1979 and 1982. We affirmed the trial court’s grant of a directed verdict to the defendant on the ground that appellant had failed to prove through medical testimony a causal connection between his injury and medical expenses he incurred several years later. The case sub judice is factually distinguishable from Eberhart. Mrs. Solomon’s uncontradicted testimony establishes a course of treatment for her injuries beginning a few hours after the collision and continuing for over one year, with no significant lapses of time in which she did not receive treatment. The jury could have determined, without expert testimony, that the expenses incurred were related to the injuries sustained in the collision. Jordan v. Smoot, 191 Ga. App. 74, 75 (380 SE2d 714) (1989) (cert. denied, Ga. Supreme Court Case No. 46968, May 4, 1989).

2. Appellant enumerates as error the trial court’s admission of (1) testimony of Mrs. Solomon’s chiropractor as to his diagnosis based on a thermogram, (2) testimony as to the results of the thermogram and (3) photographs of the thermogram performed on Mrs. Solomon. Dr. James Gaudet, a chiropractor, testified that prior to trial Mrs. Solomon came to him for an independent examination and that he took her medical history, performed an examination and ordered a thermogram, which was performed by another chiropractor. Dr. Gaudet also testified that he has studied thermography and described it as a noninvasive diagnostic procedure which detects heat emission from the skin; that he knows about the procedures for conducting thermograms and has done them on occasions; and, over objection, that the diagnosis and findings were consistent with his diagnosis and findings based on the history he took from Mrs. Solomon and his physical examination of her. We find no error with the trial court’s admission of the testimony or the photographs of the thermogram. “ ‘The question of whether a witness is qualified to give his opinion as an expert is one for the court. (Cit.) His determination will not be disturbed except that it be manifestly abused.’ [Cits.]” City of Fairburn v. Cook, 188 Ga. App. 58 (10) (372 SE2d 245) (1988). Appellant argues that thermography is outside the permissible scope of chiropractic practice, therefore, Dr. Gaudet’s testimony about thermography was improper. We disagree. The question of whether thermography, as a non-invasive diagnostic procedure, is within the scope of chiropractic services authorized under OCGA § 43-9-1 (2) and § 43-9-16 does not affect the admissibility of the evidence. The trial judge was authorized to find that Dr. Gaudet was qualified as an expert in thermography based on his training and experience. See Franklin v. Elmer, 174 Ga. App. 839 (2) (332 SE2d 314) (1985); Atlanta Car For Hire Assn. v. Whited, 179 Ga. App. 893 (6) (348 SE2d 102) (1986). Furthermore, even if the admission of the evidence was error, no harm occurred because the evidence was cumulative in that it merely confirmed the diagnosis made by Dr. Gaudet on the basis of the history and examination of Mrs. Solomon.

3. The trial court charged the jury that the plaintiff could recover if she had a pre-existing condition which was aggravated by the accident. Appellant cross-examined Mrs. Solomon’s orthopedic doctor about the possibility that her herniated disk was a pre-existing condition brought about by a long term aging process. “To justify a charge on a given subject, it is not necessary there should be overwhelming evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cit.]” Sapp v. Johnson, 184 Ga. App. 603 (2) (362 SE2d 82) (1987). The testimony elicited from the orthopedic doctor, when considered with all the evidence, raises an inference sufficient to justify the charge, and we find no error with the charge of the trial court on this issue.

Decided June 8, 1990

Rehearing denied July 25, 1990.

Jones, Cork & Miller, Jerry A. Lumley, for appellant.

Walter J. Lane, Jr., for appellees.

Judgment affirmed.

Banke, P. J., concurs. Birdsong, J., concurs in judgment only.


text:
    A90A0566.
    VOGEL v. THE STATE.
    (396 SE2d 262)
   Cooper, Judge.

Appellant was convicted of the crime of abandonment of a minor child in 1979 and his prison sentence of twelve months was suspended upon condition of paying $100 per month child support. The original order provided that the support payment would be subject to modification upon a change of circumstances. In 1981, the State filed a petition to increase the support payments and this petition was denied on the grounds that the statutory authority cited by the State for such modification was applicable only to cases arising after March 1980 and further that an original sentence cannot be subsequently increased. This order was not appealed by the State. In 1989, a second request for modification was made by the State, and after a denial of the appellant’s motion to dismiss and a subsequent evidentiary hearing, the trial court ordered that the child support condition to the suspended sentence be modified upward to $785 per month. Appellant appeals this order and raises five enumerations of error which we will consider in reverse chronological order.

1. Appellant’s fifth enumeration that the trial court erred in modifying the sentence because the 1981 order denying modification is res judicata on the issue of modification, is without merit. Although the doctrine of res judicata is applicable in criminal proceedings (see Lindsey v. State, 227 Ga. 48 (2) (178 SE2d 848) (1970)), several requirements for the applicability of the doctrine are not met in the instant case. See 21 AmJur2d, §§ 325-335. First, the merits of the 1981 modification petition were not adjudicated, a necessity before a verdict or judgment can bar a subsequent action “brought so as to avoid the objection fatal to the first.” Buie v. Waters, 209 Ga. 608 (1) (74 SE2d 883) (1953). See also National Heritage Corp. v. Mt. Olive &c. Gardens, 244 Ga. 240, 242 (260 SE2d 1) (1979). Also, the 1981 ruling cannot operate as a bar because a new and different set of underlying facts and circumstances gave rise to the 1989 modification action. See 21 AmJur2d, § 326 (Cum. Supp. April 1990), citing Ex Parte Byrd, 752 SW2d 559 (1988); 24 AmJur2d, § 1082. Finally and most importantly, the application of res judicata as contended by appellant would frustrate the policy imbedded in this state’s laws that a parent has a moral and statutory duty to support his or her children. OCGA § 19-7-2. See Hudson v. State, 248 Ga. 397 (1a) (283 SE2d 271) (1981); Hudson v. Deyton, 770 F2d 1558 (1) (11th Cir. 1985). This “established principle of family law” (Hudson v. Deyton, supra at Division 1) was recognized and protected in the original order that subjected the support award to future modification. The offense of abandonment which is predicated on a failure to sufficiently provide for the needs of the child is a continuing offense, OCGA § 19-10-1 (c), and consequently the principle of res judicata cannot be used to prevent a court from implementing appropriate procedures to insure that the child is sufficiently cared for. See Brookins v. Brookins, 257 Ga. 205 (2) (357 SE2d 77) (1987); 9 ALR3d 203, § 2 (a) (res judicata subject to exceptions for public policy).

2. Appellant’s fourth enumeration that the trial court erred in modifying the 1979 support award is similarly without merit. Hudson v. State, supra, and Hudson v. Deyton, supra, clearly establish that a child support award which was imposed as a condition of a suspended sentence can be modified because it is not a part of the sentence, but is a continuing statutory and moral obligation. Further, modification of an award entered prior to enactment of OCGA § 19-10-1 (j) or its predecessor, which authorizes such modifications, does not violate the double jeopardy or ex post facto prohibitions of the federal and state constitutions. Id. The trial court was completely within its authority to modify the award.

3. Appellant’s second and third enumerations are similar and allege that the trial court abused its discretion in increasing the payments to $785 per month and failed to exercise discretion in applying percentage guidelines to determine the amount of the monthly payment. We disagree. “What is a ‘need’ is a factual determination within the court’s discretion. Whether the evidence was sufficient is not before this court, but rather whether there was any evidence to authorize the award,” Hudson v. State, supra at Division 5. The court heard testimony from witnesses concerning the needs of the child and the income of appellant. The court considered a recommendation as to the income percentage to be used in the calculation and made a decision based on the testimony. There was evidence to support the award and the trial court did not abuse its discretion.

Decided June 27, 1990

Rehearing denied. July 25, 1990 — Cert, applied for.

J. Wayne Moulton, for appellant.

James L. Webb, Solicitor, Helen A. Roan, R. Lee O’Brien, Jr., Assistant Solicitors, for appellee.

4. Appellant further contends that it was error for the trial court to apply OCGA § 19-6-15, the guidelines for computation of a child support award in civil proceedings, in a criminal abandonment action. There is no evidence in the record that this particular Code section was invoked — the trial court heard a percentage recommendation from the State, and in its discretion, adopted the recommendation. Further, since the child support award is neither a part of the sentence nor a punishment, it would not be improper to use the guidelines set forth in OCGA § 19-6-15 in making a support award as a condition in an abandonment proceeding.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A0572.
    COLUMBUS INTERMEDIATE CARE HOME, INC. et al. v. JOHNSTON et al.
    (396 SE2d 268)
   Cooper, Judge.

This workers’ compensation case involves a dispute between two insurance companies as to the responsibility for the compensation payments due appellee Johnston. Johnston, an employee of appellant Columbus Intermediate Care Home, Inc. (“CICH”) was originally injured on March 10, 1984, when an oxygen tank fell on her, causing severe shoulder injury and necessitating surgery. At that time, workers’ compensation coverage was provided to CICH by appellee U. S. Fire Insurance Company (“U. S. Fire”). Johnston’s claim was accepted and she received weekly benefits until she returned to work on February 1, 1985 on a “light duty” restriction. Johnston continued working until February 1986 when she was out with shoulder problems until April 1986; she then worked from April 1986 until April 24, 1987, when she was called upon to perform CPR on a patient. After Johnston completed the repetitive chest compressions on the patient, she began to experience chest pains, yet worked intermittently until the beginning of May 1987. During this period from April 24 to the beginning of May, Johnston experienced severe neck and shoulder pain and her inability to return to work commenced on May 8, 1987. Johnston was subsequently terminated from her position at CICH. In September 1985 appellant Aetna Casualty & Surety Company (“Aetna”) replaced U. S. Fire as the workers’ compensation coverage provider for CICH. After the April 1987 incident and her subsequent disability, Johnston filed for compensation pursuant to the original injury and the record indicates that U. S. Fire- acknowledged and paid weekly benefits from June 2, 1987, until a notice to controvert the payments dated October 30, 1987, was filed with the board on November 4, 1987.

In response to a request by U. S. Fire and CICH, the ALJ issued an Interlocutory Order on April 5, 1988, directing U. S. Fire to continue to pay benefits to Johnston from May 8, 1987, subject to a right of reimbursement from Aetna should it be determined that U. S. Fire was not liable for those benefits. In January 1989, the ALJ determined that Johnston experienced a new accident in May 1987, that Aetna was responsible for all payments arising from this accident, and that OCGA § 34-9-221 (h) was not a statutory limitation against U. S. Fire in the posture of this case. The full board accepted the findings, conclusions and award of the ALJ in July 1989. Although a hearing was held on the appeal to the Superior Court of Muscogee County, no award was issued within twenty days of that date, therefore it appears that the full board’s award was affirmed by operation of law pursuant to OCGA § 34-9-105 (d).

1. Appellants’ first two enumerations of error contest the ALJ’s determination that OCGA § 34-9-221 (h) does not apply in the instant case. OCGA § 34-9-221 (h) states that “[w]here compensation is being paid without an award, the right to compensation shall not be controverted . . . unless notice to controvert is filed . . . within 60 days of the due date of first payment of compensation.” (Emphasis supplied.) This court, in Carpet Transport v. Pittman, 187 Ga. App. 463 (1) (370 SE2d 651) (1988), held that the statute serves as a statute of limitation on the employer’s right to controvert when the employer/insurer has begun voluntary payments “and [has] thereby at least implicitly acknowledged the underlying compensability of the employee’s injury.” Id. at 467. The holding in Carpet Transport was predicated on the protection of “the employee’s right to continued compensation from attack by the employer/insurer. . . .” Id. at 467. In the posture of the instant case, the employee’s right to compensation is not being challenged by any of the parties. The issue is which company is responsible for those payments. In such a situation, the protections advocated and the rationale utilized in Carpet Transport are inapplicable and the 60-day statute of limitation should not reach a controversy between two insurance companies wherein the compensability of the claimant’s injury goes unchallenged. This holding does not at all conflict with Carpet Transport wherein the insurance company was controverting the claimant’s right to receive benefits. The ALJ’s statement that Aetna did not have status to raise OCGA § 34-9-221 (h) in bar of the proceeding seems to us merely a restatement of his conclusion that the statute was simply inapplicable to a dispute between two companies, and consequently does not constitute error.

Decided July 3, 1990

Rehearing denied July 25, 1990 — Cert, applied for.

Cone & Shivers, Donald M. Shivers, for appellants.

2. Appellants’ third enumeration asserts error in the ALJ’s finding that the April 24, 1987, incident constituted a new accident and that Johnston’s continued work thereafter aggravated a pre-existing condition. “Whether an employee’s inability to continue working has been caused by a new accident or a change in condition is a question of fact for the administrative law judge.” Northbrook &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988). In reviewing this determination, reviewing courts are bound by the any evidence rule. United States Fidelity &c. Co. v. Reynolds, 146 Ga. App. 615 (2) (247 SE2d 199) (1978). “[A] ‘new accident’ may result either from a gradual worsening of a pre-existing injury due to aggravation by work duties or from the occurrence of a specific job-related incident. . . . [Cit.]” Paideia School v. Geiger, 192 Ga. App. 723 (2) (386 SE2d 381) (1989). See Central State Hosp. v. James, 147 Ga. App. 308 (a) (248 SE2d 678) (1978). Reviewing the chronology of the case, the medical testimony and the claimant’s own description of her disability, there is evidence to support the ALJ’s conclusion that the intervening CPR incident was a new accident which obligated the carrier at that time, Aetna.

Judgment affirmed.

Banke, P, J., and Birdsong, J., concur.

On Motion for Rehearing.

In the motion for rehearing, appellants raise an equal protection argument for the first time. Since this argument was not raised previously in their enumeration of errors, we do not have jurisdiction to consider it on rehearing. Sanders v. Hughes, 183 Ga. App. 601 (4) (359 SE2d 396) (1987).

Motion for rehearing denied.

Byars & Wilder, W. Alexander Byars, Kissiah & Associates, Michael F. Antonowich, for appellees.


text:
    A90A0582.
    A90A0583.
    KELLY ENERGY SYSTEMS, INC. v. BOARD OF COMMISSIONERS OF CLARKE COUNTY. BOARD OF COMMISSIONERS OF CLARKE COUNTY v. LOEB.
    (396 SE2d 498)
   Cooper, Judge.

In April 1986, King Roofing Company (“King”) entered; into a contract with the Clarke County Board of Commissioners to replace the roof on the Clarke County Correctional Institution. It is undisputed that Clarke County did not require King to post a payment bond as required by OCGA § 13-10-1 (b) (2) for all public works contracts. Appellant, Kelly Energy Systems, supplied the roofing materials to King for a price in excess of $16,000. King began work on the project and in July 1986, when the roof was only 20 percent complete, King received a partial payment from Clarke County, representing 40 percent of the contract price. Although the terms of its agreement with Kelly were net 30 days, King did not make any payments to Kelly; however, in a letter dated November 11, 1986, and received by Kelly on November 17, 1986, King apologized for the delay in payment, explained that the business was having cash flow problems, promised to pay their account and requested that Kelly continue to be patient. King continued to work on the roof until approximately February 25, 1987, at which time it abandoned the job and filed a petition in bankruptcy shortly thereafter. Kelly first learned that King was no longer working on the roof when it received notice of King’s bankruptcy on March 9, 1987. At the request of the county, Kelly found another contractor to complete the roof and over the next several months made several inspections of the roof. In February 1988, Kelly made a written demand on the county for payment due by King for materials. When the county refused to pay, Kelly sued the county, asserting liability pursuant to OCGA § 36-82-102, which provides that the governing body for which the work is done shall be liable to all materialmen for any loss resulting from the failure to require a payment bond. On motion of the county, King was added as a party-plaintiff.

The trial court granted partial summary judgment to Kelly finding that Clarke County had a duty to require King to procure a payment bond which was not procured and that Kelly had a right to sue Clarke County for materials furnished to King because of the county’s failure to require the payment bond. However, the trial court found that questions of fact existed as to the amount of Kelly’s loss and whether or not Kelly complied with the ante litem notice requirements of OCGA § 36-11-1. The case proceeded to trial, during which the trial court directed a verdict in favor of the county on the ground that Kelly had not given notice to the county within 12 months after the claim accrued pursuant to OCGA § 36-11-1. A jury verdict was returned in favor of King in the amount of $7,302.53. In Case No. A90A0582 Kelly appeals the grant of directed verdict to Clarke County and in Case No. A90A0583, Clarke County appeals the trial court’s grant of King’s motion in limine excluding evidence of a payment made by the county to King.

1. In directing a verdict in favor of Clarke County, the trial court ruled that Kelly’s claim against the county accrued on November 17, 1986, the day Kelly received notification about King’s cash flow problems. Kelly argues that its receipt of the letter did not put it in an adversarial relationship with the county and did not put Kelly on notice that it should look to the county for payment. In Standard Oil Co. of N.J. v. Jasper County, 53 Ga. App. 804 (1) (187 SE 307) (1936), a materialman sold gasoline to a construction company to be used in the construction of a highway for the county. The construction company did not procure a payment bond, became insolvent and ceased working on the project before it was completed. The material-man filed a suit against the county more than 12 months after the contractor became insolvent. This court, noting that Decatur County v. Southern Clay Mfg. Co., 34 Ga. App. 305 (129 SE 290) (1925) held that a materialman could bring suit against the county before the completion of the work, if the contractor was then insolvent, held that the materialman’s claim against the county was barred because it was not filed within 12 months of the insolvency of the contractor, i.e., the accrual of the claim. Thus, while Decatur County, a case which did not involve the ante litem notice limitations, expanded the time within which a materialman could sue the county, Standard Oil contracted the time within which suit could be brought. The trial court reasoned, based on Forest Managers v. Wilkes County, 152 Ga. App. 639 (263 SE2d 478) (1979), where we noted that insolvency is defined generally as the inability of a corporation to pay its debts as they become due in the usual course of business, that King was insolvent on November 17, 1986. See also OCGA § 14-2-1201 (a) (1). We disagree and reverse. As of November 17, 1986, it was apparent only that King was having, cash flow problems and was unable to pay its account with Kelly on a timely basis. There was no indication about the state of King’s accounts with other creditors. The trial transcript reflects that at the time the November 1986 letter was written, King was not contemplating bankruptcy and had every intention of paying its debts. Furthermore, for three months after the letter was written, King continued to work on the roof even though the county had only paid it forty percent of the contract price. There is also evidence that if the county had paid King pursuant to the contract, King would have paid its materialmen, including Kelly. Inasmuch as there was some evidence that King was not insolvent on November 17, 1986, we reverse the trial court’s grant of a directed verdict in favor of Clarke County.

2. Appellant’s argument that it was not required to comply with the mandate of OCGA § 36-11-1 because its claim is derived from OCGA 36-82-102 is without merit. See Standard Oil Co. v. Jasper County, supra.

3. In Case No. A90A0583, Clarke County contends that the trial court erred in granting King’s motion in limine to excludé evidence of a check in the amount of $5,193.49, which the county contends was the second payment it made to King. Clarke County admitted in response to request for admissions that only one payment was made to King in the amount of $19,008.53. During opening statements, Clarke County’s attorney mentioned a second payment made to King in the amount of $5,193.49. King made a motion in limine to exclude any evidence related to an alleged second payment because of the county’s earlier admission that only one payment was made, and the county’s attorney then made a motion to withdraw the admission, arguing that the merits of the case would be subserved by allowing the county to introduce the evidence and that King would not be prejudiced by the admission of the evidence. The trial court, after hearing evidence, found that there was a genuine dispute as to whether the check was ever received by King; that the county admitted in response to King’s request for admissions that the only payment to King was in the amount of $19,008.53; and that the county’s failure to bring the check to the attention of either the court or King prior to trial would manifestly prejudice appellee’s case. It is within the trial judge’s discretion to not allow admissions to be withdrawn after the statutory time for answering has passed, “ ‘ “and his decision will not be interfered with unless it clearly appears that this discretion has been abused.” ’ ” Battle v. Strother, 171 Ga. App. 418 (3) (319 SE2d 887) (1984). Furthermore, “ [admissibility of evidence rests in’the-trial court’s sound discretion.” [Cit.] Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573 (2) (377 SE2d 15) (1988). We find no abuse of discretion in the trial court’s denial of the motion to withdraw the admission or the exclusion of the evidence.

Judgment reversed in Case No. A90A0582. Judgment affirmed in Case No. A90A0583.

Banke, P. J., and Birdsong, J., concur.

Decided June 27, 1990

Rehearing denied July 25, 1990 — Cert, applied for.

Cook, Noell, Tolley & Aldridge, Ernest V. Harris, for Kelly.

Nicholson & McArthur, John Jay McArthur, for Board.

Gershon, Olim, Katz & Loeb, William R. Lester, for Loeb.


text:
    A90A0666.
    COLLIER v. POWELL.
    (396 SE2d 264)
   Cooper, Judge.

Appellant appeals the trial court’s denial of his motion for summary judgment and grant of summary judgment to appellee. He also contends the trial court failed to consider an affidavit attached to his motion and his response to appellee’s cross-motion for summary judgment.

The record reveals that appellee, an insurance adjuster, requested that appellant come to his office so that appellant’s damaged car could be appraised and photographed. Appellee’s office was located in a corporate office complex, and it appears appellant was given no specific parking instructions. After appellee had taken statements from appellant and a companion, the three proceeded to the parking lot to view the car and discovered the car was missing. An affidavit of an employee of the building management company indicated that another tenant in the complex complained that appellant’s car was improperly parked. When he arrived, he observed that appellant’s car was parked parallel to the curb in an area for perpendicular parking and was blocking several properly parked cars. He stated that he and several others attempted to locate the car’s owner for thirty to forty-five minutes before contacting the wrecker service. Appellant alleged in his complaint that appellee tricked him into driving his car to appellee’s office so that the building manager could have the car towed.

1. “ ‘In order “(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]” ’ ” Baughcum v. Cecil Key Paving, 190 Ga. App. 21 (1) (378 SE2d 151) (1989). Affidavits submitted by appellee demonstrate that he had no knowledge of the towing and that the decision to tow was made by the building management company. “ ‘The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]’ ” Baughcum, supra. The affidavit provided by appellant’s companion stated only that appellant’s car was not blocking any other cars in the parking lot. Appellant presented no evidence to support his allegations concerning the appellee’s role in having his car towed. Therefore, the court did not err in denying appellant’s motion for summary judgment and granting appellee summary judgment. Balke v. Red Roof College Park Co., 190 Ga. App. 779 (2) (380 SE2d 61) (1989).

Decided July 2, 1990

Rehearing denied July 25, 1990.

Jerry Larry Collier, pro se.

McClain & Merritt, William S. Sutton, for appellee.

2. The order entered by the trial court states that the court reviewed “the motions, affidavits, pleadings, and other matter on file” in its consideration of the motions for summary judgment, hence, appellant’s contention in this regard is without merit.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Sognier, Judge. McMurray, Presiding Judge, Beasley, Judge,

text:
    A90A0706.
    HALL v. THE STATE.
    (396 SE2d 271)
   Sognier, Judge.

Claude R. Hall was convicted of child molestation, and he appeals.

The evidence adduced at trial established that the victim, S. F., who was five years old at the time of the alleged abuse and six years old at trial, was visiting the home of her aunt, Sharon Thomas. Present in the house were her aunt, grandmother, great uncle, and appellant, a family friend. The testimony was in conflict as to the presence that day of the victim’s uncle, Willie Thomas, and another relative. After the trial court ruled that S. F. was competent to testify, she testified that when she was in the kitchen, appellant came into the room and hurt her by touching her between her legs inside her underpants. Testimony revealed that the victim said nothing about this incident until five days later, when her foster mother, Gladys Joyner, was bathing her. At that time, S. F. told Joyner that she was sore and that appellant had “put his finger in her.” Joyner notified Polly Perry, a social worker at the Macon County DFCS, who testified that she interviewed S. F. at school and, when S. F. confirmed the allegation, immediately made appointments for the victim with Dr. Michael McDonald, a pediatrician, and Dr. Randy Ryals, a clinical psychologist.

McDonald testified that he examined S. F. the afternoon he was contacted by Perry, and found evidence of both an old trauma to the hymenal ring and a fresh abrasion on the labia minora which was not more than two weeks old and was consistent with finger manipulation.

Ryals testified that he had seen S. F. several times, that she was of low average intelligence, that she was depressed and hostile toward adults, and that her behavior was consistent with the pattern of behavior known as child sexual abuse accommodation syndrome, which he described and explained.

Appellant testified in his own behalf and denied that he was ever alone with S. F. or touched or molested her. S. F.’s aunt and grandmother testified that on the day in question, during his visit to the Thomas home appellant never left the living room. They also testified that S. F. had a habit of making up stories or telling lies.

1. Although the evidence was in conflict and depends largely on the credibility of the six-year-old victim, the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict. Harris v. State, 188 Ga. App. 795 (374 SE2d 565) (1988). We find that the evidence presented was sufficient to authorize the jury to find appellant guilty of child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Harris, supra.

2. The State and appellant both moved the court in limine to exclude certain evidence. The State sought to prevent appellant from introducing evidence of a prior unrelated sexual molestation of S. F. by an adult family member and the report of another “touching” incident involving S. F. and a neighbor child. Appellant sought to prohibit the State from introducing evidence of the child sexual abuse accommodation syndrome. The trial court granted the State’s motion but denied that of appellant. As a result of those rulings, expert evidence was introduced detailing the components of the child sexual abuse accommodation syndrome, and other State witnesses described behavior they observed in S. F., including withdrawal, bedwetting, nightmares, and hostility to adults, which are consistent with the syndrome. No evidence was introduced regarding the prior molestations. Appellant enumerates as error both the grant of the State’s motion in limine and the denial of his own, and because we find these enumerations to be interrelated, we address them together.

In its order denying appellant’s motion for a new trial, the trial court found that it had erred by denying appellant’s motion in limine as to evidence of the child sexual abuse accommodation syndrome, but that its error was harmless in light of the testimony at trial. We disagree, and find that the trial court’s original denial of appellant’s motion was correct. In Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), expert testimony regarding the “lineaments of the child [sexual] abuse [accommodation] syndrome, as well as testimony that this child exhibited several symptoms that are consistent with the syndrome,” id. at 853 (6), was held to be admissible, because “[l]aymen would not understand this syndrome without expert testimony.” Id. at 852 (2). We see no distinction between the facts in the case sub judice and those in Allison which would necessitate the exclusion of evidence regarding the syndrome. Accordingly, we find that the trial court did not err by denying appellant’s motion in limine.

As to the State’s motion, this court has held that evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex. See Woods v. State, 187 Ga. App. 105 (1) (369 SE2d 353) (1988). In the case sub judice, however, appellant did not seek to introduce the evidence of prior molestations for either of those purposes, but rather to establish other possible causes for the behavioral symptoms exhibited by the child, which were described as typical of child sexual abuse accommodation syndrome, and to explain the medical testimony regarding her injuries. “ ‘The fact that evidence may be inadmissible for one purpose does not warrant its exclusion when it is relevant and admissible for another purpose.’ ” Pugh v. State, 191 Ga. App. 394, 396 (382 SE2d 143) (1989). We find the evidence in question here was admissible for the purpose intended by appellant, and its exclusion was error. Testimony regarding the syndrome and all the child’s symptoms and injuries having been properly admitted, the evidence regarding other possible causes of her behavior and injuries was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by appellant. Moreover, a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility,, as the credibility of a young child’s report of an improper touching must necessarily be greater if the child has had no occasion to learn about such behavior from prior incidents.

In light of the major conflicts in the testimony, and the fact that the evidence supporting the jury’s conviction of appellant was not overwhelming, but was largely dependent on the testimony of the victim (and that of others as to what she told them), the exclusion of this evidence was not harmless, as we cannot say that it is “ ‘highly probable that the error did not contribute to the judgment.’ ” John son v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Accordingly, appellant must be afforded a new trial.

3. We address appellant’s remaining enumerations for guidance upon retrial. We find no merit in appellant’s contention that evidence regarding the child sexual abuse accommodation syndrome may be used by the State only in rebuttal, after a defendant has placed his character in issue. Evidence regarding this syndrome differs from that of “battering parent syndrome,” referred to in Sanders v. State, 251 Ga. 70, 73-77 (3) (303 SE2d 13) (1983), because the evidence regarding child sexual abuse accommodation syndrome admitted here addresses the behavior of the victim rather than the accused. Consequently, such evidence does not place the character of the defendant in issue, and thus its admission is not limited to rebuttal of character evidence, previously introduced by the defendant. Compare Sanders, supra at 76 (“battering parent syndrome” held to place accused’s character in issue); Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981) (evidence of “battered wife syndrome” héld to place defendant’s character in issue). Accordingly, the trial court did not err by permitting the State to introduce evidence regarding the syndrome during its case in chief. See Keri v. State, 179 Ga. App. 664, 665 (1) (347 SE2d 236) (1986).

4. OCGA § 24-3-16 provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Appellant contends that although S. F. was available to testify, she did not meet the competency requirements of OCGA § 24-9-5, and therefore’ there existed insufficient “indicia of reliability” to permit others to testify as to her statements to them.

We note initially that appellant has not enumerated as error the trial court’s ruling that S. F. was a competent witness, and accordingly he may not expand this enumeration to cover that point. See generally Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989). Although consideration of this point therefore would normally be precluded, we address appellant’s argument because the issue may recur at trial.

The transcript shows that upon examination by the trial court, S. F. could not define exactly what truth or a lie was, but testified she knew it was bad to tell a lie, that if she told a lie she would go to jail, and that she was going to tell the truth about what really happened. The trial court found her a competent witness pursuant to OCGA § •24-9-5. We do not find that ruling an abuse of its discretion in doing so, and find that her own competency as a witness combined with the circumstances under which she made her statements to others provide sufficient indicia of reliability to permit their admission into evidence pursuant to OCGA § 24-3-16.

5. We find no support in the record for appellant’s contention that the State impermissibly placed his character in issue when the prosecutor asked defense witness Johnny Bateman whether appellant ever visited the Thomas home when Mr. Thomas was not at home.

6. We cannot agree with appellant’s contention that the trial court erred by allowing the State to impeach two defense witnesses by introducing into evidence certified copies of their felony convictions for possession of marijuana. Appellant maintains admission of this evidence was error because the offenses for which they were convicted bear no relationship to the issue of truth. In Georgia, a witness may be impeached by proof that he or she has been convicted of a crime of moral turpitude, see Beach v. State, 138 Ga. 265 (1) (75 SE 139) (1912), and “any crime designated as a felony and punishable by imprisonment [constitutes] a crime involving moral turpitude within the meaning of the law.” Lewis v. State, 243 Ga. 443, 445 (254 SE2d 830) (1979).

7. Contrary to appellant’s contention, there was evidence before the jury supporting the prosecutor’s remarks in closing argument that the victim was told by her aunt and grandmother not to report the alleged molestation. Although in their testimony the victim and her relatives denied this, Perry testified without objection from appellant that S. F. told her that her grandmother and aunt had cautioned her not to disclose the alleged molestation to others or she would not be allowed to visit with them. Perry’s testimony regarding the victim’s prior inconsistent statement to her had probative value under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Accordingly, since there was evidence from which the prosecutor could conclude that the remarks had been made by the victim’s relatives, we find no error in the trial court’s failure to rebuke the prosecutor or instruct the jury to disregard these remarks. See generally Clark v. State, 146 Ga. App. 697 (3) (247 SE2d 221) (1978).

8. While the record does not indicate the prosecutor compared appellant to certain notorious criminals, as he contends, the transcript does show that the names of well known criminals were mentioned by the prosecutor in her closing argument to illustrate by example her point that looks may be deceptive, and one may not judge the guilt or innocence of one accused of serious crime by his outward physical appearance. Although it may be better practice to omit such references, our courts have found no error in similar illustrations. See, e.g., Martin v. State, 223 Ga. 649, 650-651 (2) (157 SE2d 458) (1967); Jordan v. State, 172 Ga. App. 496, 497-498 (2) (323 SE2d 657) (1984).

9. We find no merit in appellant’s contention that the trial court failed to give a complete charge on the impeachment of witnesses. The jury was charged at length on the credibility of witnesses and was instructed that it was solely within their province to determine which witnesses to believe or not believe, and which testimony to credit. They were also instructed fully on the impeachment of witnesses by proof of conviction of a crime of moral turpitude, and both charges were sufficiently clear to be understood by jurors of ordinary capacity. See generally Feblez v. State, 181 Ga. App. 567, 568-569 (2) (353 SE2d 64) (1987).

Judgment reversed and case remanded.

Car ley, C. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

I must respectfully dissent from the holding of the majority that there must be a retrial of the case sub judice.

In his second enumeration of error, appellant contends the trial court “erred in granting the State’s Motion in Limine preventing the Appellant from eliciting testimony from Polly Perry [Social Service Specialist One with the Macon County Family & Children’s Services] concerning a neighbor’s child sexually molesting S. F. [the victim], from eliciting testimony from Randy Ryals [Director of Counseling Associates, an affiliate of the Bradley Center, a private psychiatric hospital] about the effect of prior sexual molestation of S. F., in regards to the Child Abuse Accommodation Syndrome and eliciting testimony from Dr. McDonald [an osteopath in private practice] as to the effects of the prior sexual molestation of S. F. in regards to his medical findings, Child Abuse Accommodation Syndrome, and inconsistent statements made by S. F. to him and the failure of the Trial Court to grant a new trial on these grounds.”

In its reversal of the trial court, the majority reasons that “appellant did not seek to introduce the evidence of prior molestations for either of those purposes [victim’s reputation for nonchastity or her preoccupation with sex], but rather to establish other possible causes for the behavioral symptoms exhibited by the child, which were described as typical of child sexual abuse accommodation syndrome, and to explain the medical testimony regarding her injuries. . . . [T]he evidence regarding other possible causes of her behavior and injuries was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by appellant. Moreover, a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility, as the credibility of a five-year-old child’s report of an improper touching must necessarily be greater if the child has had no occasion to learn about such behavior from prior incidents.”

In Decker v. State, 139 Ga. App. 707 (2), 708 (229 SE2d 520) (1976), (a child molestation case), this Court held that “[i]nquiry into the prosecutrix’ past sexual experiences are irrelevant to whether or not she was molested by this defendant.”

In my view, the majority, by its holding, will permit the introduction of evidence of the victim’s prior molestation by an indirect method, when this same evidence is prohibited from introduction by a direct method.

I would affirm the trial court.

I am authorized to state that Presiding Judge Deen joins in this dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because in this case, while the evidence may have been marginally relevant, its absence could not have made a difference.

The earlier molestation by an adult had occurred about two years previously. The doctor who physically examined the victim testified that a child age 3-V2 (the age of the child at the time of the earlier adult molestation) would not have a vivid memory of abuse. While it could have exacerbated or contributed to some of the syndrome manifestations such as withdrawal, bedwetting, nightmares, and hostility to adults, defendant elicited from the examining expert that knowledge of the earlier incident would not have changed his medical testimony. He had testified that the child had a large fresh abrasion brought on by trauma occurring within the past week and was still red, sore-looking, very tender to the touch, and in the process of healing. He also testified that the abrasion was consistent with finger manipulation or fondling of the genitalia area, and that disruption of the hymen ring was old and not consistent with the incident for which defendant was on trial. Evidence of the earlier incident, to which a family member pled guilty, could not have affected the evidence of recent trauma.

As to the “touching” incident by a neighbor’s child five or six months previously, it is even more remote from the purpose for which defendant sought admission. Defendant’s profferred evidence was the testimony of the social services worker who conducted an interview of the child about 5 months before the incident on trial. The child said that one of the girls next door rubbed between, her legs when they were playing. She indicated no fear of this girl and it appeared to the worker that the children had been “playing doctors.”

I am authorized to state that Presiding Judge Deen joins in this dissent.

Decided July 3, 1990

Rehearing denied July 25, 1990 — Cert, applied for.

Chew & Lamberth, Walter S. Chew, Jr., for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.


author: Beasley, Judge. Pope, Judge,

text:
    A90A0592.
    STANCIL v. THE STATE.
    (396 SE2d 299)
   Beasley, Judge.

Defendant appeals his convictions for two counts of aggravated sodomy, OCGA § 16-6-2 (a), and two counts of child molestation, OCGA § 16-6-4 (a), for acts involving his daughters, aged 7 and 9.

1. Defendant first contends it was error for the court to refuse to allow the introduction into evidence of the entire statement he gave to the police. In portions deemed relevant by the court and introduced by the State, defendant related that the children, who lived with him at the time, would yank his towel off after he showered and that he awoke numerous times to find them in bed with him, attempting to caress his penis.

Defendant sought to introduce portions containing statements made to him by the children implicating his ex-wife’s boyfriend as a molester of the children.

When the court ruled that these portions were not relevant, defendant objected on the basis of OCGA § 24-3-38, that if the State introduced portions, “we’re entitled to have the whole statement heard before the jury. ...”

Absent a showing of relevance, evidence of a child's past sexual history, including acts committed by persons other than accused, is inadmissible. Chastain v. State, 180 Ga. App. 312 (2) (349 SE2d 6) (1986), aff’d 257 Ga. 54, 55 (354 SE2d 421) (1987). Compare Hall v. State, 196 Ga. App. 523 (_SE2d_) (1990). This is true whether the evidence is contained in defendant’s admission or otherwise. In this instance it had the added disability of being based on hearsay.

2. Defendant also raises the general grounds. The evidence is sufficient beyond a reasonable doubt to enable a rational trier of fact to convict defendant on each count. Chastain, supra; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I concur in the majority opinion but I write to distinguish Hall v. State, 196 Ga. App. 523 (— SE2d_) (1990) from the present case. In Hall, this court held that the defendant was entitled to introduce evidence of prior molestations of the child, not to show the victim’s reputation for nonchastity or her preoccupation with sex, but rather to show other possible causes of behavior by the victim that was ascribed to the “child sexual abuse accommodation syndrome.” In the present case, the hearsay sought to be admitted was not proffered for the limited purpose allowed by Hall. The hearsay evidence at issue clearly falls within the general rule set out by the majority that evidence of a child’s past sexual history, including acts committed by people other than the accused, is irrelevant and inadmissible. Invoking OCGA § 24-3-38 does not avail defendant, because only the remaining parts of an admission or conversation used by the State that are relevant are admissible. Brown v. State, 119 Ga. 572 (5) (46 SE 833) (1904).

Decided July 12, 1990.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0863.
    PYE v. THE STATE.
    (396 SE2d 250)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery in connection with his admitted theft of money from a convenience store. The two store employees who had been on duty when the robbery occurred positively identified the appellant as the perpetrator, testifying that he had held a pistol on them while taking the money from atop a desk where one of them had been counting it. The appellant’s sister was also indicted for armed robbery in connection with the incident but testified against the appellant at trial in return for being allowed to plead guilty to the lesser offense of robbery by intimidation. Testifying on his own behalf, the appellant acknowledged that he had walked into the store and “grabbed the money” but denied that he had been armed with a pistol or any other type of weapon. Held:

1. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find the appellant guilty of armed robbery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 13, 1990

Rehearing denied July 25, 1990.

Arleen E. Gardenhire, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

2. The appellant contends that the trial court erred in refusing to charge the jury on robbery by force and robbery by intimidation as lesser included offenses. See OCGA § 16-8-40 (a) (1) & (2). However, we agree with the trial court that there was no basis for a charge on these lesser offenses because all of the evidence tending to show that the appellant had used force or intimidation also showed that he had used an offensive weapon. See Echols v. State, 172 Ga. App. 431, 432 (1) (323 SE2d 289) (1984). Although the appellant’s testimony, if believed, might have warranted a charge on robbery by sudden snatching, see generally OCGA § 16-8-40 (a) (3); Byrd v. State, 171 Ga. App. 344 (1) (319 SE2d 460) (1984), he did not request such a charge and does not contend on appeal that such a charge should have been given.

3. The appellant testified during the trial that he had gone into the store and taken the money because his sister had taunted him by telling him he would be a coward if he did not. On the basis of that testimony, he requested and received a jury charge on the affirmative defense of coercion. See generally OCGA § 16-3-26. He complains on appeal, as he did in the trial court, that in giving this requested instruction the court improperly instructed the jury that he had “admitted the armed robbery” and was seeking “to excuse it” on the basis of coercion.

While the appellant’s testimony obviously did not entitle him to a charge on coercion, we must agree that the language in question misstated the evidence in a manner which was potentially prejudicial to him. The appellant consistently maintained during the trial that he was not armed during the robbery, and this was in fact his only legitimate “defense” to the charge for which he was being tried. Under the circumstances, we are constrained to hold that the court committed reversible error in charging the jury that he had “admitted the armed robbery.”

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A1254.
    CLEMOW v. THE STATE.
    (396 SE2d 302)
   Deen, Presiding Judge.

Guillermo Clemow appeals from the trial court’s denial of his motion to suppress.

On May 13, 1989, State Trooper Ralston pulled over a car driven by appellant because the car was weaving. Clemow’s wife and small child were passengers in the car. Trooper Ralston asked appellant several questions regarding his travel and ownership of the car. Appellant, a naturalized citizen from Colombia, apparently had some difficulty speaking English, but was able to answer Trooper Ralston’s questions. After Trooper Ralston issued a warning ticket to appellant, he mentioned the problems with drug trafficking and asked for appellant’s permission to search the vehicle. Appellant orally gave Ralston permission to search. Trooper Ralston then handed appellant the Spanish version of a written consent to search form. Both appellant and his wife apparently read the form, and then conversed in Spanish before appellant signed the form.

Trooper Ralston searched the vehicle and noticed some loose upholstery covering the right rear quarter panel. He searched the panel and found what turned out to be approximately 5 kilograms of cocaine. Appellant and his wife were then arrested.

Appellant contends that the trial court erred by not granting his motion to suppress because the appellant did not knowingly consent to the search of his car, and alternatively even if the consent was valid, the search exceeded the scope of the appellant’s consent.

1. The State has the burden of proving the validity of a consensual search and must show the consent is given “voluntarily.” Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983). This is a factual determination to be made by the trial court based on the “totality of all the circumstances.” Schneckloth, supra at 227; Williams, supra at 792.

The trial court was presented with ample evidence to make its determination. The trial judge not only heard testimony of Trooper Ralston, but he also viewed a videotape of the incident taken from a camera in the trooper’s car. Additionally, the court went to some length with an expert translator/interpreter to inquire about the language and meaning of the consent form. Unless clearly erroneous, this court must accept the trial court’s rulings on disputed facts and credibility at a suppression hearing. Williams, supra at 792. Accordingly, the trial court’s determination of the voluntary consent issue is supported by the evidence, and we must affirm.

2. Appellant argues that the trial court erred by denying his motion to suppress because the trooper’s search into the inner side panel was outside the scope of consent. Appellant contends that the consent form is ambiguous and that he was only consenting to a “brief look” inside the car. The argument is completely without merit.

Decided July 13, 1990

Rehearing denied July 25, 1990.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Paul F. Carden, Assistant District Attorney, for appellee.

The consent form authorized the officer to conduct a complete and entire search of the vehicle and its contents. The appellant voluntarily consented to a complete search. He cannot claim that Trooper Ralston exceeded the scope merely because the officer asked appellant if he could search his car “real quick” before he asked appellant to sign the consent form. United States v. Suarez, 694 FSupp. 926 (S.D. Ga. 1988).

Judgment affirmed.

Pope and Beasley, JJ., concur.