text:
    74670.
    THE STATE v. DOYAL.
    (361 SE2d 17)
   Carley, Judge.

Appellee was arrested for the offenses of driving under the influence of alcohol and improper lane change. A “Uniform Traffic Citation, Summons, Accusation/Warning” was issued for each offense. See OCGA § 40-13-1. However, here as in Evans v. State, 168 Ga. App. 716 (310 SE2d 3) (1983), “ft]he arresting officer apparently neglected to sign, under oath and before an authorized magistrate, the ‘arresting officer’s certification’ on the citations attesting that he reasonably believed [appellee] committed the offenses.” Also as in Evans, supra, the prosecuting attorney subsequently filed formal accusations unsupported by affidavits, charging appellee with the two traffic offenses. Appellee moved to dismiss those accusations. Unlike Evans, supra, the trial court granted appellee’s motion to dismiss the accusations and the State appeals from that order.

Prior to enactment of existing OCGA § 17-7-71 (a), all accusations charging the commission of a misdemeanor were required to be supported by an affidavit. See Bickley v. State, 243 Ga. 488 (255 SE2d 31) (1979). OCGA § 17-7-71 (a) is now controlling and that statute provides: “In all misdemeanor cases in superior, state, or county courts, the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.” Accordingly, in view of the fact that appellee had previously been arrested for the two misdemeanor traffic offenses charged in the formal accusations that were subsequently filed by the prosecuting attorney, the absence of supporting affidavits for those formal accusations is not a ground upon which their dismissal could be predicated. See Evans v. State, supra.

Appellee urges, however, that the accusations which form the basis of his prosecution are not the formal accusations that were subsequently filed by the prosecuting attorney but the two “Uniform Traffic Citations, Summons, Accusation/Warning” forms which were initially issued by the arresting officer. According to appellee, it is only those original forms which can serve as the basis for his prosecution and the prosecuting attorney has no authority to file subsequent accusations which charge the same two traffic offenses. It is true that the uniform citation form can be used as an accusation and that a prosecution premised thereupon “shall proceed . . . without the necessity of filing an indictment or other accusation. ...” (Emphasis supplied.) OCGA § 40-13-3. In such a prosecution, the form must comply with all requirements applicable to a formal accusation, including satisfaction of any applicable affidavit requirement established by OCGA § 17-7-71 (a). However, it is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued and that the prosecuting attorney has no authority to file a subsequent formal accusation. “[T]he [S]tate is not prohibited from issuing a subsequent accusation. . . .” Cargile v. State, 244 Ga. 871, 874 (2) (262 SE2d 87) (1979).

Thus, assuming that the uniform traffic citation forms which were issued to appellee could not serve as valid accusations under OCGA § 17-7-71 (a) for lack of the arresting officer’s affidavit, it is clear that they do serve as evidence that appellee had been arrested previous to the filing of the formal accusations by the prosecuting attorney. Appellee “having been duly arrested for the offense[s], the [formal] accusation [s] without affidavit[s] [were] proper. [Appellee] in effect is contending that the oath on the ticket[s] is an affidavit required to support an accusation. Although this argument might have merit if the offense [s] [were being] prosecuted on the ticket [s] alone under OCGA § 40-13-3 . . . , the prosecution by formal accusation[s] following arrest pursuant to OCGA § 17-7-71 . . . was a correct procedure.” Evans v. State, supra at 717. The trial court erred in failing to follow the controlling authority of Evans v. State, supra, and the grant of appellee’s motion to dismiss the accusations is reversed.

Decided September 9, 1987.

James L. Webb, Solicitor, Richard Edwards, Assistant Solicitor, for appellant.

Robert A. Harris, for appellee.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    74699.
    GRAVES v. JONES.
    (361 SE2d 19)
   Carley, Judge.

Appellant-plaintiff filed a complaint, alleging that various acts and omissions of appellee-defendant attorney constituted legal malpractice. Appellee answered, denying the material allegations of appellant’s complaint. Appellee subsequently moved for summary judgment, supporting his motion with his own affidavit. In his affidavit, appellee asserted that, at all times during his representation of appellant, he had “exercised the degree of skill, prudence, and diligence as lawyers of ordinary skill and capacity possess and exercise in the State of Georgia and was not negligent in any particular regard in said representation.”

In opposition to appellee’s motion, appellant filed both his own affidavit and the affidavit of an attorney. In the latter affidavit, the affiant recited his qualifications as an expert and, having further established the parameters of acceptable professional conduct as to one of the numerous instances alleged to constitute legal malpractice in appellant’s complaint, concluded that, as to that single instance, appellee had “failed to exercise the degree of skill, prudence and diligence of lawyers of ordinary skill in the State of Georgia generally.” Compare Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757) (1985).

On this evidence, the trial court granted summary judgment in favor of appellee as to each allegation of legal malpractice except that single instance which had been addressed in the affidavit of appellant’s expert. Accordingly, the trial court further ordered that any recovery by appellant would be limited to such damages as had been proximately caused by the single instance of alleged legal malpractice still at issue. Appellant appeals from the trial court’s grant of partial summary judgment in favor of appellee.

1. “[Ejxcept in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]” Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107) (1978). See also Rose v. Rollins, 167 Ga. App. 469, 471 (2) (306 SE2d 724) (1983). None of the instances of alleged legal malpractice attributed to appellee in appellant’s complaint falls within the “clear and palpable” exception. Therefore, it would be incumbent upon appellant to produce expert testimony as to those allegations at a trial on the merits, and a recovery based upon appellant’s own non-expert testimony would not be authorized.

Appellee, as the movant for summary judgment, had the burden of proving that no genuine issue as to his alleged legal malpractice remained for trial. Since appellant had alleged no instances of “clear and palpable” legal malpractice, appellee met that burden by submitting his own affidavit. “In support of his motion for summary judgment, appellee filed his own affidavit to the effect that his representation of appellant complied with applicable standards of professional competence. Such an affidavit by a defendant in a legal malpractice action, if not contradicted by expert testimony, will authorize summary judgment for the defendant attorney.” Thomas v. Carlisle, 179 Ga. App. 315, 316 (3) (346 SE2d 79) (1986). See also Parker v. Knight, 245 Ga. 782 (3) (267 SE2d 222) (1980); Mims v. Wardlaw, 176 Ga. App. 891 (3) (338 SE2d 866) (1985). Contrary to appellant’s assertions, appellee’s affidavit was not “conclusory.” It established that, in appellee’s expert opinion, his legal representation of appellant had been in compliance with and did not deviate from the parameters of acceptable professional conduct.

Since appellee met his evidentiary burden as the movant, the burden shifted to appellant to show that a genuine issue of material fact as to appellee’s legal malpractice remained for trial. That burden could not be met by appellant’s submission of his own affidavit. “[I]n those cases where the plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant. [Cits.]” Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978). See also Patterson v. Lanham, 182 Ga. App. 343 (3), (355 SE2d 738) (1987). “ ‘Succinctly stated, it may be said that in a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner. This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the grant of summary judgment in favor of the attorney is proper. Should this presumption be rebutted by expert legal testimony there is presented for the jury a question of fact.’ ” Johnson v. Butcher, 165 Ga. App. 469, 470 (301 SE2d 665) (1983).

Decided September 9, 1987.

Arnold B. Graves, pro se.

In opposition to the expert legal testimony offered by appellee, appellant only produced expert legal testimony which addressed a single instance of appellee’s alleged legal malpractice and which opined that, with regard to that single instance, appellant had deviated from the specified parameters of acceptable professional conduct. Therefore, it is only as to that single instance that appellant met his burden of producing rebuttal evidence showing the existence of an issue for jury resolution and it is only as to that single instance that appellee was not entitled to the grant of summary judgment in his favor. The trial court correctly granted partial summary judgment in appellee’s favor as to all instances of his alleged legal malpractice save that addressed in the affidavit of appellant’s expert.

It necessarily follows that the trial court did not err in limiting any possible recovery by appellant to those damages proximately caused by the single instance of appellee’s alleged legal malpractice remaining in the case. In a legal malpractice action “the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. [Cits.]” Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985). Since all but one instance of appellee’s professional conduct had been eliminated as legal malpractice, it was only as to that instance that it remained possible for appellant to prove at trial the existence of all three of the required elements.

2. Remaining enumerations of error not otherwise addressed have been considered but are either moot by virtue of our holding in Division 1 of this opinion or have no merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Eileen M. Golden, for appellant.

Carr G. Dodson, Bradley J. Survant, for appellee.


author: Birdsong, Chief Judge.

text:
    74749.
    THOMAS v. THE STATE.
    (361 SE2d 21)
   Birdsong, Chief Judge.

George L. Thomas, appellant, was charged with the malice murder of Randy Pritchard, but was convicted of voluntary manslaughter. Thomas and his girl friend, Cathy Mays, went to the Green Front Cafe, in Griffin, Georgia, around midnight on April 2, 1984. They purchased sandwiches and walked outside to the front of the cafe, where a dice game was in progress. Pritchard was shooting dice and had lost around $25. Thomas said he had known Pritchard for some time and laughed at him. Pritchard and Thomas grabbed each other and got into a shoving match which was broken up by Thomas’ brother, Jerry. Thomas testified that Pritchard, who was larger than he, told Thomas he could beat him, and Thomas told Pritchard he could not. Pritchard said, “you wait until I get back” and left for approximately 15 minutes. Pritchard walked toward Thomas, and Thomas said he thought Pritchard had left to get a knife, and he “stepped back. . . . Then he walked up on me again. That’s when I hit him with a stick. . . .” Thomas struck Pritchard on the right side of his head with a one-by-four timber, approximately three feet in length. Pritchard’s skull was fractured and he died shortly thereafter. The jury returned a verdict of guilty of voluntary manslaughter, and Thomas brings this appeal. Held:

1. Appellant contends the trial court erred in failing to grant his motion for directed verdict of acquittal at the close of the State’s evidence, and again at the close of all the evidence. In the brief, counsel argues that the “uncontroverted and internally consistent statement and testimony of appellant simply failed to authorize a malice murder conviction, and therefore the motions for directed verdict of acquittal, should have been granted of the indicted offense, murder, and the defendant acquitted and discharged.”

Appellant misperceives the purpose of a motion for a directed verdict of acquittal. The statute states, inter alia: “Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense . . . the court may direct the verdict of acquittal to which the defendant is entitled. . . .” (Emphasis supplied.) OCGA § 17-9-1 (a). The directed verdict of acquittal demanded by appellant was to “the entire offense” of malice murder, and was inappropriate if the evidence would sustain conviction of any lesser included offense. See Summers v. State, 99 Ga. App. 183 (2) (108 SE2d 140). It is only when a verdict of acquittal as to all offenses is the only legal finding possible that a directed verdict of acquittal is applicable. Bell v. State, 15 Ga. App. 718 (2) (84 SE 150). Moreover, any issue of malice involves the intent of the perpetrator of a crime and intent is a question for the trier of fact. Sheffield v. State, 241 Ga. 245 (2) (244 SE2d 869). The trial court did not err in refusing to grant a directed verdict of acquittal of the malice murder offense.

2. Appellant claims the evidence is insufficient as a matter of law for a finding of guilty of voluntary manslaughter. Thomas claims to have acted reasonably and in self-defense. Voluntary manslaughter is defined as causing the death of another under circumstances which would otherwise be murder except that the perpetrator “acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . .” OCGA § 16-5-2 (a). A person is justified in using force against another to the extent he reasonably believes such force is necessary to defend himself. OCGA § 16-3-21 (a). However, “a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” Id.

The distinguishing characteristic between voluntary manslaughter and justifiable homicide is whether the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. Gregg v. State, 233 Ga. 117, 121 (210 SE2d 659). Circumstances which are sufficient to show voluntary manslaughter, as opposed to justifiable homicide, include a situation in which sudden passion, or fear, is aroused in the actor, without malice aforethought, and the actor willfully kills his attacker, when it was not necessary for him to do so in order to protect himself. Williams v. State, 232 Ga. 203, 204 (206 SE2d 37), overruled in part on other grounds, Jackson v. State, 239 Ga. 40 (235 SE2d 477). The fear engendered by danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. Syms v. State, 175 Ga. App. 179, 180 (332 SE2d 689). “While words and threats alone are generally not sufficient provocation, the issue of whether a reasonable person acts as the result of an irresistible passion may be raised by words which are connected to provocative conduct by the victim.” Washington v. State, 249 Ga. 728, 731 (292 SE2d 836). The evidence here showed a threat by the victim “to beat” the appellant, and together with the victim’s conduct to “wait until I get back” and then returning and advancing toward appellant, amounts to provocative conduct.

However, appellant provided the only eyewitness testimony of this incident. No weapon was found on the victim or in the vicinity, and appellant did not say that he saw a weapon, only that he believed the purpose of Pritchard’s departure was to obtain a weapon. A jury is not required to believe appellant’s self-defense testimony. Jenkins v. State, 241 Ga. 212 (244 SE2d 868); Daniels v. State, 172 Ga. App. 315 (1) (323 SE2d 229).

Decided September 9, 1987.

Christopher C. Edwards, Timothy C. Cramer, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

When the evidence is viewed in the light favorable to upholding the verdict, as an appellate court is required to do, we find the evidence sufficient to enable any rational trier of facts to find the existence of the offense of voluntary manslaughter, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    74865.
    JACKSON v. THE STATE.
    (360 SE2d 907)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. On appeal, he contends that the trial court violated his constitutional right to compulsory process for obtaining witnesses in his favor by refusing to issue a writ of habeas corpus ad testificandum to secure the presence at trial of a material witness who was being held in a county jail in a neighboring county.

The case was tried in Fulton County. The witness in question, who had evidently been arrested with the appellant, was in the Douglas County Jail at the time of trial awaiting a probation revocation proceeding. Immediately prior to trial, defense counsel informed the court that he had attempted without success to subpoena the witness at the address set forth in the police report and that he had only just determined that morning, from talking with relatives of the witness, that she was being held in the Douglas County Jail under a different name from that listed in the police report. Based on this showing, the trial court forthwith entered an order directing the Douglas County Sheriff to relinquish custody of the witness to the Fulton County Sheriff for the purpose of securing her presence in court to testify. That order was entered under the authority of OCGA § 24-10-61, which provides as follows: “Any judge of the superior court may issue his order to any officer having a lawfully imprisoned person in his custody, requiring the production of such person before his court for the purpose of giving evidence in any criminal cause pending therein, without any formal application or writ of habeas corpus for that purpose.”

The next morning, immediately before court reconvened following the overnight recess, the trial judge informed defense counsel that although the witness was incarcerated in the Douglas County Jail, she was being held there under federal custody, with the result that it would be necessary “to go through federal procedures to get the lady.” Later that day, immediately before court reconvened following the noon recess, defense counsel informed the judge that he had spoken with the U. S. Marshal’s Office and had learned that the witness’ presence could be secured through the court’s issuance of a writ of habeas corpus ad testificandum. See OCGA § 24-10-62. However, the trial judge declined to issue such an order, ruling defense counsel’s request therefor to be untimely. On that same basis, the court also denied a motion by the appellant for a continuance to enable the presence of the witness to be secured through such means. Held:

1. Under all of the facts and circumstances of this case, we find insufficient basis for a finding that defense counsel was dilatory or failed to exercise due diligence in seeking to employ the compulsory process of the court to secure the witness’ testimony. To begin with, we note that the appellant was himself in custody prior to trial, apparently due to indigency, and was accordingly unable to assist defense counsel in locating the witness. Secondly, since the witness was also in custody, the state must bear at least some indirect responsibility for the difficulties experienced by defense counsel in locating her. By this, we do not mean to imply that there was anything improper about the witness’ being in custody, nor that any law enforcement official consciously interfered with or hindered defense counsel’s search for the witness in any way whatsoever. However, it does strike this court that had it been the state which had desired to secure the witness’s presence, the task of determining which jail she was in and under what alias she was being held would not have posed as great a challenge. Finally, we observe that the trial court’s concern over the timeliness of defense counsel’s request for assistance in securing the presence of the witness did not manifest itself until after the trial had begun and after it had been determined that the original order issued by the court would not be adequate to secure the witness’s presence. Taking all of these factors into consideration, and weighing them against the apparent ease with which the witness’s presence could have been secured, we are persuaded that the refusal to issue the writ of habeas corpus ad testificandum constituted a denial of the appellant’s constitutional right to compulsory process for obtaining witnesses in his own behalf. Cf. Teat v. State, 181 Ga. App. 735, 736 (353 SE2d 535) (1987).

2. The state takes the position that the appellant’s request for a “continuance” to enable a writ of habeas corpus ad testificandum to be executed was deficient due to the appellant’s failure to state the facts expected to be proved by the absent witness, as required by OCGA § 17-8-25. We disagree. In Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981), we held that “there can constitutionally be no burden on the criminal defendant to prove what facts a witness will testify to so long as he shows the testimony is material.” That the witness at issue here was in a position to offer material testimony has never been questioned, it being clear that she was present with the appellant at the time the alleged offenses were committed. Moreover, in view of the fact that defense counsel had only just determined the witness’s whereabouts immediately prior to trial, he obviously could not have had an opportunity to interview her and thus could not, in the exercise of due diligence, have been in a position to state the specifics of her expected testimony. Under these circumstances, we hold that the showing of the witness’s materiality obviated the need for a statement of such specifics. Accord Wingfield v. State, supra.

Contrary to the state’s contention, this court’s decision in Tomlin v. State, 170 Ga. App. 123, 125 (5) (316 SE2d 570) (1984), does not require a contrary result, nor do we find it to be in conflict with our holding in Wingfield, supra. In Tomlin, the defendant failed to make several of the showings required by OCGA § 17-8-25; namely, that the witness resided within 100 miles of the place of trial, that his absence was not with the direct or indirect permission of the defendant, that his testimony was expected to be procured at the next term of court, and that the application for continuance was not made for purposes of delay. In the present case, all of those requirements were either fulfilled or were obviated by the fact that the appellant was not actually seeking a continuance of the trial to another term of court but was merely seeking a recess for a few hours to enable the witness to be brought into court from the Douglas County Jail.

3. We must agree with the state, however, that the court’s failure to utilize its compulsory process to secure the presence of the incarcerated witness was harmless with respect to the conviction of trafficking in cocaine, the appellant having readily admitted at trial that he was in knowing possession of the cocaine on which that conviction was based. However, since the appellant denied having been in possession of a firearm, reversal is required with respect to his conviction on that charge.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.

Decided September 9, 1987.

Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Paul L. Howard, Jr., Assistant District Attorneys, for appellee.


text:
    74875.
    DEPENDABLE EQUIPMENT & LEASING COMPANY v. NURSECARE OF ATLANTA, INC.
    (361 SE2d 23)
   Banke, Presiding Judge.

A representative of Nursecare of Atlanta, Inc., negotiated a lease agreement with a sales representative of Dependable Equipment Leasing Company pursuant to which Nursecare was to lease from Dependable certain air-conditioning and kitchen equipment. Nursecare informed Dependable at the onset of their discussions that its obligations under the lease would not be personally guaranteed by any individual representative of Nursecare.

As requested by Dependable, a credit application was completed by Nursecare’s representative; and, on June 11, 1985, a “non-cancellable lease agreement” was “accepted” in writing by Gerald Vestal, acting as a duly authorized representative of Dependable. Vestal’s signature of acceptance was the first to appear on the agreement. Later that day, the agreement was delivered to John Flaxington, who executed it in his capacity as assistant secretary of Nursecare.

On the following day, June 12, 1985, the executed agreement was reviewed by Patricia Vestal on behalf of Dependable. Ms. Vestal telephoned Nursecare’s attorney, who was also a corporate officer, to inquire if Flaxington had authority to execute documents for the corporation. During the course of this conversation, Ms. Vestal advised for the first time that Dependable would require the personal guarantee of one of Nursecare’s corporate officers on the agreement. Nursecare’s attorney responded by advising Ms. Vestal that Flaxington had been authorized by the board of directors of Nursecare to execute the agreement and by further advising her that it was Nursecare’s policy not to provide personal guarantees of corporate obligations. Nurse-care’s attorney did offer, however, to provide the personal financial statements both of the company’s president and of its parent company as evidence of Nursecare’s financial stability.

On June 13, 1985, Nursecare remitted to Dependable a security deposit of $4,401.96, as contemplated by the agreement. Nursecare’s credit application was subsequently approved; but, based on the company’s refusal to provide the personal guarantee of a corporate officer, Dependable invoked a forfeiture provision contained in the agreement, pursuant to which it both retained the security deposit and refused to deliver the equipment. Thereafter, Nursecare brought an action for breach of contract, seeking a refund of its security deposit, plus interest and attorney fees pursuant to OCGA § 13-6-11. The case proceeded to trial, and at the conclusion of the evidence the trial court granted Nursecare’s motion for directed verdict on the contract claim. The claim for attorney fees was then submitted to the jury, which returned a verdict in favor of Nursecare. Dependable appeals. Held-.

1. The trial court did not err in granting Nursecare’s motion for directed verdict. Dependable defended the claim on the theory that the lease agreement never became a binding contract because its obligations thereunder were contingent on Nursecare’s furnishing the personal endorsement of its president guaranteeing the company’s performance. The trial court, however, concluded that no such condition precedent was contained in the agreement. We agree with this conclusion. The unrebutted evidence demonstrated that Nursecare’s negotiator had expressly advised Dependable throughout their negotiations that no personal guarantee would be provided. Indeed, every witness on behalf of the defense testified that there were no discussions with Nursecare’s agent concerning this requirement until after the lease agreement had been fully executed by both parties. Moreover, we note that even if Dependable were correct in its contention that no binding contract ever came into existence, this would support rather than defeat Nursecare’s claim for the return of its security deposit.

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); [cits.]” Carver v. Jones, 166 Ga. App. 197, 199 (303 SE2d 529) (1983). Based on Dependable’s utter failure to establish any basis for its retention of the security deposit, the trial court was authorized to direct a verdict in favor of Nursecare.

2. Dependable further contends that the trial court erred in refusing to consider its theory of mutual departure from the terms of the contract. See OCGA § 13-4-4. Following the close of the evidence and the grant of Nursecare’s motion for directed verdict, Dependable orally moved the court for leave to amend its pleadings to assert this theory as a defense to Nursecare’s claim. The trial court denied the motion, citing the pre-trial order which had been entered in the case pursuant to Rule 7.2 of the Uniform Superior Court Rules and which specified that the pleadings would not be subject to amendment except by order of the court to prevent manifest injustice. In addition, however, the court considered and rejected Dependable’s argument that a new agreement was created when Nursecare’s attorney provided the personal financial data on the corporation’s president. As we concur in this assessment, we conclude that this enumeration of error establishes no ground for reversal.

Decided September 9, 1987.

Joseph H. Fowler, for appellant.

John M. Bruce, Robert J. Hippie, for appellee.

3. We similarly reject Dependable’s contention that it was entitled to a directed verdict with respect to Nursecare’s claim for attorney fees pursuant to OCGA § 13-6-11. While it is firmly established that the mere refusal to pay a debt will not authorize recovery of the expenses of litigation in an action ex contractu, such a recovery is authorized where, as in the present case, the evidence warrants a finding by the jury that no bona fide controversy exists and that the defendant has been stubbornly litigious and has caused the plaintiff unnecessary expense in defending the claim. See generally Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 524 (191 SE2d 317) (1972).

4. Nursecare has moved this court for the imposition of a penalty against Dependable pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. Upon examination of the record, we have concluded that there was no arguable merit to the appeal and that “appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal [was] ill-founded.” Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 118 (308 SE2d 221) (1983). Accordingly, Nursecare’s motion is hereby granted; and the trial court is hereby directed to enter judgment in favor of Nursecare for additional damages in the amount of 10 percent of the original judgment upon receipt of the remittitur from this court.

Judgment affirmed with damages.

Carley and Benham, JJ., concur.


text:
    74876.
    JACKSON v. THE STATE.
    (361 SE2d 26)
   Birdsong, Chief Judge.

Sandy Jackson was convicted of burglary and sentenced to twenty years with ten to serve. He brings this appeal enumerating five asserted trial errors. Held:

1. Four of the five errors deal with the sufficiency of the evidence. The only evidence connecting Jackson to the burglary involved a single thumb print appearing upon an envelope found at the scene of the burglary. The evidence that the thumb print was that of Jackson is not in dispute.

The State offered evidence that a young woman lived in the burgled apartment up until about two months before the burglary occurred. Instead of furnishing a change of address, the former tenant simply came by the apartment periodically and picked up her mail. About two weeks before the burglary, a letter from a local bank arrived at the apartment addressed to the former tenant. The apartment had a bank of mail boxes which could be opened from the front with a key but nothing could be placed in the individual boxes from the front unless the box was opened, i.e., there was no slot. The mailman placed mail in the individual boxes by opening a panel from the rear. The letter addressed to the former tenant had been removed from the mailbox by the present tenants about two weeks earlier and placed on a mantel in the apartment awaiting the pick up by the former tenant. On the morning of the day of the burglary, the letter remained in its original condition on the mantle, i.e., unopened. When the then-present tenants returned to the apartment, they observed the door kicked off its hinges, the apartment ransacked and some items of gold jewelry to be missing. The letter from the mantle had been torn open during the day of the burglary and was found lying on the floor. As indicated hereinabove, Jackson’s thumb print was found upon the torn envelope. It was shown that Jackson was unknown to the occupants of the apartment or to the bank which had mailed the letter and apparently he did not work for the postal service.

Appellant Jackson contends that this evidence was insufficient to establish that the fingerprint was placed upon the envelope at the scene and at the time of the burglary. He also contends the evidence does not establish that any break-in was with the intent to commit a felony or to steal valuable items. See Barnett v. State, 153 Ga. App. 430 (265 SE2d 348); Chester v. State, 144 Ga. App. 717 (242 SE2d 356). Jackson also argues it was error to deny his motion for a directed verdict of acquittal. All his enumerations are based upon the asserted lack of proof that the fingerprint was placed upon the envelope at the place and time of the burglary. While Jackson advances certain hypotheses in support of his contentions, none is anything more than mere speculation or the barest of possibilities. Clearly, the State is not required to consider and refute every illogical or ridiculous extreme to prove it was probable that the crime was not committed by one other than the accused. Zant v. Nelson, 250 Ga. 152 (296 SE2d 590). It is manifestly clear that there was no reasonable opportunity for Jackson to have handled the envelope except within the confines of the apartment at the time of the burglary. Under such circumstances, the law is well established that fingerprint evidence alone is sufficient to sustain a conviction for burglary. See Duncan v. Stynchcombe, 704 F2d 1213 (11th Cir. 1983); Glover v. State, 149 Ga. App. 369 (254 SE2d 492). Likewise viewing the evidence in the light most favorable to the prosecution, a rational trier of fact would be warranted in finding the essential elements of the crime beyond reasonable doubt, not only reason enough to sustain the conviction (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)) but also ample reason to deny a motion for directed verdict of acquittal. Wright v. State, 253 Ga. 1, 3 (316 SE2d 445). Lastly, being satisfied there was sufficient evidence to connect Jackson to the burglary, we are likewise satisfied that considering the forcible break-in, the theft of items of value and the general ransacked condition of the apartment, the evidence was compelling that entry into the apartment was with the intent to commit a theft. Parrish v. State, 141 Ga. App. 631 (234 SE2d 174).

Decided September 9, 1987.

Robert B. Royce, for appellant.

Spencer Lawton, Jr., District Attorney, D. Suzanne Phillips, As sistant District Attorney, for appellee.

2. In his fourth enumeration of error, Jackson contends the trial court in effect aided in the prosecution by instructing the State in the proper method to introduce certain incriminating evidence. In the first place, we observe the episode to which the complaint is directed occurred in the absence of the jury and during a general discussion with counsel as to the admissibility of the evidence following an objection thereto by the defense. It is the accepted law of this state that where comments to counsel during a legal argument are nothing more than the assignment of a reason for a ruling, such conversation does not amount to an expression of opinion nor comment upon evidence. Our examination of this colloquy shows no attempt to or effect of directing the prosecution in the presentation of its case. See Johnson v. State, 246 Ga. 126 (269 SE2d 18); Mathis v. State, 171 Ga. App. 620 (320 SE2d 861).

More importantly, throughout the entire colloquy, in which counsel for Jackson fully joined, no objection was made nor was a motion for mistrial made on the trial of the case to a comment of the trial court, the contention that such comment was improper may not be raised for the first time on appeal. Johnson v. Ervin, 236 Ga. 605 (225 SE2d 21); Pritchard v. State, 225 Ga. 690 (171 SE2d 130). There being no merit to any of the several enumerations of error, we find no reason for ordering a new trial.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    74969.
    SHEFFIELD v. THE STATE.
    (361 SE2d 28)
   Beasley, Judge.

From a jury conviction and sentence for driving under the influence of alcohol, OCGA § 40-6-391 (a) (2), defendant appeals with respect to matters of evidence. The first two enumerations complain of the admission of evidence that he refused the state-administered breath test. The third complains of the exclusion of evidence of the results of the administrative hearing. The fourth challenges the admission of evidence of defendant’s prior driving record.

1. Defendant moved in limine for the exclusion from trial of evidence that he refused to submit to a state-administered test for alcohol in his blood which is required by OCGA § 40-5-55. He reasoned that it was inadmissible because the hearing he requested pursuant to subdivision (d) of that code section ended in dismissal of the Department of Public Safety’s action to suspend his license for the alleged refusal. This dismissal, he contended, rendered any evidence of his refusal inadmissible because to admit it would deny due process and equal protection, would constitute double jeopardy, would constitute res judicata, and would preclude a fair and impartial trial, all as guaranteed by the United States and Georgia constitutions.

The court found that the Department’s action was dismissed because the arresting officer did not appear for the administrative hearing, concluded that this did not make evidence of refusal inadmissible, denied the motion in limine, and permitted the evidence of refusal at trial. On appeal, defendant concentrates on the argument that the dismissal constituted res judicata on the issue of refusal so the state could not go behind the dismissal and offer the evidence of refusal.

OCGA § 40-6-392 (c) provides that refusal to take the required test is admissible in any criminal trial. See also Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983). There was no determination at the administrative hearing that defendant did or did not refuse the test. The administrative sanction of license suspension was allayed for the reason that the officer who could testify about the matter was absent; this did not establish that defendant did not refuse the test. The dismissal was irrelevant to the question of refusal vel non and to the question of the admissibility of evidence of refusal. See in this connection Wyatt v. State, 179 Ga. App. 327 (1) (346 SE2d 387) (1986), where refusal was deemed admissible despite the fact that the administrative action for license suspension was aborted by the offleer’s absence from the hearing.

Moreover, “[t]he proceedings to suspend the appellant’s driving privileges in these cases are strictly civil or administrative in nature since no criminal consequences result from a finding adverse to the [licensee].” Cogdill v. Dept. of Public Safety, 135 Ga. App. 339, 340 (217 SE2d 502) (1975). Thus, their outcome does not control the admissibility in the criminal trial of evidence of refusal pursuant to OCGA § 40-6-392 (c).

Since defendant had not “prevailed” on the issue of refusal in the res judicata sense which he urges, the denial of the motion in limine and the admission of refusal evidence did not subject him to unconstitutional prejudice, double jeopardy, or unfairness at trial as he conclusorily argues.

2. On objection, the court refused to allow defendant to give evidence of the results of the administrative action. This was not error because the dismissal of the action on account of the officer’s absence was not probative of the issue of refusal or of the ultimate issue of intoxicated driving. Wyatt v. State, supra at 328.

3. Lastly, defendant claims a violation of OCGA § 24-9-20 (b) by the admission of his prior driving record because he did not first put his character in issue. However, there was no error. Defendant himself introduced the subject by implying in an unresponsive answer on direct examination that he had a clear record for 25 years, thus allowing cross-examination to impeach this statement, and then by partially reneging on the statement by volunteering unresponsively to a state’s question with some but not all of the truth.

Defendant was asked during direct examination whether he was unsafe on the road the night of his arrest. He responded: “No, sir, I been driving for 25 years and I ain’t had no wrecks or nothing and I hadn’t had no wreck or nothing that night. I don’t believe I was driving unsafely.” The state argued that it should be permitted to cross-examine on defendant’s driving record because defendant had given a false impression. The court ruled that it would permit such cross-examination.

In approaching the subject, the state asked defendant: “You testified earlier before you’ve been driving for 25 years and never had any wrecks or nothing?” Defendant responded: “I never had any wrecks. Now, the ‘or nothing,’ I been stopped a few times.” This admission, which conflicted with the earlier statement, prompted the state to challenge its meaning by asking about two prior DUI convictions and several speeding violations, which defendant admitted. A printout of defendant’s driving record was also then admitted.

By bringing the subject up himself, defendant gratuitously opened the door for exploration of his driving history, “and it is of no avail now to plead that he did not intend to open the door so wide.” Grant v. State, 178 Ga. App. 398, 399 (2) (343 SE2d 422) (1986). In addition, at least the first statement offered by defendant entitled the state to impeach it by evidence of his prior driving record. Porter v. State, 254 Ga. 388, 389 (2) (330 SE2d 94) (1985).

Decided September 9, 1987.

H. Burton Crews, Jr., for appellant.

John C. Carbo III, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.


text:
    75054.
    HAMILTON v. THE STATE.
    (361 SE2d 30)
   Beasley, Judge.

Hamilton appeals his conviction and sentence under OCGA § 16-8-2 for theft by taking from a jewelry store of a 1.53 carat solitaire diamond ring priced at $5,995. His sole enumeration of error is that he was deprived of his right of confrontation under the federal and state constitutions when the trial court restricted cross-examination of a state’s witness. He also cites OCGA § 24-9-64 in argument but does not enumerate as error that this statute was violated and thus we do not address it. Hurston v. Ga. Farm Bureau Mut. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886) (1978).

The witness testified on direct that the day after the disappearance of the ring from the jewelry store, Hamilton came to the witness’ service station and attempted to sell to him a diamond solitaire ring. It bore a jeweler’s price tag of six thousand dollars and a carat marking of either one point fifty-one or one point fifty-seven. Hamilton asked three thousand dollars for it. The witness knew Hamilton because at times he (the witness) had purchased gold chains from him. The witness declined to purchase the ring. That evening he read a newspaper article about the theft of a ring from the jewelry store. It described the ring as approximately the same size as the one Hamilton tried to sell him. The following morning the witness telephoned a police officer, with whom he had previously dealt when he (the witness) had been a licensed dealer in precious metals and stones, and related to the officer details of Hamilton’s visit.

Hamilton’s counsel cross-examined the witness about his time as a dealer in precious stones and metals. Counsel asked the witness if he brought a copy of his dealer’s license to court pursuant to subpoena. The witness responded that he did not and that he no longer had a copy of the license or any records of his days as a dealer because that time was more than three years in the past. He now operated a Gulf service station. Counsel further asked the witness if he knew that the law required him, as such a dealer in 1981, 1982, 1983, to have a license and to maintain permanent records of all transactions, giving the name, identity, and description of all purchased goods. The witness stated that be did not know how long he was required to keep the records but he knew at the time that he was required to keep them and at the time he had them.

Counsel then queried, “You know it’s a misdemeanor not to do that?” The witness asked, “Not to do what?” and counsel persisted, “Well, do you know that the Official Code of Georgia Annotated Section 44-33-7 says a person who violates any of the provisions of this code section is guilty of a misdemeanor?”

At this point, the state objected to the continual line of questioning as being totally irrelevant to the issue at hand. Defense counsel argued, in support of the right to cross-examine on the subject, that it was relevant to the credibility of the witness because the witness “testified previously that he was a licensed dealer in precious metals, and was served with a subpoena and required to bring those records that are required of him to maintain, under State law, . . .” The court sustained the state’s objection.

Appellant now argues that this witness was the most crucial to the state’s case because no other witness put him in possession of the stolen ring, so the witness’ credibility and motivation for testifying were of great relevancy. He might have impeached the witness, he claims, by showing inaccuracies in record keeping and intentional violations of the law.

Here, the defendant had already questioned the witness at some length about his record keeping and the witness freely responded that he no longer maintained any records. The current unavailability of the records rendered impossible the impeachment or discredit of the witness by a showing of alleged inaccuracies in the records. Thus further questioning along this line was not relevant. Nor were the questions regarding the misdemeanor status of failure to maintain records. That is because in the first place, the statutory provision for record keeping by dealers in precious metals or gems relied on by the defense was erroneously cited; OCGA §§ 43-37-3 (b) and 43-37-6 are the pertinent laws. Secondly, the law does not mandate that such records of purchase be kept indefinitely but only for two years. OCGA § 43-37-3 (b). If the defendant had been permitted to proceed with such line of cross-examination the jury would have been misled by the erroneous impression that the witness had violated the law by discontinuing to maintain records and thus had a self-serving motivation for his testimony. However, the failure to have the records over three years later and to bring them to court was not a violation of the law and so did not constitute impeaching evidence.

Decided September 9, 1987.

W. Benjamin Ballenger, for appellant.

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.

Under these circumstances we find no abridgement of a constitutional right by the trial court’s exercise of discretion in curtailing the cross-examination. Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982), applying federal constitutional law; Eades v. State, 232 Ga. 735, 737 (2) (208 SE2d 791) (1974). The questioning would not have served “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U. S. 308, 318 (94 SC 1105, 39 LE2d 347) (1974). See also Kentucky v. Stincer, 482 U. S._(107 SC_, 96 LE2d 631) (Case No. 86-572, June 19, 1987, slip opinion p. 5) for a discussion of the office of the right to cross-examination, and Delaware v. Van Arsdall, 475 U. S. _ (106 SC 1431, 89 LE2d 674) (1986), regarding the exposure by cross-examination of bias as a motivation for testifying.

Judgment affirmed.

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

       Appellant cites Ga. Const. 1983, Art. I, Sec. I, Par. XI, but apparently means Par. XIV.


author: Beasley, Judge. Sognier, Judge,

text:
    74357.
    NORTHWEST PREFERRED, LTD. et al. v. WILLIAMS.
    (360 SE2d 910)
   Beasley, Judge.

Irvie Williams sued Northwest Preferred, Ltd., BMS Enterprises, Inc., and Edwin Jackson, the president of both corporations, alleging he was entitled to a $15,000 commission for arranging financing for a project known as Lake Lanier Cottages.

Northwest encountered difficulty in obtaining financing for 55 cottages located at Lake Lanier because the property was leased from the Corps of Engineers rather than held in fee simple. Jackson therefore contacted Gordon Cahoon regarding this matter and Cahoon in turn sought the assistance of Williams with whom he frequently “cooped” ventures of this type. They agreed to work on this project and share “fifty fifty.” Williams contacted Andrew Mortgage Company, a broker and underwriter, who in the course of its business assessed and processed mortgage applications and either made the loan or obtained a suitable lender to fund the project. It agreed to provide financing and then arranged lending through Goldome Mortgage which forwarded a commitment letter for $2,912,000 dated February 28, 1983, to Andrews. This was accepted by Copeland, the president of Andrews. Goldome ultimately agreed to provide a total of $2,900,000 to Northwest via two commitment letters dated April 29, 1983.

Meanwhile, on March 16, Northwest executed an agreement with Williams and Cahoon which stated that they had earned a commission of $15,000 each for services in arranging the financing for the 55 cottages. The agreement further provided that, upon Northwest’s funding of any of the final 1.2 million dollars of the 2.9 million commitment, Williams and Cahoon would be immediately entitled to their commissions.

Although Jackson expressed satisfaction with their services, when Williams and Cahoon requested their commission, Jackson asked for additional time. The present lawsuit resulted from a complete failure to pay Williams’ commission.

1. Defendants contend that Williams did not earn a commission because the final terms of the commitment varied substantially from those which Williams obtained. Their view is that they received no benefit from his arrangement but had to negotiate a new agreement with Goldome by which the mortgage money was eventually obtained.

The commitment letter from Goldome to Andrews referencing Northwest contained virtually the same terms and conditions as the final two commitment letters of April 29. The only substantial difference is that the original commitment referred to the cottages as being held in fee simple. However, the jury was authorized to find that this was at worst a scrivener’s error since all the parties were aware that the status of the land being leased' was the problem in securing financing. The agreement of March 16 accurately reflected the fact that as of that time Williams had performed a valuable service in obtaining a lender for Northwest and the Lake Lanier project. The jury’s verdict was authorized by the evidence.

2. Defendant BMS and Jackson contend that because the agreement to pay a commission was by Northwest and they are separate legal entities they were entitled to directed verdicts in their favor.

The mortgage money was not actually utilized by Northwest but instead went to BMS, which was set up as the holding corporation for the sales of Lanier Island Cottages. The loan commitments provided that they could be assigned to an affiliate of Northwest, which BMS was. BMS’ prospectus states repeatedly that it is intended that BMS be the purchaser of the property (leasehold interest) and that Northwest, its “affiliate,” was to manage and operate rental of the cottages. The commitment was in fact used for BMS to purchase the property, and the loan was closed in the name of BMS. The two corporations were acting in concert to achieve the aims of the project. Because BMS received the benefits of the funding it must bear its share of the financial burdens under the theory of quantum meruit.

As to Jackson the evidence shows that he acted only in his capacity as president of the two corporations and did not hold himself out in an individual capacity.

In the recent case of Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661), this Court held: “The mere operation of corporate business does not render one personally liable for corporate acts. Trans-State v. Barber, 170 Ga. App. 372, 374 (317 SE2d 242). The corporate veil may be pierced where the parties themselves have disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. We have not been presented with nor found any evidence in this record to indicate that Merck, in addition to acting as the principal operating officer of the corporate bodies involved, also conducted his private and corporate business on an interchangeable or joint basis as if they were one.”

Here as in that case Jackson signed all the documents in his representative capacity. Williams did not deal with him as an individual and Jackson did not commingle his individual and corporate business or otherwise conduct his private business as opposed to his corporate transactions on an interchangeable or joint basis. It was therefore error to deny his motion for directed verdict.

3. The ruling on directed verdict renders moot any issue as to the trial court’s failure to properly differentiate between the parties defendant in the instructions to the jury.

4. The remaining enumeration of error regarding the jury charge is without merit.

Judgment affirmed in part and reversed in part.

McMurray, P. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur specially in Division 2 of this opinion. Quantum meruit involves an implied promise to pay the reasonable value of services rendered by one party when those services are accepted by a second party. OCGA § 9-2-7. There is no evidence in this case that Williams knew of the existence of BMS when he rendered his services on behalf of Northwest Preferred or that Williams knew of BMS’ connection with the benefits resulting from the performance of his services. Nor is there any evidence that the acceptance by BMS of the benefits of Williams’ services was intended to be or constituted in fact a ratification of Williams’ acts. The majority’s opinion seems to indicate that the mere receipt by BMS of the benefits of Williams’ services, without more, is sufficient to hold BMS liable for the reasonable value of those services. However, the courts of this State have recognized that “[w]here one without knowledge neither authorizes, consents to, nor ratifies another’s labor . . ., there is no duty imposed upon the one so benefited to make restitution. The reason is that in the absence of knowledge or authorization it would be unduly harsh to require the recipient’s return of the value of . . . services when the . . . services cannot themselves be returned. [Cits.]” Beavers v. Weatherly, 250 Ga. 546, 548 (299 SE2d 730) (1983).

Decided September 10, 1987.

Fred L. Cavalli, for appellants.

Ronald A. Lowry, for appellee.

I concur specially, however, because we are bound on appeal to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. American Game &c. Svc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717) (1986). Thus, I find that the evidence showing Jackson to be the executive officer in both Northwest Preferred ánd BMS sufficient to support the inference that Jackson’s knowledge regarding Northwest Preferred’s authorization of Williams’ services was acquired in connection with BMS’ business and therefore was imputable to BMS. See generally Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, 206 (150 SE2d 563) (1966); see also Archibald Hardware Co. v. Gifford, 44 Ga. App. 837, 838 (3) (163 SE 254) (1932). BMS was thereby rendered liable for the reasonable value of Williams’ services and, accordingly, the judgment on the jury verdict in regard to BMS must be affirmed.


author: Pope, Judge.

text:
    74437.
    LIGHTWERK STUDIOS, INC. et al. v. DOOR UNITS OF GEORGIA, INC.
    (361 SE2d 32)
   Pope, Judge.

Appellee brought this action against appellants seeking recovery of the principal amount due on account plus interest and attorney fees. Appellants answered, denying any indebtedness to appellee, and counterclaimed for damages for breach of contract and warranties. Appellee subsequently amended its complaint to add a prayer for damages for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). This appeal arises from the trial court’s order granting appellee’s motion for partial summary judgment as to the principal amount due on account ($1,344.67) plus interest ($322.72) and costs ($84.50). The trial court’s order also (1) granted appellee’s motion to strike appellants’ answer and counterclaim (apparently for failure to enter into discovery pursuant to OCGA § 9-11-37 (d)), (2) granted appellee’s motion for attorney fees ($750 payable directly to counsel for appellee) for appellants’ failure to enter into discovery (also pursuant to OCGA § 9-11-37 (d)), (3) granted appellee’s motion to compel discovery, (4) denied appellants’ motion to strike portions of appellee’s amended complaint, and (5) granted appellee’s motion for a protective order.

Appellee has moved to dismiss this appeal based upon appellants’ failure to make application for discretionary appeal, the judgment herein being less than $2,500. See OCGA § 5-6-35 (a) (6). Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is $2,500 or less, an application for discretionary appeal is required. Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 (344 SE2d 440) (1986). Accordingly, the entry of partial summary judgment in favor of appellee provides no basis for a direct appeal in this case.

Likewise, the dismissal of appellants’ counterclaim provides no basis for a direct appeal. The ruling is not on the merits and thus is not tantamount to the grant of summary judgment so as to be directly appealable. Denney v. Shield Ins. Co., 183 Ga. App. 280 (358 SE2d 628) (1987); see also Honester v. Tinsley, 183 Ga. App. 146 (1) (358 SE2d 295) (1987), holding that where the appellee has obtained a judgment of $2,500 or less but, in addition, has prevailed on the merits of a counterclaim filed by appellant, OCGA § 5-6-35 (a) (6) is inapplicable and appellant may appeal directly. Rather, the ruling dismissing the counterclaim in the case at bar is interlocutory (appellee’s abusive litigation claim remains pending) and is not reviewable on appeal absent an express determination and direction of finality pursuant to OCGA § 9-11-54 (b) or compliance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). Middleton v. State Farm Life Ins. Co., 143 Ga. App. 176 (237 SE2d 684) (1977); see, e.g., Whatley v. Blue Cross of Ga./Columbus, 165 Ga. App. 340 (301 SE2d 60) (1983); Lockman v. Catawba Ins. Co., 162 Ga. App. 244 (291 SE2d 99) (1982).

The remaining rulings in the trial court’s order clearly deal with discovery matters and, thus, are also interlocutory and provide no basis for a direct appeal. See, e.g., American Express Co. v. Yondorf, 169 Ga. App. 498 (313 SE2d 756) (1984); General Recording Corp. v. Chadwick, 136 Ga. App. 213 (220 SE2d 697) (1975); Wells v. Johnson, 118 Ga. App. 168 (162 SE2d 837) (1968). Cf. Seaboard C. L. R. v. Mobil Chem. Co., 172 Ga. App. 543 (1) (323 SE2d 849) (1984), holding that in the interest of judicial economy interlocutory rulings may be reviewed along with the grant of a motion for summary judgment.

It follows from the foregoing that the record provides no basis for a direct appeal in this case. Accordingly, appellee’s motion to dismiss is meritorious and we are compelled to grant it. Appellee’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied.

Decided September 10, 1987.

John L. Taylor, Jr., John L. Schaub, for appellants.

J. Guy Sharpe, Jr., for appellee.

Appeal dismissed.

Birdsong, C. J., and Deen, P. J., concur.


author: Sognier, Judge.

text:
    74472.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. MARASCO et al.
    (361 SE2d 34)
   Sognier, Judge.

James and Dorothy Marasco filed an action against C. W. Matthews Contracting Company, Inc. (Matthews) to recover damages for personal injury and loss of consortium. Matthews’ motion for summary judgment was denied and the trial court certified its ruling for immediate review. We granted Matthews’ interlocutory appeal.

The record reveals that James Marasco (hereinafter appellee) was driving his automobile northbound on 1-75. There were four northbound lanes, and appellee was traveling one lane over from the New Jersey median barrier. Appellee’s eye was injured when the side view mirror of his automobile struck a “FREE THE FREEWAY” sign erected by Matthews over the median barrier wall. It is uncontradicted that the sign did not protrude into the roadway, but that appellee was forced to drive off the roadway and onto the median shoulder of the highway to avoid collision with another vehicle, previously unseen by appellee, which suddenly encroached on the lane in which appellee was driving.

We agree with appellant that summary judgment should have been granted in its favor. Pretermitting the questions of whether the sign was negligently placed and whether placement of the sign was the proximate cause of appellee’s injuries, appellant neither designed nor determined the location for or the manner of placement of the sign but instead complied with explicit directions, specifications and orders of the Georgia Department of Transportation (DOT) with respect to erection of the sign alongside the roadway. Thus, no question of fact exists concerning this issue.

It is well established that “[i]n determining whether an indepen-' dent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, ... it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskilful or negligent execution of the work the contractor (and usually not the employer) is liable.” Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607) (1909). A contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor’s negligence or wilful tort. Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376 (157 SE2d 493) (1967); C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457, 458 (2) (249 SE2d 281) (1978). In the case sub judice, appellant’s affidavits submitted in support of its motion for summary judgment clearly establish non-negligent execution of DOT’s specifications and directives with regard to the construction and placement of the sign, and acceptance by DOT of appellant’s work. Nothing in the affidavits submitted by appellees in opposition to the motion for summary judgment rebuts this showing by appellant.

While the Georgia courts have recognized an exception to this rule where the work is inherently dangerous, we find no support in the record or in case law for a finding that the work here was inherently dangerous. Contrary to appellees’ argument, their expert’s testimony that in his opinion the sign should have been placed elsewhere is not an opinion that the placement was “inherently dangerous.” Shetter v. Davis Bros., 163 Ga. App. 230 (293 SE2d 397) (1982) and Johnson v. Fowler Elec. Co., 157 Ga. App. 319 (277 SE2d 312) (1981), relied on by appellees, are distinguishable. In Shetter, the contractor held itself out as an expert not only in the construction of swimming pools but also in their design, and we held that “fujnder those circumstances, we are not willing to hold that [the contractor] can, as a matter of law, escape liability when the evidence could authorize a conclusion that the design was defective and that [the contractor] should have known that the design would result in a pool dangerous to its users.” (Emphasis supplied). Id. at 231. In the case sub judice, there is no showing that appellant held itself out as an expert in the design or placement of freeway signs. In Johnson, supra, this court held only that “we find no reason to conclude that where it is proved that a defendant is negligent, he should be relieved of liability as a matter of law merely because the defective work was approved by someone else.” (Emphasis supplied.) Id. at 323-324. As there was no showing by appellees to rebut the affidavits proffered by appellant showing non-negligent performance on its part, no question of fact exists as to this issue.

Decided September 10, 1987.

William T. Gerard, for appellant.

David H. Bedingfield, Charles B. Zirkle, Jr., William A. Pannell, for appellees.

“ ‘We are mindful that it is only in clear cases that the court has authority to decide questions of negligence as a matter of law. It is generally a jury question. But where, in the evidence, there is no reasonable ground for two opinions it then becomes a matter of law and not a question of fact for the jury.’ [Cit.]” Anderson v. Dunwoody North &c. Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985). Even construing the evidence most favorably to appellees as the nonmoving party, see Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), the evidence shows that appellant executed DOT’s instructions in a non-negligent manner and is therefore entitled to summary judgment in its favor. See Belk-Hudson Co. v. Patterson, 178 Ga. App. 16, 17-18 (2) (342 SE2d 2) (1986).

As the judgment must be reversed, appellant’s remaining enumerations of error need not be addressed.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in judgment only.


author: Benham, Judge.

text:
    74511.
    PATTEN v. THE STATE.
    (361 SE2d 203)
   Benham, Judge.

Appellant was convicted of molesting his daughter, his stepdaughter, and one of their friends, all of whom were 12 or 13 years old at the time of trial.

1. In his first enumerated error, appellant questions the sufficiency of the evidence presented on the two counts charging him with molestation of the friend of his daughter and stepdaughter. The victim testified that appellant had placed his hand underneath her shirt and fondled her breasts on one occasion and, on an earlier occasion, had placed his hand in her pants. Each of the other victims testified that she had witnessed the two acts involving her friend. Appellant argues that there was no evidence the acts were done “with the intent to arouse or satisfy the sexual desires of either the child or [appellant].” OCGA § 16-6-4 (a). “We cannot divorce [appellant’s acts] from appellant’s overt wish to arouse or satisfy his sexual desires as evidenced by his actions with regard to the other two little girls.” Houck v. State, 173 Ga. App. 388 (1) (326 SE2d 567) (1985). See also Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986).

2. Appellant next claims error in the trial court’s denial of his motion for mistrial, made after three male jurors allegedly saw one of the young victims hug the State’s attorney and the prosecuting police detective in the hallway outside the courtroom.

The grant or denial of a motion for mistrial is solely within the discretion of the trial court, and this court will not disturb the ruling in the absence of a manifest abuse of that discretion. Weaver v. State, 178 Ga. App. 91 (2) (341 SE2d 921) (1986). Appellant maintains that the exhibition amounted to the expression of a personal opinion about the case by the assistant district attorney, which, appellant claims, is strictly prohibited by OCGA § 17-8-75. That statute imposes sanctions if “counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence. . . .” We do not read the statute as broadly as appellant. The statute prohibits statements of prejudicial matters not in evidence. Its usage has been confined to counsel’s oral statements in which prejudicial facts not in the record are introduced (Thompson v. State, 150 Ga. App. 567 (258 SE2d 180) (1979)); oral statements in which counsel expresses his belief as to a defendant’s guilt (Hoerner v. State, 246 Ga. 374 (4) (271 SE2d 458) (1980)), or a witness’ veracity (Shirley v. State, 245 Ga. 616 (1) (266 SE2d 218) (1980)); or oral questions posed by counsel that accomplish the same result as an oral statement. Castell v. State, 250 Ga. 776 (8) (301 SE2d 234) (1983). However, an act has fallen beyond the bounds of OCGA § 17-8-75. See Blue v. State, 170 Ga. App. 304 (2) (316 SE2d 862) (1984). OCGA § 17-8-75 is not the attorney equivalent of OCGA § 17-8-55, which prohibits judicial expression or intimation of an opinion as to matters proved or the guilt or innocence of the accused. We do not believe the trial court’s denial of appellant’s motion for mistrial amounted to an abuse of discretion.

3. Appellant contends that evidence of similar transactions between appellant and the victims should not have been admitted due to the State’s alleged failure to comply with Rule 31.3 of the Uniform Rules for the Superior Courts. As a prerequisite to the presentation of evidence of similar transactions, the prosecution must give to defense counsel written notice stating “the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced.” Rule 31.3 (B), 253 Ga. at 854. The notice given by the State contained the names of the two victims of the similar acts and the location as Bibb County. The previous transactions were described as acts of molestation including, but not limited to, certain specific acts. Conceding that it was unaware of the exact dates of the earlier acts, the State described the acts as “continuous acts of molestation” of one victim “from the time of her birth to the present” and of the other “from the time that she was six years old to the present.” One of the victims involved in the similar transactions testified the incidents had occurred since she was five or six years old and the other victim stated that incidents had occurred since she was six. While the dates given in the notice were not specific, “the prosecution did not have specific dates of similar transactions in its possession. In revealing to appellant the information which it had, the prosecution complied with Rule 31.3. [Cits.]” Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987).

Decided September 10, 1987.

Christina L. Hunt, for appellant.

Willis B. Sparks III, District Attorney, Robin B. Odom, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    74565.
    STOUT v. SIGNATE HOLDING, INC.
    (361 SE2d 36)
   Benham, Judge.

Appellee, Signate Holding, Inc., d/b/a Signate Printing (“Signate”), sued appellant in Fulton County on June 11, 1986, for an indebtedness. Appellant, a resident of California, was served under the long-arm statute (OCGA § 9-10-90 et seq.) on July 17, 1986. In response to the complaint, appellant filed a pro se motion to dismiss on August 26, 1986, challenging the court’s jurisdiction over his person. On September 22, 1986, Signate moved for entry of default judgment against appellant pursuant to OCGA § 9-11-55. Appellant paid the accrued costs on January 5, 1987, and the trial court granted Signate’s motion and denied appellant’s motion to dismiss on January 7, 1987. Appellant, through counsel, filed this appeal. We affirm.

1. In his first two enumerations of error, appellant asserts that the trial court should have treated his motion to dismiss as an answer and contends that he was entitled to have default opened as a matter of right, since his motion was filed within the 15-day period provided for in OCGA § 9-11-55 (a) and he paid the appropriate costs before the trial court granted Signate’s default judgment motion. We disagree. OCGA § 9-11-55 (a), on which appellant relies, states: “If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdiet and judgment by default, in open court or in chambers . . Even if we were to assume that appellant’s motion to dismiss constituted an answer, appellant’s payment of the costs to reopen more than four months after filing his motion to dismiss did not comply with the statutory requirement that costs be paid “within 15 days of the day of default.” Full payment of costs within the 15-day grace period being a condition precedent to opening a default, the filing of appellant’s answer alone would not open the default as a matter of right. Hazzard v. Phillips, 249 Ga. 24 (1) (287 SE2d 191) (1982). Appellant’s contention that costs need only be paid prior to the grant of a motion to open default applies to OCGA § 9-11-55 (b), under which the decision to open default is discretionary with the trial court. See Copeland v. Carter, 247 Ga. 542 (1) (277 SE2d 500) (1981).

Decided September 10, 1987.

W. Jeffrey Langley, Michael S. Huff, for appellant.

Richard C. Silver, for appellee.

2. In his third enumeration of error, appellant argues that the default should have been opened under OCGA § 9-11-55 (b), since he allegedly demonstrated excusable neglect, a proper case, and the timely payment of costs. For a trial court to exercise its discretion to grant the opening of default under OCGA § 9-11-55 (b), “there must be a motion, meritorious defense, a legal excuse for late filing, and payment of costs.” Gowdey v. Rem Assoc., 176 Ga. App. 83 (3) (335 SE2d 309) (1985). (Emphasis supplied.) We find nothing in the record that indicates appellant ever made a written or oral motion to open default. We cannot say that the trial court abused its discretion by failing to do something it was never asked to do.

3. Appellant’s last enumeration is that the trial court erred in denying his motion to dismiss. We find no error in the trial court’s action. As discussed in Division 1, appellant’s motion did not serve as a default-opening pleading. Furthermore, appellant’s motion was not a timely motion to dismiss since it was filed after the expiration of the 30-day period established by OCGA § 9-11-12 (b). By being in default, appellant waived his right to contest the trial court’s jurisdiction over his person. OCGA § 9-11-12.

Judgment affirmed.

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


text:
    74574.
    BRYANT v. FOOD GIANT, INC.
    (361 SE2d 38)
   Benham, Judge.

Appellant’s automobile collided with a truck owned by appellee Food Giant, Inc., and appellant sued the company for personal injuries she suffered as a result of the accident. A jury returned a verdict for Food Giant, Inc., and the trial court entered judgment accordingly. Appellant’s motion for new trial was denied and she appeals, raising two enumerations of error. We affirm.

1. Appellant asserts that the trial court erred in excluding from evidence portions of deposition testimony given by a therapist who had treated appellant after the accident. Appellant argues that since appellee made no objection to the testimony at the time the deposition was taken, it waived the right to object at trial. This argument has no merit, inasmuch as the record reflects that the parties agreed at the beginning of the deposition that all objections would be reserved until the time of trial except for objections to the form of the question and the responsiveness of the answer. Since appellee’s objection was on hearsay grounds, it was properly made for the first time at trial. Appellant’s contention that OCGA § 9-11-32 (d) (3) (B) required appellee to make its objection at the deposition or to waive it also fails under the parties’ agreement at the deposition to reserve such objections until trial. Rigby v. Powell, 236 Ga. 687 (1) (225 SE2d 48) (1976). Appellant also contends that the excluded testimony was admissible under OCGA § 24-3-4 as a statement made for medical diagnosis or treatment. However, she did not assert that ground for admissibility at trial when the trial court asked for her response to the hearsay objection, and so we will not consider it for the first time on appeal. Fred F. French Mgt. Co. v. Long, 169 Ga. App. 702 (2) (314 SE2d 666) (1984).

2. Appellant, relying on OCGA § 9-11-32 (a) (5), claims that the trial court erred in excluding from evidence portions of a doctor’s deposition testimony. OCGA § 9-11-32 (a) (5) states that “[i]f only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced. . . .” The excluded portion of the deposition referred to the fact that on appellant’s third visit to the physical therapist, six days after the accident, she complained of pain in her right jaw region. The trial court ruled that the testimony in question was not relevant. We agree with the ruling, since the line of questioning appellee was pursuing at the time appellant sought admission of the evidence only addressed appellant’s initial physical examinations, diagnoses, and complaints of pain, and not those made later. If appellant felt the evidence was crucial to her case, she could have availed herself of the right to introduce it at an appropriate time during the trial, as “any party may introduce any other parts” of a deposition once a part of that deposition is offered into evidence. OCGA § 9-11-32 (a) (5).

3. Appellee’s motion for imposition of a penalty for frivolous appeal is denied.

Decided September 10, 1987.

James R. Jester, for appellant.

Donald P. Edwards, for appellee.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in the judgment only.


text:
    74662.
    HAYS v. JENG et al.
    (360 SE2d 913)
   Sognier, Judge.

Sen Fwu Jeng and Mai Jeng, the natural parents of Ming Jeng, brought an action in the probate court of Fulton County to terminate S. Carlton Hays’ guardianship over their child. By consent of the parties, judgment was waived and the matter was appealed to the superior court where it was consolidated with the petition by Hays and his wife, Bonnie Hays, seeking the termination of the Jengs’ parental rights in the child and the adoption of Ming. The trial court, sitting without a jury, concluded that the guardianship was temporary in nature and ordered the child returned to its natural parents, dismissing the petitions to terminate parental rights and to adopt. Carlton Hays appeals.

The record reveals that Sen Fwu Jeng and the Hayses had a close personal relationship: Sen Fwu served as the Hayses’ cook, gardener and house cleaner prior to his marriage to Mai, and Carlton Hays handled all of Sen Fwu’s business affairs. (Sen Fwu, a native of China, can neither read nor write English.) Carlton also assisted Sen Fwu in obtaining financing for a restaurant in which the Jengs, along with various relatives, worked 18-20 hours a day. Ming, the first child of the Jengs’ marriage, was born at a time when the Jengs’ restaurant was undergoing severe financial difficulties. After initially keeping Ming in a small office converted into a nursery at the restaurant, the Jengs accepted Bonnie Hays’ offer to keep the child with her during the day. When the Jengs were transferred into an unheated apartment, the Hayses volunteered to keep Ming full time while the heating problem was being resolved, an offer the Jengs accepted. This coincided with an offer to the Jengs of temporary employment for six months in New Jersey which the Jengs, upon advice by Carlton, accepted. When Mai expressed concern about transporting Ming to New Jersey without having established housing there, the Hayses voluntarily agreed to continue to care for the child but insisted on securing guardianship papers. Carlton testified that he told the Jengs guardianship papers were necessary in case Ming became sick during their absence and emergency medical treatment was required; he did not tell the Jengs it was his intention to keep the child “forever.” Both the Jengs testified they signed the papers terminating their parental rights in Ming for guardianship purposes in the belief the arrangement was temporary and necessary to authorize the Hayses to act in case of a medical emergency.

The Jengs were in constant communication with the Hayses during their months in New Jersey. Mai Jeng returned to Atlanta after three months due to problems in the management of the Jengs’ restaurant and visited Ming regularly. Although she allegedly requested the child’s return, she did not press the matter when the Hayses refused because of her overwhelming work schedule. When Sen Fwu returned in September, Mai again requested Ming be returned. The Hayses then presented the Jengs with papers to allow them to adopt the child. The Jengs refused to sign. The Hayses thereupon agreed to return the child, but conditioned the return on Mai living with them, apart from her husband, for an unspecified period of time. Mai refused and after subsequent requests for the child were denied, the Jengs sought legal aid to recover their child.

Appellant contends the trial court’s order granting appellees’ petition to terminate his guardianship over Ming Jeng was not supported by the evidence. With both of Ming’s parents alive, it cannot be said that Ming has no guardian. See OCGA § 29-4-2 (a); Whitlock v. Barrett, 158 Ga. App. 100, 101 (279 SE2d 244) (1981). Thus, appellant’s claim to guardianship over Ming rests on his assertion that appellees either voluntarily relinquished their parental rights in Ming, OCGA § 19-7-1 (b) (1), or otherwise forfeited those rights. OCGA § 19-7-1 (b) (3) and (6). See generally Robison v. Robison, 29 Ga. App. 521 (2) (116 SE 19) (1923). This argument merges with appellant’s remaining enumerations in which appellant contends that the trial court’s dismissal of his petition to terminate appellees’ parental rights and to adopt Ming Jeng was not supported by the evidence or, inversely, that there was clear and convincing evidence to justify terminating appellees’ parental rights in the child and to authorize appellant to adopt Ming. We note that although appellant also argues that appellees’ parental rights in the child should be terminated because Ming would be better off financially and otherwise with appellant and his wife, this does not afford a basis for terminating appellees’ parental rights. See Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981).

Addressing appellant’s argument in regard to OCGA § 19-7-1 (b) (1), we affirm the trial court’s ruling that appellees did not voluntarily relinquish their parental rights in Ming. The evidence of appellees’ limited ability to read, write or speak English, appellees’ close personal relationship with appellant, and the relative position of the parties is sufficient to support the trial court’s finding that the document executed by appellees purporting to release permanently their parental rights in Ming did not constitute the type of voluntary contract required by OCGA § 19-7-1 to effect a relinquishment of parental rights. See Blackburn v. Blackburn, 168 Ga. App. 66, 70-71 (1) (308 SE2d 193) (1983); see also Bozeman v. Williams, 248 Ga. 606 (285 SE2d 9) (1981). Although the evidence did evince an intention by all parties to place the guardianship of Ming in appellant, we agree with the trial court that the guardianship at the time of its creation was intended to be, or was represented to be, temporary in nature. See OCGA § 29-4-4.1. We find no error in the trial court’s dissolution of that temporary guardianship. OCGA § 29-4-4.1 (c).

We do not agree with appellant that he has a claim to guardianship over Ming due to appellees’ alleged cruel treatment of Ming or that appellees’ parental rights should be terminated because of that alleged cruel treatment under OCGA § 19-7-1 (b) (6). Even assuming the evidence of cruel treatment by appellees of Ming was admissible, that evidence consisted of one unverified episode in the past insufficient to justify terminating appellees’ parental rights. See Shaddrix v. Womack, 231 Ga. 628, 632 (6) (203 SE2d 225) (1974). The Department of Family and Children Services submitted a report to the trial court after investigating appellees’ home environment and found it to be suitable for the proper care and maintenance of the minor child. There is evidence to support the trial court’s finding that the domestic conflict experienced between appellees stemmed from appellees’ anguish over appellant’s refusal to return Ming, coupled with the financial ties binding appellees to appellant. The record supports the trial court’s finding that this conflict has been resolved for some time and that appellees are suitable and proper parents able to provide a healthy home environment and able to provide for the support and maintenance of their child.

Nor do we agree with appellant that the trial court’s rulings were error in regard to appellees’ alleged abandonment of Ming or their failure to provide necessaries under OCGA § 19-7-1 (b) (3). We agree with the trial court that the evidence is insufficient to show “ ‘an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation . . . .’’’as required to find that appellees abandoned their child. Sims v. Sims, 171 Ga. App. 99, 100 (318 SE2d 805) (1984). As to appellees’ failure to provide necessaries for the child, the evidence reveals that appellees’ offers of assistance were refused; appellant never asked appellees for assistance; and appellant voluntarily provided the child with all the necessities of life. Appellees further testified that they furnished meals to appellant and various family members free of charge at appellees’ restaurant several times each week and catered many parties for appellant all without charge. This evidence was not sufficient to show a relinquishment of appellees’ parental rights. Gray v. Sweat, 125 Ga. App. 797 (1) (189 SE2d 87) (1972).

Decided September 10, 1987.

Louis Levenson, for appellant.

S. George Handelsman, for appellees.

Since the record does not contain the clear and convincing evidence alleged by appellant to justify terminating appellees’ parental rights in Ming but rather contains considerable evidence to support the trial court’s order, we thus affirm that order granting appellees’ petition to terminate appellant’s guardianship and denying appellant’s petition to terminate appellees’ parental rights or to adopt.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    74682.
    WAYNE v. THE STATE.
    (361 SE2d 39)
   Pope, Judge.

Defendant Wayne was convicted of rape, aggravated sodomy, burglary and terroristic threats. He admitted he and his companion broke into the victim’s home and both raped her but offered involuntary intoxication as a defense. He also defended the charges of sodomy and terroristic threats on the ground that only his companion sodomized the victim and threatened her with an imaginary gun.

1. Defendant, his companion and the victim lived in a trailer park. In the evening and early morning hours before the crime, defendant and his companion attended a party at the home of another resident of the trailer park where they both consumed alcohol and smoked marijuana. Both testified they believed either their beverages or the marijuana was spiked with an unknown substance since they experienced sensations and exhibited behavior unlike any other occasion on which they had consumed alcohol and marijuana. Therefore, the court properly charged the jury on the defense of involuntary intoxication. In regard to voluntary intoxication the court charged: “Our law provides that voluntary intoxication shall not be an excuse for any criminal act.” Defendant claims the trial court erred in failing to charge that even voluntary intoxication is a defense if it renders the accused incapable of forming the necessary intent to do the act charged.

Defendant’s testimony at trial that he did not know right from wrong at the time the crimes were committed conflicted with statements made to policy at the time he confessed. The issue created by this testimony is relevant only to the defense of involuntary intoxication, which the jury rejected. In the case of involuntary intoxication, the issue is whether alcohol or drugs impaired the actor’s moral judgment. However, in the case of voluntary intoxication, the issue is whether the actor was so intoxicated “as to render whatever acts he may have committed . . . ‘unintentional.’ ‘(I)f the intention to commit the act in controversy is present, intoxication is no excuse . . .’ Hardy v. State, 242 Ga. 702, 706 (251 SE2d 289) (1978). Thus unless the actor was so intoxicated as to be unable to know, understand and intend to do the act, it cannot be said that his act was not intentional.” Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 882 (285 SE2d 566) (1981). In this case, no evidence was presented from which the jury could find a lack of intent to commit the acts for which defendant was charged. In fact, defendant admitted he and his companion, as they left the party, discussed their desire to have sex with a woman and discussed the victim as a possible target for that desire. Defendant found an open window and removed the screen in order to enter the victim’s trailer. “[Defendant’s] mind was not impaired to the extent that he was incapable of forming the requisite intent.” Smith v. State, 181 Ga. App. 595, 597 (353 SE2d 35) (1987). The charge on voluntary intoxication was a correct statement of the law and was proper. See Gilreath v. State, 247 Ga. 814 (13) (279 SE2d 650) (1981); Faircloth v. State, 175 Ga. App. 130 (1) (332 SE2d 686) (1985); Hunter v. State, 166 Ga. App. 608 (3) (305 SE2d 124), rev’d on other grounds, 251 Ga. 615 (307 SE2d 910) (1983).

2. Defendant appeals from the convictions of aggravated sodomy and terroristic threats on the general grounds. “[A]ppellate courts consider only the sufficiency . . . not the weight of the evidence.” Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131) (1976). As described below, we find the evidence sufficient to support the convictions on these counts.

a. Defendant’s companion performed the act of sodomy upon the victim while defendant attempted to rape her. The two men discussed having sex with the victim before the burglary. Defendant removed the screen from the window and helped his companion enter the trailer. A person who intentionally aids or abets in the commission of a crime is a party to the crime. OCGA § 16-2-20.

b. We reject defendant’s argument that the threat to “blow your . . . brains out if you make a sound” was merely a conditional statement to preserve the status quo and not a terroristic threat as defined in OCGA § 16-11-37. See Boone v. State, 155 Ga. App. 937 (2) (274 SE2d 49) (1980). We also reject defendant’s argument that the evidence failed to prove the charge, contained in the indictment, that the perpetrators told the victim they had a gun. The evidence showed defendant’s companion intimidated the victim into submission by pretending to point a gun at her. Several times during the approximately three hours the perpetrators spent in the victim’s trailer they referred to the imaginary gun and pretended to lay it aside or swap it between them.

Decided September 10, 1987.

J. Lansing Kimmey III, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

3. After deliberation the jury asked to be recharged on conspiracy and parties to a crime. Although the recharge was lengthier than the original instructions on these two issues, we find no error in the court’s instructions to the jury.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.